Cornell University Library KF 5508.S67 V.2 Mines and mining; a commentary on the law 3 1924 019 969 603 Cornell University Library The original of this bool< is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31 92401 9969603 MINES AND MINING A COMMENTARY ON THE LAW OF MINES AND MINING RIGHTS BOTH COMMON LAW AND STATUTORY WITH APPENDICES CONTAINING THE FEDERAL STATUTE AND THE STATUTES OF THE WESTERN STATES AND TERRI TORIES RELATING TO MINING FOR PRECIOUS METALS ON THE PUBLIC DOMAIN FORMS FOR USE IN APPLICATION FOR PATENT AND ADVERSE SUITS BY B^C^ WILSON I. SNYDER Of the U-^^hBar In Two Volumes VOLUME n CHICAGO T. H. FLOOD AND COMPANY 1902 Copyright, 1902, BY WILSON 1. SNYDER. STATE JOURNAL PRINTING COMPANY, Printehs asd Stereotypkrs, madison, wis. TABLE OF CONTENTS. VOLUME IL PART XL OF SUB-SURFACE AND EXTRA-LATERAL RIGHTS {Continued). CHAPTER II. CLASSIFICATION OF APEX CASES, AND ILLUSTRATIONS OF THE RULE, WITH ALL ITS BEARINGS. Article A. The Perfect Location and its Cognate — When Side Lines Become End \ines. § 821. Preliminary — Classification the better plan. 822. Same subject- — Value of general principles as controlling. 823. Same — The perfect location. 834 Detailed classification of apex cases, division of the questions in- volved, and an illustration of the matter by drawings. 825. Of the perfect location. 826. The same principle involved, positions reversed, where side lines become end lines — The Flagstaff case. 827. Same subject — Side lines becoming end lines — Angle of cross- ing immaterial — The Amy case. 828. The effect of such a location as to extra-lateral rights — Pursuit of the vein on its dip beyond the located end line. iv table of contents. Article B. Veins Crossing Lines Not Parallel, and Herein of End-line and Side- line Veins, and of Group Claims. § 834. End and side line doctrine — Preliminary observations. 835. The decisions of the circuit courts on the question presented by a vein crossing a side line and an end line, and the equitable features presented. 836. Effect of location and discovery on the dip of the vein where apex crosses side line and end line. 837. End-line and side-line cases — The equitable reasons of the rule as originally considered in the Del Monte case. 838. The case of Fitzgerald v. Clark — Reason of the rule — A correct result by reasoning partially right and partially wrong. 839. Criticism of the Clark -Fitzgerald case. 840. Wyoming v. Champion — Ideal or imaginary location of veins along center of claim not conclusive — End line and side line — What a vein under the statute. 841. Further as to what is a vein — Flat or bedded veins. 843. The Wyoming-Champion case — Circumstances of the case com- pared with other cases by the court — True construction of the statute — Particular line or angle of crossing immaterial — Patents and rights under law of 1866 considered. 843. Walrath v. Champion — Law of 1866 — Relation of other veins in claim to located vein — Other veins crossing side line — End line for one, end line for all — One .set of end lines. 841 Comments and criticism of the Wyoming case — Classification the safer plan. 845. Further comments of the court which sustain us throughout in the position sought to be taken. 846. No force in suggestion to postpone marking. 847. New but progressive announcement of the law. 848. Further comments to matters in last section — Dangerouslv neai the old law. 849. Irregularly-shaped locations consolidated in one patent 850. Same question — The Carson City case. 851. Original location lines immaterial — Doctrine of Doe v. Sanger. 852. Claims patented separately and consolidated, grouped and oper- ated as one mine after patent. 853. The doctrine of this article summarized. Article C. Crossing Same Line Twice, or Crossing No Ldne. % 858. Preliminary — Growth of the thought denying extra-lateral rights. TABLE OF CONTENTS. V § 859. Apex crossing the same side line of the claim twice — The Ful- ton claim and the Drum Lummon compared. 860. Vein beginning and ending wholly within the claim — Crossing no line at all. Article D. When Extra-lateral Bights Abridged, Cut Off or Denied, § 865. When extra-lateral rights are abridged — Previous grant with impenetrable bounding plane. 866. Right to penetrate adjoining ground granted or withheld accord- ing to law. 867. Intersecting an older vein on the dip. 868. Lines so laid as to cut ofE prior vem at particular point of inter- section. 869. Effect of consolidation of a group — Estoppel — Segregation. 870. Other limitations and qualifications — Meeting of converging lines — Controlling importance of priority of location in the ordinary case — Merger of matters of discovery and location in patent. 871. Converging end lines. 872. When extra-lateral rights are wholly denied. 873. For discrepancy of definite wall or casing — The Leadville oases. 874. Extra-lateral rights denied for lack of inclination of dip and be- cause claim not laid upon the strike. CHAPTEE III. RIGHT TO VEINS, SPURS AND OFFSHOOTS OTHER THAN THE ONE LOCATED. Aetiole a. The Laws of 1866 and isn Compared — The Statutory Grant of 187S § 880. Preliminary — The law of 1866. 881. The law of 1873 changed this. 883. The relation of this section to section 3336. Article B. Surface Lines as Controlling Other Veins, and Rights Thereto Extra- laterally. § 885. Extra-lateral rights to spurs and offshoots 886. Judge Hawley's view. 887. An early and somewhat different view by Judge Thayer. 888. The cases harmonized — The true rule. 889. Relation to original date of location. vi table of contents. Aeticle C. Placing Lines Upon Patented Ground or Upon Ground Previously Claimed. § 895.-PrelimiDaiy — The position of the department on this question. 896. Rule inapplicable io locations made prior to May 10, 1872. 897. Correctness erf ieparfcment rules challenged and changed by the courts. 898. As to making locations rigidly — Discovery on claimed ground — Must be good when made — Lines differ from discovery. Article D. Cross-veins and Cross-courses Intersecting or Crossing on Dip or Strike and the Space of Intersection, § 905. Preliminary — Scope of inquiry. 906. The statutes revievred and considered. 907. Section 2336 enlarged upon — Means crossing on the dip. 908. Cross-veins and cross-courses — Definition — Surface protected. 909. Same subject — True rule in such case — Surface lines control — Lines controlling located vein control all others. 910. The space of intersection — The old Colorado rula 911. The doctrine overturned in later cases and the true rule laid down. 913. The true meaning — Actual intersection of veins — Ownership of ore. PART XII. OF THE QUALITY AND EXTENT OF DIFFERENT ESTATES IN MINES ACQUIRED BY PURCHASE AND BY OPERATION OF LAW. CHAPTER I. OF FEE SIMPLE ESTATES UNSEVERED — INCLUDING A RE- VIEW. § 930. Preliminary and review. 921. Of the nature, quality and extent of estate generally acquired by conveyance — Conveys minerals. 922. Same — Rule under English railway and other acts. 933. In the absence of severance, mines and minerals belong to the owner of the soil. 924. Of similar rights in England. TABLE OF CONTENTS. Vll § 925. Certain conveyances of minerals — Effect of as conditional grant. 936. Same — Meaning of " minerals " in deeds of conveyance. 937. Entire estate — Inplied exception. CHAPTEE II. OF DOWER INTERESTS IN MINES. § 931. Scope of treatment. 933. Dower in open mines in England. 933. The rule in this country — Endowable of all open mines. 934. Special cases when dower may be claimed, and special subjects wherein it may not be claimed. 935. When dower tenant impeachable for waste. CHAPTEE III. OF LIFE ESTATES IN MINES, AND THE RIGHTS AND DUTIES OF LIFE TENANTS. § 940. Preliminary — Scope of treatment. 941. Estates for life — Generally life tenant may not waste inherit- ance — Waste by trespasser. 942. The rule as to tenants in tail. 943. Waste of mines defined. 944. Same subject — As to open mines — Life tenant's rights — An- ticipation of estate in expectancy. 945. Same — As to unopened mines and strata. 946. Exceptions to the general rule — Permissive wasta 947. Burden of proving waste — Presumption. 948. No distinction in Scotland. 949. Permissive waste — Mining by tenant in tail in new mine. 950. May not destroy estate by permissive waste — When may open abandoned mine — Question of fact. 951. Petroleum — When considered mineral and when as income, and not of corpus. 953. Customs affecting rights of life tenants. CHAPTEE IV. OF SEVERANCE OF ESTATES, AND HOW ACCOMPLISHED. Akticle a. By Grant of Reservation, and Herein of Definition. ' § 957. Definition of severance. 958. Same — Further definitions — Severance by exception and reser- vation. 959. Nature and effect of reservations or exceptions in town-site and other patents as a severance, b Viii TABT.E OF CONTENTS. § 960. Of the crown as possessed at the common law. 961. Eeservations in deeds or patents generally, including United States patent. 963. Other reservations, amounting to severance, by the United States. 963. Other grants containing reservation. 964 What included in a reservation of mines and minerals. 965. Summary. Article B. Severance by Adverse User. § 970. Preliminary — Severance by adverse user — Custom. 971. Limitations — Must be open, notorious and adverse. 973. Further limitations — Adverse user must extend to mine as such — Right barred by contract. 973. Same — Evidence, question for jury — Custom — Acts of owner- ship. 974. Prescription — Custom. 975. Rights seldom acquired by prescription. 976. Limitation upon the custom in England. 977. No title by prescription in the United States. Article C. Void Reservations and Grants. % 981. Limitations in attempted grants — Void reservations and grants. 983. The rule in Texas and contrary doctrine. Article D. Trust Estate. g 986. Trust estates — When may be severed. 987. The reason of the rule by Bainbridge. 988. Same — Another reason stated. 989. Going concern — Mortgagor's knowledga 990. Mortgagor's rights. 991. Powers and duties of trustees — Must not waste — Special trustees. CHAPTEE V OF THE RIGHTS, DUTIES, BURDENS AND OBLIGATIONS INCI- DENT TO SEVERED ESTATES. Article A. General Principles. § 995. Of some of the consequences of severance — Resemblance to ser- vitudes. 996. Preliminary — Severance and its incidents. TABLE OF CONTENTS. IX § 997. Severance, how accomplished. 998. Same subject — Difference between the present rule and the common law — As many owners as there are strata. 999. Same subject — Invocation of the maxim that he who owns the soil owns upward to the skies. 1000. Some cases of severance at the early common law — Copyhold and customary lands. 1001. Severance by deed of enfranchisement. 1003. Question of the commoi:-law presumption — General doctrine of severance — No joinder by occupancy — No running of the statute of limitations. 1003. Same — Other decisions — All attributes of property — Title may be by adverse possession. 1004. The Earl of Cardigan case — Liberal construction of reserva- tion — Words of inheritance not necessary. 1005. Separate estates same as adjoining closes — Limitation upon incidental rights. 1006. An early English statute reserving minerals, and its construc- tion by the court of exchequer — Fossils included. 1007. Implied and incidental rights of severed estates as viewed by the cases in this country — The doctrine of Marvin v. Brews- ter Iron Company — A grant or reservation carries with it the means of enjoyment. 1008. Question for jury — Rights impliedly reserved. 1009. Particular easements — Right of way through the severed strata — Effect of severance upon superjacent and subjacent estates. 1010. Ownership of the empty space. 1011. Comments — A servient duty in each estate with reciprocal rights. 1013. Tunneling under ground of another — Pursuant to custom — Statute prohibiting, Article B. Surface Support. \ 1016. Rights and duties resulting from severance — General observa- tions. 1017. Definition. 1018. Of natural right — Recognized by statute. 1019. Right cannot be defeated by custom. 1030. Surface support in general. 1021. Same — The universal rule — Surface support in natural state. 1023. Same subject — Right held to be absolute. 1023. Support from adjacent and subjacent soil — A natural right. 1024. Right founded in natural justice. : TABLE OF CONTENTS. 1035. Does not depend upon negligence or unskilfulness. 1036. The English doctrine — Duty to self — But other's rights re- spected. 1037. Limitations on the foregoing — Permission to work in the usual and approved way. 1038. Eight is implied from circumstances. 1039. Ordinary and approved mining sometimes the test — Question of fact. .1 1030. Common-law right controlled by conveyance, but sometimes only limited — Surface defined. 1031. Other effects of covenants — Convenient vporking — Similar rights — Usual and incidental rights. 1033. Eight may be conveyed away. 1033. When agreement of parties controls and when compensation allowed. Article C. Subjacent and Adjacent Support — Customary and Natural Rights. 1040. Adjacent and subjacent support. 1041. In general no right to destroy the surface under any circum- stances. 1043. Controlled by the contract of severance, but affected by custom. 1043. Bad custom will not warrant injury. CHAPTER VI. OF WATEE EIGHTS AND DEAINAGE. 1050. Water common enemy — Drainage — Flooding. 1051. When not liable for flooding — Liable for direct acts — Not generally for omission, unless negligent. 1052. The servitude which the lower mine owes to the upper and to the surface — Pumping or turning water into mine. 1053. Limitations and exceptions — Liable for negligence. 1054. Eights and duties of the upper mine owner — So use your own as not to injure others. 1055. Upper miner must not interfere with barriers. 1056. Liable for negligence. 1057. An example of the rule by Mr. Bainbridge — Not liable in ab- sence of negligence. 1058. What seems to be the true rule deducible from the authorities- Highest proprietor must use reasonable diligence — Not liable for injury resulting from natural causes. 1059. Working to boundary — Extent of liability for. 1060. Not generally liable for natural flow. 1061. Extreme doctrine in England — Owner liable for all damages. 1063. Statutory barriers — Constitutionality upheld. TABLE OF CONTENTS. XI CHAPTEE YII. OF TAILINGS AND DEBRIS STATUTES, AND HEREIN OF DUMP AGE AND REFUSE MATTER, AND MISCELLANEOUS. Article -A. Tailings, Debris and Dumpage in General. § 1070. Review of easements and of additional servitudes — What by statute and what by contract. 1071. Public use — When a judicial question. 1073. Must exercise right if claimed — When will not be enjoined. 1073. No Inherent right of dumpage. 1074. Value of land immaterial. 1075. Substantial rights should not be wrongfully invaded. 1076. Tailings and debris statutes and the general debris question. 1077. Modification of the strict riparian doctrine. 1078. Act creating the California Debris Commission. 1079. The doctrine of this article restated. Article B. Severance, How Terminated. % 1085. How terminated — Merger. 1086. Same — Termination of the estate carved out. 1087. By abandonment. PART XIII. OF MISCELLANEOUS TITLES, CONVEYANCES AND CONTRACTS, AND HEREIN OF EX'ECUTORY CON- TRACTS. CHAPTEE L OF MINING DEEDS GENERALLY. Article A. Essentials, Including Execution and Description 1090. Purposes of this part — Scope of treatment. 1091. Mining deed generally — The common law — Severance — Ar- ticles of incorporation as deed. 1093. Mining deeds in a general sense — Distinction between opened and unopened mines abolished. Xll TABLE OF CONTENTS. § 1093. Distinction between mining and other deeds. 1094 General observations — Essentials of a valid conveyance. 1095. Some decisions as to sufBoiency of deeds. 1096. Conveyances to and by corporations — Deed to corporation not formed — Effect. 1097. As to description only — Some special circumstances. 1098. Corporation deed — Special case — A two-thirds majority held insufficient. 1099. Deed in general — Common-law observations — Other descrip- tions — - Deeds of severance. 1100. What conveyed — Sometimes surface, sometimes ores. 1101. Same subject — General covenants — What conveyed — Interest in land — Mining right — Severed estate. 1103. Same subject — What included — Dump-room for a tunnel. Article B. 0/ Special Covenants. § 1108. The effect of special covenants. 1109. Effect of reservations. 1110. A few of the leading cases — When reservations and when not. 1111. Who bound by covenants — Parties and privies. 1112. Consideration as means of interpretation — Sufficiency of. 1113. Special covenants — Reference to other instruments. 1114. Appurtenances, incidents and iixtures also pass. 1113. Restricted to intent. Article C. Of Statutory Deeds. § 1119. Short statutory deeds obviating covenants. 1120. Contrary rule — A peculiar case. 1121. Curative statutes. Article D. Of Compromise Deeds. § 1124. compromise deed generally operates as an end line in a lode claim. 1125. Metes and bounds produce a different rula 1126. Miscellaneous deeds — Different names — Estoppel. 1127. Rule in other than lode mining — Parol evidence to explain. 1128. Deed without consideration. Article E. Of Bills of Sale and Verbal Transfers, When Sufficient § 1131. Verbal transfers — Early California and similar doctrine. 1133. Transfers by bills of sale. TABLE OF CONTENTS. XIU § 1133. Same — Verbal transfers — Writings not under seal — How af- fected by recording statutes. 1134. Effect of recording statutes — Notice. 1135. Executory contracts for deeds. 1136. Doctrine of this chapter restated. CHAPTEE II. OF MINING LEASES AND SIMILAR INSTRUMENTS IN GENERAL. Article A. Definitions and Descriptions. § 1141. Preliminary and historical. 1143. Historical — Mr. Bainbridge's view. 1143. Definition. 1144. Same — General definitions of lease by the courts. 1145. Of leases and similar instruments — What is and what is not a lease. 1146. Special and peculiar leases — Rent is income and not corpus of estate — When lease conveys interest in land — When min- erals merely. 1147. Miscellaneous matters connected with leases — Some essentials. 1148. Same subject — Further essentials of a lease. 1149. Covenants on the part of the lessor. 1150. Covenants and conditions generally. 1151. Of the making and execution of a lease — Formalities — The statute of frauds. 1153. Leases by parol — When a lease, when a license. 1153. By estoppel and operation of law — And herein as to extensions and renewals. 1154. Descriptions in general — Subject of the lease. 1155. Description — Land and estate — Extent and quantity de- mised — Entry under lease — Adverse possession — Harlow v. Iron Co. reviewed — Laches. 1156. What is and what is not a lease. 1157. Of the extent of the subject demised — Construction of lease. 1158. New mines — Who may open. 1159. Rights acquired by, generally. 1160. When lessee is entitled to entire product and when not. 1161. Same — Culm and unmarketable coal. 1163. Other rights and duties considered — Rights of way, etc. 1163. Reservations — What included in, generally. 1164. When an interest in the land conveyed by lease. 1165. Distinction between lease and absolute sale of the product — Option to purchase. xiv table of contents. Article B. Oil and Gas Leases, Special. § 1170. Oil and gas leases in general — Preliminary. 1171. Ownership of severed oil or gas. 1173. Qualified ownership, when — Eights as to pumping. 1173. Exclusive rights of lessee within described area. 1174. Ownership of the fluid. 1175. Instances of ownership by owner of soil — Not changed by sev- erance. 1176. Boundaries in oil leases. 1177. Name of contract immaterial. 1178. Rights and duties under oil leases — Some special oases. 1179. Covenant to commence operations and to test and work. 1180. Must prosecute work with diligence. 1181. More diligence required in oil and gas operations than in ordi- nary leases — When performance waived. 1182. Construction of contract by parties adopted — Surrendering a lease will not discharge liability to lessor. 1183. Must comply literally with contract — Parties entitled to what they bargain for. 1184. Effect of failure to execute by lessor's wife. 1185. Lease subject to former lease no waiver of objection thereto. 1186. Possession. 1187. Good faith required. 1188. Same — Operating at a loss. 1189. The doctrine of this article restated. Article C. Duration of Tenancy, Termination, Forfeiture and He-entry. § 1300, When lease operates as a severance, when for a term merely. 1301. Same subject — Present demise, renewal. 1303. Distinction between lease and sale of the product — Intention of parties. 1303. Agreement for lease construed as a lease. 1304. Be-entry generally. 1205. Actual re-entry, when necessary — Forfeiture, when question of fact. 1206. When duration to exhaustion of mine — When lessee takes^ chances as to minerals. 1207. Exhaustion of mine — Money rent after exhaustion. 1208. A distinction. 1809. Doctrine opposed to takmg chances as to minerals — Existence presumed sometimes. 1310. Reasonable diligence — Constant work not necessary. TABLE OF CONTENTS. XT § 1211. Same — Diligence defined — Question of law. 1313. Oil and gas leases — Duration of tenancy. 1213. Net proceeds — Profits. 1314. Failure to find oil maltes fixed period. 1315. Extent of lessee's liability. 1216. Extreme doctrine — Tenancy from year to year. 1217. Lessor prohibited from mining during exclusive lease for time certain. 1318. Not terminated by mere cessation — Lessee must notify lessor* 1219. Modification by parol. 1220. May not arbitrarily refuse to mine. 1231. Lessee not bound to resort to shooting well. 1333. Abandonment and surrender of tlie lease and forfeiture. 1223. Same — Right to abandon. 1224. Must pay royalty until surrender of leased premises. 1225. Recovery of possession — Eviction — Grantee's right to rents. 1226. Forfeiture of the lease. 1237. Forfeiture, in general, for mere non-payment redeemable. 1228. Forfeiture clause not self -executing. 1229. Voidable only at option of lessor — Time of performance — Ques- tion of fact. 1230. Forfeiture under statutes — Likewise of statutes making leases irrevocable. 1231. When a tenancy at will. 1233. Renewals — The general rule. 1233. Lease construed as an entirety — General consideration supports covenant of renewal. 1234. When a perpetual renewal. 1285. Further as to forfeiture — Special circumstances — Election to terminate held unnecessary. 1236. Enforcing forfeiture clause — Waiver. 1237. Gas not embraced in oil lease — Boring after forfeiture. , 1388. Abandonment — When permitted. 1389. Notice in general — When necessary. 1240. Forfeiture — Where burden rests — What is. 1341 Intent is controlling. 1243. Tenancy — When terminated — General duties and liabilities. 1343. Summary — The doctrine of this article restated. Article D. Rents and Royalties. § 1351. Royalties defined and classified — Outlines. 1353. On the basis of clean ore or coal. 1358. Of the net product — Duty as to marketing. 1354 For a graduated rate. XVI TABLE OF CONTENTS. § 1255. Of the royalty based on a minimum rate per ton. 1256. Meaning of merchantable and clean ore, and of mine run. 1257. Meaning of net proceeds as applied in the western states. 1258. Net proceeds as measure of damages, 1259. Royalty covenants generally — Delay and dead rent. 1260. Same subject — Minimum royalty and dead rent — When liable for, at all events — When not suflSoient. 1261. Conflicting doctrine — Payable out of any year. 1262. Exhausted premises — Dead rent not recoverable when paid under mutual mistake — Failure of consideration. 1263. No duty to pay after exhaustion — Distinction between lease and sale. 1264. Not bound to dig new pits — Minimum rent the essence, of the agreement. 1265. Pay for coal taken out — May not remain idle — Suspension — Eviction. 1266. Royalties referable to and payable out of marketable product. 1267. Same subject — Graduated rate — Produced but not marketed. 1268. Expense of winning defined. 1269. Custom in interpreting a lease. 1270. No rent due until possession taken. 1271. Circumstances excusing the payment of minimum rent. 1272. Further as to minimum royalty — Meaning of miners' weight. 1273. Lien for royalties. 1274. State's action on royalty bond. 1275. Each operation distinct — No right to mix product of different mines. 1276. Summary — The doctrine of this article restated. Article E. Covenants, Conditions and Provisos, Generally. § 1281. Covenants in general — The intent. 1282. Covenants, special and peculiar, considered. 1283. Same — Abandonment of covenants — When operative and when not. 1284 Miscellaneous covenants. 1285. What construed as a breach. 1286. What not a breach — Removing machinery. 1287. What is and what is not implied — When abandonment per- missible. 1288. Incidental rights. 1289. Covenant to pay taxes, etc. — Reprises. 1290. Implied covenants — When lessee may perform lessor's cove- nants and charge therefor — Lessor not liable for lessee's np^- ligent mining. 1291. Unreasonable provisions relieved against. TABLE OF CONTENTS. XVll § 1292. Non-payment of rent not ground for forfeiture or rescission. 1293. When rescission permitted. , 1294 To test and work — When violated — Construction. 1295. Covenant to timber and for proper mining. 1296. Drainage rights specially — Filling veith vrater — Flooding. 1397. To deliver up in good order. 1298. "Instroke," definition — When proper meaning. 1299. " Instroke,'' an exceptional case controlled by the contract. 1300. As to payment of taxes. 1301. Lessee's right to quiet enjoyment. 1302. Summary. Article F. Right of Lessee to Machinery and Fixtures. g 1311. Mining machinery and fixtures in general — What removable by lessee. 1312. Same subject — Intent — Adaptability — Good repair. 1313. The early common-law rule and customs. 1314. Early customs to the contrary — Fixtures remain personal prop- erty. 1315. Intention and circumstances, and not always the mode of an- nexation, the test. 1316. The rule in case of a forfeited lease. 1317. Custom affecting removal. 1318. What included in the right to remove. 1319. Coal severed — Right of removal. 1330. Summary. Article G. Of Miscellaneous Rights and Duties, Including Conflicting Leases and Exclusive Rights, Likemse Property in Other Products. § 1336. When tenant's rights and possession exclusive. 1337. Limitations on the right dependent upon nature of instrument. 1338. Different rule where right reserved. 1329. When lessee is entitled to entire product. 1330. Restatement — Additional royalty. 1331. Opening new mines. 1333. Conflicting surface and sub-surface leases. 1333. Summary — The matter in this article restated. Article H. Of Assignments of Leases in General. § 1340. When assignments may be made. 1341. When not assignable — Personal skill — Change in partnership. 1343. Assignment by lessor — Effect. XVIU TABLE OF CONTENTS. § 1843. Lessee liable notwithstanding assignment of lease. 1344. Lessee and his assignee equally liable. 1345. Limitations — Intermediate assignee. 1346. Covenants running with the land — Actual entry not necessary: 1347. Summary — The doctrine of this sub-title restated. CHAPTEE III. OF THE GENERAL WORKING BOND OR CONTRACT, AND OF TITLE RESTING UPON CONDITIONS TO PERFORM LABOR IN NATURE OF CONDITION SUBSEQUENT. g 1355. Preliminary and introductory. 1856. The general working contract — Pay out of mine. 1357. Right to abandon work reserved — Pay out of proceeds. 1358. Purchase price payable from ore. 1359. Generally construed as options merely. 1360. Contract enforceable only in terms as made. 1361. Title resting upon condition. 1362. Performance of work as consideration — Damages for breach. 1363. Contrary rule where, by agreement, title rests on condition. CHAPTER IV. OF EXECUTORY CONTRACTS FOR DEEDS, LEASES AND SIMI- LAR INSTRUMENTS. § 1370. Specific performance of executory contracts for leases and simi- lar instruments. 1371. Same — An example — That is certain which can be made cer- tain. 1372. Mere oflfer to perform does not satisfy. 1373. Unreasonable delay. 1374 Statute of frauds — How affects executory contracts. 1375. Entitled to what they bargain for. 1376. Time essential. 1377. Same — Mining property and other property of fluctuating value. 1378. Same — Distinction between option to purchase and contract of sale. 1379. Deed sometimes held to be only a contract. 1380. Nominal damages satisfying. 1381. Remedies as to mining property must be diligently pursued — Laches bars the right. TABLE OF CONTENTS. XO CHAPTER Y. OF MINING LICENSES IN GENERAL. Article A. Distinctions from Lease — Oeneral Features. % 1390. Mining licenses in general — Nature and character — Definition. 1391. Same — Ordinarily license not exclusive — An illustration. 1393. Limitations — Purpose and extent of license — When exclusive. 1393. What a license, deed, lease, contract. 1394 Wherein license differs from lease generally. 1895. How created — Writing — Parol. 1396. Statute of frauds. 1397. Licensee tenant at will — In such case license revocable and countermandable. Article B. Of the Assignability of Licenses. % 1405. Generally not assignable — Personal privileges. 1406. Not exclusive. 1407. Same — An illustration by Bainbridge — Lord Mountjoy's case. 1408. Exclusive right may be granted. Article C. Of the Revocability of Mining Licenses, § 1415. Same principles apply to mining as to other licenses. 1416. License held revocable — License of government. 1117. Same — License to dump tailings revocable. 1418. Contrary doctrine. 1419. Whence the diversity of opinion. 1420. Same — Irrevocable license — Lease — Further examination of the authorities. 1431. Summary. PART XIV. GENERAL RIGHTS AND DUTIES OP MINING OP- ERATORS INTER SESE. CHAPTER I. OF TENANCY IN COMMON. Article A. Rights and Duties of Co-tenants as Between Themselves, 1430. Tenancy in common — In general — Definition. 1431. Possession of one co-tenant not adverse to others. XX TABLE OF CONTENTS. § 1433. Same — Statute of limitations. 1433. DifiEerent from mining partnership. 1434. Rights and duties of co-tenants as between themselves. 1435. Right to work property. 1436. Right to work — Majority and minority. 1437. Ordinary work not waste — The old rule to the contrary. 1438. Not waste for co-tenant to mine. 1489. Same — Mr. Bainbridge's view. 1440. Same — Co-tenant's right of occupation. 1441. When not co-tenants — One tenant binding all. 1443. No exclusive possession or right — Unreasonable interference. 1443. When possession of one co-tenant not possession of all. 1444. Non-assenting co-tenant's right to account. 1445. Measure of the account — What included. ^ 1446. Same — When rent the proper basis. 1447. Same — Rents and profits. 1448. Matters for consideration in allowing rent to excluded co-tenant. 1449. Surplus over co-tenant's share. 1450. Another measure — Value of coal at pit's mouth. 1451. Ore in place as measure of damages and account. 1453. Lien for expenditures — Equitable right to profits. 1453. What may be offset — Repairs, taxes, etc. 1454. Whether agreement necessary. 1455. What acts of individual co-tenant inure to benefit of alL 1456. Purchases by and from co-tenants. 1457. Same — Interest of one purchased by another does not inure to benefit of third. 1458. Further as to rights and duties of co-tenants — Action for dam- ages. 1459. Fixtures and improvements, ownership of. 1460. Injunctions by and against co-tenants. 1461. Injunction in proper cases. 1463. Equity — Pennsylvania doctrine — Other remedies. 1463. When lessor liable for trespass. Article B. Rights and Duties as to Third Parties. § 1470. Preliminary — Scope of treatment. 1471. License of single co-tenant. 1473. Same — Special cases. 1473. Limitations — A mixed case. 1474 Suit by single co-tenant. 1475. Joinder of tenants in common. 1476. Tenant in common holding as trtistep — Michigan statuta 1477. Interests equal. table of contents. xxi Article C. Partition. § 1485. Partition between co-tenants — Mines capable of partition. 1486. Mode of partition — Partition of product, 1487. Illegal contracts not within the rule. 1488. Cornwall ore banks in Pennsylvania. 1489. Conveyances. 1490. Summary — The doctrine of this chapter restated, CHAPTER II. MINING PARTNERSHIPS. Article A. General History — The Cost Booh § loOO. Historical — Leading distinction between partners and tenants in common. 1501. Definition — When relation exists. 1502. Mining partnership in general — Lord Eldon's views. 1503. Death does not dissolve — Question finally decided. 1504. When partnership maybe said to exist and what constitutes — Extent of liability. 1505. What does not constitute a mining partnership. 1506. The early distinction in England — Not partners in handling product. 1507. History — Genesis — The cost-book system. 1508. Further as to the cost-book system — Distinguishing character- istics. 1509. Same — Mr. Collier's views. 1510. Interests forfeitable — Rules of cost book. 1511. Cost-book company a partnership. 1513. Distinctions between mining partnership and co-tenancy. 1513. Further as to what is not a mining partnership. 1514 Same — Distinction from trading partnership. 1515. How interest may be acquired ^ Purchaser's liability. 1516. Mining under general partnership. 1517. Mere joint ownership not sufficient — Must work mines. 1518. Liability of members. Article- B. Distinction from General Partnership. % 1536. Distinction — No agency. 1537. Same — No delectus personce. 1538. Differences enumerated — Authority of member as agent. 1539. Same — Power of agent must be established. XXil TABLE OF CONTENTS. g 1530. Partner acting as agent must not violate instruotions. 1531. Yale's review of the subject. 1533. Further as to powers, rights and duties of mining partners. 1538. The supposed contradiction. 1534. Limitations — Majority in interest controls. 1535. Authority of the managing agent. 1536. Acts must be authorized — Custom. 1537. Agency confined within strict limits — Greatest emergency does not justify departure from strict rule. 1538. Agency by express authority or by adoption of fruits. 1539. Power to borrow money. 1540. Not a trading partnership. 1541. Management of property — Compensation of manager. Article C. Distinctions from Tenancy in Common. % 1545. General distinctions from tenancy in common. 1546. When parties treated as partners. 1547. Rule where tenants in common unite to work mine — May sell to each other — No right of pre-emption. 1548. The rule as to ditch associations. 1549. Partners in the extraction of ore. 1550. Part of common law. Abticle D. How Created and How Established. § 1555. How partnership may be created and established — In writing and by parol. 1556. By act of the parties. 1557. When existence question of law and fact Article E. Rights and Duties Inter Sese. § 1565. Rights, obligations and duties of mining partners iwfer seae — Fair dealing. 1566. Skill bargained for — When representatives not entitled to por- tion. 1567. General rule — Representative of deceased partner entitled to full share of remainder. Article F. Dissolution. § 1575. Dissolution and termination of partnership relation — How ac- complished. 1576. Notice must be given to prevent future liability. TABLE OF CONTENTS. XXlU § 1577. When court of equity will intervene. lo78. By death under the old rule — By statute in England. 1579. Rights of incoming and outgoing partners. 1580. Generally no disso^ution by mere forfeiture. 1581. Summary — Doctrine of this chapter restated. CHAPTER III. PROSPECTING OR GRUB-STAKE CONTRACTS. § 1590. Prospecting or " grub-stake ■' contracts — In general. 1591. Prospecting contracts — Gruh-stake contracts — History in this country. 1592. Same ^ Sometimes formed in writing, sometimes by parol. 1593. Other examples of a prospecting contract — Statute of frauds. 1594. Protected by estoppel. 1593. General controlling principles — Implied contracts — Expenses — Abandonment. 1596. Grub-stake contract — Implied rights. 1597. Mixed questions — Neither partnership nor grub-stake contract. 1598. Rights and duties of outfitter and prospector. 1599. Duty of outfitter. 1600. Right to abandon. 1601. Where prospector may not abandon. 1602. Abandonment and dissolution. 1603. As to agency of the parties. 1604. Necessary for outfitter to give notice. 1605. Summary — The doctrine of this chapter restated. CHAPTEE lY. OF THE MINING SUPERINTENDENT, g 1611. Preliminary and introductory. 1612. Scope of treatment — Mine boss. 1613. General authority and duties of mine superintendent — Implied authority. 1614. Necessaries furnished by third persons. 1615. Promissory note — Borrow money. CHAPTEE V. OF CERTAIN REMEDIES AND THEIR PECULIAR RELATION TO MINING. Aeticle a Working Out of Bounds — Measure of Damages. % 1620. General observations. 1631. Measure of damages — Innocent taking — Honest belief of owner- ship. XXIV TABLE OF CONTENTS. § 1633. Absence of negligence essential. 1633. Same — Tiie general rule. 1634. Damages — How proved. Article B. Injunctions. § 1626. Preliminary and introductory. 1627. The jurisdiction. 1628. Explanatory — Qualifications on foregoing — Paper title, prima facie. 1639. Duty to prevent irreparable injury. 1630. Patent title not necessary. 1631. Of the preliminary injunction — Denial or dissolution by bond. 1632. May make all lawful use without being enjoined. 1633. Tailings and debris. 1634. Laches. Aeticle C. Inspection and Survey. § 1637. Preliminary and general observations — State statutes constitu- tional. 1638. Statutes declaratory of equity powers. 1639. To obtain evidence to prepare case for trial, but not to engage in a mere speculative proceeding. PART XY. OF SPECIAL STATUTORY PROVISIONS FOR HEALTH AND SAFETY OF MINERS, AND REGULATING RIGHTS AND DUTIES OF EMPLOYER AND EM- PLOYEE. CHAPTER I. GENERAL HEALTH AND SAFETY STATUTES. 1640. Special statutory provisions for the protection of miners and regulating mining — General health and safety statutes. 1641. When courts will not question legislative power. 1643. Police regulations — Legislative power — Injunction by the state. 1643. Proper subjects of police regulations. TABLE OF CONTENTS. XXV CHAPTER 11. OF STATE STATUTES. Article A. Statutes Generally Considered. S 1G50. Special statutory provisions — Subjects of statute. 1651. Exception when applied to fellow-servants. 1652. Where new outlets required in old mine — SuflBcient man-way question for jury. 1653. Second opening. 1654. Mine boss — Fellow-servant — Separate openings. 1655. Ventilation in coal mines. 1656. The English rule — Suspension of work. Article B. As Affecting Liability for Negligence, and Herein of Contributory Neg- ligence. g 1661. Increasing liability for negligence — Competent fellow-serv- ants — Timbering — Special cases — Signals. 1662. Same — An example. 1663. Power of company to frame rules. 1664. Contributory negligence. 1665. The rule in Pennsylvania. Article C. Protection as to Earnings — Weighing. § 1670. Protection as to earnings — Weighing — Credit for coal. 1671. A proper protection to miners. 1673. Contrary doctrine. 1673. Proper police regulation — Statute generally upheld. 1674. Same — Constitution the highest authority — No superior natural right. 1675. Same — Eight to have weighed in original form. CHAPTEE III. MINERS' LIENS IN GENERAL. Article A. Scope of Treatment — Creature of Statute, § 1680. Scope of the chapter. 1681. Provided for in all the states. 1682. Creature of statute — A legislative mortgage. 1683. Mortgage and lien — Improvements. 1684. Labor statutes — Liens in consequence of. 1685. Distinction — Must have been locate J as a mining claim. xxvi table of contekts. Article B. For Wliat Services Allowed. § 1690. Who entitled in general — Superintendent — Teamster. 1691. Same — Carrying on works — Drifting in tunnel. 1692. General principles — Liberal construction — Remedy. 1693. Assignability. 1694. Same subject — Assignable — General provisions. Article C. Against Whom, What Interest and What May be Beached — Lessee's and Working Bond Interests. % 1700. Against whom — Leases and working bonds. -' 1701. To what may attach — Mmeral land not so located. 170^. On mine worked by option holder. 1703. Iowa rule — Lessor held liable. 1704. Prospecting gives no right to lien, 1705. Agent, who is. 1706. Notice and foreclosure. 1707. Knowledge of owner — Strict construction. 1708. Summary — The doctrine of this chapter restated. PART XYI. APPENDIX A. FEDERAL STATUTES. APPENDIX B. STATE STATUTES, ANNOTATED, SUPPLEMENTAL TO THE FEDERAL STATUTE, REGULATING THE LOCATION OF MINING CLAIMS UPON THE PUBLIC DOMAIN: THE MIN- ING LAWS OF NEW YORK AND TEXAS; ALSO THE STAT- UTES OF MISSOURI, AND OTHER STATES. RELATING TO THE LEASING OF PUBLIC AND PRIVATE MINERAL LANDS. ■ APPENDIX C. FORMS IN PATENT PROCEEDINGS. MINES AND MINING. PART XI. EXTRA-LATERAL RIGHTS — (CoNTmuBD). CHAPTER IL CLASSIFICATION OF APEX CASES, AND ILLUSTRATIONS OF THE RULE, WITH ALL ITS BEARINGS. Article A. The Perfect Location and Its Cognate — When Side Lines Become End Lines. ■' § 821. Preliminary — Classification the better plan. 82S. Same subject — Value of general principles as controlling. 833. Same — The perfect location. 834 Detailed classification of apex cases, division of the questions in- volved, and an illustration of the matter by drawings. 825. Of the perfect location. 826. The same principle involved, positions reversed, where side lines become end lines — The FlagstafiE case. 837. Same subject — Side lines becoming end lines — Angle of crossing immaterial — The Amy case. 828. The efifect of such a location as to extra-lateral rights — Pursuit of the vein on its dip beyond the located end line. § 821. Preliminary — Classification the better plan. — It is our purpose in this chapter to attempt a classiiication of the apex cases. "We believe that the intent of the law- making power can be best ascertained by grouping together in series, with the appropriate distinctions, all the apex cases, singling out the distinguishing characteristics and arranging them in classes by analogy, assigning each particular case, where it does not exactly fit the class, to such class as it more nearly fits by analogy. As we view the matter, it would be an incongruous state of affairs, after upwards of twenty-three years of litigation 713 SUB-SUE¥ACE AND EXTRA-LATEEAL EIGHTS. [§ 822. in the different courts where they have been called upon to decide controversies involving the apex question, if the basis for some system of classification had not been evolved. Fol- lowing cases by analogy is better than exploring new fields.' If courts cannot give to the miner all that he seeks to obtain by his location, owing to the fact that it is imperfectly made, they can at least accord to him the utmost which, under the imperfect mode of making his location, the law will admit of. As was said by the supreme court of the United States : " The most that the court can do, where the lines are drawn inaccurately and irregularly, is to give to the miner such rights as his imperfect location warrants, under the statute." * § 822. Same subject — Yalue of general principles as controlling. — Pursuing the line of thought adverted to in the preceding section, it is obvious that the elastic principles of the common law must be applied in the interpretation of these statutes; that is to say, no violence should be done to the acknowledged canons of construction ; but so far from this statute being construed in derogation of the common law, it should rather be construed as a remedial statute; and as such the familiar principles should be followed, namely, by inquiring as to what mischief existed in the old law, which was sought to be corrected, and what means were employed for its correction ? And the means should be ap- plied to the end, and the principle of liberal construction observed; that is to say, the remedy advanced, even though it be in derogation of the common law.' And in doing this, we believe a better solution of all diflaculties can be attained by grouping ail apex cases under as few heads as possible, than that each case shall stand upon its own four legs. By this means the first and most laborious feature of the case 1 Iron Silver M. Co. v. Murphy Cons. M. Co., 153 U. S. 232, 338; (Iron Mine v. Loella Mine), 3 Fed. Fitzgerald v. Clark, mpra. Eep. 368, 369; Fitzgerald V. Clark, 3 Water vale M. Co. v. Leaoh 17 Mont. 100, 43 Pac. Eep. 273, 381. (Ariz.), 33 Pac. Eep. 418; Chicago, 2 King V. Amy & Silversmith B. & Q. R Co. v. Dunn, 52 IlL 260; Black, Interp. Laws, p. 307. §§ 823, 824.] CLASSIFICATION OF APEX CASES. 713 will be to determine to what class it belongs. Its solution then becomes comparatively easy. This guiding principle was thus early stated by Judge Hallett: "Courts usually try to find out the correct prin- ciple upon which a cause should be decided, and when once, after some attention to the subject, they have arrived at a conclusion as to the rule which shall be observed in any cause, it is regarded as a decision which may be followed in subsequent actions of the same character."^ Applying these rules to the matter in hand, we shall find our difficulties materially lessened by the classification we have suggested. §823. Same — The perfect location.— From what we have attempted to demonstrate in these pages, it must be quite apparent that a perfect location, that is to say, one made in the form of a perfect parallelogram with the apex and strike of the vein crossing both end lines, presents no question for consideration and opens no field for discussion or contention, except in a case presenting the broad-vein theory, as suggested in the preceding article, and those cases presenting for consideration cross-veins, spurs and offshoots, as hereinafter considered. The cases which have engaged the attention of the courts are those where the location, generally from want of knowledge of the actual course and strike of the vein, or haste in making the location, or both, has not been correctly laid along the strike of the vein, so as to completely cover the apex thereof. The other condi- tion, presenting substantially the same question, when the facts are ascertained, is the one where side lines become end lines. We will therefore present these two questions to- gether in our detailed classification. The matters thus pre- sented for consideration can be best understood by a — § 824. Detailed classification of apex cases, division of the questions involved, and an illustration of the matter by drawings. — ^We shall find it convenient, therefore, to discuss the different questions under different he^ds; and 1 Iron Silver M. Co. v. Murphy, 3 Fed. Rep. 368, 369. T14 SUB-SURFACE AND EXTEA LATERAL EIGHTS. [§ 825. First. The perfect location, where the vein crosses both end lines. Second. Its perfect cognate, with positions of the lines reversed, where the side lines become end lines. These ques- tions will be considered together. Third. Cases presenting the question of veins crossing an end line and a side line, with the extent of extra-lateral rights acquired thereby, and its effect upon the rest of the claim. Fourth. Veins crossing one line and another not parallel therewith, as where end lines of a claim are not parallel, or where the claim consists of a group of locations, including a full consideration of the result of so grouping. The third and fourth subdivisions will be considered together, being essentially analogous in principle. Fifth. Veins crossing the same line twice, or whose known apex begins and ends within a claim. Sixth. Cases where extra-lateral rights are abridged or denied, and the reasons therefor. Seventh. The effect and result of amending locations be- fore patent and placing the lines thereof upon patented ground. And first — § 825. Of the perfect location. — As elsewhere said,^ the perfect location, providing the apex is entirely within the claim, or the substantial and controlling part thereof so within it, and where the apex crosses both end lines and there are no spurs, offshoots, cross or intersecting veins, the facts being ascertained, presents absolutely no question for adjudication. The rights of the owner of such a vein are simple, plain and easy of ascertainment, and cannot possibly present any question for solution. He has the right to follow the vein so found on its downward course or dip endlessly between the planes made by the end lines of the location extended in their own direction and produced through the dip of the vein.^ 1 Ante, § 823. 2 R. S. U. S., § 2323. § 826.] CLASSIFICATION OF APEX CASES. T15 § 826. The same principle involved, positions reversed, where side lines become end lines — The Flagstaff ease. — Since parallelism of end lines is essential only for the pur- pose of circumscribing the rights of the claim owner on his vein as he proceeds to the depth, and since it is well settled that the purpose of the statute is only given full force and effect when the claim owner is given the same number of feet of the dip of the vein, wherever it may go, that he has of the apex,' it becomes too plain for contradiction or ques- tion that when two parallel lines are so crossed by the vein, no matter what name the miner has bestowed upon them in making his location, the law will denominate them as end lines, beyond which he will not be permitted to pursue the vein on its strike in either direction, and only between which lines continued in their own direction will he be allowed to follow it on its dip. An illustration of this principle is found in the very case vrhere it was first announced, and is shown by the diagram on page 716. The vein in dispute was conceded to have its apex in the Nabob claim and extended thence easterly into the Virginia, crossing both side lines of the Flagstaff, and continuing into the South Star and Titus, or as it was known in the case. The Titus ISTo. 2 claim, which lay northerly of the Virginia and conflicted with it. The ore bodies in dispute are rep- resented as being between the tunnel level and the third level as shown by the lines on the map; the dip being northeasterly. Mr. Justice Bradley, in marking out the rights of the parties under such a location, laid down the law which has been followed without cavil or criticism, in the following words: " It was not the intent of the law to allow a person to make his location crosswise of a vein so that the side lines shall cross it, and thereby give him the right to follow 1 Cons. Wyoming G. M. Co. v. 15 Fed. Cas. 98, No. 8,158, 4 M. R. Champion M. Co., 63 Fed. Rep. 540, 385; Doe v. Waterloo M. Co., 54 549; Leadville M. Co. v. Fitzgerald, Fed. Rep. 935. 716 SUB-SUEFACE AND EXTEA-LATEEAL EIGHTS. [§ 826. the strike of the vein outside of his side lines. That would subvert the Avhole system songht to be established by the law. If he does locate his claim in that way, his rights must be subordinated to the rights of those who have prop- Fig. 15. erly located on the lode. Their right to follow the dip outside of their side lines cannot be interfered with by him. His right to the lode only extends to so much of the lode as his claim covers. If he has located crosswise of the lode, and his claim is only one hundred feet wide, that one hun- dred feet is all he has a right to. This we consider to be the law as to locations on lodes or veins. The location of the plaintififs in error is thus laid across the Titus lode, that is to say, across the course of its apex at or near the sur- face ; and the side lines of the location are really the end lines of their claim, considering the direction or course of the lode at the surface. As the law stands, we think that the right to follow the dip of the vein is bounded by the § 827.] CLASSIFICATION OF APEX CASES. 717 end lines of the claim, properly so called; which lines are those which are crosswise of the general course of the vein on the surface." ^ § 837. Same subject — Side lines becoming end lines — Angle of crossing immaterial — The Amy case. — The law as declared in the last preceding section has been followed without deviation by all the courts since it was announced. It matters not at what angle the vein crosses these parallel lines, the result is the same. It is sufficient that it crosses them, and the angle is quite immaterial. Judge Hawley attempted to argue away the force of this decision in one case by laying down the dictum that where a vein more nearly conformed to the side than its end lines in its strike and course through the claim, those lines should still remain side lines, and that end lines, or new ones parallel therewith, should be made.^ And while there might be a case, as we shall see hereafter,' where the apex of a vein appears to begin and end wholly within a claim, its continuation in either direction being incapable of absolute demonstration, owing to the shattering of the country by a fault, or by erosion, or from any other cause, which is clearly shown, where such a rule ought to be applied, it is quite manifest that the ordinary case of the vein crossing both side lines of the claim, thus constituting them end lines, pre- sents no such question. Miners must mark their locations correctly or suffer the iFlagstafle M. Co. v. Tarbet, 98 v. Old, 79 Fed. Rep. 598; Cosmopol- U. S. 463. See also Argentine M. itan M. Co. v. Foote, 101 Fed. Rep. Co. V. Terrible M. Co., 123 U. S. 518; Tombstone M. Co. v. Way Up 478; Empire M. & M. Co. v. Tomb- M. Co. (Ariz.), 25 Pac. Rep. 794; stone M. & M. Co., 100 Fed. Rep. Parrott S. & C. Co. v. Heinze 910; King v. Amy & Silversmith (Mont.), 64 Pac. Rep. 326. M. Co., 152 U. S. 332; Last Chance ^Cons. Wyoming G. M. Co. v. M. Co. V. Tyler M. Co., 167 U. S. Champion M. Co., 68 Fed. Rep. 540. 684; Cons. Wyoming G. M. Co. v. 549. Champion M. Co. (C. C), 63 Fed. 3 Pos*, this chapter, article C. Rep. 540; New Dun der berg M. Co. 718 StTB-SUEFACE AND EXTKA-LATEEAL EIGHTS. [§ 827. consequences. As was said bj'^ the suprenae court of the United States : " If the first locator will not or cannot make the explorations necessary to ascertain the true course of the vein and draws his end lines ignorantly, he must bear the consequences." ^ And again : " The most that the court can do, where the lines are drawn inaccurately and irregularly, is to give to the miner such rights as his imperfect location warrants under the statute. It cannot relocate his claim and make new side lines or end lines. "Where it finds, as in this case, that what are called side lines are in fact end lines, the court, in determining his lateral rights, will treat such side lines as end lines, and such end lines as side lines ; but the court cannbt make a new location for him and thereby enlarge his rights. He must stand upon his own location and can take only what it will give him under the law." ^ The force of the observations presented in this section can be better illustrated by a reproduction of one of the maps used in the case and referred to in the opinion by the su- preme court of the United States. 1 Iron Silver It Co. v. Elgin M. & 2 King v. Amy & Silversmith S. Co., 118 U. S. 196, 207, 30 L. ed. Cons. M. Co., 153 U. S. 322, 38 L. ed. 98, 103. 419. § S'JS.] CLASSIFICATION OF APEX OASES. T19 The ore bodies in dispute lay beneath the surface ground of what is called the " Kon-consolidated." The Amy claim was fourteen hundred and seventy feet long by four hundred and ninety-one feet wide. The strike of the vein was north- west and southeast, crossing the southerly side line six hun- dred feet west of the easterly end thereof, and the northerly side line one hundred and eighty-four feet east of the west- erly end line thereof. The trial court granted extra-lateral rights coterminous with a line at right angles with the strike at the point of departure from the claim. The supreme court of Montana modified this by projecting a new end line into the dip parallel with the westerly end line at the point of departure. What the court was going to do at the other point of departure it did not decide; that is to say, whether it was going to create a new end line there, or call the inter- section of the southerly side line with the vein, as it crossed the same, the apex pro hao vice. It was fortunate in the interest of settled law and titles to mining property that the supreme court of the United States was not affected by the same hallucination as either of the Montana courts, and that it left the case where its distin- guishing features placed it, as one where the side lines be- came end lines, and as such, were drawn vertically, thus cut- ting off further pursuit of the vein except between thpse lines extended in their own direction.' § 828. The effect of such a location as to extra-lateral rights — Pursuit of the vein on its dip beyond the located end line. — There has been considerable argument at the bar, and opinions expressed by lawyers well versed in mining law, that the real end lines of a location, that is to say, the shortest lines, were drawn vertically in every case and under all circumstances, and this upon principles of estoppel. No court, however, has ever gone to the length of so deciding.- ^Ante, § 826; Parrot S. & C. Co. 2 See the dictum of Hayt, C. J., V, Heinze (Mont), 64 Pao. Rep. Catron v. Old, 23 Colo. 433, 48 Pac. 326. Rep. 687, 689. 720 SUB-SUKFACB AND EXTRA-LATERAL RIGHTS. [§ 828. Judge Hawley in a recent case,' in following the doctrine which has become settled law ever since the Colorado Cen- tral cases,^ and which no lawyer will dispute, decides that the end lines of the claim, whether they be side lines or end lines in fact, that is to say, those crossed by the vein located, are the end lines for all purposes, and this notwithstanding a cross- vein, spur or offshoot may dip nearly at right angles with the main vein and so pass under such line on its dip. There can be no possible dispute as to the correctness of this position as a general rule, as we shall elaborate further in an- other part of this work,' but that falls far short of deciding this particular question. So far as we have been able to ascer- tain, however, from a diligent search of the cases, there is but one case deciding this precise question. This case arose in Connecticut between the plaintiff, a Maine corporation, and the defendant, a Connecticut corporation, upon a con- tract in relation to mining in the neighborhood of their com- mon boundary, their mines being situated in the territory of Arizona. It appears that the end lines of their claims joined, and the defendant owned a vein apexing on its own land, crossing both located side lines on its strike and descending in its downward course or dip beneath the claim of plaint- iff. Said vein on its dip crossed the end lines of defendant's location and penetrated beneath plaintiff's location by cross- ing the boundary line of the two claims, the common end line of both, so called. Defendant was under contract to explore and open plaintiff's property through its workings, and it was provided, inter alia, in the contract, that defend- ant should account to plaintiff for the ores mined. Defend- ant refused to do so upon the ground that the ore mined apexed in its own land, and consequently was its property. The suit being upon the contract, thiis was the material ques- tion involved in the case. It was contended on the part of the plaintiff that the side ' Cosmopolitan M. Co. v. Foote, 50 Fed. Eep. 888; s. c, 54 Fed. Rep. 101 Fed. Eep. 518. 662, 70 Fed. Kep. 294 ^ Colorado Central M. Co. v. Turck, 3 Post, ch. Ill, art. C, this Part § 828.] CLASSIFICATION OF APEX CASES. 121 lines becoming end lines had the effect to make four ver- tical planes, beyond which the defendant could not go in pursuit of the vein on its dip. In other words, it was denied extra-lateral rights altogether. While the defendant con- tended that, inasmuch as the decisions had been to the effect that in such case the side lines became end lines, and end lines side lines, in other words, that, the position of lines being reversed, the rights were not otherwise affected. The court, in adopting the theory of the defendant as the law, takes the following language from the supreme court of the United States: " The course of this vein is across the Last Chance claim, instead of the direction of its length. Under those circumstances the side lines of that location become the end lines, and the end lines the side lines." ' And again : " "When a mining claim is located across instead of along the lode, its side lines must be treated as its end lines, and its end lines as its side lines ; so that, under Ee- vised Statutes of the United States, section 2322, the dip cannot be followed outside the vertical plane of the original side lines into an adjoining claim." ^ The court decided that the position of the supreme court of the United States in those cases and others was decisive of the case and sustained the defendants' theory thereof.' To us this seems altogether logical, and that it is in hearty accord with the spirit as well as the letter of the law. Any other rule would be judicial legislation, and by that means deny to the mine owner what the statute plainly gives him — the right to follow his vein endlessly on its down- ward course, provided he does so between parallel planes, 1 Last Chance M. Co. v. Tyler M. 'Empire M. & M. Co.. v. Tomb- Co., 157 U. S. 683. See also Flag- stone M. & M. Co., 100 Fed. Rep. staff M. Co. V. Tarbet, 98 U. S. 463; 910. See also Walrath v. Cham- Argentine M. Co. v. Terrible M. Co., pion M. Co., 171 U. S. 293; Iron 133 U. S. 478; King v. Amy & Sil- Silver M. Co. v. Elgin M. & S. versmith M. Co., 153 U. S. 333. Co., 118 U. S. 196; Del Monte M. & 2 Cons. Wyoming G. M. Co. v. M. Co. v. New York & Last Chance Champion M. Co., 63 Fed. Rep. 540, M. & M. Co., 171 U. S. 55. 547. 46 722 SUB-SrEFAOE AND EXTEA-LATEEAL EIGHTS. [§ 828. drawn within the boundary of his own location at the sur- face, and containing the apex of the vein within his own ground, and by extending such lines so as to include such outside parts. Aetiole B. Veins Crossing Lines Not Parallel, and Herein of End Line and Side Line Veins, and of Chroup Claims. .§ 834. End and side-line doctrine — Preliminary observations. 835. The decisions of the circuit courts on the question presented by a vein crossing a side line and an end line, and the equitable features presented.- 836. Effect of location and discovery on the dip of the vein where apex crosses side line and end line. 837. End line and side-line cases — The equitable reasons of the rule as originally considered in the Del Monte case. 838. The case of Fitzgerald v. Clark — Reason of the rule — A correct result by reasoning partially right and partially wrong. 839. Criticism of the Clark-Fitzgerald case. 840. Wyoming v. Champion — Ideal or imaginary location of veins along center of claim not conclusive — End line and side line — What a vein under the statute. 841. Further as to what is a vein — Flat or bedded veins. 84S. The Wyoming-Champion case — Circumstances of the case com- pared with other cases by the court — True construction of the statute — Particular line or angle of crossing immaterial — Pat- ents and rights under law of 1866 considered. 848. Walrath v. Champion — Law of 1866 — Relation of other veins in claim to located vein — Other veins crossing side line — End line for one, end line for all — One set of end lines. 844. Comments and criticisms of the Wyoming case — Classification the safer plan. 845. Further comments of the court which sustain us throughout in the position sought to be taken. 846. No force in suggestion to postpone marking. 847. New but progressive statement of the law. 848. Further comments to matters in last section — Dangerously near the old law. 849. Irregularly-shaped locations consolidated in one patent. 850. Same question — The Carson City case. 851. Original location lines immaterial — Doctrine of Doe v. Sanger. 853. Claims patented separately and consolidated, grouped and op- erated as one mine after patent. 853. The doctrine of this article summarized. §§ 834, 835.] CLASSIFICATION OF APEX CASES. 723 §834. End and side-line doctrine — Preliminaj'y o^ser- Tations. — The principle involved in this branch of our in- quiry is far more difficult of solution than any with which we have had to contend. The courts seem to have reached an equitable rule here, not within the letter but clearly within the spirit of the statute. As we have elsewhere said, it is manifestly the intention of the law-making power to give the first locator as great a quantity of his vein through- out its entire depth, in its course downward, as he pos- sesses of its ape^. And it would seem equally clear, that where a vein or lode crosses a side line after having crossed an end line, the former in the direction of the apex, he would be restricted to the same rule which would con- trol him if the vein should depart from the side lines solely in the direction of the dip, as he would if he made a dis- covery in the first instance on the dip instead of on the apex; in other words, it can make no diilerence which way the vein passes out, whether towards the apex or the dip, the same rule must apply, unless, following the principle laid down by Judge Hallett in one case,'^ he will occupy the same relation to the portion of the lode to which he has no apex, but has the dip beyond the point where it passes over his side lines on the strike, as he would if he made his discov- ery upon a segment of the dip. However, we will reserve the further discussion of this subject until we have pre- sented — § 835. The decisions of the circuit courts on the ques- tion presented by a vein crossing a side line and an end line, and the equitable features presented, — An able and intelligent discussion was made of this question by Hawley, District Judge, in the celebrated Tyler-Last Chance case. This was an action originally commenced with the view of determining the right of property in a body of ore lying under the Last Chance surface which the Tyler company claimed to own. The Last Chance claim was a claim sim- 1 Van Zandt v. Argentine M. Co., 3 MoCrary, 159, 8 Fed. Rep. 725. 724 SUB-SUEFAOE AND EXTEA-LATEEAL EIGHTS. [§ 835. ilar in its relation to the strike of the vein to the Flagstaff and Amy, but the Tyler presented an entirely different question. It was tried wholly on the apex theory, and was so decided in the first instance; but in the treatment it has received at the hands of the courts since, owing to the ele- ment of res judicata involvecj in it, it has been discussed on almost every other ground than apex, having been finally decided upon the sole question of a former adjudication as to the priority of location, which was held to be necessarily included in a consent judgment in an adverse suit, and which was referred to when we considered that question. Here the location of the Tyler was properly made in the form of a parallelogram along the course of the lode or vein. The lode extends from the northwesterly end line for a distance of nearly eleven hundred feet within the side lines of the sur- face location, and then so changes its course as to cross the northerly side line of the Last Chance location. The Last Chance was likewise well located in the form of a parallelo- gram, but crosswise of the vein, as intimated above, so that its side lines became end lines. The subject will be better understood by reference to the following diagram: Kg. 17. It will be observed that the ore body is under the surface- of the Last Chance, and if the owner of the Tyler claim has- § 835.] CLASSIFICATION OF APEX CASES. 725 the right to follow the ore on its dip beyond its side line, the owners of both claims could lawfully reach the same body of ore, and the ownership would have to be deter- mined by priority of location. This, of course, was an im- portant element in the adverse suit, and its determination there was conclusive. But we have already considered that question, and a further examination would be a useless di- gression. In the circuit court Judge James H. Beatty held that the respective dates were conclusively settled by the adverse suit, and a verdict consequently resulted in favor of the Last Chance. In the circuit court of appeals, where Judge Hawley ren- dered the opinion, it was held that this fact was not a con- trolling element in the decision in the adverse suit, and the question as to whether the Tyler was so located with ref- erence to the Horseshoe case' as to authorize the pursuit of the vein on " its downward course " beyond the side lines of the claim was the decisive one. This was the first case before the courts involving the question of a vein passing through an end line and a side line (two lines not parallel) of the claim, and the superficial thought urged against extra-lateral right in such case was that, under the Flagstaff decision,^ any side line crossed by a vein on its strike must be construed as an end line and be drawn vertically through the vein. An examination of the Flagstaff case, however, shows that it decides no such thing, only that parallel lines shall be so considered. In reason- ing upon this feature of the case, Judge Hawley held that the Tyler was so located as to possess extra-lateral rights upon either of two principles : (a) If the vein had abruptly terminated before reaching an end line after crossing one, there could be no question 1 Iron Silver M. Co. v. Elgin M. 2 Flagstafl M. Co. v. Tarbet, 98 Co., 118 U. S. 196, 30 L. ed. 98; U. S. 463, 35 L. ed. 253. S. C, 14 Fed. Rep. 377. T26 STTB-SUEFACE AND EXTEA-LATEBAL SIGHTS. [§ 836; but that extra-lateral rights parallel with the end line at the point of termination would, upon the most obvious principles of justice, be awarded; or (b) The end line not reached could be drawn in towards the other to meet the point where the vein either termi- nated or crossed a side line, if that were important, and dip rights given accordingly .^ The court cites several cases supporting the principle of properly adjusting lines to cover such a case.^ It is proper to say that the last two cases are scarcely in point ; but, in- dependent of that, and upon the intrinsic strength of the reason of the law as applied by the court, the decision be- comes firlnly and unassailably entrenched, and, a fortiori, as decided by the United States supreme court, prescribing lines beyond which a vein may not be pursued on its strike, falls far short of saying that the right to follow the vein on its dip is not granted unless the vein on its strike reaches such lines.' § 836. Effect of location and discovery on the dip of the vein where apex crosses side line and end line. — "We inti- mated in a previous section,* and such would seem to be the effect of Judge Hallett's decision, that where a discovery was made upon the dip, there could be circumstances where such discovery and location would be good as against one subse- quently made upon the true apex outside of the claim. But in such case, we take it, there must be an actual instead of assumed discovery, and discovery and work upon the iden- tical segment of the vein. To illustrate this, let us repro- 1 Tyler M. Co. v. Sweeney, 54 Nev. 313; Kahn v. Old Telegraph Fed. Eep. 284, 4 C. C. A. 329. M. Co., 2 Utah, 174. 2 King V. Amy & Silversmith ^ Del Monte M. Co. v. New York Cons. M. Co., 9 Mont. 458, 24 Pac. & Last Chance M. Co., 171 U. S. 55, Eep. 200; reversed, s. c, 152 U. S. affirming s. c, 66 Fed. Eep. 213. 222; Doe v. Sanger, 83 Cal. 203, 23 ^See ante, §834: Van Zandt v. Pac. Eep. 365; Golden Fleece G. & Argentine M. Co., 2 McCrary, 159, S. M. Co. V. Cable Cons. M. Co., 12 8 Fed. Eep. 725. § 836.] CLASSIFICATION OF APEX OASES. 727 duce a figure from the geological preface of a late work on mines.' Here is a case where the true apex comes to the surface, but the vein is twice faulted. Let us suppose that sufiBcient ore is dragged into the fault-planes to preserve a continuity, or that there are such distinguishing features in the hanging or foot-wall as to preserve the identity of the vein in the third segment with that in the first and second. Now, sup- pose again, that locations are spread upon this ground in the manner shown in the subjoined figure. .Tr-=-' .JjlL'l[^to^^ '\" JS7«,'l HB. OPvAiN _^ij- __ 1 ^ T JH t i.. -a,,-^ \- - --I>j ^»3^'* Fig. 19. Let the solid lines 1 represent the true apex, as shown in the last preceding figure; let the dotted lines 2-3 represent 1 Barr. & Ad. Mines, Geological Preface, civ. 128 SUB-SUEFACE AND EXTEA-LATEEAL EIGHTS. [§ 836. the segments of the vein shown in segments 2 and 3 of the cross-section of the mountain. Manifestly, that portion in 3 is the valuable one, it going to the deep. Now, suppose that A.'s location is the older, and is made upon a discovery at the points D, D' B, or D alone on claim "A." Suppose, also, that by underground workings, prior to the location of B.'s claim, he has developed the vein and shown its existence at X' and Z'. True, his main vein, the one Avhich furnishes the apex, has departed from his side line at T. If he has actually discovered and worked X' and Z' before B. makes his dis- covery at F, why will he not have the better title to said ore ? On the other hand, suppose that the positions are re- versed, and B. makes the discovery at E before A. makes the discovery at X' and Z', why will he not have the better title? It must be remembered B. has the only outcrop. Again, supposing that B.'s is the older location, can there be any question but that, upon proof of the identity of the three veins, B. will own, by virtue of his discovery at F, all the ores in X' and Z' contained within the planes of his end line G with a parallel line at T, the arrow marking the di- rection of the dip. Precisely these questions do not seem to have ever reached a court of last resort, nor to have been considered.by any court except as intimated by Judge Hallett in the case above mentioned in this section. It may never arise. If it should, it seems to us that the position we have indicated is the only correct one. "We digressed in this section to take up the question of locations upon the dip. We were led to this by the thought, which some of the attorneys in the Last Chance case say is a fact, that the Last Chance was really after all located upon the dip. If the rule which controlled the court in Duggan V. Davey had been applied, the question of priority would not have been so important, because a location upon a dip exposure gives no extra-lateral rights, and the location of the Tyler upon the apex of the strike would own the ores. § 837.] CLASSIFICATION OF APEX CASES. 729 § 837. End line and side-line cases — The equitable reasons of the rule as originally considered in the Del Monte case. — The next case to present the question of end and side-line departure of the vein from the claim was the Del Monte case ' in Colorado. It will be best understood by the following diagram: Fig. 20. The relative dates of location of these claims were, first, the Del Monte ; second, the New York, and the Last Chance was the junior. It will be observed that the Del Monte possesses no apex. It was contended by the Del Monte company, the same as in the Tyler-Sweeney case, that all lines crossed by a vein on its strike were drawn vertically against it, and the absurd assertion was made that this was the ruling in the Flagstaff case. . Judge Hallett, in disposing of this feature of the case when it was before him at the 1 Del Monte M. & M. Co. v. New York & Last Chance M. Co., 66 Fed. Rep. 213. 130 SUB-SUEFAOE AUTD EXTEA-LATEEiL EIGHTS. [§ 837» circuit, in his inimitable terseness of statement, says: " This^ however, has not been the interpretation of the law in the supreme court or in any court so far as we are advised. It is true that in the Flagstaff case . . . and Amy-Silversmith case, . . . the supreme court declared that the side lines of the location shall be end lines wherever the lode on its- strike crosses such lines; but these decisions do not affirm that all lines of a location crossed by a lode on its strike- shall be end lines. The most that can be deduced from them is that opposite lines, parallel to each other, when crossed by the lode, shall be end lines. The case presented' is not within the principle of these decisions." One end line was well placed, and in making the mistake- of placing the other further distant therefrom than the point, where the claim ceased to contain the lode, ought not, and the courts say did not, deprive the Last Chance owner of extra-lateral rights. Says the court: "It is said that we cannot make a new end line at the point of divergence . . . because the court cannot make a new location or in any way change that made by the parties. . . . This, however, is- not necessary. We can keep within the end lines fixed by the locator in respect to any extra-lateral right that may be recognized without drawing any line ; and, if there be magic in the word ' line,' it will be better not to use it. . . ^ We keep entirely within the end lines of the location, . . . and the circumstance that we are somewhat short of the north end line does not in any way affect the principle to be followed in construing the statute. The same rule would be adopted if the lode were physically shorter than the- location." ' The logic of this ruling seems to us invincible, but the- case itself was further reasoned upon by Mr. Justice Brewer in the supreme court of the United States, who said, speak- ing of the statute : " This places a limit on the length of the- iDel Monte M. Co. v. New York pion M. Co., 63 Fed. Rep. 553; Cons^ & Last Chance M. Co., 66 Fed. Rep. Wyoming M. Co. v. Champion IVL 312. See also Walrath v. Cham- Co., 63 Fed. Rep. 540. § 838.] CLASSIFICATION OF APEX CASES. 731 vein beyond which he may not go, but it does not say that he shall not go outside the vertical side lines unless the vein in its course reaches the vertical planes of the end lines. Nowhere is it said that he must have a vein which either on or below the surface extends from end line to end line in order to pursue that vein in its dip outside the vertical side lines. Naming limits beyond which a grant does not go is not equivalent to saying that nothing is granted which does not extend to those limits. The locator is given a right to pursue any vein, whose apex is within his surface limits, on its dip outside the vertical side lines, but may not in such pursuit go beyond the vertical end lines. And this is all that the statute provides. Suppose a vein enters at an end line but terminates half way across the length of the loca- tion ; his right to follow that vein on its dip beyond the ver- tical 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 vertically,' and the same is true if it enters at an end and passes out at a side line." ^ § 838. The case of Fitzgerald v. Clark — Eeason of the rule — A correct result by reasoning partially right and partially wrong. — The next case to engage the attention of the court, and before any such case had reached the su- preme court of the United States, the final arbiter in such cases, was the case of Fitzgerald v. Clark, in the supreme court of Montana.^ The case will be ' better illustrated by a diagram (on page 732) copied from the Pacific Reporter in its report of the case. The plaintiff owned the Niagara and the defendants owned the Black Eock. The vein crossed the common line at 1 Del Monte M. Co. v. Last Chance 2 17 jiont. 103, 43 Pac. Rep. 373 ; M. & M. Co., 171 U. S. 55: Clark t. affirmed, s. c, 171 U. S. 93. See Fitzgerald, id. 93, affirming s. c, 17 also Parrot S. & C. Co. v. Heinze Mont. 100, 43 Pao. Rep. 373, 30 (Mont), 64 Pac. Rep. 336. L. R. A. 803: Tyler M. Co. t. Last Chance M. Co., 71 Fed. Rep 848. 732 SUB-SUEFAOE AND EXTEA-LATEEAL EIGHTS. [§ 838. point " A," and the action was for ores mined by defend- ants at the point marked " ore bodies," which the plaintiff claimed in virtue of his apex ownership. The trial court, Judge McHatton, projected an end line into the dip of the vein parallel with the end line at the Kg. 21. point where the apex departs from the side line of the Ni- agara into the Black Eock, and consequently gave the ore in dispute to the plaintiff. The supreme court affirmed the •decision in a very exhaustive opinion in point of research ■of the cases, but an opinion which was somewhat color- blind in the matter of discrimination. Some of the reason- ing was, however, exceptionally strong, and one of its rea- sons for the correctness of placing a new end line at the point of departure, instead of drawing all lines crossed by the lode on its strike vertically, was unanswerable. The reasons given by the court were substantially as follows: ^' If the side line crossed must be treated as an end line, and be drawn vertically, this will make two vertical planes meeting at right angles at the corner of the claim. If the vein dips in the direction of the side line so crossed, the ap- plication of the above rule would give the owner of the apex but a small segment of the vein ; and of course if such a rule were to prevail as to such a vein, it would have to be applied to one dipping the other way, thus giving a con- § 839.] OLASSiriCATION OF APEX OASES. 133 stantly and rapidly diverging dip proceeding fan-shaped into the earth, and comprehending within its possible range an enormous segment of the vein. There are but two ways to prevent this result: either draw all lines vertically or pro- ject a new end line into the dip at the point whei'e the vein leaves the side line of the claim. Since there is no author- ity to do the former, this court and other courts have wisely pursued the latter course and kept well within the spirit of the law." The court proceeds as follows: "As we leave this confusion and turn to the other solution, that of the Amy & Silversmith case, . . . difficulties disappear and there is light upon the whole path. We can, then, do, as the United States supreme court said in its decision in the Amy & Silversmith case, . . ' The most that the court can do, where the lines are drawn inaccurately and irregu- larly, is to give the miner such rights as his imperfect loca- tion warrants, under the statute;' that is to say, we can . give to the miner, or rather the law, as we construe it, gives to the miner, as much length of strike, no matter how deep he goes upon the dip, as he has length of the apex, and he loses in strike and dip only what he has failed to get in apex." 1 § 839. Criticism on the Clark-Fitzgerald case. — We think the court was entirely right in the case last cited, and agree with much of the reasoning of the court. Ifot because it followed its interpretation of the Amy case, however, for we do not agree that it did follow it, but because it departed from it, and because of the reasoning of Judge Hawley and Judge Hallett quoted in the opinion, and because of the reasoning of the court, which agrees with what we have elsewhere said, viz., that it was the intent of the statute ta give the miner as much of the strike of the vein on its dip as he has of its apex; no more, no less. The Montana court loses sight of the fact that the Clark case, as also all 1 King V. Amy & Silversmith Cons. M. Co., 9 Mont. 543, 34 Pao. Rep., 200; reversed, 153 U. S.333 734 SUB-SUEFACE AND EXTEA-LATEKAL EIGHTS. [§ 840. other cases of crossing an end line and a side line, rests upon a wlioUy different and distinct principle from the Amy case and the Flagstaff case, which must of necessity rest upon the same principle as decided by the supreme court of the United States. It will thus be seen that in the Clark-Fitz- gerald case the Montana court was, in a sort of nolens volens way, guided by correct principles, and was not correct in the Amy & Silversmith case. It only goes to show that even the best of courts are sometimes intuitively guided by the hand of the blind goddess rather than by their own process of reasoning." § 840. Wyoming t. Champion — Ideal or imaginary lo- cation of veins along center of claim not conclusive — End line and side line — What a vein under the statute.— While this case could have been properly cited as authority for the same principle involved in the last section, the Del Monte, the Clark-Fitzgerald and the Tyler cases; still there are some new and unique features presented, some of which, while they are good law in the abstract, must be relegated to the field of mere dictum, not necessary to the decision of the real point involved in the case. It presents, besides the question of crossing lines not parallel, the further question as to what shall be considered the vein or lode line, the real one or an imaginary one established for purposes of survey. And further, whether the hanging wall or foot- wall is to be the line measuring' the right. While the de- cision itself was written by one of the most able mining judges on the bench, the wide range covered by it serves to illustrate the danger, which even the best judges are falling into, of enlarging rather than reducing the mass of an opinion to a decision of the questions under discussion. In that case ' it was decided and held what would seem to be unnecessary, yet it is undoubtedly a correct statement of the law, that mere ideal lines along the center of a location, from which all distances are measured for the purpose of a patent, do 1 Cons. Wyoming G. M. Co. v. Champion M. Co., 63 Fed. Eep. 540. § 8il.J CLASSIFICATION OF APEX CASES. 735 not necessarily constitute the vein, nor is any person accept- ing such patent, or holding under it, estopped by any such circumstance or condition. And further, that that is the vein which is officially demonstrated to be the vein, no matter where it runs; and that must be the law everywhere. That, and that only, is the vein which answers the description we have tried to give elsewhere in this work of what constitutes a vein or lode. To epitomize: the vein, then, in the light of the authorities and the statute, as we attempted to point out in the chapter relating to discovery, must be held to be the mineralized sheet zone or mass in place, that is fixed where nature placed it in the body or mass of the mountain. If between plainly distinguishable walls, or between two differ- ent kinds of rock, these walls or specific character of rock will mark the margins of the vein, and the mass between will be the vein regardless of its richness so long as it shows a tra,ce of vein matter. If the vein is one of substitution, replacement or infiltration, where the mineralized substance has eaten out and occupied the place once held by the coun- try rock, as in some limestone regions, the entire mineralized mass must be held to be the vein, and the barren rocks on either side must be called the walls. § 841. Further as to what is a vein — Flat or hedded veins. — While we discussed in our chapter on discovery the question as to what constitutes a vein, and again in considering the apex, still we were properly led into a dis- cussion in the last section as between the real vein and the wholly imaginary lode line which the clerks of the land of- fice have required to be marked upon the diagram in ap- plications for patent. And while we are digressing for one purpose, it will not be wholly out of place to consider another species of "irregular" vein, which some say cannot be pursued on its downward course. Much theoretical specu- lation and impracticable observations have been indulged by mining experts, geologists and law writers as to what rights can be acquired by location upon a bedded vein lying 736 SUB-SUEFAOE AND EXTEA-LATEBAL EIGHTS. [§ 842, almost horizontal or folded so as to present an apex expos- ure either flat or inclining upward. The answer is found in the law itself. "While the theory upon which the law was enacted was that veins were more or less vertical, it by no means withheld from location those veins that were not so. Since the apex is the part approaching nearest the sur- face, if the ore is in defined boundaries the inclination or the lack of it becomes an immaterial question, and the out- crop may be located and the vein followed on its dip. And the spirit of the law will be satisfied by allowing lateral pursuit; the discovery is upon the edge of the vein, which agrees with the court's definition of apex, precisely the same as if the stratum containing the vein stood upon its edge ver- tically or upon any angle between the vertical and the hori- zontal. § 842. The Wyoniing-Champion case — Circumstances of the case compared with other cases hy the court — True construction of the statute — Particular line or angle of crossing immaterial — Patents and rights under law of 1866 considered. — The main question in this case was the ownership of the ore existing beneath the surface of the New Tear's and Climax locations, the property of the Champion company, and claimed to have its apex in the Ural location, l3nng westerly therefrom, the property of the Wyoming company. The imaginary or ideal strike of the vein was from the northerly end line of the Ural southward; the real strike was the margin of the zone of croppings and the line of contact of the granite hanging wall with the slate foot-wall. There were other veins dipping in the same direction and having their apex elsewhere, which united with these at considerable depth. But that question be- longs properly to another branch of our inquiry.' The par- ticular vein apexing in the Ural ground, by its foot-wall crossed the easterly side line of the Ural location, and it was contended as in the Del Monte, Clark-Fitzgerald, and other 1 Post, oh. Ill, art D. § 842.] CLASSIFICATION OF AFEX OASES. 737 similar cases, that that line constituted an end line, and must be drawn down vertically, cutting off the extra-lateral rights of the "Wyoming people. Judge Hawley in commenting upon the different cases presented the principles involved in the Flagstaff, Amy, Tyler and Del Monte cases (although it was before the decision of the Del Monte case, yet the same principles \yere involved), sustained these principles and repudiated the contention above mentioned. It was further contended that the lines were laid so that, under the decision in the Horseshoe and Argentine cases, extra- lateral rights should be denied. But the court was not mis- led by this sophistry, and correctly ruled that where one line is crossed by the vein on its strike substantially at right angles therewith, the angle at which the other line is crossed is immaterial, and a new line would there be drawn parallel therewith and extra-lateral rights granted accordingly.* The learned judge then proceeds to distinguish, as we have sought to do elsewhere, between the cases where the lode crosses an end line and a side line, and those where it crosses both end lines or any two lines running parallel to each other, or sub- stantially parallel, and concludes as follows : " It cannot, it seems to me, consistently be said that complainant is de- prived of any of its extra-lateral rights to the fourteen hun- dred feet, more or less, which is all entirely within the sur- face lines of the Ural patent, and substantially parallel with its side lines as marked upon the surface ground. The stat- ute of the United States is not, in my opinion, susceptible of any such construction, and no decision of any national or state court has ever gone to that extent. The supreme court of the United States in the Amy case simply decided that when a mining claim is located across instead of along the lode, its side lines must be treated as its end lines, and its end lines as its side lines; . . . there is nothing in either 1 Cons. Wyoming M. Co. v. Cham- rath v. Champion M. Co., 63 Fed. pion M. Co., 63 Fed. Eep. 540. See Eep. 553, 73 Fed. Rep. 978; S. C, 171 also other branches of the lltiga- U. S. 293, 163 U. S. 710. tion over the same ground. Wal- 47 738 SUB-SUEFACE AND EXTEA-LATEEAL EIGHTS. [§ 843. of the opinions of the circuit court of appeals in the Tyler cases which is at variance with this principle. On the con- trary, this rule is expressly recognized." ^ The court further attempted to lay down the rule that where a vein enters a claim over the side line, say five feet from the end line, and crosses the other side line a like dis- tance from the other end, but proceeds more nearly length- wise than crosswise of the claim, a new and different rule, similar to that of the Montana supreme court in the Amy case, should prevail, and lines be projected into the dip par- allel with the end lines proper. But as this was not neces- sary to the decision of the case, and would subvert the entire system and open the door to hair splitting as to what cases would fall within such a rule, it is best to place it in retire- ment by simply saying it would be impracticable. § 843. Walrath v. Champion — Law of 1866 — Relation of other veins in claim to located vein — Other veins crossing side line — End line for one, end line for all — One set of end lines. — The question as to the general rela- tionship of the located vein to all others apexing within the claim is postponed to a further part of this work,^ but the question was discussed in the case mentioned in the heading ' in such a way as to make it strikingly applicable to the gen- eral end and side-line question. The matter in hand can be better illustrated by the dia- gram (on page 739) used in the supreme court to illustrate the decision. Both veins dipped towards the east, and the Providence or 1 Cons. Wyoming M. Co. v. Cham- - Post, this Part, ch. Ill, art. B, pioh M. Co., 63 Fed. Rep. 540. See also §§ 885-89. Champion M. Co. v. Cons. Wyoming ' Walrath v. Champion M. Co., 63 M. Co., 75 Cal. 78, 16 Pac. Rep. 513; Fed. Rep. 553; modified and af- Tyler M. Co. v. Sweeney, 54 Fed. firmed, 73 Fed. Rep. 978, 19 C. C. A. Rep. 384, 4 C. C. A. 339 ; Last Chance 333 ; affirmed, 171 U. S. 393, 43 L. ed. M. Co. V. Tyler M. Co., 61 Fed. Rep. 170. 557, 9 C. C. A. 613; Doe v. Waterloo M. Co., 54 Fed. Rep. 937. SiS.] CLASSIFICATION OF APEX CASES. 739 granite vein, the one located upon, crossed lines a-p and g-h substantially parallel. The contact vein, so far as involved N 4^ i.iijf- J^iUi^''*' Fig. 23. in the case, ran parallel with the main vein, and, as shown in other litigation involvingthe same vein further north,' united 1 Cons. Wyoming G. M. Co. v. Champion M. Co., 63 Fed. Rep. 540. 740 SUB-STJEFACE AND EXTKA-LATEEAL EIGHTS. [§ 843. with it at depth, also on the strike ; but that is not important here. The complainant owned the Providence claim, which was located and patented under the law of 1866, and the re- spondent owned the New Year's Extension (marked on the diagram " N. Y. Ext."). The general rule announced in the case, and which we may consider as settled, is that there can be but one set of end lines, which are those that control the main or located vein.^ We take it there can be and will be no disputing the proposition that there can be but two sets of lines in a mining claim, no matter how many lines there may be, and that one set of those, composed of two lines only, must be called end lines, and all other lines must compose the other set and be called side lines. We leave out of this consideration all imaginary lines projected into the dip, as' in the Del Monte, Clark-Eitzgerald and similar cases. Starting with premises thus laid it must be apparent that the line f-g is a side line. The pertinent question then becomes: what rule is to be applied to a side vein (if we may use the expression) paralleling the main vein, and cross- ing such side line on its strike ? If the court, whose decis- ion is final, had not decided otherwise, we would be com- pelled to say, following the principle of the Del Monte and similar cases, and the exact rule of the circuit court of ap- peals of the ninth circuit, in the Montana case cited above,* that a new line parallel with the end line should be pro- jected into the dip at the point of such departure, and the right of the Providence to the portion thereof as to which it had no apex be thus circumscribed, and the contention of the Champion company adopted. But the supreme court has decided otherwise, and consequently the law is, or at least seems to be, to the contrary, but with due deference, it is the reasoning of the judge and not the reason of the 1 Walrath v. Champion M. Co., 63 Montana v. Montana M. Co., 104 Fed. Rep. 553; Iron Silver M. Co. v. Fed. Rep. 664. Elgin M. Co., 118 U. S. 196, 198, 30 L. - St. Louis M. & M. Co. v. Mon- ed. 98, 99; St. Louis M. & M. Co. of tana M. Co., supra. § 843.] CLASSIFICATION OF APEX OASES. 741 law, a greater show of power than of reason, which makes it so. It is the province of the law writer to attempt a reconciliation of the law upon lines consistent with the rea- son of the law. Cases like this make the performance of that duty very difficult. The logic which binds us to the end line and side line rule seems invincible, and by that we are taught that where a vein crossed an end line and side line of a claim, a line parallel with the end line at the point of departure marks the limit of the right of pursuit of the vein on its dip, these lines of course to be produced endlessly in their own direc- tion. Why should a different rule apply to a side vein ? "We can see no reason therefor. But it is said, and truly too, that the end lines of the located vein are end lines for all purposes and all other veins. True, but it does not fol- low that all other veins are to be given the same length of strike, regardless of the ownership of apex, as the main vein. The principle will be sufficiently vindicated by ap- plying the same rule as that applied to the main vein and drawing a line parallel with the end line at the point of departure, as was done with the Drum Lummon vein in the Montana case. Naming limits beyond which a vein may not be pursued on its strike is not the equivalent of saying that all veins, apexing in any part pf the ground, may be mined on their strike to that line, regardless of the position of the apex, in or out of the ground. Besides, the apex be- longed to the New Tear's Extension, passing over a line parallel with the end line of the Providence, and reaching to the point where the vein on its strike passed out of the Providence. Our position can be better illustrated by ref- erence to the diagram (on page 742) in the Montana case mentioned above. Here the Drum Lummon vein is the side vein and the St. Louis vein is the located or main vein. Both dip in the same direction, towards the east. The only distinction be- tween this case and the Providence-Champion case is that here the side vein is in the hanging wall, and there in the 742 SUB-SUBFAOE AND EXTRA- LATERAL RIGHTS. [§ 844. foot-wall of the main vein ; but it is a distinction without a difference where the veins are substantially parallel. The same rule applied to the Drum Lummon vein as that applied by the supreme court and the circuit court of ap- Fig. 23. peals to the Providence contact vein would give the St. Louis the dip right upon that vein the entire length of the St. Louis claim, regardless of ownership of apex. The further this question is pursued the more apparent does it become that the supreme court did not fully appre- ciate the question before it, and that it ought to modify this decision, and in such cases give to each the right on the dip coterminous with ownership of apex, the local lines always to be drawn parallel with the end lines which mark similar rights as to the located vein. § 844. Comments and criticisms of the Wyoming case — Classification the safer plan. — Nor can we agree with all that is said by the learned trial judge in the "Wyoming case; § 8-±5.] CLASSIFICATION OF APEX CASES. 743 ■vre think it safer to adopt a system of classification as we have sought to do in this work, and then rigidly pursue such classi- fication in all decisions under the statute.' It is true that the statute should be liberally construed as a remedial statute,^ in order to protect the miner in the enjoyment of his rights. But this can better be done by having fixed and safe rules, than by exploring new fields and marking out new prece- dents every time a doubtful point is encountered in the de- cision of a case. We think, therefore, that wherever a lode crosses two lines running substantially parallel with each other, no matter at what angle, or at what points in the line, those lines are, by force of the statute, end lines, and, extending in their own direction, cut ofE his rights; that when a lode crosses an end line and a side line, a new end line should be projected into the dip parallel with the first one, at the point of departure, and that if these conditions are elevated to the position where we have sought to place them, all gloom and diflBculty will vanish, and the pathway be made more easy for the interpretation of this statute. But here are some — § 845. Further comments of the court which sustain lis throughout in the position sought to he taken. — "If the locator makes his location crosswise instead of length- wise of the lode, then the end lines of the location become side lines, and he can only take so much of the lode length- wise as lies within the surface lines of his location. But if the lode runs like the contact vein does through the Ural surface ground, there is no substantial reason that would justify a court in declaring that the locator would not be entitled to any extra-lateral rights. No such construction has ever been given to the statute." ' 1 Cons. Wyoming M. Co. v. Cham- See also Del Monte M. Ca v. New plon M. Co., infra. York & Last Chance M. Co., 66 Fed. 2Watervale M. Co. v. Leach Eep. 213; affirmed, Del Monte M. (Ariz.), 33 Pac. Rep. 418. Co. v. Last Chance M. Co., 171 U. S. 3 Cons. Wyoming G. M. Co. v. 55; Flagstaff M. Co. v. Tarbet, 98 Champion M. Co., 63 Fed. Rep. 540. U. S. 463. T44: SUB-SUEFACE AND EXTEA-LATEEAL EIGHTS. [§ 846. § 846. No force in suggestion to postpone marking. — There is but little, if any, force in the suggestion often made that the locator should postpone the marking of his boundaries until sufficient explorations are made to ascertain the true course and direction of the vein.' The case just considered furnishes a fair example of the difficulties so often encountered by the miner in his efforts to determine the direction of the vein he has discovered. The Wyoming vein had been discovered forty years and worked more or less during that time, and yet, with all the working, it was im- possible for the witnesses to testify with any degree of cer- tainty the true course and direction of the vein. He (the locator) is required to exercise his best judgment from the developments he has been able to make, and he is, of course, confined to his surface location, whether his judgment was right or wrong. Said the court : " The statute should be so construed as to give to the locator what he actually locates, no more and no less. It should be liberally construed in his favor, so as to give him the full benefit of the statute in its true spirit and intent, in order to carry out the wise and beneficent policy of the government in opening up the min- eral lands for exploration and development. "When a pros- pector discovers a vein of ore of sufficient value to justify the expenditure of time, labor and money to open it up and develop the same, he is honestly and legally entitled to the fruits of his labor. He is admonished by the law that he will be limited in the length of his lode upon its strike to such portion as is within the surface lines of his location, but he is at the same time assured that he will not be lim- ited or deprived of his extra-lateral rights as to the depth of such lode, upon its dip, the apex of which is within the sur- face lines of his location." ^ The court is now clearly within 1 Iron Silver M. Co. v. Elgin M. s. C, 62 Fed. Rep. 945. See also Co., 118 U. S. 196; King v. Amy & Walrath v. Champion M. Co., 63 Silversmith M. Co., 152 U. S. 222. Fed. Rep. 553; s. c. on appeal, 2 Cons. Wyoming G. M. Co. v. affirmed, 171 U. S. 293. Champion M. Co., 63 Fed. Rep. 540; §§ 847, 848.] CLASSIFICATION OF APEX CASES. 745 the liaes of the law and is enunciating the exact principles we have contended for throughout. Proceeding beyond the case in hand the court makes this — § 847. New but progressive announcement of the law.— While, as we have elsewhere said, there are some cases, and doubtless will be others, as we shall see further on in this work,' where this principle should be applied, as, for ex- ample, where a vein begins and ends wholly within a claim without crossing either line, or where it crosses the same line twice,^ where this principle ought to be applied, it does not seem to us that it was a proper remark for the case in hand. However, it is good law as a general ab- stract proposition, and we therefore quote it : " One gen- eral principle should pervade and Control the various con- ditions found to exist in different locations, and its guiding star should be to preserve in all cases the essential right given by the statute to follow the lode upon its dip, as well as upon the strike, to so much thereof as its apex is found within the surface lines of the location. 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 extra- lateral rights are preserved and maintained as defined in the statute." ' § 848. Further comments to matters in last section — Dangerously near the old law. — The principle contended for in the last preceding section by Judge Hawley, if held within due bounds, would doubtless be of value in some such 1 Post, this chapter, §§ 858-59. v. St. Louis M. & M. Co. of Mon- 2 Catron v. Old, 33 Colo. 433, 48 tana, 104 Fed. Rep. 664. Pac. Rep. 687; Montana M. Co. Ltd. 'Cons. Wyoming G. M. Co. v. Champion M. Co., 68 Fed. Rep. 540. 746 SUB-SUEFACE AND EXTRA-LATEEAL EIGHTS. [§ 849. cases as those we suggested as a preface to the quotatiou made. But the danger would always be that of practically ignoring the boundaries as marked on the ground, thereby relegating the lode itself to substantially the same condition as fixed by the law of 1866. This would open the door to hair splitting, in some cases, in the effort to ascertain by proof which lines were to be considered as end lines and which should be considered as side lines. We think classi- fication the only safe plan, and that wherever the vein crosses a line and does not return to that line, with very rare and scattering exceptions, it should be treated as an end line. In the Champion case, from which we have quoted so copiously in the preceding sections, Judge Hawley further expresses the doubt whether it were not better to return to the Spanish and Koman law, under and by which all lines were drawn vertically, and vertical boundaries prevailed. We are free to say that much litigation has resulted from our present system, but is it therefore to be condemned? To our minds the innate justice of the apex doctrine, in the ab- stract, in giving to the discoverer the entire vein to its utmost depths within his boundary lines, is enough in itself to offset many objections that might otherwise be seriously made to the law on account of the litigation it entails. Moreover, a return to the old system is not the true remedy, because this one is fruitful of litigation, unless it can be said that courts must interpret afresh, and on each occasion that the question is presented, the meaning of congress as declared in the mining statute, without reference to any system such as we have attempted to point out. But we think the courts, if they will systematize the decisions and the law as we have attempted to outline and define them in this work, may thus safely turn from the maze of difficulty, otherwise pre- sented, to clear and beaten paths. § 849. Irregularly-sliaped locations consolidated in one patent. — -Locations consolidated in a patent, commonly called group patents, sometimes present questions similar to § 850.] CLASSIFICATION OF APEX CASES. 747 those discussed in the preceding sections where the vein crosses the end line and the side line, and it would seem that they are controlled by the same principle.^ And that whether it be a peculiarly-shaped location, or more than one location consolidated, the rule must be that where a vein crosses one line substantially across the dip, and an- other not parallel with it, the extra-lateral rights should be confined within a parallel made at the point of departure with the line so crossing the strike and conforming to the dip.^ The principle upon which this rule is applied is the governing one that all courts agree should control in this class of cases ; that is, the miner is to have as much of the vein throughout its entire depth as he owns of the apex. As was said by the supreme court of Montana: "If the miner has the apex in his location he is to have the vein, and he is to have as much length of the vein on the strike, no matter how deep he may go on the dip, as he has length of apex within his surface lines." ' § 850. Same question — The Carson City case.— The only case presenting this precise question is a case arising in the northern district of California, where it was tried by Judge James H. Beatty, district judge of Idaho.* This was a case where several locations had been patented as one claim. The apex of the vein crossed the end line of one lo- cation, according to the contention of the defendant, but as to this there was some dispute, and some question whether it did not extend from the cross-fissure some seven hundred feet east of the westerly end line, westerly some fifteen hun- 1 Carson City G. & S. M. Co. v. v. Eureka Hill M. Co., 5 Utah, 3, 11 North Star M. Co. (C. C. A.), 83 Fed. Pac. Rep. 515; Clark v. Fitzgerald, Rep. 658, affirming same case, 73 171 U. S. 92; Del Monte M. Co. v. Fed. Rep. 597. Last Chance M. & M. Co., 171 U. S. 2 See same case. 55. 3 Fitzgerald v. Clark, 17 Mont. * Carson City G. & 8. M. Co. v. 100, 43 Pac. Rep. 273, 276. See also North Star M. Co., 73 Fed. Rep. 597. Bullion-Beck & Champion M. Co. 748 SUB-SUEFACE AND EXTEA-LATEEAL EIGHTS. [§ 850. dred feet, and terminate before reaching the easterly'- bound- ary of the claim. The case was illustrated in both courts by the following diagram: Fig. 84. At all events, in any view of the case, it became an im- material question whether it began and ended wholly within the group or crossed the easterly end line and ended at the fissure. The plaintiff owned the Irish-American, into and beneath the surface of which the vein had penetrated on its dip to the northward, and the bone of contention was the ownership of the ore which the defendant took from beneath the surface lines of the Irish- American. It was claimed on the trial that the extra-lateral rights were confined to the lines as made in the original location of the surface, and that in a case where a vein might cross another location, those lines forming its side lines would be drawn upon it § 850.] CLASSIFICATION OF APEX CASES. 749 verticallj', or, following the Amy & Silversmith case, where it crossed a side line, such line would be drawn against it vertically. The court held that there is no limit to the number of claims which may be patented in one application; that defendant owning several claims comprising the North Star might have procured separate patents, and in so doing might have so established his lines as to make them parallel, just as is done now in application for patent, and if several claims jointly included the entire apex of all the veins, they could have been so surveyed as to make all the end lines parallel, and thus give it what it substantially claims in the North Star patent. That defendant had only done by one act, at less expense, what it might have done by several acts and at greater expense. The North Star is of greater super- ficial area than in law is ever authorized for a single ledge location, but it has been .held by the supreme court that while the law prescribes a limitation to a single location, there is no limit to the number of locations one person may hold by purchase, or that may be included in a single patent.' "It is therefore concluded," said the court, "that the de- fendant may follow its ledge on its descent under the Irish- American claim, and to any depth, between a perpendicular plane drawn through the east end line of the claim and an- other similar parallel plane crossing such claim at the point fixed as the western terminus of the ledge, being designated by " C," . . . and judgment for defendant is ordered accordingly." ^ In upholding this judgment the circuit court of appeals of the ninth circuit uses these words : " "We are of opinion that the defendant was not required to show the separate lines of any of the original locations embraced within the surface boundaries of its patented claim. It was enough for it to show that a lode running in an easterly and westerly direc- tion, and having its apex within the surface boundaries of the patented ground of the North Star, extended, in its 1 St. Louis S. & R Co. V. Kemp, 2 Carson City G. & S. M. Co. v. 104 U. S. 636. North Star M. Co., 73 Fed. Rep. 597. 750 SCB-SUEFACE AND EXTEA-LATEEAL EIGHTS. [§ 851. downward dip, into the workings of the Irish-American ground owned by the plaintiff in error, and that all its acts complained of by the plaintiff were in extracting ore from such lode 'extended downward vertically,' within its side- line planes, beneath the patented lines of the Irish- American ground. It is true that the burden was upon the defendant to show by a preponderance of the evidence that the ore which it extracted from beneath the patented surface ground of the plaintiff belonged to the lode or vein the apex of which was within the surface lines of its own patented ground.^ But this burden is met and overcome by the un- disputed facts, found by the court, that the defendant was the owner of and in possession of the entire apex of the lode within the boundaries of the North Star patented mine, and its continuity and identity in its dip downward vertically beneath the Irish-American ground. It was unnecessary to go further, by proving the lines of one or more or all of the locations as originally made." ^ §851. Original location lines immaterial — Doctrine of Doe v. Sanger. — It will thus be seen that the lines of the original locations are not of such controlling impor- tance as that they may not be changed. Indeed, we have already seen that amendments and addenda to locations may be made at any time before patent.' The obvious rea- son of this is that lines may be finally adjusted by the ad- dition of more ground, by purchase or location, the changing of locations themselves, or any other fair and legitimate means whereby the miner is enabled to completely and properly cover the strike of his vein. Imaginary lines are unimportant. The vital question, after all, is, does the miner own the apex and strike of the 1 Citing Duggan v. Davey, 4 Dak. W^yoming G. M. Co. v. Champion 110,122, 26 N. W. Eep. 887, 891 ; Lead- M. Co., 63 Fed. Rep. 540, 551. villeM. Co. V.Fitzgerald, 4 M.R. 380, ^ Carson City G. & S. M. Co. v. 15 Fed. Cas., p. 98, No. 8,158; Stevens North Star M. Co., 83 Fed. Rep. 658, V. Murphy, id.; Doe V. Waterloo M. 663. Co., 54 Fed. Rep. 935, 937; Cons. s^nfe, Part VII, ch. V. § 861. J CLASSIFICATION OF APEX OASES. T51 vein, and is the ore in question under the neighbor's ground, the ore having its apex in the miner's claim between ver- tical planes of parallel exterior boundaries, extended in their own direction? The tendency of judicial thought, as we shall see here- after,' and as the subject of mining law is becoming better understood, is to enlarge rather than to diminish the extra- lateral right, and in no case to deny it, where it is capable of ascertainment. Kesort to the common-law rule should never be invoked, except in cases of doubt as to the true position of the apex.^ An illustration of this principle is found in a case decided by the supreme court of California.' It will be better under- stood by the following diagram: Fig. 25. The strike of the vein was easterly and westerly through the Silver King claim, the plaintifif owning a claim to the south, called the " Oriental," and the dispute was as to the ownership of ore bodies dipping from the apex in the Silver King south- erly into and under the surface ground of the Oriental. In this case the location was made with the southwesterly side line much longer than the northeasterly side line, the claim running substantially northwest and southeast; but when surveyed for patent, the southwesterly side line was short- ened so as to create a parallelism of end lines. It was con- tended that, the location originally not being in the form of iPost, this Part and chapter, Empire State Idaho M. Co., 106 arts. C. and D. Fed. Rep. 471-74. 2 Bunker Hill & S. M. Co. v. 3 Doe v. Sanger, 83 CaL 203, 28 Pao. Rep. 365. T52 SUB-SUEFACE AND EXTEA-LATEEAL EIGHTS. [§ 851. a parallelogram, the doctrine of the Horseshoe case must apply and all lines be cut down vertically ; that a figure such as this gave the locators no extra-lateral rights. The court, speaking through Mr. Justice McFarland, said: "But we do not think such a construction of section 2320 is ad- missible in any view, or for any purpose. It would include absolute mathematical parallelism ; for, if the divergence of a few feet in a distance of six hundred feet would not viti- ate a location, why should any reasonable divergence, which does not materially change the figure of the location from that of a parallelogram ? The intention of the statute was to make valuable property rights of lode miners to depend upon something more substantial and important than the mere trick of a perfectly correct measurement of surface ground or mathematically accurate survey. A substantial compliance with section 2320 is all that is required. . . . If, however, a location is made in substantial compliance with the intent of the statute, — that is, where there are two side lines running along the course of the vein, and two shorter end lines running across it, so that the two sets of lines are distinct and apparent, — such a location is not void, but gives the right to follow a vein laterally, although the original end lines may not be exactly parallel, or although they may differ from a true parallel as much as they did in the case of the Silver King. . . . The statutes of con- gress upon the subject, except so far as they provided for patents, were little more than mere formal legislative decla- rations of what had before rested in the unwritten con- sent. They follow mainly the customs which miners exerr cising the license had established among themselves, and which fixed the character and incidents of mining property. And one of the inherent and most valuable qualities of prop- erty in a lode mine, as fixed by these customs, was the right to mine the lode to indefinite depths, although it might so far depart from a perpendicular in its downward course as to extend outside the vertical side lines of the surface loca- tion." 1 1 Doe V. Sanger, 33 Pac. Rep. 367. § 852.] OLASSiriOATION OF APEX CASKS. Y53 § 852. Claims patented separately and consolidated, grouped and operated as one mine after patent. — The question as to whether the lines circumscribing the indi- vidual claims as patented may be practically obliterated,, for the purpose of asserting extra-lateral rights, has never been directly decided in any of the cases reaching the courts of last resort. It is settled law that the miner owns as much of the vein to its uttermost depths, between the ex- tended vertical planes of his surface lines, as he owns of the apex.' Why then is it important whether he owns it in one claim or in a dozen ? Is it not sufficient that he owns it and'that his neighbor does not ? That is, providing of course that he has one line correctly laid upon the surface across the dip, between which and another line drawn parallel with it on his own ground, and extending thence into the dip of the vein, his rights can be ascertained and defined. In the unreported case of Crown Point Mining Co. v. Ontario Silver Mining Co.,^ where, upon plaintiff's theory of the case (see Fig. 26, page 754), the vein departed from the side line of the Ontario and both sides of the Banner and Henrietta, parallel claims, and further to the southwest was supposed to cross the end lines of another claim, near the compromise line between the Ontario and Daly. Under the pleadings the ownership of all these claims, and others, was set up and the claim made that they were operated as one mine. Justification for extracting ore from beneath the surface ground of the Munadore, the property of plaint- iff, a claim lying to the north of the westerly end line of the Ontario and extending about half westerly and half easterly from said point, was claimed by virtue of the own- iDel Monte M. & M. Co. v. Last v. Tyler M. Co., 79 Fed. Eep. 733; t^hance M. & M. Co., 171 U. S. 55, Fitzgerald v. Clark, 17 Mont. 100, 91; Tyler M. Co. v. Last Chance M. 43 Pac. Rep. 373: affirmed, Clark Co., 71 Fed. Rep. 848; Cons. Wye- v. Fitzgerald, 171 U. S. 91. ming Q. M. Co. v. Champion M. Co., ^ Crown Point M. Co. v. Ontario 63 Fed. Rep. 540; Carson City G. S. M. Co., Circuit Ct. Dist. of Utah, & S. M. Co. V. North Star M. Co., 73 1900, unreported. Fed. Rep. 597; Republican M. Co. 754: STJB-SUEFAOE AND EXTEA-LATEEAL EIGHTS. [§ 852. ership of such apex, which in one paragraph of the answer was claimed to extend across the westerly end line of the Ontario, and in another paragraph thereof was claimed to extend through the Ontario, Banner and Henrietta, the property of the Ontario company. c Fig. 28. Judge Hallett refused to submit the question arising upon the latter contention to the jury, as requested by the de- fendant, but submitted only the question presented by the justification claimed in virtue of the vein passing over the westerly end line of the Ontario claim, and the jury by their verdict necessarily found that the vein did not cross the west end line of the Ontario. In the article on mines and mining written for the Ency- clopaedia of Law, we refrained from criticising the decision of Judge Hallett in his submission of this case to the jury, for the reason that we were of counsel in that case, and for the further reason that it was then pending on appeal in the circuit court of appeals. It has since been settled, and while one reason remains for refraining -from criticism the other does not. - With becoming deference to the learned judge who tried § 852.] CLASSIFICATION OF APEX OASES. 755 the case, we desire simply to say that it is difficult to observe any sound distinction between a case such as the North Star case, where claims were consolidated prior to patent, and patented by a description covering exterior boundaries, which every lawyer knows must have been composed of many locations, and the case under consideration, where patented claims are so grouped, held and operated after patent, unless it can be said that in purchasing from the government internal lines may be obliterated, while in pur- chasing from the individual locators, or making separate locations, they may not. It seems to us that the principle involved was correctly elucidated by Judge Beatty in the North Star case, and that it applies as well to claims consolidated and grouped after patent as to those grouped by a patent, for the rea- son, in addition to what we have already said, that the same controlling purpose applies in both cases. Judge Beatty said : " Moreover, the defendant, owning the several claims' which now compose the North Star, might have pro- cured separate patents for each claim, and in doing so might have so changed the end lines as to make them parallel, just as is always done now in application for patent; and, if the several claims jointly included the entire apex, all the claims could have been so surveyed as to make all the end lines parallel to each other, and thus give it what it now substantially claims by its North Star patent. The defendant has only done by one act, at less expense, what it lawfully might have done by several acts at greater ex- pense. The North Star patent is of greater superficial area than any law has ever authorized for a single ledge loca- tion; but it has been held by the supreme court that, while the law prescribes the limitation to the size of a single lo- •cation, there is no limitation to the number of claims one person may hold by purchase, or that may be included in a -single patent, and, as I understand, that may be included in a single survey, showing only the exterior boundaries, ;and omitting all interior lines of the several smaller claims. 756 SUB-SIJEFACE AND EXTEA-LATBEAL EIGHTS. [§ 852. Such was the holding as to agricultural lands,^ . . . and as to placer claims [in another case].^ There appears no rea- son why the same rule should not apply to quartz claims." ' Of course it will be urged that in purchasing an indi- vidual location adjoining th at of the purchaser, no greater rights could be acquired than that possessed by the indi- vidual claim. And, in the abstract, this would be true. But it must be borne in mind that rights are only relative after all, and while an individual title standing alone might not be perfect, yet, by adding another outstanding title to it, it might be made good.* And so with the mining claim — one may not accurately cover the apex properly, so as to give extra-lateral rights in a given direction, while two ad- joining claims would completely cover the question. It is believed that the law is suflBciently elastic in principle to permit a strengthening of an apex title in this waj'^. This principle can be illustrated by the diagram on page 757. Suppose that A. owns the claim marked "A," and B. and C, respectively, own the others. All are patented sepa- rately before the real strike of the vein is known, and surface disputes settled either by proper exclusions or by deed- ing back certain of the conflicting area. The ore in dis- pute, let us say, is at " D," the dip being in that direction. A., in mining, ascertains this fact, and after the claims are patented buys the claims "B" and " C." Neither claim alone is sufficient upon which to maintain the right to re- move the ore, but all together are. The ore does not be- long to D. By apex right he has no ore. "Why may not A. justify his entry and removal of ore by virtue of having purchased all the claims, his rights being confined finally within parallel planes properly extended instead of the planes as located. That is to say, the line 1-2 produced and the dotted line 3-L 1 Polk's Lessee v. Wendell, 9 North Star M. Co., 73 Fed. Rep. 597, Cranch, 87. 600. 2 St. Louis S. & R Co. V. Kemp, ^gtinchfield v. Gillis, 107 Cal. 84, 104 U. S. 636. 40 Pac. Eep. 98. 3 Carson City G. & S. M. Co. v. § 852.] CLASSIFICATION OF APEX CASES. 757 In the case under consideration the Ontario company held undisputed ownership to a group of claims which, be- yond dispute or question, contained the apex of the vein for nearly a mile on its strike. The vein was a true fissure, Fig. 27. and never lost its identity or continuity as it proceeded into the earth. The ape^, as owned by the Ontario, extended six hundred feet to the east of the most easterly end line of the Munad'ore, and to the west it continued for over two thousand feet beyond the most westerly line of the Muna- dore. Yet the learned judge, who made famous the words " if there be magic in the word ' line ' it will be better not to use it,"^ permitted himself to be misled by the supposed presence of imaginary lines, and thus to allow an adjacent claim owner to take, upon common-law principles, the dip of the vein within the side lines of the Munadore, the apex of which belonged to the Ontario. 1 Del Monte M. & M. Co. v. New York & L. C. M. Co., 68 Fed. Eep. 212-315. 758 SUB-SDKFACE AND EXTEA-LATEEAL EIGHTS. [§ 853. The further we pursue this subject the more clearly it appears that to deny extra-lateral rights, under such circum- stances, would be a denial of justice. This may always go as a characterless child of the imagination without legiti- mate adoption or sponsorship by a court, but it seems to us the courts must sooner or later come to this view of the law. § 853. The doctrine of this article summarized. — We have attempted to outline in the preceding sections of this article what seems to be the pervading and controlling prin- ciples of the law, from which we are justified in extracting the following general conclusions: (a) Congress was evidently concerned, in enacting the apex doctrine, with an equal and equitable system or means of disposing of the vein on its downward course, and to this end was enacted the principle of parallelism of end lines. It being the purpose, meaning and intent thereby that the miner should have the same length of the strike of his vein, to its uttermost depths, between, the vertical planes of his surface boundaries produced in their own direction through the dip, as he owns of the apex. Or, as said by Judge Hawley: " One general principle should pervade and control the various conditions found to exist in different locations, and its guiding star should be to preserve in all cases the essential right given by the statute to follow the lode upon its dip, as well as upon the strike, to so much thereof as its apex is found within the surface lines of the location." ' (b) Whether the claim be a single location or a group, the extra-lateral right should be measured by any line crossed by the vein on its strike which most nearly conforms to the dip of the vein, and another line drawn parallel therewith at the point where the apex of the vein departs from the claim. 1 Cons. Wyoming G. M. Co. v. Champion M. Co., 63 Fed. Rep. 540, 549. §§ 858, 859.] classification of apex oases. 759 Aeticle 0. Crossing Same Line Twice, or Crossing No lAne, § 858. Preliminary — Growth of the thought denying extra-lateral rights. 859. Apex crossing the same side line of the claim twice — The Ful- ton claim and the Drum Lummon compared. 860. Vein beginning and ending wholly within the claim — Crossing no line at all. §858. Preliminary — Growth of the thought denying extra-lateral rights. — Ever since the Horseshoe case was decided, courts and lawyers have taxed their ingenuity and their imagination, in nearly all cases involving the apex ques- tion, to find a case where there was a shadow of justification to deny extra-lateral rights altogether, as if they understood it to be the meaning of congress to escape, under all possible circumstances, the granting of extra-lateral rights wherever possible; or, as said by Dickens, when speaking of the Cir- cumlocution office, " to strive how not to do it." We have attempted to outline in this branch of our work the controlling and general principles of the law upon this question, and we think we are justified in concluding there- from that the general policy of the law, as now understood and enunciated by the courts, is to grant extra-lateral rights in every case where tbere exists any certain line from which to measure the right. The common-law rule should only apply in cases where there is doubt as to what apex an under- ground body of ore belongs.^ § 859. Apex crossing the same side line of the claim twice — The Fulton claim and the Drum Lummon com- pared. — "We have found but one case where this question was squarely decided, and that arose in Colorado,^ although there is one other case in Montana where substantially the 1 Bunker Hill & S. M. Co. v. Em- '^ Catron v. Old, 23 Colo. 433, 48 pire State Idaho M. Co., 106 Fed. Pac. Rep. 687. Rep. 471, 474. 760 StTB-SirEFACE AND EXTEA-LATEEAL EIGHTS. [§ 859. same question was involved, or, rather, the same condition existed. We will take up the Colorado case first, which will be best understood by reference to the following diagram taken from the report of the case : Kg. 28. Defendants are the owners of the Fulton and Mendota mining claims. All the claims are patented, and the dotted line on the map shows the apex of the vein through the claims. This vein, which has been explored extensively in workings in both the Mendota and Fulton claims, dips to the south beneath the surface of the Smuggler claim. In following the vein upon its dip, the defendants passed be- yond the side line of the Fulton claim, and are working beneath the surface boundaries of the Smuggler claim at a point marked " A " upon the map. The question presented is as to whether the vein at " A " belongs to the owners of the Fulton by virtue of the ownership of the apex, or to the owners of the Smuggler in virtue of their common-law right. In the trial court verdict and judgment passed for the de- fendant, the owner of the Fulton and Mendota claims. The case was reversed in the appellate court by an opinion by Mr. Chief Justice Hayt, in which all the quotations from other cases were accurately made, and perhaps that is all that ought to be said about the opinion, the effect of which was to deny extra-lateral rights entirely. About the con- clusion itself, however, there is much to be said. The in- justice of denying extra-lateral rights, where they can be § 859.] olaIsification of apbx oases. 761 accorded, would be a result not intended by the law-making power, and which ought to be avoided. It may be admitted with reference to this case that there is no rule by which the owner of the Fulton can get just ■what the locator thereof intended to secure at the time of making the location, namely, fifteen hundred feet of the strike of the vein, with the right to pursue the same in- definitely on its downward course between the produced end lines of the claim. It does not follow, however, that he should be denied extra-lateral rights altogether. He may have been unfortunate in not laying his lines so as to place an end line across the strike of the vein. But such rights as he has should not therefore be sacrificed on the altar of strict or unreasonable construction. The language of Justice Brewer^ is particularly applicable here. " Every vein whose apex is withiii the vertical limits of his surface lines passes to him by virtue of his location. He is not- limited to only those veins which extend from one end line to another, or from one side line to another, or from one line of any kind to another, but he is entitled to every vein the top or apex of which lies within his surface lines." ^ In view of this controlling construction of the law, what becomes of any such nonsensical and unjust conclusion as that reached by the Colorado court, by which extra-lateral rights are denied altogether ? Manifestly it must be rele- gated to the scrap-heap of judicial absurdities. If it is at- tempted to be answered that the court cannot make a loca- tion for the miner, the observation may be made that no such thing is necessary. There are two theories, both clearly within the letter and spirit of the law, by which extra-lateral rights can and should be accorded to the owner of the Fulton. The south- erly side line thereof forms an obtuse angle, one portion ' 1 Del Monte M. Co. v. Last Chance , " Id., p. 88. ' M. & M. Co., 171 U. S. 55, 89, quoted !' in § 837, ante, p. 731, note 1. 762 8TJB-SUEFACE AND EXTEA-LATEBAL EIGHTS. [§ 859. thereof varying from the other approximately about thirty degrees. Defendant also owned the Mendota, and had the right to- elect, where they conflicted, upon which title he would rest his rights. Independent of this, he had the right tO' place his Fulton lines upon the Mendota for the purpose of fixing his extra-lateral rights.' It is settled law, as we have seen, that the statute grants to him as much of the strike of the vein at its uttermost depth as he possesses thereof at the apex,^ always to be taken, of course, between the same lines. It will be observed that the vein crosses the south- easterly side line of the Eulton at an angle of about twenty- five degrees. Another line drawn parallel with that at the other point of departure would not only accord him what the law gives him, namely, extra-lateral rights, but would have given him the ore in dispute, and changed the result of the suit. Again, lines drawn parallel with the end lines- at both points of departure will give him what both the letter and the spirit of the law say he shall have. In the Montana case, precisely this thing was done.^ This- can be best illustrated by a reproduction of a diagram on page 763, a portion of which we have given elsewhere. It will be observed that the Drum Lummon vein enters and departs from the St. Louis claim in a manner not essen- tially different from that of the Fulton vein. Yet this vein, and the right to follow it between new lines parallel with . the end lines of the claim, and projected into the dip where the vein departed from the side line, was accorded to the owner of the St. Louis. This is equitable and just, and we believe the only conclusion which finds its full warrant in the law. There may be cases, as we shall see in a subsequent part of this work, where it will be impossible to accord extra- iDel Monte M. & M. Co. v. Last sgt. Louis M. & M. Co. v. Moa- Chance M. & M. Co., 171 U. S. 55, 85. tana M. Co., 104 Fed. Rep. 664. ^Ante, §853, note 1, p. 753, and § 860.] CLASSIFICATION OF APEX CASES. 163- lateral rights with certainty, and that it is necessary to deny them for that reason. But such a case as this is not one of them. § 860. Tein beginning and ending wholly within the' claim — Crossing no line at all. — Can the case mentioned in the last preceding section be different in principle from Fig 29. the case to which we have before adverted, where the apex of the vein might begin and end wholly within the claim? We think not.^ There was good evidence besides in the North Star case to the effect that the apex of the claim did not reach any iDel Monte M. & M. Co. v. Last Chance M. & M. Co., 171 U. S. 55, 89. And see ante, § 837, note 1, p. 731. 'JQi SUB-SUBFACE AND EXTEA-LATEEAL EIGHTS. [§ 860. of its exterior lines. In view of the authorities, and the state of mind of bench and bar to-day, we think we are safe in saying that no lawyer or judge would deny extra-lateral rights in any case where the vein began and ended entirely within a claim. The reason of this principle and of this line of thought is found in the deduction that where a ledge or vein has pursued a known course for some distance within the claim, it affords the presumption that it will continue such course for a sufficient distance to cross a line.' If it does not, however, and this fact is known, in accordance with the principle laid down by Judge Hawley int the Wy- oming-Champion case, the lines lying across the course of the vein as far as demonstrated should be taken as its end lines and the others as side lines, and extra-lateral rights •decreed accordingly.^ Aeticle D. When Extra-lateral Bights Abridged, Cut Off or Denied. :§ 865. When extra-lateral rights are abridged — Previous grant with impenetrable bounding plane. 866. Eight to penetrate adjoining ground granted or withheld accord- ing to law. 867. Intersecting an older vein on the dip. 868. Lines so laid as to cut off prior vein at particular point of inter- section. 869. Effect of consolidating in a group. 870. Other limitations and qualifications — Meeting of converging lines — Controlling importance of priority of location in the ordinary case— Merger of matters of discovery and location in patent. 871. Converging end lines. 872. When extra-lateral rights are wholly denied. 873. For discrepancy of definite wall or casing — The Lead villa cases. 874. Extra-lateral rights denied for lack of inclination of dip and be- cause claim not laid upon the strike. 1 Carson City G. & S. M. Co. v. 2 Cons. Wyoming G. M. Co. v. North Star M. Co., 73 Fed. Rep. 597, Champion M. Co., 63 Fed. Rep. 540, <503. 549. § 865.] CLASSiriCATION OF APEX OASES. 765 § 865. When extra-lateral rights are abridged — Pre- Tious grant with impenetrable bounding plane. — Mani- festly there are circumstances where the statutory right to follow the dip or downward course may be abridged or cut off; for example, where the vertical bounding plane of a previous grant is encountered, the right to penetrate which is not reserved out of such grant.^ Such a grant, it is quite apparent, depending upon the angle of approach,, would gradually abridge and finally cut off the right to pur- sue the vein on its downward course. A fair example of such a condition is shown in the case first above cited. H. located a soldier's bounty warrant upon a certain piece of land in California as agricultural land, and made his entry thereon. Some three years later M. located a mining claim adjoining this land. By mesne conveyances, plaintiff ac- quired the title of H. and defendant that of M. The defend- ant, in pursuing the vein on its downward course, removed ore from beneath the surface ground of plaintiff. In deny- ing the right of defendant so to do, Judge Sawyer says: "The only question is whether, under the Revised Statutes, a party discovering and acquiring title by patent from the United States to a mineral gold-bearing vein or lode having its apex within the land purchased is entitled to follow the vein or lode down on its dip, across the boundaries of his own lands, into the agricultural lands of an adjoining proprie- tor, who has the elder title ? In my judgment he clearly has not. The equitable title to the agricultural lands held by plaintiff fully vested on the entry and payment by Ham- mack on June 15, 1874. After that the United States merely 1 Amador-Medean G. M. Co. v. was rendered, and in order to pre- South Spring Hill G. M. Co., 36 Fed. serve their interests withoiit pass- Rep. 668. Pending the appeal in ing upon the merits of the case, this case the property in question all there being no longer any real par- passed to one corporation, but there ties in controversy, the supreme vi^ere certain stockholders of the court reversed the case. South Amador-Medean company who Spring Hill G. M. Co. v. Amador- claimed to retain the interest they Medean G. M. Co., 145 XJ. S. 300, SG- had at the time the decision below L. ed. 713. 766 SUB-SUEFAOE AND EXTEA-LATEEAL EIGHTS. [§ 866. held the dry legal title in. trust for the purchaser without .any pecuniary or beneficial interest in it. From the mo- ment of the entry, payment and issue of the certificate of purchase, these lands cease to be public, and become private property."^ This is undoubtedly the law, and nothing more need be added to it. The cases, however, calling for the application •of this rule are rare and becoming more so, for the reason, as we have seen, that wherever lands are granted by patent, agricultural, town site, or otherwise than as mineral lands, in a mining locality, the minerals and mining rights are generally, almost without exception, reserved by the law and by the patent from the operation of the grant, and the right to penetrate adjoining land is reserved out of such land.' § 866. Right to penetrate adjoining ground granted or withheld according to law. — Standing alone, the mere in- sertion in the patent of the grant of the right to follow the vein on its downward course within the planes of the end lines, produced in their own direction, and assuming even that it be a perfect location, would be absolutely meaning- less, unless such adjoining or neighboring land had in turn this right reserved out of it. All of these rights are creatures of the statute, and, in expressing or reserving them in or out ■of patents, the officers of the land department merely speak by the statute, or, more accurately, the statute speaks through them, and only such rights can be inserted therein, or ex- ceptions reserved therefrom, as are authorized by the law.' 1 Amador-Medean G. M. Co. v. 26; Carroll v. Saflford, 3 How. 441; South Spring Hill M. Co., 36 Fed. Witherspoon v. Duncan, 4 Wall Rep. 668. See also the cases there 210, 319; Hughes v. United States, cited, Pacific Coast M. & M. Co. v. id. 332; Union M. & M. Co. v. ■Spargo, and same against Ficfc, 8 Daugberg, 2 Sawy. 450, 24 Fed. Sawy. 647, 16 Fed. Rep. 348; People Cas. 590; Wirth v. Branson, 98 U. a V. Shearer, 30 Cal. 648; Gwynn v. 118. Niswanger, 15 Ohio, 368; Astrom ^ gee ante. Part X, ch. VI, §§ 755- V. Hammond, 3 McLean, 108, 2 Fed. 758. See also § 666. •Cas. 71 ; Carroll v. Perry, 4 McLean, 3 See ante, Part X, ch. VI, §§ 755- ■§§ 867, 868.] CLASSIFICATION OF APEX CASES. 767 § 867. Intersecting an older vein on the dip. — The right to pursue the vein on its dip or downward course is likewise cut off when it unites with an older discovered vein. The statute reads: "And where two or more veins unite, the oldest or prior location shall take the vein below the point of union, including the space of intersection." ' It thus appears that the right is granted by the statute ■ex vi termini. The language of the statute is plain and un- ambiguous, and the only circumstances that we can call to mind that can involve the slightest doubt as to its meaning are those where the surface boundaries of a claim might be so laid across the strike of the vein as to preclude the owner ■of the oldest vein from claiming below the point of inter- section at a particular place, or where there has been con- solidation, and a priority thus obliterated. We will con- sider these matters in the next succeeding sections, and in the meantime it is sufficient to say that the mandatory force of this statute has been recognized by the courts wher- ever brought in question.^ § 868. lines so laid as to cut oif prior vein at particu- lar point of intersection. — One of the exceptions to the general rule is, as noted in the last preceding section, where the lines are so laid as to prevent the assertion of prior and superior right of the older vein in consequence of the ab- sence of the right to pursue the vein on its downward course or dip at the particular point ; for it must be remembered that the same rule applies in this class of cases as in all 758. See also § 666, and Deflfeback Central Cons. M. Co. v. Turck, 50 V. Hawke, 115 U. S. 403; Cowell Fed. Rep. 888; Stinohfield v. Gillis, V. Lammers. 10 Sawy. 245, 21 Fed. 107 Cal. 84, 40 Pac. Eep. 98; Cham- Eep. 200; Butte City Smoke-house pion M. Co. v. Cons. Wyoming M. Lode Cases, 6 Mont. 397, 13 Pao. Co., 75 Cal. 78, 16 Pao. Rep. 513; Eep. 858; Doe v. Waterloo M. Co., Cons. Wyoming M. Co. v. Cham- 54 Fed. Rep. 936. pion M. Co., 63 Fed. Rep. 540; Rox- 1 R. S. U. S., § 2336. anna G. M. & T. Co. v. Cone, 100 Fed. 2 Little Josephine M. Co. v. Ful- Rep. 168. lerton, 58 Fed. Rep. 531; Colorado 768 SITB-SUEFAOE AND EXTEA-LATEEAL EIGHTS. [§ 868. others in respect of the right to follow the vein on its down- ward course, which must be between the planes of lines properly laid upon the surface, or judicially considered as properly laid, for the particular place. An example of this class of cases is shown by the following diagram recently used in a late case : ^ Fig. 30. This was an application for an injunction by the Mount- ain Monarch owners against the owners of the Doctor, where it was claimed that the right of the owners of the Doctor vein was lost in consequence of its union with the Elizabeth Cooper vein at a point nearer its apex than the ore bodies in dispute. The application for injunction was denied, and we think correctly, for the reason that the Elizabeth Cooper people were not in court, and, as each of the parties was there standing on his own rights, the Mount- ain Monarch people, not being possessed of any vein at all apexing in its own ground, could not assert the existence of a third right that would deny or cut off, or in any man- ner absorb, such independent extra-lateral rights as the Doctor owners possessed. But there is another feature of the case which had an im- portant bearing upon the matter in hand. We have com- 1 Eoxanna G. M. Ca v. Cone, 100 Fed. Rep. 168. § 869.] CLASSIFICATION OF APEX CASES. 769 pleted the lines of the Elizabeth Cooper location for the purpose of this illustration, and likewise extended the Jack Pot vein in its own direction until it crosses the southerly- side line of the Elizabeth Cooper. The result is a manifest denial of the right of the Elizabeth Cooper owners to any ore found beneath the Mountain Monarch claim, for the reason that its extra-lateral rights extend in the direction of the North Star, and not in the direction of the Mountain Monarch. In other words, its side lines become its end lines, are drawn vertically, and the result is a denial of any right to penetrate the Mountain Monarch. § 869. Effect of consolidation of a group — Estoppel — Segregation. — Another exception to the general rule is found where several locations are consolidated in one group and worked and operated as one claim under such circum- stances as to completely obliterate individual priority. Thus, where A. had consolidated many claims into one group, and conveyed a portion of the consolidated claim to B., they went upon the ground and marked the boundaries of the segre- gated portion and described it accordingly in the grant. And, while the effect of such a grant was rightly held to convey all the gold and other minerals beneath the surface, with all the mining rights appurtenant thereto, it was also held, and correctly, we think, that the segregation, and the grant in consequence thereof, had the effect to estop A. from any claim of priority ; and that, while the general mining customs and rules prevailed in the interpretation of the deed, the effect of the grant was to convey to B. all the gold contained in any vein apexing within the ground conveyed, and that in such case section 2336 of the Eevised Statutes has no application.' The effect, then, of such a conveyance, in the absence of reservation, is to give to the grantee the ore below the intersection, regardless of priority, and regard- less of the statute. The other aspect of the proposition would be equally true: that priority, being once obliterated and iStinohfield v. Gillis, 107 Cal. 84, 40 Pao. Eep. 98. 49 770 SUB-SUEFACE AND EXTEA-LATEKAL EIGHTS. [§ 870. wiped out, could neverbe re-established bya segregation of the claim, unless the deed of segregation expressly recognized it. § 870. Other limitations and qualifications — Meet- ing of converging lines — Controlling importance of pri- ority of location in the ordinary case — Merger of mat- ters of discovery and location in patent. — Excepting as expressly limited under such circumstances as those indi- cated in the last preceding section, the doctrine of priority of location, as we have repeatedly pointed out in the pre- ceding sections of this work, is a pervading and all-control- ling principle of the mining law. Flowing from this prin- ciple is the doctrine by which the right to pursue the vein on its downward course is abridged, substantially in the same manner as when encountering an agricultural claim, when the vein on its downward course encounters the pro- jected end lines of an older claim, containing the same vein and so laid as to intersect one of the end lines of the junior claim produced in its own direction. An example of this principle is to be seen in the Tyler and Last Chance cases, where the vein ran through the Tyler claim and crosswise through the Last Chance, whose end lines became side lines.i By a previous judgment of the court the Last Chance claim had been decreed to be the older location.^ The ore bodies in dispute lay in such a position that the dip of the vein, followed within the surface lines of either location pro- jected in its own direction, would have fully embraced them. Priority of location therefore controlled the right. The position will be better understood by the diagram on page 771, taken from one of the reports of the case. The dip was to the southwest. Judge Hawley, in speak- ing for the court of appeals, thus states the law upon the subject: "Upon the agreed statement of facts, the priority of the Last Chance claim is established. This being true, 1 Flagstaff M. Co. v. Tarbet, 98 U. Co., 157 U. S. 683. See also Bunker S. 463. Hill & S. M. Co. v. Empire State 2 Last Chance M. Co. v. Tyler M. Idaho 11. & D. Co., 106 Fed. Rep. 471. § 870.] CLASSIFICATION OF APEX OASES. in its extra-lateral rights to follow the lode in its downward course, between vertical planes drawn through its side end lines, is well settled, and the extra-lateral rights of the Tyler claim cease when the vertical plane drawn downward Fig. 31. through the north side end line of the Last Chance claim is encountered. It follows that the court did not err in ren- dering judgment in favor of the Last Chance company for its costs, and it is therefore unnecessary to determine what the extra-lateral rights of the Tyler company would have been had the lode, when it crossed the southerly side line of the Tyler claim, extended in an easterly, instead of a south- erly direction, as shown in the diagram, or, in other words, ' more along than across the lode.' " ' Another case presenting the question of priority of loca- tion determining the right to ore bodies, the apex of which is within the legal end lines of both claims, is presented by 1 Tyler M. Co. v. Sweeney, 79 Fed. Rep. 277; Tyler M. Co. v. Last Chance M. Co., 71 Fed. Eep. 848; s. c, 54 Fed. Rep. 284, 61 Fed. Eep. 557. 772 SUB-SUEFACE AND EXTEA-LATEEAL EIGHTS. [§ 870. the Argentine-Terrible case.^ In the first trial of the case the Adelaide was attempted to be overthrown for want of a discovery, except in the tunnel, and dictum was announced authorizing a senior location, with discovery on the- dip, to prevail over a junior one vvith discovery on the surface apex. But that question was not really involved, as both claims were patented, and all these questions were merged in the patent. The questions of locality of ore taken, and priority of location were the only real ones involved, and were finally decisive of the case. In the second trial ^ the ques- tion of discovery was still supposed to be at issue, and the correct doctrine announced that a discovery of mineral else- where in the claim than where first claimed would be suffi- cient to save the claim on this point. For the reasons al- ready stated, this point was not involved in the case. The real point involved was the right to certain ore bodies be- neath the surface of the Adelaide, the property of the plaint- iff Van Zandt, and afterwards the Terrible Mining Com- pany, which had been mined by the Argentine Company, the owner of the Pine, Camp Bird and Charleston, all of which were patented, but the Adelaide was older both in date of location and patent. The point involved may be further illustrated by the diagram on page 773, copied from Mr. Lindley's excellent work. The apex of the vein is shown by the line xx ; the dip was to the south. It will be observed that, like the Tyler- Last Chance case, as to the ore bodies beneath both the Pine and Adelaide, the side lines being end lines, the lines of both claims would cover the same ore body, and that if the vein had not apexed in the Adelaide as well as in the Pine, the latter would own all between its end line side lines pro- duced, and that as to the area covered by both claims, pri- 1 Argentine M. Co. v. Terrible M. Co. v. Argentine M. Co., 89 Fed. Co., 122 U. S. 478, 30 L. ed. 1140. For Rep. 583. reports of trials of the same case '-' Terrible M. Co. v. Argentine M. below, see Van Zandt v. Argentine Co., supra, M. Co., 8 Fed. Rep. 725; Terrible M. § 870.] CLASSIFICATION OF APEX CASES. ■773 ority became the goveraing principle. The application of that principle in that case likewise required an absolute in- terruption and cutting off of all right to pursue the vein on the dip as to the segment thereof beneath the Adelaide 1 Fig. 32. [Alter Lindley and Emmons.] claim. Of course if the pay chute continued in the direction of the side lines of the Pine, which were as to the vein its end lines, the right could be again asserted to the portion lying southerly of the Adelaide claim and within the ex- tended lines of the Pine if the ore chute happened to be ac- commodating enough to remain within those lines. Eut most ore chutes, or more properly rakes in the vein, take a course into the dip of the vein obliquely through the dip and strike, and it is very seldom that end lines are so laid as to entirely include one; for it must be remembered that in those cases the apex of the chute is the point where the line of contact or of vein matter comes nearest the surface of the earth, and not always the point where the chute it- self reaches the highest point in the stratum, vein or contact. 774: SUB-SUEFACE AND EXTEA-LATEEAL EIGHTS. [§ 871. § 871. Converging end lines. — The right is also abridged and finally cut ofif when the lines crossed by the vein, de- nominated by the law as end lines, actually converge in such a way that they ultimately meet. An example of this case is shown in the Wyoming-Champion diagram,^ where Fig. 33. it will be observed that the "Wyoming patent, considered alone, has end lines laid squarely across the lode at the point of departure, but these end lines, owing to the shape of the claim, rapidly converge and if extended would ultimately meet. The same condition is better shown in the diagram of a late case.^ In such case, of course, the end lines being drawn vertically, the owner has merely the wedge-shaped piece that his surface lines give him. For the rule that we con- tend for, and which we believe the sum of judicial opinion warrants us in characterizing as a rule, permits the drawing in of lines ; that is to say, where two lines are not parallel crossed, a new line will be made at the point of departure, par- allel with the one most nearly agreeing with the dip of the vein, provided the line so made is wholly within the surface lines of the location. But the law, in granting this right, will never extend it beyond the ground claimed. But 1 63 Fed. Eep. 543. 2 Bunker Hill & S. M. Co. v. Em- pire State Idaho M. & D. Co. (C. C. A.), 109 Fed. Rep. 538, affirming s. c, 108 Fed. Rep. 189. See Fig. 33. § 872.] CLASSIFICATION OF APEX CASES. 775 where the locator himself, by reason of the relation of his claim to other claims, or from choice, has marked his bound- aries with converging end lines, or where he has failed to seasonably protect his rights, he must abide the conse- quences. In this case, the trial court, while it recognized the im- penetrable end line of the Emma, overlooked, inadvertently perhaps, the equally controlling end line made by the south line of the Last Chance, and extended the line of the Emma over that, practically ignoring it ; whereas, because of the surface conflict and the patent proceedings, the same rule should have been applied there as where the Emma line was encountered. The court of appeals, however, aflBrmed the judgment, merely saying, in passing, that the defendant had obtained more than it was entitled to. § 872. When extra-lateral rights are wholly denied. — There have been several cases where the courts, in a too zealous adherence to the principles of the common law, have felt constrained, in consequence of the shape of the surface lines, to deny extra-lateral rights altogether.' The trend, however, of later judicial opinion can now be hopefully said to be directed toward a more liberal view of the law; so much so that it may now be broadly stated that, where the vein crosses one line of a claim and continues for any con- siderable distance with its apex wholly within the claim, extra-lateral rights will not be denied to it. There is one case, however, where, owing to the indefinite and peculiar shape of the surface boundaries, the court was justified in denying extra-lateral rights. This case is commonly called the " Horseshoe case," ^ and will be better understood by 'Iron Silver M. Co. v. Elgin M. W. Eep. 887; Gilpin v. Sierra Ne- Co., 118 U. S. 196; Montana Co. v. vada M. Co., 2 Idaho, 636, 23 Pac. Clark, 42 Fed. Eep. 626; Catron v. Rep. 547. Old, 23 Colo. 433, 48 Pao. Rep. 687. 2 Iron Silver Co. v. Elgin M. Co., See also Doe v. Sanger, 83 CaL 203; supra. Duggan V. Davey, 4 Dak. 110, 26 N. 776 SUB-SUEFAOE AND EXTEA-LATEEAL EIGHTS. [§ 872. reference to the following diagram from a report of the case: Fig. 34. The owner of the stone claim had followed the ore down on its dip beneath the Gilt Edge and had extracted ore from beneath the surface of that claim, and, standing upon its common-law rights, the Gilt Edge brought its action there- for. It will be readily noticed that, owing to the erosion of a gulch in the surface of the country, the surface lines were laid upon two fragments of dip exposure, and were in no sense laid along the strike of the lode. The line marked "dip" on the diagram marked substantially the course of the California Gulch. There was absolutely no other conclusion than the one actually reached. In the Montana case, however,^ an attempt was made to deny extra-lateral rights to a claim the surface boundaries of which were in the shape of an isosceles triangle. The point 1 Montana Ca v. Clark, 43 Fed. State v. District Court Silver Bow Eep. 626. Common-law rule not Ca (Mont.), 65 Pao. Rep. 1030. enforced in the last Montana case, § 873.] CLASSIFICATION OF APEX OASES. 777 was really not involved in the case, but was sought to be raised in aid of an injunction to prevent work in the vicin- ity of the workings of the plaintiff. Perhaps such a ques- tion may never be raised again, but if it should be we think it should be decided in accordance with the principle con- trolling the Del Monte case. In a recent case in Colorado, which we have already no- ticed,' the court denied extra-lateral rights to a vein crossing both side lines of a claim and dipping under the end lines, citing as authority therefor the Flagstaff case, the Horse- shoe case and the Amy case. It is sufficient to say that in neither case did the court decide any such thing ; but sim- ply, that where the lode crossed both side lines, such lines became end lines, which implies the right to pursue the lode indefinitely in its downward course within the extended planes of such lines. Indeed, that is the physical fact with reference to the Flagstaff, and it is believed so recognized by bench and bar everywhere, with the exception of this case. The learned chief justice also cites Doe v. Sanger as deciding the same question the same way. But there the court expressly reversed the case, because the trial court followed that rule, and decided that the lines as finally ad- justed by the survey controlled the question ; and as they were parallel, the enjoyment of extra-lateral rights was thus secured ; and that the rule of mathematical parallelism was not necessary, the provision of the statute being directory merely. § 873. For discrepancy of definite wall or casing — The Leadville cases. — "We refer, more as a matter of his- tory than of law, to a fact well known, that in some of the Leadville cases, extra-lateral rights were denied by the juries, because of a popular belief that in many parts of that dis- trict the hanging walls had become eroded away so as to leave the ore bodies only partially covered with drift or allu- vion, — the washed stuff from the mountain sides. Because of 1 Catron v. Old, 33 Colo. 433, 48 Pao. Rep. 687. 778 SUB-SUEFAOE AND EXTEA-LATEEAL EIGHTS. [§ 874. this belief, prevalent among the miners, that such ore bodies did not constitute veins as generally understood, it became unwritten law that extra-lateral rights ought to be denied in all those cases. As an evidence of this fact we invite at- tention to an apex case arising in Leadville and tried in the circuit court for Colorado, in which Judge Hallett charged the jury, inter alia, as follows : " The principal question for your consideration is whether or not the plaintiff has the top or apex of the lode in its location ; . . . and first, we may say by way of definition, that the top or apex is the end or edge or terminal point of the lode nearest the surface of the earth. To establish this proposition the plaintiff has given much evidence tending to prove that the ore body terminates at or near the first level north, or the water level spoken of by the witnesses. ... In that view, if you find that it is sustained by the evidence, the plaintiffs have the top and apex of the lode in their lo- cation, and I do not discover any other point which should give you diflBculty in arriving at a verdict for the plaint- iffs." 1 The jury found a verdict for the defendant. § 874. Extra-lateral rights denied for lack of inclina- tion of dip and because claim not laid upon the strike. — One court at least, of undoubted ability, has felt constrained to deny extra-lateral rights on account of the lack of inclina- tion of the vein from a surface exposure, characterized in one view of the case as the apex, and in the other view of the case as a dip exposure. The case itself was ably tried by Judge Moody, and the supreme court in affirming the judgment did so largely, indeed mainly, from the opinion of the trial court. We are indebted to Mr. Lindley for a diagram (on page 779) showing the surface conflicts, as well as a cut showing the northern exposure of Custer Mountain.^ It must be remembered that this was an action to quiet title to certain ore bodies ; that the Silver Terra did not own 1 Iron Silver M. Co. v. Murphy, 3 « LindL Mines, pp. 395, 397. Fed. Eep. 868. § 874.] CLASSIFICATION OF APEX CASES. 779 any part of the apex or dip exposure, but stood squarely upon its common-law rights. While the language of Judge Church, quoting from Judge Moody, would seem scarcely to warrant the statement that extra-lateral rights were de- Fig. 35. nied here because of lack of inclination of the dip, yet, when the entire opinion, masterly in research though it be, is careiully considered and analyzed, it is respectfully sub- mitted that it has very narrow if any other ground to rest upon. The facts showed, as illustrated by maps, that Custer Mountain had a western and northern slope exposure, the one nearly at right angles with the other; the northwest corner, so to speak, being slightly tilted, there was a vein 780 SUB-SUEFACB AND EXTEA-LATEEAL EIGHTS. [§ 874. exposure along both sides of the mountain; there was a slight inclination of the vein from this point, and a general inclination thereof towards the east, averaging eight de- grees from the horizon ; the Sitting Bull lode was located along this north exposure of the vein, and it was sharply contested as to whether this or the western exposure was the true strike ; the Silver Terra was located up the hill south of the Sitting Bull and parallel therewith, but its end lines did not reach far enough west to cover any part of the western exposure. By shafts sunk down into the mountain, the owners of the Silver Terra removed ore from the vein thus exposed, on two sides of the mountain ; the action was brought to quiet title to this vein, and to enjoin further working upon it. The trial court refused the injunction, and the supreme court aflBrmed this decision, speaking through Mr. Justice Church; the material part of the de- cision applying here being as follows: "Bearing in mind the descriptions heretofore given of the two lines of outcrop on Custer hill, if we might suppose that the outcrop along the northerly face were nearly vertical, I do not see how it could be seriously contended that such outcrop, under the circumstances, constituted the top or apex of this stratum of quartzite. Such a conclusion would only be reached, it seems to me, by shutting one's eyes to every feature of the case, except the one fact that there was an edge at or near the surface, which was therefore the top or apex of the vein. This I cannot do without such a violation of the ordinary use of words, and, with all the respect and deference which I feel for the opinions of the learned counsel for the defense, I must say without such a transgression of the dictates of a sound common sense view of the situation, as in my judg- ment the statute does not contemplate. Nor can I see that there would be any difiference whatever in the principle were this outcrop to be found at an angle of 45 deg. or, as it is, at an angle of about 8 deg. from the horizontal. I am compelled, therefore, to hold that this outcrop found in the Sitting Bull location is not the top or apex of this § 874.] CLASSIFICATION OF APEX CASES. 781 vein, lode or ledge, and that such top or apex is not within that location. I must regard that outcrop as merely an ex- posure of the edge of the vein on the line of its dip. . . . After what has been said, it would seem unnecessary to con- sider whether this vein so far departs from a perpendicular in its course downward as to extend outside the vertically extended side lines of defendant's location, and through the intervening ground to the ground in controversy, — such could not be the case consistently with the facts already as- certained. It may be conceded as, indeed, a mathematical conclusion from the facts, that by extending drifts from the Sitting Bull location through its vertically extended south side line, in any direction upon the vein east of south, a downward inclination would be found, and that such is the fact with regard to the main working tunnel, which extends to the ground in controversy; but, clearly, this is not what the statute contemplated, and, if I am right in my other conclusions, probably this proposition would not be con- tested." ' It will thus be seen that it was sharply contested as to whether the west or north exposure was the apex. And against the actual physical location, as such of the outcrop on the north side, with no location on the west line of exposure, the court permitted itself to be led, as matter of fact, by the subtleties of expert opinion, and that against the physical condition of the country, the porphyry dyke on the northwest which was the producing cause of the vein. The strike of the dyke was not given. iDuggan V. Davey, 4 Dak. 110, 26 N. W. Eep. 887. CHAPTEE III. EIGHT TO VEINS, SPURS AND OFFSHOOTS OTHER THAN THE ONE LOCATED. Aeticle a. The Laws of 1866 and 187S Compared — Th^ Statutory Grant of 1872. § 880. Preliminary — The law of 1866. 881. The law of 1873 changed this. 883. The relation of this section to section 2336. § 880. Preliminary — The law of 1866.— It is acknowl- edged by courts everywhere that under the law of 1866 the lode was the principal thing located and patented, and the surface ground was a mere incident. And an illustra- tion of the truthfulness of this, and that it was so under- stood by miners and lawyers alike, is evidenced by the many peculiarly shaped patents that were procured in pur- suance of that law. § 881, The law of 1872 changed this.— The uncertainty, both in respect to what was acquired by the patent in the way of surface ground, and appurtenant rights upon the lode, furnished at least one of the reasons for the amend- ment or change of the law in 18Y2. This statute reads: " The locators of all mining locations . . . shall have the exclusive right of possession and enjoyment of all the surface included within the limits of their locations, and all veins, lodes and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines ex- tended downward vertically." ^ It will thus be observed that the statute is clear, plain and unambiguous, and gives to the locator all lodes or veins, not only the one located, iR. S. U. S., § 2332; 17 Stat, at L., p. 91. § 882.] EIGHTS TO VEINS, SPUES AND OFFSHOOTS. 783 but all others having their top or apex within the vertical planes of the surface lines of the claim located,' and ex- pressly prohibits the invasion of the surface.^ If this stat- ute is at all times borne in mind and all its provisions construed together, much of the diflELculty which has arisen in one state will be avoided. § 882. The relation of this section to section 2336. — In a further part of this chapter it is our purpose to examine ex- tensively the rights acquired to cross veins, and the meaning of section 2336. In the last preceding chapter we took occasion to note and outline, to some extent, the effect upon extra-lateral rights of veins encountering an older vein on their dip. Those cases had reference to such an occurrence proceeding from different apexes in different claims. In a future part of this work we shall attempt to reconcile the many conflicting decisions as to the true meaning of section 2336, and its relationship to the section under consideration ; and in doing so it will be necessary to read both sections in pari materia, for the reason that they refer to the same subject-matter, and we are therefore not at liberty to ignore this well-known rule of statutory construction. Aeticlb B. Surface Lines as Controlling Other Veins, and Rights Thereto Extra- laterally. § 885. Extra-lateral rights to spurs and offshoots. 886. Judge Hawley's view. 887. An early and somewhat different view by Judge Thayer. 888. The cases harmonized — The true rule. 889. Relation to original date of location. 1 North Noonday M. Co. v. Orient Argonaut Cons. M. Co. v. Turner, M. Co., 6 Sawy. 299, 1 Fed. Rep. 23 Colo. 400, 48 Pac. Rep. 685; Arm- 522, 531; Freeland v. Hoffman, 13 strong v. Lower, 6 Colo. 893, 581; M. R. 269; Iron Silver M. Co. v. Pardee v. Murray, 4 Mont. 234, 3 Elgin M Co., 118 U. S. 208; Crown Pac. Rep. 16; Jones v. Prospect Mt. Point M. Co. V. Buck, 97 Fed. Rep. Tunnel Co., 21 Nev. 339, 31 Pac. 463; Tombstone M. Co. v. Way Up Rep. 642. M. Co., 1 Ariz. 426, 25 Pac. Rep. 794; 2 North Noonday M. Co. v. Orient 784 SUB-SUEFACE AND EXTEA-LATERAL EIGHTS. [§§ 885, 886. § 885. Extra-lateral rights to spurs and oifshoots.— The question of extra-lateral rights, as applied to spurs and offshoots, is not well settled ; some authorities holding that it is dependent upon and coterminous with the lines which control the vein located,' while other authorities hold that as to spurs and offshoots, each line crossed by any such vein is, as to it, an end line drawn vertically at the point of de- parture and extended in its own direction.^ Applied to dif- ferent conditions, and referring to different veins, both are right, but it is well settled that there can be but two end lines to a mining claim, and such end lines are such for all purposes.' This, then, may be safely said to be the general rule, to which, like all others, there are special distinctions and exceptions. § 886. Judge Hawley*s view. — In a case cited in the last preceding section. Judge Hawley discusses this question at considerable length. In that case there were two nearly parallel veins in a claim located under the law of 1866, and hence of irregular shape ; * these veins united, as found by the court, below the surface, partly on the dip and partly on the strike ; the end lines of the different locations did not agree with each other, considered as an independent loca- tion, nor did they agree in any location with the lines of another location. He says : " The views already expressed are conclusive upon the point that complainant, by virtue of M. Co., supra; Phenix M. Co. v, 2 Colorado Central M. Co. v. Turck, Lawrence, 55 CaL 143; Erhardt v. 50 Fed. Rep. 888; Argentine M. Co. Boaro, 113 U. S. 527; Gleeson v. v. Terrible M. Ca, 132 U. S. 47& See Martin White M. Co., 13 Nev. 442. also Tombstone M. Co. v. Way Up See also Grossman v. Pendery, 8 M. Co., 1 Ariz. 426, 25 Pac. Rep. 794. Fed. Rep. 693. 3 St. Louis M. & M. Ca v. Mon- 1 Iron Silver M. Co. v. Elgin M. tana M. Co., 104 Fed. Rep. 664, 667, Co., 118 U. S.196; Cosmopolitan M. citing {q. v.) Iron Silver M. Co. v. Co. V. Foote, 101 Fed. Rep. 578; St. Elgin M. & S, Co.. supra; Walrath Louis M. & M. Co. V. Montana M.& v. Champion M. Co., 171 U. S. 393; M. Co., 104 Fed. Rep. 664; Walrath & a, 72 Fed. Rep. 978; ante, § 842. V. Champion M. Co., 68 Fed. Rep. * See ante, §g 845, 84a 553. § 887.] EIGHT- TO VEINS, SPUES AND OFFSHOOTS. 785 its ownership of the slate vein in the Wyoming, is entitled to an injunction to prevent respondent from working north- erly of a line drawn downward vertically with the southerly end line of the Wyoming claim. If no other portion of the ground was in controversy the decision of the case might be safely rested here without any discussion of the many other questions presented at, the trial, because the laws of the United States provide that, ' where two or more veins unite, the oldest or prior location shall take the vein below the point of union, including all the space of intersection.' ' This provision is held not to be in conflict with the provisions of section 2322.^ Complainant would, therefore, take the ground to the full extent stated — that is, between the end line bounding-planes of the Wyoming claim extended in their downward course — independent of any rights it may have by virtue of its patent to the Ural lode and surface location." ' § 887. An early and somewhat different view by Judge Thayer. — In a case in Colorado, similar to the Wyoming case to the extent that the vein united both on the strike and dip, thus forming practically spurs in their onward course, and the extra-lateral rights to one of the spurs being under discussion, as it affected the right of pursuit beyond the side line of the Colorado Central, where it crossed, Judge Thayer said: "If the vein on which the Colorado Ceiitral location rested became divided as it entered the dis- puted territory, and the outcrop of one fork crossed into the Atlantic territory, then it followed that the Colorado Cen- tral claim had been laid rather obliquely to the course of the outcrop, and in that event we are of the opinion that the defendant lost that fork of the vein which had passed iR. S. U. S., § 2336. pion M. Co., 63 Fed. Rep. 540. See 2Wilhelm v. Sylvester, 101 Cal. also Cosmopolitan M. Co. v. Foote, 358, 35 Pac. Rep. 997 ; Watervale M. 101 Fed. Rep. 518 ; St. Louis M. & M. Co. V. Leach (Ariz.), 33 Pac. Rep. Co. v. Montana M. Co., 104 Fed. Rep. 418. 664. 3 Cons. Wyoming M. Co. v. Cham- '50 786 SUB-S0EFACE AND EXTEA-LATEEAL EIGHTS. [§§ 888, 889. outside of its side lines. In other words, so far as that fork is concerned, the south end line of the defendant's Colorado Central claim must be regarded as a line drawn through the point where the outcrop passed through its south side line." ' § 888. The cases harmonized — The true rule. — In the interest of harmony, then, the true rule would seem to be that as to all veins paralleling or nearly paralleling the one located, and which lie, as to their apex, in the direction of the dip of such vein, that is to say, lying in the hanging "wall, paralleling the main vein or uniting on the dip there- Tvith, the lines which control the extra-lateral rights of the main vein must also control the rights as to £fll other veins.^ But where there is a lateral division of the main vein, in the direction of the foot-wall, or where there is a parallel vein in the direction of the foot- wall, dipping, let us say, in the opposite direction, the reasons which control the opera- tion of other conditions would seem to cease, and as to any such, any line crossed by it must be either drawn vertically against it or conforming more nearly to the general doc- trine in such cases, a line be projected there parallel with any other proper line crossed by it,' or parallel with the end lines of the located vein, which would seem be the better rule and one which will more nearly conform to the rule making these lines the end lines for all purposes. § 889. Relation to original date of location, — Mani- festly all other veins, spurs and offshoots relate to the date of the location of the principal vein, and as to any conflict upon the dip they must be considered as located on that day.* 1 Colorado Central M. Co. v.Turck, See s. a, 102 Fed. Eep. 430; Wal- 50 Fed. Rep. 888, 896. See also Ar- rath v. Champion M. Co., 171 U. S. gentine M. Co. v. Terrible M. Co., 293, 307. 122 U. S. 478; Flagstaff M. Co. v. 3 Colorado Central M. Ca v. Tarbet, 98 U. S. 463; Iron Silver M. Turck, 50 Fed. Rep. 888, 896. See Co. V. Elgin M. Co., 118 U. S. 196. also Del Monte M. Co. v. New York 2 St. Louis M. & RL Co. v. Mon- & L. C. M. Co., 171 U. S. 55. tana M. Co., 104 Fed. Rep. 664. < R. S. U. S., § 2322. § 895.] eights to veins, spues and offshoots. '787 Article C. Placing Lines Upon Patented Oround, or Upon Ground Previously Claimed. § 895. Preliminary — The position of the department on this question. 896. Rule inapplicable to locations made prior to May 10, 1873. 897. Correctness of department rules challenged and changed by the courts. S98. As to making locations rigidly — Discovery on claimed ground — Must be good when made — Lines differ from discovery. §895. Preliminary — Tiie position of the department on this question. — "While the department has, of necessity, always permitted the survey of a claim to cross upon and ■overlap an adjoining unpatented claim, even though sur- veyed for a patent, where the part}^ announced an intention to claim and contest for the conflicting ground, and has also, for the same reason, permitted surveys to cross other claims whether patented or not, it has always made the ob- jection in instructions to surveyors general, and to registers and receivers, against the encroachment by survey upon land previously surveyed whether patented or not. An ex- ample of this is found in the following excerpt from the latest code of regulations issued by the department : " The Tights granted to locators under section twenty-three hun- dred and twenty-two, Revised Statutes, are restricted to such locations on veins, lodes, or ledges as may be 'situated on the public domain.' In applications for lode claims where the survey conflicts with the survey or location lines of a prior valid lode claim, and the ground within the conflicting surveys is excluded, the applicant not only has no right to the excluded ground, but he has no right to that portion of any vein or lode the top or apiex of which lies within such excluded ground, unless his location was prior to May 10, 1872. His right to the lode claimed terminates where the lode, in its onward course or strike, intersects Ahe exterior boundary of such excluded ground and passes 788 SUB-SITEFAOE AND EXTEA-LATBEAL EIGHTS. [§ 896. within it. The end line of his survey should not, therefore, be established beyond such intersection." ' §896. Kule inapplicable to locations made prior to May 10, 187SJ. — "We have already seen that under the law of 1866 the lode was the principal thing located, the sur- face ground being a mere incident.^ If there should be any locations unpatented, which were made prior to May 10,. 1872, of course the rule announced in the last preceding section never had, and has not now any application. Hap- pily, there are very few, if any, of such locations remaining unpatented. The effect of approaching a patent of that kind with the location made prior to May 10, 1872, and an attempt to patent it under the laws existing to-day, has never to our knowledge been determined. It would de- pend very much upon the shape of the patented claim as to whether any such thing would be possible. As an abstract proposition, a patent is a muniment of title upon which the holder has the right to rely for security and peace, and notwithstanding the lode was the principal thing patented, and the surface a mere incident, the holder of a lo- cation, we take it, made under the old law, while he would have the right, to cross any such patent and to place his lines or stakes upon it, as the law stands now, he would not have the right to acquire, by any such means, any interests conflicting with the patent. Where, however, if any such case remains possible, two unpatented claims made under the old law approach each other at such an angle a,s to con- flict, the rule previously announced by the department, and still in force except as abrogated by the decisions of the courts, would have no application, and each would have the right to follow his vein on the strike, even to the point of conflicting and uniting or crossing the other location and vein. 1 Land Office Circular, June 24, 1 Idaho, 107, New Series, p. 95, 3 M. 1899, p. 7, 28 L. D. 595. R. 338: Flagstaff M. Co. v. Tarbet, 9» 2 Ante, § 880; Atkins v. Hendree, U. S. 463, 25 L. ed. 253, 9 M. R. 607. § 897.] EIGHT TO VEINS, SPUES AND OFFSHOOtS. T89 § 897. Correctness of department rules challenged and changed by the courts. — The correctness of the position of the department, while it would seem to be sound in itself at first blush, was inconsistent in this respect: If the claimant had what he supposed was a cross-vein, and his end lines extended clear across the previously surveyed ground, he was permitted to survey across and place his line and stake upon it, for the obvious reason that the vein was supposed to' cross on the strike. "Why should he be denied this right, then, for any other satisfactory reason, for instance, that of correctly adjusting his surface lines with reference to extra- lateral rights, and to include other valuable surface ground, possibly containing veins, and which would be otherwise lost to him? It is no answer to say that he can take noth- ing from the patented claim, and therefore add nothing to his own.i He makes a real line by this means in the place of an imaginary one in some other way, and acquires by direct means the vacant surface ground where he was per- mitted to do it by indirection under the old rule. This point came squarely for decision before the supreme court of the United States in a case where the relative position of three claims is shown by the diagram on page 790. The case was certified from the circuit court of appeals, having been originally tried in the circuit tourt for the dis- trict of Colorado, where this particular question does not seem to have been in dispute.^ The question certified for consideration was as follows: "May any of the lines of a junior lode location be laid within, upon or across the surface of a valid senior location for the purpose of defining for or securing to such junior location underground or extra- lateral rights not in conflict with any rights of the senior location ? " ^ 1 Bunker Hill & S. M. & C. Co. v. a Del Monte M. & M. Co. v. Last Empire State Idaho M. & D. Co., Chance M. & M. Co., 171 U. S. 55, 106 Fed. Eep. 471. 59, 70. 2 Del Monte M. Co. v. New York & L. C. M. Co., 66 Fed. Rep. 313. 790 SUB-STJEFACE AND EXTEA-LATEEAL EIGHTS. [§ 897. The court, after reviewing all the cases, or at least the leading apex cases, pursued what we conceive to be a cor- rect line of reasoning, somewhat as follows: The surface ground is a secondary matter, and generally not taken with Fig. 36. the view of getting any benefits from it, the real thing sought being the mineral beneath the surface. The law requires parallel end lines, so the locator may secure as much of the vein on the dip as he owns of the apex. Placing lines upon another location will not injure such location, and will per- mit the locator doing so to actually mark out what he claims. He takes nothing additional on the strike of his vein, but, in the place of drawing that line not made by him vertically against him, he is permitted to establish a new line parallel with the other one crossed by his vein, the same as in an ordinary end line and side line case ; and in answering the question in the aflBrmative, the court con- cludes with these words : " In view of this purpose and effect of the parallel end lines, it matters not to the prior locator where the end lines of the junior locator are laid. No mat- ter where they may be they do not disturb in the slightest § 898.] EIGHT TO VEINS, SPUES AND OFFSHOOTS. 191 his surface or underground rights."' Any objection upon the ground that the rights of the patentee to peace and se- curity are thus invaded falls flat, for the law, although but recently ascertained has always been so, and it must be conclusively presumed that the patent is granted subject to all the rights, whether expressed or not, which the law al- lows to the neighboring owner. § 898. As to making locations rigidly — Discovery on claimed ground — Must be good when made — Lines differ from discovery. — We have repeatedly said, and such is the law, that a location, to be valid, must be good when made, but this rule applies most essentially to the discovery shaft or work itself, which cannot be laid upon ground previously patented or claimed. The rule, however, has no application to the laying of the boundary lines, or fixing the surface or extra-lateral rights of the vein or lode so discovered and located. Such lines may be placed, as noticed in the pre- ceding section, upon, across or over the surface ground of a previously located or patented claim.^ A fortiori, an amend- ment to a location may be extended and spread over ground laterally in the same way. That is to say, supposing A. owns three two-hundred-foot claims side by side, all are kept alive, having been located under district rules, restricting their width to two hundred feet. The rule or law is changed permitting him to locate six hundred feet wide instead of two hundred feet wide. Since it is well settled, as we saw in preceding chapters,' that amendments may be made so long as they do not conflict with intervening rights, why may he not amend his center location by including the claim on either side, and thus obliterating in fact internal lines, iDel Monte M. & M. Co. v. Last 547; Hidee G. M. Co., 30 L. D. 420. Chance M. & M. Co., supra, pp. 75, In Alice Lode, 30 L. D. 481, the 84. See also Bunker Hill & S. M. right to extend lines over a town & C. Co. V. Empire State Idaho M. site is recognized, & D. Co., 106 Fed. Kep. 471 ; Doe v. 2 Del Monte M. Co. v. Last Chance Tyley, 73 Cal. 21, 14 Pac. Eep. 375; M. Co., 171 U. S. 55, 84; ante, § 897. West Granite M. Co. v. Granite Mt. 3 Ante, Part VII, oh. V; Part VIII, M. Co., 7 Mont. 356, 17 Pac. Rep. ch. IV. 792 SUB-STJEFACE AND EXTEA-LATEEAL EIGHTS. [§ 905, and the resulting confusion of a vein possibly wider than a single location, or sometimes in one and sometimes in the other location? We see no cogent reason against this, and every consideration of policy in the direction of accurately covering the lode with one claim, as well as properly ad- justing his surface lines, is in its favor. Aeticlb D. Cross-veins and Cross-courses Intersecting or Crossing on Dip or Strike, and the Space of Intersection. § 905. Preliminary — Scope of inquiry. 906. The statutes reviewed and considered. 907. Section 2836 enlarged upon — Means crossing on the dipi 908. Cross- veins and crosss-courses — Definition — Surface protected. 909. Same subject — True rule in such case — Surface lines control- ling located vein control all others. 910. The space of intersection — The old Colorado rule. 911. The doctrine overturned in later cases and the true rule laid down. 913. The true meaning — Actual intersection of veins — Ownership of ore. §905. Preliminary — Scope of inquiry. — It is the pur- pose of our inquiry here to define the relationship of section 2336 to 2322 of the Revised Statutes of the United States, and to define the rights of the various proprietors of veins which cross each other upon the dip or strike. When this work was commenced the position of the Colorado court was so irreconcilable with that of other courts upon the subject, and, as we viewed it, with the law itself, that it merited and received an extended criticism. Happily, how- ever, by a reversal of its own position,^ aflirmed by the su- preme court of the United States,^ that court has reached, by correct principles of statutory construction, what we esteem a true solution of the situation. 1 Calhoun G. M. Co. v. Ajax G. 2 Calhoun G. M. Co. v. Ajax M. M. Co., 37 Colo. 1, 50 L. R. A 209, Co., 182 U. S. 499, 45 L. ed. 1300. 59 Pao. Rep. 607. §§ 906, 90Y.] EIGHT TO VEINS, SPUES AND OFFSHOOTS. 793 § 906. The statutes reviewed and considered. — Not to repeat at length the provisions of the statute, it is suflBoient for the purpose of this inquiry that section 2322 ' gives to the locator all veins of every description the top or apex of which are within his wedge of earth, that is to say, within the vertical boundaries of his claim. We have adverted to this in a slight degree in a previous chapter,^ and only re- peat here in order to show the relationship of the two sec- tions. The statute, ex vi termini, gives to the locator " all veins." More comprehensive words could not be used. It includes not only spurs and offshoots and other and inde- pendent parallel veins, but it likewise includes cross-veins. Therefore, every part of a cross-vein, the apex of which is found within the bounding planes of an older location, even though its exterior parts be appropriated by another, if such •older location was legally made and has been kept alive, be- comes the property of the owners of such older location. So far so good. If this is borne in mind, and the other sec- tion ^ read in connection with it, the mists and clouds of un- reason that befogged the Colorado court for j^ears, are easily rolled away. The other section takes nothing from this, but simply recognizes the fact that veins may cross each •other upon the dip and strike, or upon the dip alone, and seeks to provide for and define the rights of the respective parties in^the event of such a contingency. § 907. Section 2336 enlarged upon — Means crossing on the dip. — It must be borne in mind in the outstart that the first section gives to the locator all veins of every kind. It would seem that this language requires no construction, and •unless, as was claimed by a Colorado court, as we shall see hereafter, it is repealed by the subsequent section on account ■of its position in the statute book, it must be the law. We must, therefore, turn to the subsequent section and see what I R S. U. S., § 2323. 3 R. S. U. S., § 2336. 2 See ante, g§ 885, 889. See also ^§ 803, 805, 443, 444. ,794 SUB-SUEFACE AND EXTEA-LATEBAL EIGHTS. [§ 908. its language is, and in doing so we find that it treats of veins crossing each other without defining what is meant by- crossing — whether upon the strike or the dip; but there is a significant provision in connection with this. This sec- tion is composed of two sentences and the word " intersec- tion " is used in both, and, of course, must have been used in the same sense and for the same purpose. Added to- this is the fact that in the subsequent sentence the words " below the point of union," used also in connection with intersection, occur. We are not doing violence to the statute, then, by concluding, if such a thing were possible, that con- gress meant veins crossing on their dip and not on their strike. We will elaborate this farther on. § 908. Cross-veins and cross-courses — Definition— Sur- face protected. — By the customs and usages prevailing in England, veins crossing each other on the strike were gen- erally called cross-courses. The cross-veins in the great Wheal Annie lode in Cornwall present the largest class of veins crossing upon the strike of which we have any infor- mation. It is fairly well demonstrated that they occurred and were mineralized at different periods of the geological formation of that country. The circumstance of their cross- ing on the strike instead of upon the dip is, of course, by reason of the application of the dynamic force which pro- duced them with reference to the point of least resistance. The strongest argument in favor of the theory, which prevailed in Colorado for a long time, that congress, in en- acting section 2336, had in mind cross-courses, is the fact that the cross-courses of Cornwall were sometimes called cross veins. But this is a superficial examination — a strik- ing at the leaves and sticking in the bark, and not getting at the very root and trunk of the question. We have already demonstrated, and the statute is plain upon the subject, that congress rigidly provided against trespassing upon the surface possession of another.^ It is therefore quite appar- 1 R S. U. S., §3333, last sentence. § 909.] EIGHT TO VEINS, SPUES AND OFFSHOOTS. 795 ent, since the section under consideration speaks of veins uniting on their downward course, as to who shall own the ore below the point of intersection, and in the same section providing for veins crossing each other as to the ownership of ore and right of way through the space of intersection, that the framers of the act had in mind the same species and character of intersection and crossing in both cases.^ Such a view as this gives force to every part of the stat- ute — any other denies this result. Moreover, when the entire statute is considered together the conclusion is irresistible that in no case did congress intend to authorize the pursuit of a vein on the strike beyond the bounding planes of a lo- cation, and that when a senior location crossed the junior one, that part of the junior location is cut out and obliter- ated, and both side lines of the senior location are end lines, as to it and any vein contained within it, coming in contact with those lines on the strike, and are drawn vertically against it,^ or at least a new line is made there parallel with the end lines of the claim crossed by the vein. § 909. Same subject — True rule in such case — Sur- face lines control — Line controlling located vein con- trols all others. — The true rule in respect to cross-veins, if congress was dealing with veins crossing on the strike,, must be that the junior is stopped at the point of intersec- tion with the side line of the senior location. As to that, particular vein or part of a vein, that line becomes an end line as to both locations and constitutes a vertical plane. This is the Montana doctrine.^ Any other rule would work. 1 Wilhelm v. Sylvester, 101 Cal. Walrath v. Champion M. Co., 171 358, 35 Pao. Rep. .997; Water vale M. U. S. 293. Co. V. Leaoh (Ariz.), 33 Pac. Rep. 3 Freeland v. Hoffman, Moun- 418; Calhoun M. Co. v. Ajax G. M. tain King Lode v. Little Chicago- Co., 27 Colo. 1, 59 Pac. Rep. 607. Lode, 13 Morr. M. R. 289; Pardee v. 2 Colorado Central M. Co. v. Murray, 4 Mont. 234, 3 Pac. Rep. 16; Turck, 50 Fed. Rep. 888. 896; Tomb- s. c, on another question, 1 Pac. stoneM.Co.v.WayUp M.Co.,1 Ariz. Rep. 737. Compare Watervale M. 436, 35 Pac. Rep. 794; Argentine M. Co. v. Leaoh (Ariz.),33 Pac. Rep. 418;. Co. v. Terrible M. Co., 132 U. S.478; Tombstone M. Co. v. Way Up M. 796 SUB-S0KFACE AN^ BXTEA-LATEEAL EIGHTS. [§ 910. incalculable hardship and loss. What appeared to be a >cross-vein might not in fact be such, but might, instead, be the only vein that the discoverer of the older vein had, and turned or bent in the fissure, a not unlikely occurrence, where the strike seemed to be parallel with the side lines, and the surface boundaries were mistakenly marked in con- seqnence thereof. Or, as aptly stated by Mr. Morrison : " In speaking of the distance from the side lines to a sup- posed crossing of veins, the supposition is of a vein crossing at right angles, which would be the case where the strong- est equity could be raised in favor of the owner of the cross- vein. But, in fact, a cross-lode of such character is of rare occurrence ; in general, the crossing would be at much less angle, and the less the angle the greater the length of the cross-vein. A case can be supposed of a cross-vein of greater length than the claim from end line to end line, and in such case the cross-vein would claim more than the originally located lode."^ Such would be the case if the cross-vein, so called, extended across the hypotenuse of the rectangular figure usually forming the location inside the surface bounds. § 910. The space of intersection — The old Colorado rule. — Following the ill-considered Lond. ed.), pp. 66, 57, 70, 131, 132, 291; Brady v. Brady, 65 N. Y. S. 621; 203, 295, 299; Chetham v. William- Harris v. Ryding, 5 M. & W. 60; son, 4 East, 469; Douglas v. Locke, Hunt v. Peck, 1 Johns. 705; Humph- 1 A. & E. 743; Gibson v. Tyson, 5 reys v. Brogden, 20 L. J. Q. B. 10; Watts, 34; Kier v. Peterson, 41 Pa. Armstrong v. Lake Champlain St. 357; New Jersey Zinc Co. v. Granite Co., 147 N. Y. 495; Hart well New Jersey Franklinite Co., 2 v. Camman, 10 N. J. Eq. 128; Bell Beas. (N. J.) 325; Cowel v. Lam- v. Wilson, 1 L. R. Ch. App. 303. § 965.] SEVEEANCK OF ESTATES, HOW A0COMPL5SHED. 827 court holds limestone ledges ' to be so included. And the English case,^ while the language is not quite so broad, holds- that a conveyance of surface land, reserving all mines and minerals within and under the premises, with free ingress, egress and regress to dig, search for and take and use all mines and minerals within and under the premises, is a reservation of China clay under the surface; but the owner thereof will be restrained from mining the same when he can do so only by totally destroying or seriously injuring the surface. If minerals are reserved or granted, as the case may be, the grant must generally be held to include what- ever is sought for and mined or quarried under that broad and comprehensive name. § 965. Summary. — It will appear from the foregoing that severed estates, and the mode by which the different estates are made under the same surface, and the general inheritance thus divided longitudinally, have become well recognized in the law. By this means each stratum may be the subject of a grant or a reservation and thus be- come the property of as many different owners as there are different strata. We have noticed and outlined at some length two of the ways by which this may be accomplished, namely, by reservation and by grant. Of course, the word "exception" is included in the term "reservation." While it may seem an anomaly, there is good authority indicating a trend of judicial thought to the effect that severance may likewise occur by adverse user. We will discuss that at some length in the next succeeding article. Aeticlb B. Severance by Adverse User. § 970. Preliminary — Severance by adverse user — Custom. 971. Limitations — Must be open, notorious and adverse. 973. Further limitations — Adverse user must extend to mine as such — Eight barred by contract. 1 Brady V. Brady, 65 N. Y. S. 621 ; 2Hext v. Gill, 3 L. T. (N. S.} and see also a further reference to 291. this case, post, § 981, note 1, p. 833. 828 NATURE, ETC., OF ESTATES IN MINES. [§§ 970, 971. ■§ 973. Same — Evidence, question for jury — Custom — Acts of owner- ship. 974. Prescription — Custom. 975. Eights seldom acquired by prescription. 976. Limitation upon the custom in England. 977. No title by prescription in the United States. § 970. Preliminary — Severance by adverse user — Custom. — It is not pretended, as a general rule, that any but a hostile adverse entry, under claim and color of right, would, in general, be a sufficient basis upon which to predi- cate a title by adverse user. It is quite certain, and indeed indisputable, that an entry made under an express license or lease could not be turned into an adverse possession with- out surrendering the possession under which the entry was made. But in some of the mining districts of England, and in early times in this country, there grew up in many states an immemorial custom whereby there was, to a consider- able extent, a general free license to explore lands supposed to contain mineral, and, if mineral was found, the right of possession followed, including the right to extract the min- ■eral upon payment of the customary toll or royalty.^ Where such custom exists, or where an entry is boldly made under claim of right, within certain limitatioiis, which we will explain at some length hereafter, the rule has become fixed that a severance may be accomplished in this way.'' § 971. Limitations — Must be open, notorious and ad- verse. — Agreeably to the general rule of adverse possession, it is well settled that in order to be effectual as the severance of one portion of the inheritance from another portion by ad- verse user, the possession must be open, notorious and adverse, 1 Rogers v. Brenton, 10 Q. B. 26; 77; Moore v. Thompson, 69 N. C. Allen V. Barkley, 1 Spears Eq. 264, 130; Jackson v. Olitz, 8 "Wend. 440; 14 M. R. 246; Ivimey v. Stocker, Desloge v. Pearoe, 38 Mo. 588; Wil- L. E. 1 Ch. App. 396; Upton v. son v. Henry, 40 Wis. 594, afflrm- Brazier, 17 Iowa, 153; Alderson v. ing s. C, 35 Wis. 241; Stephenson Ennor, 45 111. 138. v. Wilson, 37 Wis. 482; Eowe v. 2 Barnes v. Mawson, 1 M. & S. Grenfel, R & M. 375. § 972.] SEYEEANCE OF ESTATES, HOW ACCOMPLISHED. 829 under color of title or claim of right. Mere possession of the surface after a severance is not possession of the mines beneath, and neither the owner of the surface nor the sub-surface proprietor can claim the other estate merely by force of his possession of his own. This doctrine is so nearly elementarj', and settled by such a great number of cases, that a complete citation of them would be taking too much space. We therefore select but a few.^ From the foregoing it will be quite apparent that the converse of this proposi- tion must be equally true, and hence secret mining alone will not create a right in the trespasser adverse to the real owner, and that the statute does not begin to run, either for right of possession or against a claim for damages, until the discovery of such trespass.^ § 972. Further limitations — Adverse user must extend to mine as such — Rights barred by contract. — Where the owner of the surface seeks to establish title to a mine be- neath it by adverse possession, under the statute, he must prove possession of the mine as such, independently of his possession of the surface, or there can be no question of ad- verse holdings to submit to the jury.' Non-user alone will not set the statute of limitations running against the real owner, in the absence of some limitation in his title paper.* iTyrwhitt v. Wynne, 2 Barn. & a L. C. 302; Smith v. Thaclerah, Aid. 554; Cullen v. Rich, Bull. N. P. 35 K J. (N. S.) C. P. 276; Nicklin v. 102; s. C.Eioh V.Johnson, 2 Strange, Williams, 10 Exch. 259; Dean v. 1143; Hodgkinson v. Fletcher, 3 Thwaite, 21 Beav. 621; Hunter v. Doug. 31; Hamilton v. Southern Gibbons, 1 H. & N. 459. Nevada M. Co., 13 Sawy. 113, 33 3 Caldwell v. Copeland, 37 Pa. St. Fed. Rep. 562; House v. Palmer, 9 427;Tyrwhitt v. Wynne, 2B.& Aid. Ga. 497 ; Colvin v. McCune, 39 Iowa, 554. This rule applies to severed es- 502; Arnold v. Stevens, 24 Pick, tatesonly. Andthepossessionofthe 106; Westmoreland & Cambria Nat. lessee is the possession of the lessor. Gas Co. v. De Witt, 130 Pa. St. 235; as against one claiming by adverse Plummer v. Hillside Coal & Iron possession. Simmons v. McCarthy Co., 160 Pa. St. 483. (Cal.), 60 Pao. Rep. 1037. 2 Lewey v. Friok Coke Co., 166 * Marvin v. Brewster Iron M. Co., Pa. St. 336; Backhouse v. Bonomi, 55 N. Y. 538; Smiles v. Hastings,. E. & Bl. 632, 84 L. J. Q. B. 181, 9 34 Barb. (N. Y.) 44; Armstrong v.. S30 HATUEE, ETC., OF ESTATES IN MINES. [§§ 973, 974. But where a grantor, in reserving a mineral right, couples the reservation with the stipulation that he commence dig- ging for mines within a given time, his failure to do so has been held to bar the right.^ § 973. Same — Evidence, question for jnry — Custom- Acts of ownership. — In an early case in England,^ a tenant of a freehold claimed the mines against the lord of the manor, who relied upon a reservation established, not by ■documentary evidence, but by acts of ownership and ad- verse enjoyment, as far back as the memory of living wit- nesses would reach, and the question of adverse enjoyment and acts of ownership for time immemorial was left to the jury. In another case the right of the tenant of the free- hold, as against the lord of the manor, to have the dues of copper mines under the land, was made to depend upon acts of ownership and adverse possession of the mines and dues for more than twenty years.' A similar result was reached where the p]a.intiff claimed the mine as a "bounder" under the custom of miners, against other " bounders " showing no title to the premises.* But, wherever the right is claimed by adverse user, the separate estate must have been so held for at least the period of limitations.* § 974. Prescription — Custom. — In some parts of Eng- land, as we have already noticed, there are certain customs which are sufficient to justify an entry. Under those cir- cumstances it has been correctly held that the custom and prescription are sufficient to create a severance of the min- erals from the surface ownership, or vice versa.^ But it Caldwell, 53 Pa. St. 284. See also s Curtis v. Daniel, 10 East, 27a Smith V. Lloyd, 9 Exciu 532. < Rogers v. Brenton, 10 Q. B. 26. 1 House V. Palmer, 9 (Ja. 497. See 6 Arnold v. Stevens, 24 Pick. 106; also Monroe v. Bowen, 26 Mich. 523; Bainb. Mines, 85. Perkins v. Stockwell, 131 Mass. 539. 6 gge Gilbert on Tenures, p. 327; See also ante, § 935. Hayden v. Smith, 13 Coke, 68, 2 2 Barnes v. Mawson, 1 Maule & Brovfrnl. 219; Ashmead v. Banger, S. 77. See also Desloge v. Pearoe, 1 Lord Raym. 551; Dallas' Notes to 4J8 Mo. 588. Bainb. Mines, 37. !§§ 975-7'?.] SEVEEANCB OF ESTATES, HOW ACCOMPLISHED. 831 ■ought to be observed in connection with this that the prin- ciple should be restricted rather than enlarged. It had its birth in a custom which furnished the chief reason for its existence, and in the absence of a controlling custom ought not to be sanctioned. § 975. Rights seldom acquired by prescription. — It seems well settled that prescription, while it will give the right to work a mine, will seldom confer an estate. Pre- scription is a principle derived from the Roman law, where the power to confer an estate was denied it, and from this reason and foundation flows the principle that severance cannot be so accomplished.' It was a familiar and well- settled doctrine under the civil law that there could be no acquisition of estate by prescription, but that it must al- ways be founded, if differing from the ordinary grant, upon acts apparent, notorious and adverse; or, as expressed in the Koman law, neo clam nee j>reca/rio.^ § 976. Limitation upon the custom in England. — The disposition seems to be, in the later cases, to restrict rather than enlarge the right which might be acquired in the direc- tion of a severance of one stratum or part of the inheritance from another. Thus, the right of the lessee of mines in the lands of a manor upon which the houses are situated, to work the mines under .any houses, part of the manor, by pay- ing to the occupier of the surface a reasonable compensation, for the use of the surface, but without making any compen- sation on any other account, cannot exist by custom.' § 977. No title by prescription in the United States.— It may be laid down as a general rule, that in this country iBalnb. Mines, p. 5; Wilkinson tit. 3, fr. 1; Blanchard & Weeks, V. Proud, 11 M. & W. 33; Bourne Lead. Cas., p. 631; Wheatley v. V. Taylor, 10 East, 189; Collier, Baugh, 25 Pa. St. 538. Mines, p. 79. But see Barnes v. 3 Hilton v. Granville, D. & M 5 Q. Mawson, 1 M. & S. 77. B. 701, 13 L. J. Q. B. 193; Bainb. 2 Dig., lib. 8, tit 5, fr. 10; lib. 39, Mines, 437. 832 NATUEE, ETC., OF ESTATES IN MINES. [§ 981. the doctrine that estates might be divided or severed by pre- scription has not generally obtained-^ As we saw in the last preceding section, it has lost ground in England to the extent that it may now be said that, while an incorporeal right may be there acquired with reference to real estate, no permanent interest can ordinarily be so obtained.^ Aeticle C. Void Reservations and Grants. § 981. Limitations in attempted grants — Void reservations and grants. 982. The rule in Texas, and contrary doctrine. § 981. limitations in attempted grants — Toid reser. rations and grants. — Not every attempted reservation, nor every attempted grant of minerals, will operate as a sever- ance of the minerals from the servient estate. If done by public officers, it must be authorized by law.' If done by in- dividuals, it must be within the lines sanctioned by the law. Thus, one co-tenant joining in the conveyance of property cannot reserve his individual interests in the mine.* But it has been held that a co-tenant may sell a fractional part, if the others consent to it ; * and passive acquiescence has been held a sufficient consent.* Of course, it goes without saying, that a reservation, as a general rule, which is made as large as the grant is void.' But in a late case in New iPerley v. Langley, 7 N. H. 233. can v. Sylvester, 24 Me. 482; Smith 2Bainb. Mines (1st Am. ed.), p. 5; v. Benson, 9 Vt. 138; Hartford, eta Collier, Mines, pp. 79, 80; Bourne v. Ore Co. v. Miller, 41 Conn. 112. Taylor,10East, 189; Barnes V. Maw- 5 Marsh v. Holley, 42 Conn. 453. son, 1 M. & a 77. 6 Waring v. Crow, 11 CaL 367, ' Butte City Smoke-house Lode But see Crane v. Campbell, 24 Cal. Cases, 6 Mont. 397, 12 Pac. Rep. 858; 634. This proposition has no ap- Talbott V. King. 6 Mont 76, 9 Pac. plication to the case of tenants in Rep. 434; Deffeback v. Hawke, 115 common on an unpatented mining TJ. S. 392; Silver Bow M & M. Co. claim on the public domain. V. Clark, 5 Mont. 378, 5 Pac. Rep. 7 Cowell v. Lammers, 21 Fed. 570. Rep. 200; McLaughlin v. Powell, < Boston Franklinite Co. v. Con- 50 Cal. 64; Shoenberger v. Lyon, 7 dit, 19 N. J. Eq. 394; Adam v. W. & S. 184; Stukeley v. Buttler, Briggs Iron Co., 7 Cush. 361; Dun- Hobart, 168. § 982.] SEVEEANCE OF ESTATES, HOW ACCOMPLISHED. 833 York, where tbe reservation was "all mines and minerals which may be found on the above piece of land, with the right of entering at any time to dig or carry away the same," was held a reservation of the limestone, and even though that constituted the chief value of the land, and amounted practically to a reservation as large as the grant, still the limestone was reserved and the reservation not void.^ § 982. The rule in Texas, and contrary doctrine. — Under a statute of the republic of Texas reserving minerals in the following language : " xTo lands granted by this gov- ernment shall be located on salt springs, gold or silver mines, copper or lead or other minerals," it was held that the reservation was similar in effect to that known at the common law, and not only reserved the minerals, but also the right to enter and take them.^ But the United States supreme court has generally held that similar reservations carried the corpus of the land, and that after patent the title passes if granted in accordance with statute and procured without fraud.^ Article D. Trust Estate. § 986. Trust estates — When may be severed. 987. The reason of the rule by Bainbridge. 988. Same — Another reason stated. 989. Going concern — Mortgagor's knowledge. 990. Mortgagor's rights. 991. Powers and duties of trustees — Must not waste — Special trust- ees. 1 Brady v. Brady, 65 N. Y. Supp. 3 Barden v. Northern Pac. E. E. 631 and cases. See also ante, § 964, Co., 154 U. S. 288; Morton v. Ne- and post, § 982. braska. 21 Wall. 600, quoting andap- 2 Cowan V. Hardeman, 26 Tex. proving Polk v. Wendal, 9 Cranoh, 217, citing with approval and fol- 99; Minter v. Crommelin, 18 How. lowing Queen v. Earl of Northum- 88; Reichart v. Felps, 6 Wall. 160. berland, Plowd. 310; Earl of Car- See also Indiana v. Miller, 3 Mc- digan V. Armitage,2Barn.&Cresw. Lean, 151, 13 Fed. Cas. 25, No. 7,022; 197. See also State v. Parker, 61 United States v. Gratiot, 14 Pet. Tex 265; ante, §§ 964, 981. 526. 53 834: NATUEE, ETC., OF ESTATES IN MINES. [§§ 986-988. § 986. Trust estates — When may be severed. — At the common law the mortgaged property passed to the mort- gagee, and there was some doubt, in consequence of his trust relationship to the mortgagor, as to whether he might open new mines, which was finally resolved in favor of the right.' Following this principle, it -is now settled that a mortgagee in possession may exhaust the mine in payment of the mort- gage, and may even open new mines, being accountable to the mortgagor for proper operation.^ § 987. The reason of the rule by Bainhridge. — "With respect to mines, the mortgagee in possession, it seems, will be clearly entitled to work old mines in satisfaction of his demands, though it has been decided that he is not bound, at the utmost, to advance more money in mining speculation than a prudent owner would do. For, as Lord Eldon justly said, if he were owner he might speculate for himself as much as he pleased; the advantages, whatever they might be, would be his, and if it turned out unfortunate he would bear the loss. But could a mortgagee be required to do that? Could he be required to risk his own fortune in speculation, and incur hazard in an adventure which would ultimately redound to the benefit of the mortgagor?"' § 988. Same — Another reason stated. — "Where mort- gaged estate is of an insufficient value to pay the mortgage, a mortgagee on entering into possession, under the common- law system, may open mines and cut timber, and he will be charged only with the net profits. A mortgagee with sufil- cient security undoubtedly cannot dispose of any portion of the inheritance, but if the security is insufficient, and the mortgagee is acting in good faith, the court will never in- 1 Williams v. Medlicott, 6 Price, 2 gee authorities in last preceding 496; Rowe V. Wood, IJac. & Walk, note; Bainb. Mines, pp. 57, 58; 555; Thorneycroft v. Crockett, 16 Hood v. Easton, swpra; VanBuren Sim. 445; Hood v. Easton, 2 Gif. v. Olmstead, 5 Paige Ch. (N. Y.)9. 693, 2 Jur. (N. S.) 739; Powell v. s Bainb. Mines, pp. 55, 56, citing Aiken, 4 K & J. 345. Rowe v. Wood, 1 Jao. & Walk, 555. §§ 989-91.] SEVEEANCB OF ESTATES, HOW ACCOMPLISHED. 835 terfere to prevent his . . . opening a mine, etc., but he does it at his own risk and peril ; so that, if he incurs loss in working the mine, he cannot charge the loss against the mortgagor, and if he obtains a profit the whole of that profit must go in discharge of his mortgage debt. That is the con- dition upon which he speculates, but subject to that condi- tion and speculation he is entitled to make the most of the property for the purpose of discharging what is due to- him."i § 989. Going concern — Mortgagor's knowledge. — Pre- sumptively and prima facie, the mortgage of a colliery in- cludes the colliery business as a going concern, and passes the right to work the mines in satisfaction of the mortgage.^ When a mortgagor knows that a mortgagee in possession is working mines under the mortgaged premises, and for a number of years allows the working to continue without objection or complaint, the court will not allow him to sur- charge the mortgagee with the value of the ores raised by him or his lessees, or of the surface land necessarily dam- aged by reason of such working.' § 990. Mortgagor's rights. — Generally the mortgagor, in the absence of stipulation to the contrary, may go on mining in the ordinary way; and if not guilty of improvi- dent mining is dispunishable for waste, and may not be restrained by injunction.* § 991. Powers and duties of trustees — Must not waste — Special trustees. — It seems that all persons, in- cluding trustees who own less than the entire fee simple 1 Blanch. & Weeks, Lead. Cas. strain improvident waste. Irwin Mines, p. 333; Millet v. Davy, 31 v. Davidson, 3 Ired. Eq. 311. Beav. 470, 81 L. J. Ch. 308, 3 Giff. < Capner v. Flemington M. Co., 3 322. N. J. Eq. 467. See also Denn v. 2 County of Gloucester Bank v. Kinney, 2 South. 252; Irwin v. Da- Rudry Nerthyr Steam Co., 1 Ch. vidson, 3 Ired. Eq. 311; Young v. 639, 12 Rep. 183. Northern Illinois Coal & Iron Co., 'Blanch. & Weeks, Lead. Cas. 9 Biss. 300; Teal v. Walker, 111 Mines, p. 332 ; Millet v. Davy, 11 W. U. S. 243. R. 176, 31 Beav. 470. But will re- 836 NATUEE, ETC., OF ESTATES IN MINES. [§ 991. estate, are restricted in their operation and enjoyment of mining property by the rule which forbids them from wast- ing the inheritance; that is to say, they must generally deliver up the estate to their successors or beneficiaries in as good condition as when their estate or right attached. Following this principle, there has been grave question as to whether a trustee has the power to lease unopened mines so as to permit them to be opened.^ Generally speak- ing, this must be determined from the language of the in- strument by which the settlement was effected or the trust created. But when the trust is for a life or lives, the au- thority to lease has been held incident.^ The powers must, in general, be exercised within the spirit if not the letter of the authority.' Of course, where the trust is that of a guardian, executor or special trustee under a statute, the authority found in the statute must be followed. iDaly V. Beckett, 24 Beav. 114; ^Leigh v. Balcarres, supra. Leigh V. Balcarres, 6 C. B. 847; 3 Buckley v. Howell, 29 Beav. Scott V. Stewart, 27 Beav. 367. 546; Daly v. Beckett, supra. CHAPTER Y. OF THE RIGHTS, DUTIES, BURDENS AND OBLIGATIONS INCI- DENT TO SEVERED ESTATES. Aeticle a. Oeneral Principles. § 995. Of some of the consequences of severance — Resemblance to serv- itudes. 996. Preliminary — Severance and its incidents. 997. Severance, how accomplished. 998. Same subject — Difference betveeen the present rule and the common law — As many owners as there are strata. 999. Same subject — Invocation of the maxim that he who owns the soil owns upward to the skies. 1000. Some cases of severance at the early common law — Copyhold and customary lands. 1001. Severance by deed of enfranchisement. 1003. Question of the common-law presumption — General doctrine of severance — No joinder by occupancy — No running of the statute of limitations. 1003. Same — Other decisions — All attributes of property — Title may be by adverse possession. 1004. The Earl of Cardigan case — Liberal construction of reserva- tion — Words of inheritance not necessary. 1005. Separate estates same as adjoining closes — Limitation upon incidental rights. 1006. An early English statute reserving minerals, and its construc- tion by the court of exeohequer — Fossils included. 1007. Implied and incidental rights of severed estates as viewed by the cases in this country — The doctrine of Marvin v. Brewster Iron Co. — A grant or reservation carries with it the means of enjoyment. 1008. Question for jury — Rights impliedly reserved. 1009. Particular easements — Right of way through the severed strata — Effect of severance upon superjacent and subjacent estates. 1010. Ownership of the empty space. 1011. Comments — A servient duty in each estate with reciprocal rights. 1013. Tunneling under ground of another — Pursuant to custom — Statute prohibiting. 838 HATUEE, ETC., OF ESTATES IN MINES. [§§ 995, 996. § 995. Of some of the consequences of severance — Re- semblance to servitudes Mines in this condition are held either by express grant or by exception, or by virtue of acts of ownership which have produced an adverse possession against the owner of the surface.^ In the latter case the full right to work has been established by the acts them- selves. But in all cases it is a general rule of law that when anything is granted, all the means of attaining it, and all the fruits and effects of it, are also granted. So, a grant of mines, or a reservation of them, carries with jt the right to work them.^ In such case the reservation or grant of the minerals creates a dominant estate, to which the other estate of the grantor, or the estate granted, as the case may be, is servient.' Further than as considered in the last pre- ceding sentence, the consideration of dominant and servient estates is postponed to anothw branch of this sub-head.* § 996. Preliminary — Severance and its incidents.— Be- fore proceeding to an examination of the several rights and duties appertaining to all the different relations of separate owners of the different estates in the same piece of land and the estates carved out of it, including the incidents of such carving out, it is best to examine the law as de- 1 Ashman v. Wigton (Pa.), 12 Atl. Rep. 74; Lillibridge v. Laokawana Coal Co., 143 Pa. St. 293, 22 Atl. Rep. 1035; Lord v. Carbon Iron Mfg. Co., 58 N. J. Eq. 452; Smith v. Kenriok, 7 C. B. 515; Horner v. Watson, 79 Pa. St. 243; Pennsylvania Coal Co. V. Sanderson, 113 Pa. St. 126; Knight V. Indiana Coal & Iron Co., 47 Ind. 105; Hey wood v. Fulmer (Ind.), 33 N. E. Rep. 574, 18 L. R. A. 491. 2 Rowbotham v. Wilson, 8 H. L. Cas. 348, 30 L. J. Q. B. 49; Rogers v. Taylor, 1 H. & N. 838, 26 L. J. Exch. 303, 38 Eng. L. & Eq. 574; Keyse v. Powell, 3 El. & Bl. 133; Band Ante, g§ 313, 960, 1011. 2 Mills' Ann. Stats., § 3131 ; Laws 1861, p. 166, § 3. See post, § 1018. § 1017.] EIGHTS, DUTIES AND OBLIGATIONS. 857 going, each estate carved out becomes the subject of owner- ship, bargain and sale, separate from the other. The min- eral estate becomes the dominant one, and generally the last one created is superior iri right; and, subject to the ex- ceptions hereinafter pointed out, every previously-existing estate owes a servient duty to such dominant estate.' But there are exceptions to the rule above stated and circum- stances under which the relative rights of the parties become reversed; and the mine owner, or other subsurface claimant, owes the duty of surface support to the surface owner.^ §1017. Definition. — The particular easement or servi- tude with which we have to deal may be defined to be an easement appurtenant, a covenant, the right running Avith the land, such as was denominated at the civil law as prm- dium serviens. With easements in gross we will have noth- ing to do in this branch of our subject. And the easement with which we have to deal may be defined to be the privi- lege, without profit, which the owner of one neighboring tenement hath of another, existing in respect of other sev- eral tenements, by which the servient owner is obliged to suffer to be done or not do something on his own land for the advantage of the dominant owner. It is a right, ease- ment or servitude which one proprietor has to some profit, benefit or beneficial use out of, in or over the estate of an- other proprietor.' The rights with which we have to deal are scarcely what can generally be called an easement; they are more in the nature of profits a jprendre.^ As was said by Lord Wensleydale : " I think it perfectly clear that the right in this case was not in the nature of an ease- ment, but that the right was to the enjoyment of his own 1 Lillibridge v. Lackawana Coal Worcester Ry. Co., 16 Pick. 522; Co.,143Pa. St. 293, 22Atl. Rep. 1035. Kneoken v. Voltz, 110 III. 864; ^See 'post, next section; also Manderbach v. Bethany Orphans' §§1018-1020. Home, 1 Cent. Rep. Penn. 402; 3 6 Am. & Eng. Enoy. Law (1st Hills v. Miller, 3 Paige (N. Y.), 354; ed.), p. 139; Tabor v. Bradley, 18 Ritger v. Parker, 8 Cush. 145. N. Y. 109, 3 Kent's Com. 528; Bos- < Gale, Easem., p. 1. ton Water Power Co. v. Boston & 858 NATTJEE, ETC., OF ESTATES IN MINES. [§ 1013. property, and that the obligatioa was cast upon the owner of the neighboring property not to interrupt that enjoy- ment." ' I § 1018. Of natural right — Recognized by statute.— It may be laid down as axiomatic that the owner of an estate in land has, prvmafacU, the right, to the extent of his estate, to all the incidents and appurtenances necessary to the quiet, successful and peaceable enjoyment of the same, unless there is something in the nature of a covenant in the grant or in- strument by which he secures title, in some way limiting or qualifying this natural right. So, prima facie, the owner of the surface is entitled to support from the subjacent strata, and, if the owner of the minerals works them, it is his duty to leave sufiBcient support for the surface in its natural state.'' And of a common right, the mining estate was held in Pennsylvania to be servient to the surface, to the extent of suiJicient support to sustain it, and there could be no custom to the contrary. The reason given for this conclu- sion was that the business of mining in the western part of the state was of too recent date to give such a custom the age necessary for its validity. Moreover, any such usage or custom would lack the essential element of reasonableness.* In some of the -states this right is expressly recognized by statute, and in such cases the miner is required to give se- curity for surface and subjacent support.^ It is sufficient to say that the legislation is crude and uncertain, and not free from constitutional objection, since there is no reason that special protection should be guaranteed in such cases. 1 Backhouse v. Bonomi, 9 H. L. 3 Jones v. Wagner, 16 P. F. Smith, Cas. 513; affirmed, Bonomi t. Back- 429; Horner v. Watson, 79 Pa. St house, El. Bl. & El. 646, 96 E. C. L. 242, 4 M. R. 1. 646. See also Caledonian Ry. Co. * The statutes will be found in V. Sprot, 2 Macq. H. L. Cas. 449. the appendix — Colorado, Idaho, the 2 Harris v. Ryding, 5 M. & W. 60; Dakotas and Wyoming. Missouri Humphreys v. Brogden, 12 Q. B. requires an indemnity for working 735; Smart v. Morton, 5 K & B. 30, beneath certain cities. See Ap- 13M. R655. pen dix, Missouri Statute. See also ajite, §1012; posf, § 1023. §§ 1019, 1020.] EIGHTS, DUTIES AND OBLIGATIONS. 859 § 1019. Bight cannot be defeated by custom. — As was noted in the last section, this right cannot be defeated by custom, because one of the essential elements of a valid cus- tom must be that it is so widelj' known, and so universally recognized, that all men contracting in the vicinity, or being controlled in their mining operations in any manner, are presumed to act or contract with reference to it. And where one owning the whole fee grants the minerals, reserving the surface to himself, his grantee is entitled only to so much of the minerals as he can get without injury to the superincum- bent soil, and the plea of any custom to the contrary cannot be entertained.^ §1020. Surface support in general. — It is now estab- lished by the great weight of authority, that, as a general rule of law, the owner of the surface is entitled to absolute support, not as an easement of right depending on a supposed grant, but as a proprietary right at common law. When- ever the ownership between the surface and the mines be- neath becomes severed, either by grant of the mines only, or a grant of the lands with an exception of the mines, it is presumed by the law that neither of the separate owners has the right to destroy or damage the property of the other. The right of a surface owner has been likened to that of an owner of an upper story of a house who holds his tenement with an implied right to support from the owner of the lower story .^ A clear statement of the general rule 1 Coleman v. Chadwick, 80 Pa. St. L. Cas. 348; Pennington v. Galland, 81; Horner v. Watson, 79 id. 243; 9 Exoh; 1; Smith v. Darby, L. R. 7 Jones V. Wagner, 16 P. F. Smith, Q. B. 716; New Moss Colliery Co. 439. V. Manchester M. & R. Co., 1 Ch. 2 Humphries v. Brogden, 1 Eng. 725, 66 L. J. Ch. (N. S.) 381; Haines L, & Eq. 241, 13 Q. B. 739, 20 L. J. v. Roberts, 7 El. & Bl. 625; Hext v. Q. B. (N. S.) 10; Green well v. Low Gill, 37 L. T. (N. S.) 291, 20 W. R. Beeohburn Coal Co,, 2 Q. B. 165, 66 957; Dugdale v. Robertson, 3 Kay L. J. Q. B. (N. S.)643; Harris v. Ryd- & J. 695; Hunt v. Peck, 1 Johns, ing, 5 M. & W. 59; Earl of Glasgow Eng. Ch. 705; Wakefield v. Earl of V. H. & C. Alum Co., 8 Eng. L. & Bucoleuoh, L. R. 4 Eq. 613; Smart Eq. 131; Rowbotham v. Wilson, 8 H. v. Morton, 5 El. & Bl. 30; Rogers v. 860 NATITEE, ETC., OF ESTATES IN MINES. [§ 1020. was thus made by the supreme court of Pennsylvania in an early case: "That if the owner of land grant a lease of minerals beneath the surface, with power to work and get them, in the most general terras, still the lessee must leave a reasonable support to the surface; and so, conversely, when the minerals are demised and the surface is retained by the lessor, there arises a prima facie inference at com- mon law, upon such demise, that the lessor is demising them in such a manner as is consistent with the retention, by himself, of his own right of support." * Taylor, 3 H. & M. 838; Caledonian Ry. Co. V. Sprot, 3 Macq. 449; Mid- land Ry. Co. V. Checkley, 4 L. R. Eq. 19; Barneley Canal Co. v. Twi- bell, 7 Beav. 19, 13 L. J. (N. S.) Ch. 434; North Eastern Ry. Co. v. Elli- ott, 3 De Gex, F. & J. 433; affirmed, Elliott V. North Eastern Ry. Co., 10 H. L. Gas. 333, 9 Jur. (N. S.) 555; Proud V. Bates, 34 L. J. Ch. 406; Shaw V. Stenton, 37 L. J. (N. S.) Ex. 353; Aspden v. Sedden, 10 L. R. Ch. 394, 44 L. J. Ch. 359; Radon V. Jeffoock, 7 K R. Exch. 379, 43 L. J. Exch. 36; Dickson v. White, 8 App. Cas. 833; Andrew v. Bu- chanan, 3 L. R. H. L. So. 386; Bell V. Earl Dudley, 13 Rep. 373, 1 Ch. 183; Corp. Birmingham v. Allen, L. R. 6 Ch. Div. 384; Wyrley & Essex Canal Co. v. Bradley, 7 East, 368; Davis v. Trehearne, L. R. 6 App. 460; Hodgson v. Moulson, 18 C. B. (N. S.) 333, 114 Eng. Com. Law, 330; Williams v. Gibson, 84 Ala. 238, 4 S. Rep. 350; Perry County Coal Co. v. Maclin, 70 111. App. 444; Wilms v. Jess, 94 111. 464; Yandes v. Wright, 66 Ind. 316, 33 Am. Rep. 109; Livingston v. Mo- ingona Coal Co., 49 Iowa, 369; Ran- dolph V. Halden, 44 Iowa, 337; Mickle V. Douglass, 75 Iowa, 78; Gilmore v. Drisooll, 132 Mass. 199; New Jersey Zinc Co. v. New Jersey Franklinite Co., 13 N. J. Eq. 822; Boston Franklinite Co. v. New Jer- sey Zinc Co., 13 N. J. Eq. 315: Burg- ner v. Humphey, 41 Ohio St. 340; Pomeroy v. Salt Co., 37 Ohio St. 530; Marvin v. Brewster Iron M. Co., 55 N. Y. 538; Farrand v. Marshall, 19 Barb. 380; Jones v. Wagner, 66 Pa. St. 429; Horner v. Watson, 79 Pa. St. 243; Coleman v. Chadwiek, 80 id, 81 ; Searle v. Lackawanna & Pa Ry. Co., 33 Pa. St. 57; Nelson v. Hock, 14 Phila. 655; Brown v. Tor- renz, 88 Pa. St. 186; Scranton v. Phillips, 94 Pa. St. 15; Carlin v. Chappel, 101 Pa. St. 34-8; Williams V. Hay, 130 Pa. St. 485, 14 Atl. Eep. 379; Kistlerv. Thompson, 35 Pa, St 139; McGowan v. Bailey, 146 Pa. St. 343, 33 Atl. Rep. 387; Fairview Co. V. Hay, 17 Atl. Rep. 883; Gumbert V. Kilgrove, 6 Cent. Rep. 406; Rob- ertson V. Youghiogheny River Coal Co., 180 Pa. St. 566, 37 Pitts L J. (N. S.) 67, 33 Atl. Rep. 706; Pringle V. Vesta Coal Co., 173 Pa. St. 438; Hecksherd v. Sheaffer (Pa.), 14 At). Rep. 53; Reliance Coal & Coke Co. V. Kentucky Coal & Coke Co., 93 Tenn. 191, 33 S. W. Rep. 1095. 1 Jones v. Wagner, supra; Horner § 1021.J EIGHTS, DUTIES AND OBLIGATIONS. 861 But there are said to be limitations upon the right of sur- face support. Thus, as a general rule, it is only due in the form and manner as the surface of the ground made neces- sary at the time of the creation of the grant or severance, and as to any building placed upon the surface thereafter, not contemplated or expressed in the grant or reservation, the subsurface owner is not liable for surface support.' It may, of course, be contracted away, but such contract will be confined to its own subject-matter and does not destroy the right of an adjoining proprietor to his lateral support.^ § 1021. Same — The universal rule — Surface support in natural state. — This subject has so clearly crystallized into a defined and positive rule of law as to become axiomatic ; and it matters not whether the right is called an easement, a servitude, or a right of property, as was said in an English case, the result is the same.' The owner of the land has the right, and it has always been considered as his right, to the support of the land in its natural state from his neighbor, whether subjacent or adjacent, and for this purpose it was held that all the land-owners in England, however distant, were neighbors, if their operations, in any remote degree, injured the land of another.* As was said by Lord Justice James in the same case: " Whether you call it an easement or a natural right inci- V. Watson, infra; Coleman v. ham v. Allen, 6 Ch. Dlv. 284^ 14 M. Chadwick, 80 Pa. St. 81; Heck- E. 17. scher v. Sheaffer (Pa.), 14 Atl. Rep. < Wakefield v. Duke of Buccleuch, 53: and seepost, § 1030. 4 Eq. Cases, 613. See also Yandes 1 Partridge v. Scott, 3 M. & W. v. Wright, 66 Ind. 319, 14 M. R. 33; 220; Rogers V.Taylor, 3 H.&N. 828; Jones v. Wagner, 16 P. F. Smith, Humphries v. Brogden, 5 Q. B. 739, 429; Horner v. Watson, 79 Pa. St. SOL. J.Q.B.10; Rowbothamv.Wil- 242; Marvin v. Brewster Iron Co., son, 8 H. L. Gas. 848, 30 L. J. (N. S.) 55 N. Y. 538; Dugdale v. Robert- 49, 6 Jur. (N. S.) 965; Wakefield v. son, 3 Kay & J. 695; Harris v. Ry- Buccleuoh, 23 L. T. (N. S.) 102. ding, 5 M. & W. 00; Bainb. Mines, 2 Matulys v. Philadelphia & R. C. 485; Matulys v. Philadelphia & R. & L Co. (Pa., 1902), 50 Atl. Rep. 823. C. & L Co. (Pa., 1902), 50 Atl. Rep. 3 Jessel, M. E., in Corp. Birming- 823. 862 NATUEE, ETC., OF ESTATES IN MINES. [§ 1022. dent to the property, or a right of property, it seems to me that these are only different modes of expressing the origin of the right, and do not express any difference in the right itself. "Whatever it be,whether you use these terms or not, there must be the idea and the substance of a dominant and servient tenement. ... It has always been considered as the right of the adjacent owner, or the right of the sub- jacent owner; it has always been considered as the right of a man against his neighbor. Those are the terms which are always expressed in all the cases." And further on, defining what is meant by neighbor and adjacent and sub- jacent proprietor, the learned lord justice proceeds to say: " That is the neighboring property, which in extent would, in the natural state of things, have afforded the requisite support to the dominant tenement." Thus it seems clear that the dominant estate is any estate having the right or privilege upon any other adjacent or subjacent estate, and that wherever the condition exists, there is no doubt as to the right. The right of support ex jure naturcB, which the owner of the soil is entitled to re- ceive from the minerals or other strata underneath, has within a comparatively few years received much attention in the courts of England and this country, and the rule de- ducible from the cases in all the courts is that, where there is any restriction or contract to the contrary, the sabordi- nate or mining property is subservient to the surface, to the extent of sufficient support to sustain the latter, or, in de- fault, there is a liability for damages. § 1022. Same subject — Bight held to be absolute.— Thus, in a leading case in Massachusetts, it was held that one who digs a pit on land so that, by the operation of nat- ural and ordinary causes which he takes no precaution to guard against, the land of another falls into the pit, is liable in an action by the latter for the injury to his land in its natural condition.^ So where the ownership of the soil was iGillmore v. DrisooU, 129 Mass. 199, 14 M. R. 37. § 1023.] EIGHTS, DnTIES AND OBLIGATIONS. 863 vested in one, and the ownership of the minerals in another, under a statute prohibiting the working of mines within forty perpendicular yards of the foundations of buildings, it was held that the prohibition to work within that distance was absolute, and that the miner was liable under common law rules for damages done for mining beyond that dis' tance.^ This we take it would be the rule in any case, independent of the statute, flowing from the general prin- ciple that he who invades the rights of another must re- spond to such person for all damages consequent to the invasion. And while it might be permissible in certain cases to remove all the coal or ore from certain strata, still, he who does so does it at his own risk, and must suffer the consequences of all damages flowing from such acts. As was said in an English case, the law says to him in such case, " yoQ must pay compensation for digging the minerals under the house and not leaving sufficient support."^ If the owner of the coal beneath the surface undertakes to mine and remove it, and damage results to the surface which is owned by another person, either from negligence in the mining or from failure to properly or sufficiently sup- port the surface, or from both these causes, the surface owner may recover compensation;' and in all cases the owner of the mine is bound to leave enough support for the surface unless the owner of the latter has released his right to the same.* § 1023. Support from adjacent and subjacent soil — A natural right. — The doctrine that the right to support of the soil by the adjacent and underlying strata, and subject thereto the correlative right to make use of such strata in any lawful, useful and reasonable manner, are ex jure naturoe; 1 Haynes v. Roberts, 7 El. & Bl. * Robertson v. Youghiogheny 635. 13 M. R. 665. River Coal Co., 35 Atl. Rep. 706, 173 2 Smith V. Darby, 7 Q. B. 716, 13 Pa, St. 566; Kissler v. Thompson, M. R. 695. - 158 Pa. St. 139, 37 Atl. Rep. 874. 3Pringle v. Vesta Coal Co., 33 Atl. Rep. 690, 173 Pa. St. 438. 864 NATUEE, ETC., OF ESTATES IN MINES. [§ 1024. or, in other words, the natural incidents of property not of the character of easements received the approbation of the highest courts in England in many cases.^ The consequences necessarily are that until the owner of the subjacent strata does some act which is productive of actual and present in- jury to the owner of the neighboring soil, no action can lie. The mere possibility or probability of future damage is no more a ground for a remedy at law than it would be in re- spect to the acts done on the surface. The continuous exer- cise of the right itself, as it is not necessary to its establishment, cannot be an infringement upon the rights of others. Another circumstance of great weight, of course, is the fact that the abuse or excessive exercise of such a right is necessarily secret and amounts to clandestine possession.^ There can be no acquisition by prescription, which must always be founded upon acts apparent, notorious and adverse, or, as is expressed in the Eoman law, '■'■Neo clam nee ^ecario."^ It is of little consequence whether we call this estate an easement, a servitude or an interest in the soil, as we have seen, and this rule is generally adopted in the United States, where it is further held as a consequence that except by grant, and perhaps by prescription, the owner of the land cannot gain any additional right of support by the erection of buildings thereupon.* § 1024. Right founded in natural justice. — It is scarcely necessary to add anything to the reasoning we have already advanced, for, as was said by the court in a well considered 1 Eowbotham v. Wilson, 2 L. T. Thurston v. Hancock, 12 Mass. (N. S.) 642; Brown v. Bobbins, 4 H. & 221 ; Eiokart v. Scott, 7 Watts, 460; N. 186; Bonomi v. Backhouse, 96 Shreve v. Stokes, 8 B. Men. 460; Eng. C. L. R. 622. Charles v. Bankin, 22 Mo. 388; Mc- 2 Solomons v. Vintners, 4 H. & N. Guire v. Grant, 1 Dutch. 856; Ead- 603. cliflfe V. Brooklyn, 4 Comst 403. 'Id.; Dig., hb. 8^ tit. 5, fr. 10. See also Hoy v. Sterrett, 2 Watts, * Lasala v. Holbrook, 4 Paige, 169 ; 380 ; Wheatley v. Baugh, 25 Pa. St. Panton v. Holland, 17 Johns. 92; 53a Farard v. Marshall, 21 Barb. 407; § 1025.] EIGHTS, DUTIES AND OBLIGATIONS. 865 Massachusetts case, after stating that the right of support from adjoining soil for land in its natural state stands on natural justice and is essential to the protection and enjoy- ment of the property in the soil, and is therefore a right of property which passes with the soil without any grant for the purpose: "It is a natural consequence from this principle that if any injury to his soil results from the re- moval of the natural support to which it is entitled, by means of excavation on an adjoining tract, the owner has a legal remedy in an action at law against the party by whom the work has been done, and the mischief thereby occa- sioned." 1 § 1025. Does not depend upon negligence or unskilful- ness. — This does not depend upon negligence or unskilf ul- ness, but upon the violation of a right of property which has been invaded and disturbed. This unqualified rule is limited to injuries caused to the land itself, and does not afford relief for damages by the same means to superficial structures. For an injury to buildings, which is an un- avoidable incident to the depression or slide of the soil on which they stand, caused by the excavation of a pit on adjoining land, an action can only be maintained when a want of due care or skill, or the exercise of positive negli- gence, has contributed to produce it.* It was accordingly adjudged in the last case that if the defendant thereby ex- cavating and carrying away the earth on her own land, caused the plaintiff's land to fall and sink into the pit which she had dug, she was liable for the injury to the soil of the plaintiff, but not for the injury to the buildings, in the ab- sence of negligence. While some of the recent English cases which we have mentioned, and others still more recent, seem to go to the extent of holding that the right can only arise from grant or prescription, it nevertheless exists as a natural 1 Foley V. Wyeth, 3 Allen, 13; 2 Foley v.Wyeth, sitpra; Thurston Thurston v. Hancock, 12 Mass. 320. v. Hancock, supra, 55 866 NATUEE, ETC., OF ESTATES IN MINES. [§ 1026. right, prescription being a term broad enough to cover every case, as the general rule is that it presupposes a grant.' § 1026. The English doctrine — Duty to self— But oth- ers' rights respected. — Man's first duty, after that which he owes to himself and those dependent upon him, is to so use his own as not to injure his neighbor; but wherever the law enjoins a duty upon a man, it affords him like protection in the enjoyment of his property ; and it likewise enjoins upon him the duty of respecting, in his acts, the rights of his neighbor, and he cannot wantonly either dig his soil so as to undermine his neighbor's property so as to deprive him of proper support, or mine out his entire stratum of coal or mineral with the same result. This has become the definitely settled rule in England, and largely followed, indeed entirely followed, so far as we are able to discover, in this country.^ Every owner of land is entitled, as against his neighbor, to have the earth and stone in their natural state and to have the water flow in its natural direction.* As was said by Lord Blackburn : " The general rule of law in both cases is that the owner of one piece of land has a right to use it in the natural course of user, unless in so doing he interferes with some right created either by law or contract. And as a branch of that law the owner of the minerals has a right to take away the whole of the minerals in his land, if such is the natural course of user of minerals, and that a servi- tude to prevent such a user must be founded upon something more than mere neighborhood."* This last case seems to state the doctrine somewhat extremely, and yet it seems to be the true rule. It is to be observed that only those rights are spoken of which the law gives in each case. iSee Wyatt v. Harrison, 3 B. & Wilde v.Minsterly,2RoUeAbr.565; Ad. 871; Partridge v. Scott, 3 M. ante, § 1020, note 1, p. 860. & W. 3S0; Caledonian Ry. Co. v. ' Gillmore v. DriscoU, 129 Mass. Sprot, 2 Macq. 449; Bonomi v. Back- 199, 14 M. R. 37. house, E. B. & E. 622, 96 E. C. L. 646. * Wilson v. Waddell, 2 App. Cases, 2 Slingsby v. Barnard, 14 Jao. 430 ; 95, 14 M. R. 35. Smith V. Martin, 2 Sanders, 400; §§ 1027, 1028.] EIGHTS, DUTIES AND OBLIGATIONS. 867 §1027. Limitations on the foregoing — Permission to work in tlie usual and approved way. — So a clause in the instrument authorizing the holder to work the mines in the usual and most approved manner in which the same is per- formed in other works of the like kind in the country, refers simply to the mode of carrying on the underground mining, but does not presuppose a custom to work the mines so as to injure or interfere with the rights of other property ; nor did the words that the holder of the right should have the Tight to enter upon the land and carry away the minerals, and erect buildings, and do and execute all such other acts, works and things upon, in or under or above said premises as shall be necessary or convenient for the working of and carrying away of the same, enlarge the power to deal with the mines so as to let down the surface. In common right, under such circumstances, the person who owns the surface has a right to have it properly supported below by the min- erals beneath it.^ § 1028. Eight is implied from circumstances. — There was a prima fade inference at common law that upon every demise of minerals or other subjacent strata, where the surface is retained by the lessor, he was demising them in such a manner as was consistent with the retention by himself of his own right to support. In the absence of ex- press words showing clearly that he had waived or quali- fied his right, the presumption is that what he retains is to be enjoyed by him modo et forma, and with the natural support which it possessed before the demise.^ 1 Davis V. Trehearne, L. R. 6 App. kins, 18 L. T. (N. S.) 487; Proud v. Cases, 460, 14 M. R. 60; Smart v. Bates, 15 M. R. 337, 34 L. J. Ch. Morton, 13 M. R. 655, 5 El. & BI. 50; 406; Hodgson v. Moulson, 18 C. B. Buchanan V. Andrew, L.R. 3 So. App. (N. S.) 333, 8 M. R. 511. As to de- 486; Gainesv. Virginia* A.Coal Co., cree of court of record to protect 124 Ala. 394, 27 S. Rep. 477; Youghi- surface by party having the right •ogheny River Coal Co. v. Hopkins, to remove coal, see Livingston v. 198 Pa. St. 843, 48 Atl. Rep. 19. Moingona Coal Co., 10 M. R. 696; 2Dugdalev. Robertson, 3 K& J. s. C, 49 Iowa, 396; posf, § 1031, ^95, 13 M. R. 663; Richards v. Jen- note 1, p. 871. 868 NATUEB, ETC., OF ESTATES IN MINES. [§ 102^. In all cases where the ownership of surface is in one pro- prietor, and the ownership of the minerals in another, it may be laid down as the settled law, in the absence of ex- press covenant to the contrary, that the owner of the min- erals has the right to remove them, but he is bound to leave sufficient minerals or other support to properly sustain the surface. As was said in a leading New York case: " There is a distinct freehold in each of them, and the subjacent lands or mineral strata must be so occupied and used as not to divest or interfere with a reasonable and proper support of the surface lands." ' This is a right which cannot be de- feated by custom.^ § 1029. Ordinary and approved mining sometimes the test — Question of fact. — What is a sufficient surface sup- port in all cases cannot be laid down as a proposition of law. This because different conditions produce different results. Hence the doctrine which obtains generally that what is or is not, in a given case, a sufficient surface sup- port is a question of fact to be left to the jury under proper instructions. Eespecting the duty itself, it may be laid down as a general rule that the law enjoins upon the servient pro- prietor the duty of maintaining sufficient surface support. If they are provided by contract as to dimensions and char- acter, of course the contract prevails. But, in the absence of contract, the law enjoins as a duty that ordinary precau- tions be taken. As was said by the supreme court of Ala- bama in a late case : " In the absence of any safe mode provided in the contract, it will be presumed that the par- ties intended to adopt the mode usually adopted and found safe by the miners of such coal, more especially in that general locality." ' And again by the supreme court of iRyckman v. Gillis, 57 N. Y. 68. 486; Braohnell v. Humphrey, 41 See also Harris v. Eyding, 5 M. & Ohio St. 340. W. 60; Harkrader v. Brogden, 13 2 Hilton v. Granville, 5 Q. B.70U Ad. &E1. 739; Smart v. Morton, 13 3 Strange, 1334; Broadbent v. Wilks^ M. R 655, 5 El. & Bl. 50; Buchanan 1 Willes, 360; ante, § 1018. v. Andrew, L. R. 3 Sc. App. Gas. 3 Gaines v. Va. & Ala. Coal Co., 134 Ala. 394> 37 S. Rep. 477. § 1030.] EIGHTS, DUTIES AUD OBLIGATIONS. 869 Pennsylvania: " 'Ordinary precautions' mean, in 'mining coal,' proper support to the overlying surface." ' And again by the supreme court of Alabama, in a late case : " The lessee, it is true, is to mine on all the land, but when he engaged to procure the coal — not at all events, but 'by mining ' for it, — it must be understood as implied that he is to mine as other persons desirous of obtaining the best re- sults and using adequate means to achieve it, perform the same kind of work." ^ § 1030. Common-law right controlled by conveyance, but sometimes only limited — Surface defined. — We have outlined at some length the settled principle of the law that surface support, that is to say, the support of the surface in its natural state, is a natural right which cannot be stipulated away so as to protect the tort-feasor for his negligence ; and while the subject of negligence and convej^ances are not generally to be treated here, some features thereof must re- ceive attention. The language of Chief Justice Thompson, quoted in a pre- vious section,' is equally applicable here. And, as we have seen, when the owner of the whole fee grants the minerals reserving the surface, his grantee is entitled only to so much of the minerals as he can get without injury to the surface.* It should be observed that the word " surface " as used in the books means not simply the geometrical superfices with- out thickness, but includes whatever earth, soil or land lies 1 Youghiogheny River Coal Co. V. Campbell, 21 id. 327; Holland v. Hopkins, 198 Pa. St. 343, 48 AtL Rep. Tenn. Coal, L & R. R. Co., 91 Ala. 19, citing (q. v.) Jones v. Wagner, 451, 8 S. Rep. 524 66 Pa. St. 429; Horner v. Watson, '^ Ante, § 1020, note 1, p. 860. 79 Pa. St. 243; Coleman v. Chad- * Coleman v. Chadwiok, 80 Pa. wick, 80 Pa. St. 81;Carlin v. Chap- St. 81; Horner v. Watson, 79 Pa. pel, 101 Pa. St. 348; Robertson v. St. 242; Marvin v. Brewster Iron Youghiogheny R. Coal Co., 173 Pa. Works, 55 N. Y. 583; Harris v. Ryd- St. 566, 33 Atl. Rep. 706. ing, 5 M. & W. 60; Dugdale v. Rob- 2 Gaines v. Va. & Ala. Coal Co., ertson, 3 Kay & J. 695; Bainb. 124 Ala. 894, citing (q. v.) Vincent Mines, 485. v. Rogers, 30 Ala. 471; Grier v. 870 NATUEE, ETC., OF ESTATES IN MINES. [§ 1031. above and superincumbent on the line. Surface, therefore, includes all which lies above the stratum under discussion.' § 1031. Other eifects of covenants — Convenient work- ing — Similar rights — Usual and incidental rights.— Where a grant contained the vyords "and ail the privileges necessary for the convenient working, running and transpor- tation of said coal, and disposition of excavated matter, and also all rights and privileges incident or usually appurte- nant to the working of coal mines," it was said by the su- preme court of Pennsylvania: "But we cannot perceive that this grant in any way compromises the grantor's right of surface support. If, indeed, tbe destruction of the super- incumbent estate be one of the privileges necessarily inci- dent and appurtenant to coal mining, then the said indent- ure does convey the right contended for. As, however, we have just determined that such destruction of the sur- face is in no way incidental to such mining, we must neces- sarily refuse our assent to the construction contended for. It is in effect but another form of a plea of a general custom or usage permissive of the removal of all subjacent support, for it is argued that when the vendor used the words ' all rights and privileges incident or usually appurtenant to the working and using of coal mines,' he did so in view of such custom, as above referred to, and that his covenant must be interpreted accordingly. The answer to all this is, that no such custom could have existed because of its unreasonable- ness; it could not have entered into the contract of the parties. Support is part and parcel of the reserved estate; it is of common right, and hence must pass, if at all, by ex- press grant, and is not to be defeated by mere implication arising from language that does not import such an effect."^ 1 Harkrader v. Brogden, 13 Ad. & L. J., in Corporation of Birmingham EL 739. V. Allen, 6 Ch. Div. 384, 14 M. R 17; 2 Coleman v. Chadwick, 80 Pa. St. Shaw v. Stanton, 28 L. J. (N. S.) 81, 14 M. R 9. See also Horner v. Exch. 353, 2 H. & N. 858; Proud v. Watson, 79 Pa. St. 342; Baggallay Bates, 84 L. J. Ch, 106. § 1032.] EIGHTS, DUTIES AND OBLIGATIONS. 871 An express grant of all the minerals and mineral rights in a tract of land is, by necessary implication, the grant also of the right to open and work the mines, and to occupy for this purpose as much of the surface as may be reasonable and necessary.' "Where the surface belongs to one and the minerals to another, without qualification other than the fact of severance, the owner of the minerals must leave sup- port sufi&cient to maintain the surface in its natural state. The rule is well settled that when one owning the whole fee grants the minerals, reserving the surface to himself, his grantee is entitled only to so much of the minerals as he can get without injury to the superincumbent soil.^ § 1032. Right may be conveyed away. — Of course, this right, like every other, can be conveyed away ; and where the conveyance is of the entire soil without reference to any subjacent strata, coal or mineral, the grantee gets all the soil conveyed, and, if no reservations are made, none exist. So, it was held in Pennsylvania, that where one grants the surface of the land and reserves the mines be- neath, the implied right of support to the surface which passes with the grant may, by apt words in the deed, be excepted therefrom; and where such exception has been made, the grantor or those who claim through him, may mine all the coal, even though by such mining the surface should fall in. This is but the converse of the principles stated in the beginning of this section. As was said by the court : " The man who grants the minerals and reserves the surface is entitled to make any bargain he likes. Both parties are just as much at liberty to make a bargain with reference to the coals and minerals as to make a bargain in reference to anything else. The same rule applies when one grants the surface and retains the minerals. In each case 1 Williams v. Gibson, 84 Ala. 238, 2 Wilms v. Jess, 94 111. 468, 14 M. 4 S. Rep. 350; Wardell v. Watson, E. 56. See also ante, § 1028, notes. 93 Mo. 108, 5 S. W. Eep. 609. 872 NATUEE, ETC., OF ESTATES IN MINES. [§ 1033. the question is, Did the parties agree there should be no obli- gation in regard to surface support? " ^ So it is that the rights and duties of the parties, where they have attempted to measure them by express contract, will be governed and limited by the exact words they have used. A covenant for compensation to the surface owner, in a deed reserving minerals, will not be construed to in- clude the prevention of injury by undermining buildings, but must be taken as contemplating the commission of such injury.^ And where the grant shows the intention, even though ambiguously stated, following the rule that it is construed most strongly against the grantor, the right to surface support will be held not to exist.' In a late case in England it was held that the mine owner might exhaust minerals independent of surface right ; * and in another case the same was said to be, under certain cir- cumstances, authorized by statute.' But it is generally con- ceded, that while the right to surface support may be limited, and to some extent controlled, by contract, such contracts are generally personal to the party receiving or reserving the estate, and cannot affect his grantee or stran- gers without notice. Besides, there is a well-known prin- ciple of public policy which forbids such contracts to reheve parties from their liability for negligence. § 1033. When agreement of parties controls and when compensation allowed.— The purchaser's land, under con- veyance providing expressly that buildings or improvements 1 Scranton v. Phillips, 94 Pa. St. Proud v. Bates, 34 L. J. Ch. 406. 15, 14 M. R. 48; Smith v. Darby, L. See also Aspden v. Sedden, supra; R. 7 Q. B. 718. Scranton v. Phillips, supra; Eadon 2 Aspden v. Sedden, L. R. 10 Ch. v. Jeflfcook, L. R. 7 Eq. 379, 43 L. J. App. 394 Ex. 36; Dixon v. White, 8 App. 8William& v. Bagnall, 12 Jur. Cas. H. L. (Sc.) 883; Andrew v. Bu- (N. S.) 987; Smith v. Darby, L. R. chanan, 3 L. R. (Sa) 286. 7 Q. B. 716; Rowbotham v. Wil- « Wilson v. Waddell, L. E. 3 App. Bon, 8 H. L. Cas. 348; Mine Hill Cas. 95. & Schuylkill Haven R. R. Co. v. 6 Buocleuoh v. Wakefield, L. R Lippincott,86Pa.St.468; Hecksher 4 H. L. 377. But see Backhouse v. V. Shaffer (Pa.), 14 Atl. Rep. 53; Bonomi,9H.L.Cas.503,13M.E.677. § 1040.] EIGHTS, DUTIES AND OBLIGATIONS. 873 may be erected upon it, the mineral and mining rights being reserved to the grantor, is entitled to support from the ad- jacent and underlying soil, not only for his land but for the buildings upon it.^ But independent and apart from any such provision, the rule deducible from the authorities seems to be that surface support is due to the land in the condi- tion at the time the severance takes place, and if the support is suflBcient for that purpose any heavy buildings placed thereon, in the absence of such a contract as just mentioned, would be at the risk of the builder.^ These matters are sometimes controlled in England by legislative enactment. Thus, where an act of parliament authorizes canal owners, for instance, to prevent adjoining land-owners from oper- ating their mines within ten yards of the canal, the canal company may restrain such operation, but not without com- pensation to the land-owners.' And this» compensation ex- tends not only to the value of the coal in the bed, but also for profit which could only be made by digging the coal.^ Aeticle 0. Subjacent and Adjacent Support — Customary and Natural Rights,' % 1040. Adjacent and subjacent support. 1041. In general no right to destroy the surface under any circum- stances. 1042. Controlled by the contract of severance, but affected by custom. 1043. Bad custom will not warrant injury. § 1040. Adjacent and subjacent support. — The doctrine we have attempted to outline in the preceding sections with reference to surface support in general applies with equal force to adjacent and subjacent support, and the rule de- ducible from the law is, with reference to the matter in hand, that, independent of contract, the general duties imposed 1 Northeastern B. E. Co. v. Elliott, 8 Midland Ry. Co. v. Checkley, 3 De Gex, F. & J. 433; affirmed, L. R. 4 Eq. 19. Elliott V. Northeastern R. R. Co., *Barnsley Canal Co. v. Twibell, 10 H. L. Cas. 333, 9 Jur. (N. S.) 555. 7 Beav. 19, 13 L. J. M. S. Ch. 484 2 See ante, § 1020, note 1, p. 861. 874 NATUEE, ETC., OF ESTATES IN MINES. [§§ 1041, 1043. upon the miner, especially in coal regions, where there may be different estates in the same bed or vein, are not to mine his vein entirely to the line, nor yet to dig pits in the floor or foot-wall and thus injure the subjacent proprietor.^ § 1041. In general no right to destroy the surface nnder any circumstances. — It seems equally clear and well settled that the right of surface support, likewise of lateral and subjacent support, are matters of natural right; and before it can be said that they are lost, the instrument by and under which the claim is made must make the right clearly appear, or it will be presumed not to exist.^ § 1042. Controlled by the contract of severance, but affected by custom. — Where the severance is created by contract or other paper writing separate from and independ- ent of the duty which the law enjoins, the rights of the parties will generally be measured and controlled by the writing itself.' But custom will assist in the interpretation 1 Elliott V. Northeastern Ry. Co., Aspden v. Sedden, L. R. 10 Ch. 391 10 H. L. Cas. 333, 9 Jur. (N. S.) 555, 11 See also Caledonian Ey. Co. v. Bel- W. R. 604: Jeffries v. "Williams, 5 haven, 3 Macq. H. L. Cas. 56, 3 Jur. Ex. 792, 1 Eng. L. & Eq. 483; Wyatt (N. S.) 573; London & Northwestern V. Harrison, 3 B. & Ad. 871; Nick- Ry. Co. v. Ackroyd, 31 L. J. Ch. lin V. Williams, 23 L. J. (N. S.) Exch. 588, 8 Jur. (N. S.) 911, 10 W. Eep. 335 ; 26 Eng. L. & Eq. 549. See also 367 ; Humphreys v. Brogden, 5 Q. B. S. C, 10 Exoh. 259; Backhouse v. 739; Robertson v. ToughioghehyE. Bonomi, 9 H. L. Cas. 503; Richards Coal Co., 172 Pa. St. 566, 33 Atl v'. Jenkins, 18 L. T. Rep. (N. S.)438; Rep. 706. Hendricks v. Spring Valley M. & I. ' Davis v. Trehearne, 6 L. E. 460; Co., 58 CaL 190; Gilmore v. DriscoU, Coleman v. Chadwick, 80 Pa. St 122 Mass. 199; Victor M. Co. v. 81; Jones v. Wagner, 66 Pa. St Morning Star M. Co., 50 Mo. A pp. 429; Harris v. Ryding, 5 M. & W. 525; Thomas Iron M. Co. v. Allen- 60; Robertson v. Youghiogheny town, 28 N. J. Eq. 27; Lord v. Car- River Coal Co., 172 Pa. St. 566,33 Atl. bon Iron Mfg. Co., 38 N. J. Eq. 452. Rep. 306 ; Prindell v. Vesta Coal Ca, 2 Dixon V. White, 8 App. Cas. 833 172 Pa.St 438,33 Atl.Eep.690; Burg- (H. L. Sc), citing and approving ner v. Humphrey, 41 Ohio St 340; Rowbotham v. Wilson, 8 El. & Bl. Carlin v. Chappel, 101 Pa. St 348; 123, 8 H. L. Cas. 348; Andrew v. Mioklo v. Douglass, 75 Iowa, 78, 39 Buchanan, L. R. 2 H. L. Sc. 286; N. W. Rep. 198. § 1043.] EIGHTS, DUTIES AND OBLIGATIONS. 875 of the contract and in fixing the rights of the parties.^ But customary mining means that the ordinary precautions usually taken in mining are to be observed.^ The rule was thus clearly stated by the supreme court of Pennsylvania in a late case: "If the owner of the coal undertakes to mine and remove it, — as he has an undoubted . right to do, — and damage results to the surface, either (a) from negligence in conducting his mining operations, or (b) from failure to properly and sufficiently support the sur- face, or (c) from both these causes combined, the surface owner is entitled to recover compensation for such injury as he may show he has sustained."' § 1043. Bad custom — Will not warrant injury. — But from the general rule that a custom, to be effectual for any purpose, must be reasonable in itself, and of such long stand- ing as to justify the conclusion that all people in the vicin- ity know of it and act with reference to it, flows the prin- ciple that bad customs, as a general rule, have no force, will not warrant injury, nor justify, in all cases, a departure from the duty to leave surface support.* Moreover, no custom can be invoked to set aside a special contract, but only to interpret it.^ 1 Curtis V. Daniel, 10 East, 273; St. 438, 33 Atl. Rep. 690, citing {q. v.) Wakefield v. Buccleuch, L. R. 4 Eq. Jones v. Wagner, supra; Horner 618; Bell v. Earl of Dudley, 13 Rep. v. Watson, supra; Coleman v. Chad- (Jan. 1895), 273, 1 Ch. 183: Beattyv. wick, sapm; Carlin v. Chappel, Gregory, 17 Iowa, 109; Hecksher v. 101 Pa. St. 348. Sheafrer(Pa.), 14Atl.Rep.53; Jones ^Broadbent v. Wilks, 1 Willes, V. Wagner, 66 Pa. St. 439; Carter v. 360; Blackett v. Bradley, 1 B. & S. Philadelphia Coal Co., 77 Pa. St. 286. 940; Hilton v. Granville, 5 Q..B. 2 Youghiogheny River Coal Co. V. 701; Blewett v. Tregonning, 3 Ad. Hopkins, 198 Pa. St. 343, 48 Atl. Rep. & El. 554: Constable v. Nicholson, 19, Horner v. Watson, 79 Pa. St. 242; 14 C. B. (N. S.) 330. Coleman V. Chad wick, 8 Pa. St. 81. 'Randolph v. Halden, 44 low} 3 Pringle v. Vesta Coal Co., 172 Pa. 337. CHAPTER VL OF WATER RIGHTS AND DRAINAGE, § 1050. Water, common enemy — Drainage — Flooding. 1051. When not liable for flooding — Liable for direct acts — Not gen- erally for omission, unless negligent. 1052. The servitude which the lower mine owes to the upper and to the surface — Pumping or turning water into mine. 1053. Limitations and exceptions — Liable for negligence. 1054. Rights and duties of the upper mine owner — So use your own as not to injure others. 1055. Upper miner must not interfere with barriers. 1056. Liable for negligence. 1057. An example of the rule by Mr. Bainbridge — Not liable in ab- sence of negligence. 1058. What seems to be the true rule deducible from the authorities- Highest proprietor must use reasonable diligence — Not liable for injury resulting from natural causes. 1059. Working to boundary — Extent of liability for. 1060. Not generally liable for natural flow. 1061. Extreme doctrine in England — Owner liable for all damages. 1062. Statutory barriers — Constitutionality upheld. §1050. Water, common enemy — Drainage — Flood- ing. — Pursuing the principle discussed in the last subdi- vision relating to the duties, and in some cases servitudes, which one estate owes to another, there are circumstances in mining, where water, instead of being a necessity as else- where considered, becomes a source of menace and trouble, ^nd thereby a common enemy, against which each pro- prietor is bound to make for himself proper provisions for drainage and against flooding. This rule is confined strictly to water coming into the mine in a natural way and in the ordinary course of mining. The authorities in the foot-note unite in saying that the application of the above principle in all its bearings forbids one to bring upon his own land on or below the surface, by aqueduct or by pumping, any § 1051.] WATEE EIGHTS AND DEAINAGE. 877 water which he permits to flow upon and injure his neigh- bor. If the injury is the result wholly of natural causes, no liability results, but if from the act of the party, of course he is liable.^ § 1051. When not liable for flooding — liable for di- rect acts — Not generally for omission unless negligent. — And while the adjoining or upper miner must not wantonly, wilfully or negligently flood his neighbor's mine,^ there is a servient duty placed upon the lower proprietor by the law to care for, without compensation, the water which comes to him in the ordinary course of seepage and gravitation, and for that the upper or adjacent proprietor is not liable.' This is but enlarging upon the controlling principle set down in the last preceding section. One miner may not turn or pump his water into his neighbor's mine, but he is not liable if it goes there by seepage or gravitation if induced or ac- celerated by no act of his. lEylands v. Fletcher, L. E. 3 H. L. 330, affirming Fletcher v. Ey- lands, 3 App. Cas. 781; Smith v. Kenrick, 7 C. B. 515; Baird v. Wil- liamson, 15 C. B. (N. S.) 376; Firm- stone V. Wheeley, 3 Dowl. & L. 308, 13 L. J. (N. S.) Ex. 361; Clegg v. Deardon, 13 Q. B. 576, 17 L. J. (N. S.) 333; Crompton v. Lea, L. E. 19 Eq. 115; Duke of Beaufort v. Morris, 6 Hars. 840; Attorney-General v. Council of Birmingham, 4 K. & J. 548; Bentz v. Armstrong, 8 W. & S. 40; Marritt v. Parker, Coxe, 460; Williams v. Gale, 8 Har. & J. 331; Barker v. Kenrick, 13 0. B. 187; Jegon V. Vivian, 6 Ch. App. 743; Shafto V. Johnson, 8 B. & S. 253. 2 Bainb. Mines (1st Am. ed.), p. 460 ; Trower v. Chadwick, 6 Bing. N. C. 1, 8 Scott, 1; Lord v. Carbon Iron Mfg. Ca, 38 N. J. Eq. 453; Fletcher V. Eylands, L. E. 1 Ex. 265, 3 H. & C. 774; affirmed, Eylands v. Flet- cher, L. E. 3 H. L. 330; Firmstone V. Wheeley, 3 Dow. & L. 203; Smith V. Kenrick, 7 C. B. 515; Attorney- General V. Council of Birmingham, 4 Kay & J. 528; Phillips v. Hum- phrey, L. R 6 Ch. App. 770; Cromp- ton V. Lea, L. E., 19 Eq. 115. 3 Bainb. Mines (1st Am. ed.), pp. 455, 456, 460; Smith v. Kenrick, 7 C. B. 515, 18 L. J. (N. S.) 173; Tenant -V. Gold win, 1 Salk. 360; Lord v. Carbon Iron M. Co., supra; Phillips V. Humphrey, L. E. 6 Ch. App. 770; Baird v. Williamson, 15 C. B. (N. S.) 376; Fletcher v. Smith, L. E. 2 App. Cas. 781; Nichols v. Marshland, L. E. 10 Ex. 355; Jegon v. Vivian, L. E. 6 Ch. App. 742; Crompton v. Lea, L, E. 19 Eq. 115; Jones v. Eob- ertson, 116 111. 54-3. 818 NATUEE, ETC., OF ESTATES IN MINES. [§§ 1052, 1053. § 1052. The servitude which the lower mine owes to the upper and to the surface — Pumping or turning water into mine. — It was held in a recent case in England that the owner of a mine at the highest level has a right to work his Avhole mine in the manner usual and proper for getting at the minerals, and is not liable for any water which flows by gravitation into the adjoining mine from work so con- ducted. But he has no right, by pumping or otherwise, to be an active agent in sending water from his mine into an adjoining mine.^ So, we take it, the upper proprietor would be required to take every reasonable precaution to prevent his debris, or any of his appliances, from passing through any aperture that might exist communicating between his mine and the lower mine, and thus injuring and annoying the subjacent proprietor ; it being remembered, as we have had occasion to say elsewhere and shall repeat at some length, that the bounding planes between them are drawn verti- cally. § 1053. Limitations and exceptions — Liable for negli- gence. — While it has gener3.11y been held that if, in the lawful exercise of mining, the surface stream or spring is thereby cut off, for that, according to the doctrine of the leading case,^ there would be no liability, still there is, to all such mining, a practical application of the maxim that one must so use his own as not to injure another's; and while the owner of one portion of a bed of mineral or coal has an undoubted right to get all that the vein contains from his mine, regardless of the natural consequences which might result from so doing, he may not negligently or wilfully damage his neighbor's land.' 1 Baird V. Williamson, 15 C. B. (N. 2Baird v. Williamson, 15 C. B. S.) 376, 4 M. E. 368; Rylands v. Flet- (N. S.) 376, 4 M. R. 368. Cher, L. R. 3 H. L. 330 ; Smith v. Ken- 3 Smith v. Kenrick, 7 C. B. 515; rick, 7 C. B. 515, 6 M. R. 142. See Acton v. Blundell, 13 M. & W. 324; also Bannon v. Mitchell, 6 111. App. Chasemore v. Richards, S H. & N. 17, 3 M. R. 108; ante, §§ 1050, 1051. 168, 7 H. L, Cas. 349. See post, § 1058. §§ 1054, 1055.] WATEE EIGHTS AND DEAINAGE. 879 § 1054. Rights and duties of the upper mine owner — So use your own as not to injure others. — While, as we have seen, the upper mine owner may, as also may the lower, mine all the mineral or coal within his vein, seam or stratum, being liable only to the surface proprietor for sur- face support, still, it is his duty to carefully protect the sub- jacent owner, and he cannot wantonly allow his water or ■debris to find its way into the lower mine, if he can, by the use of reasonable diligence, control its flow and carry it to the surface. And the maxim "so use your own as not to injure others " controls in such cases, as it does in all cases where the surface and the minerals have been severed.^ It is well settled that the upper proprietor may cause water to flow from his own premises into his neighbor's so as to make himself liable in an action.^ And the rule is rather to be restricted, in relation to descending water, to that which finds its way into the subjacent mine unintentionally, as it were, on the part of the superjacent miner, where, in the course of careful and proper mining, in taking out his own coal, the water sinks below without negligence or malice on his part, even though in an increased quantity.' § 1055. Upper miner must not interfere with harriers. While the upper miner may work to the end of his claim, the custom being to leave the barrier on the rise, and to work to the end on the dip of the beds, he must not interfere with the barriers left there by the lower proprietor.* If he works over barriers, it is considered negligence per se, and he is not only responsible for the coal removed, but likewise for all resulting damage.* 1 Locust Mountain Coal & Iron App. 17; Marker v. Kenrick, 13 C. B. Co. V. Gorrell, 9 PhiL 247, 5 M. E. 187; Tillotson v. Smith, 32 N. H. 90; 129. Mexburough v. Bower, 7 Beav. 127 ; 2MoKnight v. Radcliff, 8 Wright Thomas v. Allentown M. Co., 28 N. Eep. 44 Pa. St. 156. J. Eq. 77; Firmstone v. Wheeley, 3 See § 1056, post; ante, § 1052. 2 Dow. & L. 203; Shafto v. Johnson, 4 Bainb. Mines (1st Am. ed.), pp. 8 B. & S. 252. 456,461; Bannon v. Mitchell, 6 111. » Firmstone v. Wheeley, supra; 880 NATTJEE, ETC., OF ESTATES IN MINES. [§§ 1056,1057. § 1056. Liable for negligence. — It is settled beyond con- troversy that, while the law of natural flow or gravitation protects the upper proprietor against damage done to the lower mine owner by natural flow, it does not shield him from the consequences of his own negligence.^ Sins of omis- sion are not the subject of action unless the law casts a duty to do the thing omitted ; but positive actions are different as all men are presumed to intend the natural and proximate result of their actions ; and hence, if they act and the act in- jures another, they must answer. § 1057. An example of the rule by Mr. Bainbridge — Not liable in absence of negligence. — Mr. Bainbridge, in his excellent work, thus lays down the rule which he asserts is founded in necessity : " The proprietors of a mill made a reservoir for collecting water, as well from their own lands as from adjoining lands of other owners. For this purpose they employed a competent engineer and a competent con- tractor to select the site and complete the work. There was no personal negligence on the part of the mill owners. The workmen met with some old shafts, and the contractor did not provide sufficient support to resist the pressure of the water in the shafts. These shafts communicated with old mining works, which were wholly unknown to the mill own- ers and the persons employed. The water penetrated into plaintiff's colliery below, which became flooded. It was held by the court of exchequer, that, in the absence of negli- gence and of knowledge on the part of the mill owners, they were not required to exercise unusual care, and were not liable for the injury to the mine. Bramwell, B., dissented from this judgment on the ground that the mill owners had Plant V. Scott, 21 L. T. (N. S.) 106. i Baird v. Williamson, 15 C. R See also McKnight v. Eatoliff, 44 (N. S.) 276; Philadelphia & Heading Pa. St. 56; West Cumberland Iron C. & I. Co. v. Taylor, 7 Pa. L. Eep. & Steel Co. V. Kenyon, L. E, 11 Ch. 127, 5 M. E. 133; Williams v. Gale, 782; Phillips v. Humphrey, L. E. 3 Har. & J. 331; Duke of Beaufort 6 Ch. App. 770. See also Webber v. v. Morris, 6 Hare, 340. Vogel, 189 Pa. St. 156, 43 AtL Eep, 4. § 1058.] WATEE EIGHTS AND DEAINAGE. 881 caused 'foreign ' water to be sent down by artificial means into the plaintiff's workings, as well as that flowing naturally from their own land; and therefore that ignorance of the facts was immaterial. On appeal this view of the case was afBrmed in the exchequer chamber, where it was decided that the mill owners were liable." ^ § 1058. What seems to be the true rule deducible from the authorities — Highest proprietor must use reasonable diligence — Not liable for injury resulting from natural causes. — It is the duty of the highest proprietor, whether his vein be the one which continues on into his neighbor's, or whether it be an upper stratum having a communica- tion into a lower one, to take all reasonable care of his debris and his water; but he is not carried beyond the rule of ordi- nary care nor made responsible for consequences not flowing from negligence or wilfulness, if he operates his mine in a care- ful and skilful manner, and if a loss occurs therefrom it is damnum absque injuria. Hence when water, following the law of gravitation, after the removal of coal or other mineral in a careful and proper manner, finds its way by percolation or through fissures, unforeseen and unknown, into the lower mine, the lower mine owner cannot complain of it as an in- jury done by the owner of the upper mine.- But the owner of the upper mine may not suffer the flow of his gangway to run down upon the lower mine, when by reasonable diligence he can prevent it. And where there are two mining operations, one owner working on the upper level and one on the lower level of the same vein, which means farther down on its dip, the owner of the upper level, operating in the most approved method and with care, is not required to control the natural flow of the water 1 Bainb. Mines, p. 463. See also ^ Kaufifman v. Griesemer, 8 Casey, Fletcher v. Rylands, 3 H. & C. 774, 407; Locust Mountain Coal & Iron L. R. 1 Ex. 365; on appeal, Bram- Co. v. Gorrell, 9 Phlla. 347, 5 M. R. well's opinion affirmed, Eyland v. 139. Fletcher, L. R 3 H. L. 330; Trower V. Chadwick, 6 Bing. N. C. 903. 882 NATUEB, ETC., OF ESTATES m AHNES. [§§ 1059, 1060. downward; that is, such water as may percolate through fissures or otherwise, and which he cannot control by the «xercise of reasonable care and prudence. And he may work his coal down to his line. In all such cases, as we have seen, he may not be negligent, but must use his own with care.i A mine owner will not be liable to an owner of an adjacent mine for injury occasioned to such adjacent owner, where such injury proceeds from natural causes in themselves beyond his control, though his own acts may have conduced to produce the injury, if his acts have only been those of the proper and ordinary working of his own mine and without default or negligence.'' § 1059. Working to boundary — Extent of liability for. — From what we have outlined in the preceding sec- tions, the rule is deducible that while a miner may work to his boundary line, yet if in doing so he negligently increases the burden or flow of water upon his neighbor, or if he brings in foreign water, he is responsible for both.' But in Illinois it has been held that each owner may take out all his coal, that is up to the boundary line.^ It is believed, however, that the rule would not apply where the upper boundary was neces- sary if or protection or to assist in providing surface support. § 1060. Not generally liable for natural flow So the rule may be said to be fixed that in general the mine owner, having due regard for his neighbor's rights, is not liable for the natural flow." He may not wantonly injure his neigh- iphil. & R. Coal & Iron Co. v. « Jones v. Robertson, 116 111. 543. Taylor, 5 M. E. 133. See also ante, Compare Bannon v. Mitchell, supra. g 1053. 6 Fletcher v. Smith, L. R. 3 App. i! Fletcher v. Smith, 3 App. Cas. Cas. 781 ; Losee v. Buchanan. 51 N. 781. See also post, § 1060. Y. 476; Garland v. Towne, 55 N. H. STillotson V. Smith, 32 N. H. 90; 57; Kauffman v.Griesenier,2Casey, Lord V. Carbon Iron Mfg. Co., 38 N. 407; Martin v. Riddle, id..415; Mo- J. Eq. 452; Smith v. Kenrick, 7 C. Knight v. Radcliflf, 8 Wright, 156; B. 515; Bannon v. Mitchell, 6 III Douty v. Bird, 10 P. F. Smith, 48; App. 17; Clegg v. Deardon, 13 Q. Smith v. Kenrick, 7 C. B. 515; Mar- B. 575. shall v. Welwood, 38 N. J. 339, 20 § 1061.] -WATEE EIGHTS AND DEAINAGE. 883 bor, but, having exercised due care, his duty seems to be ended, and the lower miner in such cases should, and gener- ally must, protect himself by proper barriers against inva- sion.i A fair statement of the law, as we view it, is thus made by Lord Hatherly : " The drainage for which miners pay is the carrying away the water from their own mine in a drift or channel into another drift or channel in their neighbor's mine, carrying it by an artificial channel. The natural percolation of water from one mine to another is not a matter as to which the owner of the lower mine has any right of complaint as against the owner of the up- per mine. The owner of the upper mine has a right to work it just as he likes, and his neighbor below cannot com- plain unless he finds that the water has been turned into his mine by channel or artificial arrangement."- And the bar- riers left by the lower miner are not workable ground ; ' but it has been held, in a case which seems to stand alone, that the upper miner must drain to the surface if possible.* § 1061. Extreme doctrine in England — Owner liable for all damages. — What may be considered by some as an extreme doctrine was laid down by Mr. Justice Black- burn in an early English case,' afterwards affirmed by the House of Lords.* The learned justice decides, in effect, that whenever a person brings or keeps upon his land anything likely to do mischief, if it escapes, whether beasts, water, filth or stenches, must do so at his peril, being liable for all damages ensuing to his neighbor if he fails to keep it, water especially, properly on his own property. This reasoning Am. Eep. 394; Nichols v. Marsh- < Locust Mountain C. & L Co. v. iland, L. E. 10 Ex. 255. Gorrell, 9 Phila. 347. 1 Smith V. Kenrick, 7 C. B. 515; s Fletcher v. Eylands, L. R 1 Ex. Bannon v. Mitchell, 6 111. App. 17. 265. 2 Phillips V. Homfray and Foth- " Rylands v. Fletcher, L. R. H. L. ■ergill V. Phillips, L. E. 6 Ch. App. 330. See also Kahili v. Easton, 18 770. Minn. 234, 10 Am. Rep. 184; Locust 3 Shafto V. Johnson, 8 B. & S. Mountain Coal & Iron Co. v. Gor- 253. rell, 9 Phila. 247. 884 NATTJEE, ETC., OF ESTATES IN MINES. [§ 1062. is certainly sound and logical, and is but another way, as we view it, of stating the rule that one must so use his own as not to injure others.' § 1062. Statutory barriers — Constitntionality upheld. In some of the states there are statutory provisions requir- ing certain barriers to be left upon the boundary line of each claim. Such a provision has received consideration in the state of West Virginia, where the requirement was that at least five feet should be left on the line dividing the land from the adjoining land, and providing a penalty of five hundred dollars to any person injured for violation. After considering the form of action, and the fact of the remedy being cumulative, the court proceeded to consider its con- stitutional aspects in these words : " But it is argued by de- fendant's counsel that the act is an infringement of the right of private property, transcending the legislature's constitu- tional power. If the defendant has the right to use his own land and coal mine for all the purposes to which such property is usually applied when, where and how he may- see fit, without limitation or restriction, his neighbor, the plaintiff, has an equal right in his adjoining tract. Upon each one is therefore imposed the correlative duty of so using his own land as not to injure his neighbor's or be hurtful to the commonwealth. . . . This is no undue assumption of the right to apply the police power to a sub- ject which does not fall within it, for regulations on all these subjects have long been recognized as wholesome and rea- sonable, and as fit subjects for the exercise of the police power, as tending to preserve the rights of the citizen and promote the welfare of the commonwealth. The mining^ of coal is one of the largest industries carried on in the state. In mining, proper support and ventilation are nec- essary, and an ample supply of fresh air is stringently ex- acted by our law on the subject. This is necessary for the health and safety of the miner engaged in a dangerous em- 1 See posi, §§1074-76. § 1062.] WATEE EIGHTS AND DEAINAGE. 885 ployment, and for that reason the public welfare requires it ; but no proper sj'stem of ventilation can be maintained by any mine owner unless the area to be worked by him is isolated or bounded by a zone or rib of coal thick enough to support the roof, and to be thick enough to prevent the ■escape of the air, with no passways down through his di- viding line which may prevent the due circulation of the air, and render due ventilation very diiflcult. . . . Thus, we see that this rib of solid coal not to be mined into by either of the adjoining owners was to be contributed by each in equal parts, for the mutual benefit of each, for the protection of the surface, to secure independent systems of ventilation, drainage and workings, and in aid of an indus- try so great and widely diffused that the state as a whole is interested therein. . . . This regulation works no hardship on one for the benefit of the other, but is impar- tial, just and reasonable, imposing a common burden for the benefit of all such owners." ^ 1 Mapel V. John, 43 W. Va. 30, 34 There are statutory regulations for S. E. Rep. 608, citing with approval the protection of miners, and regu- Haigh V. Bell, 41 W. Va. 19, 31 L. lating mining, in several of the E. A. 131; 15 Am. & Eng. Ency. states, which are set out in the Law (1st ed.), 593 et seq.; Cooley, Appendix. Const. Lim. (3d ed.), top page 578. CHAPTER YII. OF TAILINGS AND DEBRIS STATUTES, AND HEREIN OF DUMP- AGE AND REFUSE MATTER,* AND MISCELLANEOUS. Aktiole a. Tailings, Debris and Dumpage in General. § 1070. Review of easements and of additional servitudes — What by statute and what by contract. 1071. Public use — When a judicial question. 1072. Must exercise right if claimed — When will not be enjoined. 1073. No inherent right of dumpage. 1074 Value of land immaterial. 1075. Substantial rights should not be wrongfully invaded. 1076. Tailings and debris statutes, and the general debris question. 1077. Modification of the strict riparian doctrine. 1078. Act creating the California Debris Commission. 1079. The doctrine of this article restated. § 1070. Review of easements and of additional servi- tudes — What by statute and what by contract. — It has been, and shall continue to be, our intention to avoid a dis- cussion of the question of eminent domain, except so far as it is inseparably connected with the matter in hand. We have elsewhere noticed at length the easements and servi- tudes especially authorized by statute to be impressed upon the patent issued by the government and authorized to be- come the subject of eminent domain within the public-land states and territories.^ We do not desire to be understood as asserting that con- gress has the right to interfere with a sovereign state in re- spect of the subjects over which the right of eminent domain may be "exercised, nor the manner of its exercise. Nor do we think that this has in any manner been attempted. Con- ^Ante, §§ 463, 463, 756. See also §§ 2328, 2329, R. S. U. S. § 1071.] TAILINGS AND DEBEIS STATUTES. 88Y gress has simply provided, as it had a right to do, that the local legislatures might enact statutory provisions regulating the exercise of the right of eminent domain over mining claims, the ultimate title to which is, until the issuance of patent, still in the United States.^ In other words, that while, ordinarily, the right of eminent domain over property be- longing to the United States may only be exercised as pro- vided by congress, an exception is made in this case, and the local state legislature is given authority to enact provisions governing the exercise of that right over unpatented, as well as patented, mining claims. This matter has also been con- sidered elsewhere ^ and we will make no further reference to it here. We have also noticed at some length, in the preceding chapters of this part of our work,' the other easements and servitudes incidental to severed estates. We have now to deal with still another class of easements, or severed estates, not elsewhere considered. Separate from and servient to the other estates is the right, usually acquired by contract, but in most jurisdic- tions, indeed wherever mining is recognized as a public use, permitted by the exercise of the right of eminent domain, for dumping ground and tailings beds and for other similar purposes.* But ways of necessity can in general be ac- quired by condemnation whether mining is recognized as a public use or not.* § 1071. Public use — When a judicial question. — There is much diversity of opinion as to whether the question, what is or what is not a public use, is a judicial or a legis- lative one.' But the best opinion and the best considered 1 Act. Feb. 33, 1865, 13 Stat, at L., • Canal Co., 66 Cal. 161, 4 Pac. Rep. 27; Potter v. Froment, 47 Cal. 165; 1147; Robertson V. Black Diamond Elder v. Likens Valley Coal Co., C. & M. Co., 47 Cal. 165; Richard- 157 Pa. St. 490, 37 Atl. Rep. 545;. son V. Kier, 34 CaL 63; Keys v. Potter v. Rend (Pa.), 50 Atl. Rep. Little York, etc. Co., 53 Cal. 784; 821. Ralston v. Ploughman, 1 Idaho, 595; ^ stein v. Burden, 29 Ala. 127. Nelson v. O'Neil, 1 Mont. 284; 3 Drake v. Lady Ensley C. & L Harvey v. Side Silver-M. Co., 1 Nev. Co., 103 Ala. 503, 14 S. Rep. 749. § 1074. J TAILINGS AND DEBEIS STATUTES. 891 ■would be to withhold from the world the inestimable bene- fits of discovery and progress in all great enterprises of life. The rough outlines of natural right or natural liberty must submit to the chisel of the mason, that it may enter symmet- rically into the social structure." ' All of which is absolutely true; but whatever invasion of private right becomes necessary should at least be under the form of law, i. e. in the exercise of eminent domain. Except in cases of insolvency of the invader, and a wilful and wrongful invasion of private rights, however, as a gen- eral rule the remedy by way of an action for damages ought to be a sufficient one. § 1074. Talne of land immaterial. — No apology is meant in the last preceding section for any unwarranted attempt at invasion upon private rights. It is enough that men have the right of eminent domain in mining business. No higher right ought to be sought for or demanded. But while this is true, it is like a man's inherent right to evade the perform- ance of his contract — he may do so, but he must answer in damages; and the same principle applies here, though it does not follow that an injunctional judgment should always re- sult. The right of enjoyment of property of course is in- herent, and it is no answer to say that the land sought to be damaged is of no value, or useless for any other purpose. While this may go in mitigation of damages it does not de- stroy the right. In such case a right is invaded, and this may be done only as allowed by law.^ 1 Drake v. Lady Ensley C. & I. 2 Jennison v. Kirk, 98 U. S. 461 v Co., 102 Ala. 503, 14 S. Rep. 749. Drake v. Lady Ensley C. L & E. See also Hughes v. Anderson, 68 Co., 103 Ala. 501, 34 L. R. A. 64; Ala. 280; Otaheite G. & S. M. & Logan v. DrisooU, 19 Cal. 633; Es- M. Co. V. Dean, 103 Fed. Eep. 939; mond v. Chew, 15 Cal. 137; Suffolk Robb V. Carnegie Bros., 145 Pa. G. M. & M. Co. v. San Miguel Cons. St. 324, 22 Atl. Rep. 649; Lentz M. & M. Co., 9 Colo. App. 407, 48 V. Carnegie Bros. & Co., 145 Pa. St. Pao. Rep. 828; Foule v. Mann, 53 613, 22 Atl. Rep. 219; Boynton v. Iowa, 43; Sunburg v. Baboock, 61 Longley, 19Nev. 69, 6Pac. Rep. 437; Iowa, 601; Ehlers v. Stoeckle, 37 Harvey v. Susquehanna Coal Co. Mich. 361 ; Lebanon School District (Pa.), 50 Atl. Rep. 77a v. Female Seminary (Pa. St.), 13 "892 NATUEE, ETC., OF ESTATES IN MINES. [§ 1075. A declaration of this right was lately made by the supreme -court of Ohio in a case where the debris from defendant's coal-mine dump was washed down a creek and thence over- flowed upon land of plaintiff, covering it with coal slack and debris. The defendant sought to justify by proving that he was conducting his operations in a skilful manner, and his acts were not characterized by malice or negligence. He also sought to set up a custom among coal 9perators in Hocking valley to deposit slack and refuse, and that the :same naturally washed into the channel of Monday creek. In passing upon the rights of the respective parties the court say : " The further claim of the company, that it had the right to make the deposits in the places complained of be- cause it was necessary to the successful conduct of its own business to so place them, seems no less wanting in substance. The effect is to measure the rights of the plaintiff in his lands and in the waters of Monday creek by the conven- ience or necessity of the company's business. An owner of land in Ohio is not subject to any such narrow and arbitrary rule." ' § 1075. Substantial rights should not be wrongfully invaded. — Kespecting just such rights as we have now under consideration, the supreme court of Montana in a late case, while reaching a conclusion perhaps somewhat more harsh Atl. Rep. 857. See also Cooley, Const Cas. 643'; Bamford v. Turnley, 3 Litn. (6th ed.), pp. 49, 435; Caraon Best & S. 63; Crawford v. Eambo, v. Hayes (Oreg.), 65 Pao. Rep. 814; 44 Ohio St. 279. See also Lincoln v. •Columbus, etc. Iron Co. v. Tucker, Rogers, 1 Mont. 217; Suffolk Gold 43 Ohio St. 41, 26 N. E. Rep. 630; M.&M. Co. v. San Miguel Cons. M. & Lincoln v. Rodgers, 1 Mont. 217; M. Co., 9 Colo. App. 407, 48 Pac. Rep. People V. Gold Run Ditch & M. Co., 828; Robinson v. Black Diamond •66 Cal. 138, 4 Pac. Rep. 1152. Coal Co., 57 Cal. 412; Pumpelly v. 1 Columbus & Hocking C. & I. Co. Green Bay & Mississippi Canal Co., V. Tucker, 48 Ohio St. 41, 13 L. R. A. 13 Wall. 166. Compare Crescent M. 577, 26 N. E. Rep. 630, citing with Co. v. Silver King M. Co., 17 Utah, approval Tippin V.St. Helena Smelt- 444; Stevenson v. Ebervale Coal ing Co., 4 Best & S. 608, 11 H L. Co. (Pa.), 50 Atl. Rep 818. § 1076.] TAILINGS AND DEBEIS STATUTES. 893 than their reasoning seemed to warrant, declared a rule of law upon which all can stand, reasoning somewhat in this manner: Recognizing that every business has its laws, the general application of the maxim, " sic utere tuo ut alienum lion Icedas" and that persons using water cannot avoid foul- ing in some cases, and diminishing the quantity in others, laid down the rule that, these things being unavoidable, neither fanciful nor insignificant verdicts for damages should be upheld or tolerated. Keferring to injunctions in such cases, the court concludes as follows: " Courts are very cau- tious, and ought to be so, in issuing injunctions in such cases,, as more damage may be done by the injunction than could be prevented by its issuance. It is a field of litigation filled with great annoyance and difBculty to both legislatures and courts. It will continue to be such as long as the interests, of men conflict."^ § 1076. Tailings and debris statutes, and the general debris question. — The subject of dumping the tailings from placer mines and quartz mills and the debris from coal mines into running streams has been a fruitful source of litigation in many of the states. It may be laid down as a general rule that whoever causes injury to another's land by any of the means above enumerated must respond in damages.^ In the early decisions in California the right to 1 Fitzpatrick v. Montgomery, 20 v. Harris, 43 Cal. 38; Wixon v. Bear Mont 181, 50 Pao. Eep. 416, par- River & Auburn W. & M. Co., 24 tially quoting from and citing with Cal. 367; Levaroni v. Miller, 34 Cal. approval People v. Gold Run Ditch 231; Hill v. Smith, 27 Cal. 475; Peo- & M. Co., 66 Cal. 138, 4 Pac. Rep. pie v. Gold Run D. & M. Co., 66 Cal. 1152; Lindl. Mines, §§ 838-853. See 138; O'Keilfe v. Cunningham, 9 also Otaheite G. & S. M. & M. Co. v. Cal. 589; Nevada County & Sacra- Dean, 102 Fed. Rep. 929. mento Canal Co. v. Kidd, 37 Cal. 2 Otaheite G. & S. M. & M. Co. v. 282, 315; Stiles v. Laird, 5 Cal. 120; Dean, 102 Fed. Rep. 929; Clifton Iron Jacob v. Day, 111 Cal. 571, 44 Pac. Co. V. Dye, 87 Ala. 468; Tennessee I. Rep. 243; McLaughlin v. Del Re, & R Co. V. Hamilton, 100 Ala. 352; 71 Cal. 230. 16 Pac. Rep. 881; Yuba Jones V. Jackson, 9 Cal. 237; Es- County v. Cloke, 79 Cal. 239, 21 Pac. mondv. Chew, 15 Cal. 137; Gregory Rep. 740; Fuller v. Swan River- 894 NATUEB, ETC., OF ESTATES IN MINES. [§ 1076. use creeks and rivers as a means of carrying away tailings was distinctly recognized, so long as the lower proprietor received the water in a form that he could use it, there being this qualification upon the application of the general riparian doctrine. This conclusion by the courts was un- doubtedly brought about by the necessities of the situation. Other states have not been free from it, and the same senti- ment has prevailed to some extent, as we have seen, in Ala- bama and Pennsylvania ; and to a slight extent in Georgia, Montana and Colorado the right has been recognized. The •cases noticed in the last note have all recognized this principle to a greater or less extent. But it may be said the later doctrine of many of the cases restricts rather than enlarges the right, and in no case can the use for ■domestic purposes be destroyed by mining.^ In some of the states that we have mentioned there seems a hopeless division of opinion — some cases leaning strongly toward the doctrine of an unmodified riparian right.^ It is sufli- •cient to say, with respect to this latter proposition, that it is dependent largely upon circumstances, and, in reason and principle, ought to yield to the necessities of mining much more readily than the other proposition and right, whereby Placer M. Co., 12 Colo. 13, 19 Pao. rick v. Montgomery, 20 Mont. 181; Eep. 836; Satterfield v. Rowan, 83 Robinson v. Black Diamond Coal Ga. 187; Alder Gulch Cons. M. Co. Co., 57 Cal. 412; Jones v. Adams, 19 T. Hayes, 6 Mont. 31, 9 Pac. Rep. Nev. 78, 6 Paa Rep. 442; s. C, 17 581; Wheetley V. Chrisman, 34 Pa. Nev. 85; Van Sickle v. Haynes, 7 St. 298; Pennsylvania Coal Co. v. Nev. 286; Union M. & M. Co. v. Fer- Sanderson, 113 Pa. St. 126, 6 Atl. ris, 2 Sawy. 199; Same v.DaDgberg, Eep. 453, overruling s. C, 94 Pa. St. id. 558; Lux v. Haggin, 69 Cal. 355, 303, 86 Pa. St. 401. 10 Pao. Rep. 674; Suffolk G. M & 1 Crane v. Windsor, 2 Utah, 248. M. Co. v. San Miguel Cons. M. & M. See also Attorney-General v. Stew- Co., 9 Colo. App. 407, 48 Pac. Eep. ard, 20 N. J. Eq. 415; Wheetley v. 828, citing Beach v. Sterling Iron Chrisman, supra; Hill v. Smith, & Zinc Co., 54 N. J. Eq. 65, 33 Atl. ■27 Cal. 475; Levaroni v. Miller, 34 Rep. 286; McGenness v. Adriatic Cal. 231. Mills, 116 Mass. 177. See also Hart 2 Lincoln v. Rodgers, 1 Mont. 217; v. Liberty Hill Cons. M. & M. Co., Nelson v. O'Neal, id. 284; Fitzpat- 27 Fed. Rep. 768. § 107T.] TAILINGS AND DEBEIS STATUTES. 895 a man's private property is invaded, overflowed or injured by the dumpage of tailings thereon. § 1077. Modification of the strict riparian doctrine. — Of course, where streams are used for irrigating or domes- tic purposes or to furnish any part of the water supply for a city, town or village, the right to have them continue in their pure state is absolute and cannot be interfered with upon any pretext whatever. And in the mining states, where this rule applies by necessity, the pollution of streams by mining debris has generally been recognized as a nui- sance and actionable accordingly.' Other states have been slow to recognize and admit this, and it has required the in- terference of both national and state legislation in many cases,'' and a recognition of the right on the part of the courts to correct the evil; the plea being generally made that mining was a legitimate and necessary industry, and that this was a sort of exercise of eminent domain, and any attempt to regulate it was, pro tanto, a strangulation of that industry.' In those states, the riparian doctrine, in its origi- nal and essential features, has been forced to yield to the necessity of employing the stream to carry away debris, upon the theory that a reasonable use in this manner is more important in a mining community than the application of 1 Bear Eiver & Auburn W. & M. Satterfield v. Eowan, 83 Ga. 187, Co. V. Boles, 24 Cal. 359; Nevada 9 S. E. Rep. 677; Fuller v. Swan County V. Kidd, 37 CaL 283; Tenney River Placer M. Co., 12 Colo. 13, 19 V. Miners' Ditch Co., 7 Cal. 335; Pac. Rep. 836. Parke v. Kilhen, 8 Cal. 77. s Pennsylvania Coal Co. v. San- 2 Nearly all the Pacific coast states derson, 113 Pa. St. 126, 6 Atl. Rep. have passed statutes attempting to 453; Tennessee C. I. & R R. Co. v. regulate the care and distribution Hamilton, 100 Ala. 253, 14 S. Rep. of tailings. These statutes are 167; Esmond v. Chew, 15 Cal. 137; liable to repeated change, and ex- Jacob v. Day, 111 Cal. 571, 44 Pao. oepting the federal statute, we Rep. 843; Crescent M. Co. v. Silver will only notice the decisions. Fed. King M. Co., 14 Utah, 57; s. c, 17 Stat.approvedMarohl,1893,37Stat. Utah, 444, 54 Pao. Rep. 244. See at L. 507; 2 'Supp. R. S. U. S., p. 95, also Stevenson v. Ebervale Coal Co. copied at length in Appendix " A " ; (Pa.), 50 AtL Rep. 818, 896 NATUEE, ETC., OF ESTATES IN MINES. [§ 1078. the strict riparian rule. An example of this modification is thus stated by the supreme court of Alabama: "In these modern times, there has been some slight relaxation of the rules regulating the use of water and of water-courses. Speaking on this subject, we (in a former case ') said : ' The general rule is often stated to be that every riparian pro- prietor has an equal right to have the stream flow through his lands in its natural state, without material diminution In quantity or alteration in quality. But this rule is quali- fied by the limitation, now well recognized, that each of such proprietors is entitled to a reasonable use of the water for domestic, agricultural and manufacturing purposes, or, to state the rule in the words of Shaw, 0. J. : ^ Again, each proprietor is entitled to the use of the stream, so far as it i& reasonable, conformable to the usages and wants of the community, and having regard to the progress and improve- ment in hydraulic works, and not inconsistent with a like reasonable use by the other proprietors of land on the same stream above and below."" § 1078. Act creating the California Debris Commis- sion, — This act was passed ostensibly in the interest of navigation, and by its terms embraced that portion of the state of California constituting the San Juaquin and Sacra- mento watersheds. Its real purpose was to provide a means- for controlling the deposit of debris in the rivers and streams of California from hydraulic mining. It had theretofore been correctly settled that hydraulic mining per se was not unlawful.* In the latter case an injunction was granted, and the necessity of a controlling statute on the subject was conceded by all, and petitioned for by many interested par- lUlbricht v. Eufaula Water Co., * Yuba County v. Cloke, 79 Cal. 86 Ala. 587, 6 S. Rep. 78. 239, 31 Pao. Rep. 740; WoodrufiE v. 2 Gary v. Daniel, 8 Mete. (Mass.) North Bloomfield Gravel Co., 16. 477. Fed. Rep. 25, 18 Fed. Rep. 753; ' Tennessee G. I. & R. R. Co. v. United States v. North Bloomfield Hamilton, 100 Ala. 253, 14 S. Rep, Gravel M. Ca, 53 Fed. Rep. 625. 167. § 1078.] TAILINGS AND DEBEIS STATUTES. 897 ties. In passing upon the matter, Ross, Circuit Judge, gave some of the history leading up to the passage of the law in these words : " The state was admitted into the Union upon the condition, among other conditions, ' that all the navi- gable "waters within said state shall be common highways and forever free, as well to the inhabitants of said state as to the citizens of the United States, without any tax, duty or impost therefor.' The important question in the case is, "What has congress enacted in respect to the navigable waters mentioned in the bill in connection with mining by the hydraulic process? There is but one act upon the sub- ject, and that is the one the construction of which is here involved. To properly construe it, the conditions giving rise to its enactment must be considered. Long continual mining by this process, in the territory drained by the rivers mentioned, had resulted in depositing in them and upon much of the adjacent land vast quantities of debris, thereby, to a great extent, impeding the navigation of the waters and rendering valueless large quantities of otherwise fertile lands. . This unfortunate condition of affairs neces- sarily gave rise to many and bitter contests in the courts between the conflicting interests. . . . Nobody wanted gold mining by the hydraulic process stopped so long as it could be prosecuted without injury to the navigable waters or to the property or rights of others. And so an effort was made by the parties most directly interested — the miners and agriculturalists — to induce congress to legis- late upon the subject, which effort resulted in the passage of the act of March 1, 1893. As enacted, after creating the California Debris Commission, ... it declared, for the purposes of the act, ' hydraulic mining ' and ' mining by hydraulic process ' to have the meaning and application given to those terms in the state of California. . . . The act prohibited and declared unlawful such hydraulic mining 'directly or indirectly injuring the navigability of said river systems, carried on in said territory, other than as permit- 57 898 NATUEE, ETC., OF ESTATES IN MINES. [§ 1078. ted under' its provisions. . . . (After quoting several sections of the statute.) From these provisions (and there is nothing in the act to the contrary) it seems quite clear to me that its real intent and meaning is to prohibit and make unlawful any and all hydraulic mining in the territory drained by the Sacramento and San Juaquin river systems in the state of California directly or indirectly injuring the navigability of said river systems, and to permit it in all cases where the work can be prosecuted without such injury to the navigability of said river systems or to the lands ad- jacent thereto; that, in order to properly determine the facts upon which the legislative will is to act, a skilled com- mission is created, whose duty it is to ascertain and deter- mine what will or will not cause the prohibited injury, and to prescribe the character of impounding works, and the extent to which hydraulic mining in the territory described may be Carried on without causing such injury. To give effect to this manifest purpose, congress, in effect, enacted that until the commission should find that such mining can be carried on without causing the prohibited injury, all hy- draulic mining within the territory drained by the Sacra- mento and San Juaquin river systems is unlawful. . . . It was the right of congress to put a stop to the working of all mines that contribute to any degree to such injury, and to prescribe the conditions upon which such work so con- tributing might be prosecuted. . . . The provision of section 10 of the act, requiring thq surrender to the United States of the right to regulate the manner in which the de- bris resulting from the working of such mine or mines shall be restrained, and what amount shall be produced there- from, only constitutes one of the conditions for such use required by congress. As congress already had the power of regulation, it needed no conveyance from the mine owner to vest it. For this reason the insertion of that require- ment by congress as a condition to the granting of a permit to mine by the hydraulic process does not render the act § 1079.] TAILINGS AND DEBKIS STATUTES. 899 obnoxious to any of the objections urged against it." ' The injunction was issued. Affirming the judgment in the circuit court of appeals, District Judge Hawley, speaking for the court, said: "Under the provisions of the act in question, hydraulic mining in the territory named is prohibited unless the terms and conditions which they impose are complied with. If these provisions are detrimental and injurious instead of beneficial to the mining interests they were intended to fos- ter, encourage and protect, the efforts of all those interested in that particular business should be directed to have the act repealed or amended, instead of attempting to evade it or destroy its efficiency. While it remains as the law upon this subject it must be obeyed.'"" We have quoted thus extensively from these two opinions because it seemed to us that a correct understanding of the situation could not be given in better nor in fewer words. It became abso- lutely necessary that there be some controlling regulation of this matter and hence the creation of this commission. Of course federal interference was justified because it was a navigable stream which emptied into the ocean that was being injured. The law evolved from this mass of matter is that hydraulic mining whereby the detritus is washed into navigable streams is unlawful, while ordinary placer mining does not come under the ban of the law. § 1079. The doctrine of this article restated.— The conclusions, then, fairly deducible from the foregoing are: (1) If a statute is general on the subject of eminent do- main over matters of " public use," or if the people have not provided for and defined it in constitution or statute, it is a judicial question. ^United states V. North Bloom- 679, citing Woodruflf v. North field Gravel M. Co., 81 Fed. Rep. Bloomfield Gravel M. Co., 18 Fed. 243. Rep. 753; Attorney v. Birmingham, 2 North Bloomfield Gravel M. Co. 4 Kay & J. 538; Coosaw M. Co. v. V. United States, 88 Fed. Rep. 664, South Carolina, 144 U. S. 550. 900 NATURE, ETC., OF ESTATES IN MINES. [§§ 1085, 1086. (2) In all states where mining is a public use, lands and rights of way may be condemned for dumpage, and for roads, pipe lines, ditches, flumes and tunnels. (3) A restriction and limitation upon the strict riparian right is recognized in all mining communities. (4, With the restrictions and limitations above mentioned the right of enjoyment of property in a mining community is absolutely sacred, but as to these limitations they consti- tute a burden which all are called upon to share. Aeticlb B. Severance, How Terminated. % 1085. How terminated — Merger. 1086. Same — Termination of the estate carved out. 1087. By abandonment. § 1085. How terminated — Merger.— Manifestly estates once severed may be again united and the severance termi- nated, and this is the result when the owner of both estates conveys to an innocent third party by deed with full cove- nants the fee of the estate without mentioning the previous circumstances or conditions of severance.' §1086. Same — Termination of the estate carved out. Of course, where the estate carved out is less than a free- hold, as is the case of leases for a term, or of licenses dur- ing the will of the licensor, upon the happening of the event provided for in the lease or license, or some act of re-entry authorized by law on the part of the lessor or licensor, the estate so severed ceases, and is again merged into the servi- ent or greater estate, as the case may be.^ iSnoddy v. Bolen, 123 Mo. 478; Rep. 225; Fairchild v. Dunbar Fur- Detlor V. Holland, 57 Ohio St. 492, nace Co., 128 Pa. St 485, 18 Atl. Rep. 49 N. E. Rep. 57; Silva v. Rankin, 443. See post. Mining Leases, Part 80 Ga. 79, 4 S. E. Rep. 756. XXII, cb. II, art. B, ch. IX. 2 State V. Coosaw M. Co., 47 Fed. § 1087.] TAILINGS AND DEBEIS STATUTES. 901 § 1087. By abandonment. — Likewise, in either of the cases mentioned in the last preceding section, or where any person owns a dominant estate, to which another estate is servient, the owner of the segregated or dominant estate may abandon and surrender his interest, provided he owes no duty in respect to it, which requires contrary action. And if he does abandon in any of the ways recognized by the law, his estate therein ceases.^ iEIkForkOil& GasCo. V. Jen- 99 Iowa, 83, 68 N. W. Rep. 570; nings, 84 Fed. Rep. 839; Jennings v. Hawkins v. Pepper, 117 N. C. 407, Elk Fork Oil & Gas Co., id.; Foster 23 S. E. Rep. 434; Stage v. Beyer. V. Elk Fork Oil & Gas Co., id.; 183 Pa. St. 560, 38 Atl. Rep. 1035. Bloomfleld Coal M. Co. v. Tidrick, PART XIII. OF MISCELLANEOUS TITLES, CONVEYANCES AND CONTRACTS, AND HEREIN OF EXECUTORY CONTRACTS. CHAPTER I. OF MINING DEEDS GENERALLY. Aeticle a. Essentials, Including Execution and Description. % 1090. Purposes of this part — Scope of treatment. 1091. Mining deed generally — The common law — Severance — Arti- cles of incorporation as deed. 1092. Mining deeds in a general sense — Distinction between opened and unopened i;nines abolished. 1093. Distinction between mining and other deeds. 1094. General observations — Essentials of a valid conveyance. 1095. Some decisions as to sufficiency of deeds. 1096. Conveyances to and by corporations — Deed to corporation not formed, effect. 1097. As to description only — Some special circumstances. 1098. Corporation deed — Special case — A two-thirds majority held insufficient. 1099. Deed in general — Common-law observations — Other descrip- tions — Deeds of severance. 1100. What conveyed — Sometimes surface, sometimes ores. 1101. Same subject — General covenants — What conveyed — Interest in land — Mining right — Severed estate. 1103. Same subject — What included — Dump room for a tunnel. § 1090. Purposes of this part — Scope of treatment.— It is our purpose to examine in a general way the special provisions and decisions of the courts relative to conveyances, leases of mines, licenses, miscellaneous contracts, coal, gas and oil contracts, prospecting contracts, tenancy in com- §§ 1091, 1092.] MINING DEEDS GENEEALLY. 903 mon and mining partnerships. Except as to the latter, we shall not enter into any general discussion of the law in either branch, as that is more properly the subject for a special work on those subjects. We will content ourselves within the narrowest possible limits with examining those principles and decisions which apply exclusively to some branch of the mining law. ISTo general discussion of the law of conveyances will be made here. Mining deeds and contracts, however, are often controlled by special rules. An examination of a few principles controlling conveyances of mining claims is therefore necessary.' §1091. Mining deed generally — The common law — Severance — Articles of incorporation as deed. — In all grants of mining claims and mining rights, as used in Eng- land and in many parts of this country, where the mining right is severed from the surface, the right is generally con- veyed in terms which are uniform as to their effect and operation. Mining rights so conveyed are generally de- scribed substantially as a right to enter certain designated premises and search for minerals; to mine or work them, prepare and sell them. And, as a general rule, a deed pur- porting to convey such rights will be held to convey a severed interest in the land, and not a mere mining right.' In a Utah case it was held that articles of incorporation describing the mining claims which the corporation took in payment of its capital stock constituted a sufficient convey- ance to satisfy the statute of frauds, and when accompanied by possession at least passed the title by operation of law.' § 1092. Mining deeds in a general sense — Distinction between opened and unopened mines abolished. — What we have already had to say with reference to the severance 1 Adams v. Ore Knob Copper Co., Whittaker v. Brown, 46 Pa. St. 197; 7 Fed Rep. 634; Keyes v. Powell, French v. Seely, 6 Watts, 293; 2 El. & Bl. 132, 22 L. J. Q. B. 805; Thompson v. Mattern, 115 Pa. St. Caldwell v. Fulton, 31 Pa. St. 475. 501, 9 Atl. Rep. 70. 2 Lord V. Carbon Iron Mfg. Co., 3 Murray Hill M. & M. Co. v. 42 N. J. Eq. 157, 6 AtL Rep. 812; Havener (Utah), 66 Pac. Rep. 762. 904 MISCELLANEOUS TITLES. [§ 1093. of the mineral estate from any other estate demonstrates the capability of each mineral stratum as being the subject of con- veyance. We have here to do not only with that particular question in the abstract, but likewise with mines when con- sidered as an entire corpus of property; and with reference to the western part of the country, and wherever mining is carried on en masse, the entire mining claim. Formerly a distinction was made between the transfer of opened and un- opened mines, but it may now be said to be more imaginary than real.' Said Mr. Bainbridge, speaking of mines : " They are capable of delivery, and being made the subject of eject- ment, 'by the name mineral,' says Coke, ^ ov fodina plumbi, etc., the land itself shall pass in the grant, if delivery be made, and also be recovered in assize.' It has been stated that if a grant of mines be made without delivery the grantee will only take a power to dig and work them. But now, by a late statute, all corporeal hereditaments are declared, as regards the conveyance of the immediate freehold, to lie in grant as well as in livery." ^ § 1093. Distinction between mining and other deeds. — There has always been this distinction in practice between mining deeds and other real-estate deeds: In addition to the usual clauses required in the real-estate deed, it has been customary, and by many lawyers and courts thought neces- sary, to insert in the habendum clause a provision somewhat in these words: "Together with all the dips, spurs and angles, and also all the metals, ores, gold and silver bearing quartz, rock and earth therein, and all the rights, privileges and franchises thereto incident, appendant and appurtenant, iBainb. Mines (1st Am. ed.), pp. Shep. Touch. 96; Comyn v. Kyneto, 130, 147; Lewis v. Branthwaite, 2 Cro. Jao. 150; Barnes v. Mawson, 1 Barn. & Ad. 437; Stoughton v. Lea, M. & S. 77; Wilkinson v. Proud, 11 1 Taunt. 410; Findlay v. Smith, 1 M. & W. 33, 13 L. J. (N. S.) Ex. 327; Munf. (Va.) 134; Crouch v. Puryear, 8 & 9 Vict., ch. 106i See also 1 Rand. (Va.) 358. Whittaljer y. Brown, 46 Pa. St. 197; 2 Bainb. Mines (1st Am. from 3d French v. Brewer, 8 Wall, Jr. 846, Lond. ed.), p. 130; Co. Litt. 6 A; 9 Fed. Cas. 774. § 1094.] MINING DEEDS GENERALLY. 905 and therewith usually had and enjoyed," ^ — following with a general description of the tenements, hereditaments, etc. But it is believed that even in a common-law deed, and in case the statutory form may be thought inadequate, and out of abundance of caution, the insertion of the words " to- gether with all the mining rights, privileges and franchises thereunto incident or therewith usually had and enjoyed," would be sufficient to convey the statutory right of follow- ing all the veins in their downward course beyond the side lines of the claim, which is the only difference, in the mat- ter now under consideration, between mining ground and any other real estate. Mr. Morrison gives the following sentence, which is usu- ally inserted in the Colorado deeds, as well as the deeds used in many other mining states: " Together with all and singu- lar the lodes and veins within the lines of said claim, and the dips, spurs, mines, minerals, easements, mining fixtures, improvements, rights, privileges and appurtenances there- unto in any wise belonging."^ It has been held, and manifestly correctly too, that a quit- claim deed is effectual to pass all the estate of the grantor ; ' and a purchaser without notice of an outstanding equity is not affected.* Likewise articles of incorporation have been held to convey the property described.^ § 1094. General observations — Essentials of a valid conveyance. — From what we have outlined in the preced- ing sections of this chapter, it must be quite apparent that anything but the most cursory examination of the essentials of a mining deed would be quite out of place in a work of this kind. It suffices to say, and the rule stated broadly is, 1 Montana M. Co. v. St. Louis M. Compare Baker v. Clark (Cal.), 60 & M. Co., 102 Fed. Rep. 430, 433. Pac. Rep. 677, where it was held, ^Morr. Min. Rights (8th ed.), owing to its peculiar terms and p. 193. conditions, to be a license. 3 Brophy M. Co. V. Brophy & Dale * Murray Hill M. & M. Co. v. M. Co., 15 Nev. 101. Havener (Utah), 66 Pac. Rep. 763. * Bradbury v. Davis, 5 Colo. 265. 906 MISCELLANEOUS TITLES. [§ 1095. that the same principles of law which govern and control other real property generally, are alike applicable to mining property.' The transferable character of mines and mining claims upon the public domain of the United States has al- ways been recognized by the courts, and the title and pos- session of the grantee enforced.^ The reason of this is ob- vious, if reason were necessary, because the transferable character of mining claims has always been recognized. This being true, it follows that the transferable character of a severed estate, consisting of a seam or stratum, such as constituted a mine under the old law, makes the same rule applicable to it. § 1095. Some decisions as to siiiHciency of deeds. — It has been held that a deed of a mine deals with the cube, that a horizontal cube may be made a dividing line, and un- opened beds may be granted the same as the surface.' A deed which read, "this deed witnesseth that I have this day sold, and by these presents do convey . . . one-sixteenth part of my half of all mineral contained in a certain tract of land, . . ." was held by its terms a conveyance of an estate in minerals and mines, and the word " sold " ex vi ter- mini imports a valuable consideration.* 1 Montana M. Co. v. St. Louis M. & S. M. Co., 21 Mont. 544, 55 Pac. & M. Co., 102 Fed. Eep. 430. Rep. 229; Hopkins v. Noyes, 4Mont. 2 Forbes v. Gracey, 94 U. S. 762; 556, 2 Pac. Rep. 280: Phillpotts v. Harris v. Equator M. Co.,8 Fed. Rep. Blasdel, 8 Nev. 61 ; Weill v. Lucerne 866; McCarron v. O'Connell, 7 Cal. M. Co., 11 Nev. 201; Zeokendorf v. 152; Draper v. Douglass, 23 Cal. Hutchinson, 1 N. Mex. 476; Rioh- 327; Clark v. McElvy, 11 Cal. 154; ards v. Schlegelnioh, 65 N. C. 151; Melton V. Lambard, 51 Cal. 258: Detlor v. Holland, 57 Ohio St. 492, SulIivanv.Hense, 2 Colo. 424; Poire 49 N. E. Eep. 690; Hayden v. Brown, V. Wells, 6 Colo. 406; Sussenback v. 33 Greg. 221, 58 Pac. Rep. 490; Web- First National Bank, 5 Dak. 477, 11 ber v. Vogle, 189 Pa. St. 156, 42 Atl. N. W. Eep. 662; Idaho G. M. Co. v. Eep. 4; Wasatch M. Co. v. Crescent Union M. & M. Co., 47 Pac. Eep. 95; M. Co., 7 Utah, a Montana M. Co. v. St. Louis M. & 3 Massott v. Moses, 8 S. C. 168, M. Co., 20 Mont. 394, 51 Pac. Eep. 16 Am. Eep. 697, 8 M. R 607. 834; Barkley v. Tieleke, 2 Mont. 59; * Eeaves v. Ore Knob Copper Co., Forrester v. Boston & Montana G. 74 N. C. 593, 8 M. R. 369. § 1096.] MINING DEEDS GENEEALLT. 907 Minerals are a corporeal hereditament, and pass by apt words in a deed, but can only be so passed before severance.' But an instrument in writing not intended to grant the soil in fee, but the use only for the purpose of mining, is not a deed for the conveyance of land.^ §1096. Conveyances to and by corporations — Deed to corporation not formed, effect. — The right to buy and sell is inherent in a corporation, and its convej^ance under seal, executed by the proper officers, is prima facie evidence of a proper and authorized conveyance.' A corporation may take by deed and the deed will pass title, although made while the corporation is still incomplete as to its organization and be- fore its officers have been elected.^ There have been some de- cisions contrary to this, but we apprehend this to be the true rule, the theory of the other decisions being that the corpora- tion, not being capable of taking until completely formed, was a being not in esse; but we must remember that the presump- tion will be against the date in such a case and not against the corporate existence and the doctrine of relation applies in aid of the title. Perhaps, however, the better practice would be to deed to a trustee pending the formation of the corporation. Still, where a deed is made to a mining company by name, it shows on its face a grantee capable of taking.* But in Pennsylvania, where B. contracted for the purchase of a piece of oil land and sold an interest or share in the adven- ture to plaintiff, and afterwards he had a deed executed to the Middleton Oil Company, no such company having been formed, it was held that the deed passed no title, for the want of a proper grantee.* It may be said, however, that it does not appear in that case that any such corporation as 1 Caldwell v, Fulton, 31 Pa. St. Bank, 44Vt. 489,3 M.R. 313; Spring 475. See also Hart well v. Camman, Garden Bank v. Lumber Co., 33 W. 10 N. J. Eq. 128. Va. 357; Wharf Co. v. Judd. 108 2 MoBee v. Loftus, 1 Strob. Eq. 90, Mass. 324; Clifton Land Co. v. Ran- 3 M. E. 333. dell, 82 Iowa, 89. 3 Myers Co. v. ZoUerback, 37 Cal. 6 Cochran v. O'Keefe, 34 Cal. 354. 544; Evans v. Lee, 11 Nev. 194. 6 Burns v. McCabe, 72 Pa. St. 309, < Fremont M. Co. v. Windom Co. 7 M. R 1. 908 MISCBLLANEOUS TITLES. [§ 1097. the one named was organized, but rather that it was a mythical name of a partnership. In such case, of course, there was no one to take, nor any one afterwards to receive title, in which case the rule above stated was undoubtedly correct. A deed by a corporation, whereby it seeks to convey away real estate, must, under the laws of some of the states, be ratified by two-thirds of the stockholders of the corpora- tion. ^ In the absence of statute, however, we take it to be suificient if it be ratified by a majority of the stockholders; but, of course, common prudence would dictate that the majority be made as large as possible. § 1097, As to description only — Some special circum- stances. — It is usually suflBcient to describe the interest conveyed by a mining deed as a certain undivided interest; in the claim by its recorded name, without reciting its de- scription as to metes and bounds. Indeed, it has been con- sidered that a description by metes and bounds is not only unnecessary but bad conveyancing.^ The recorded name of a claim or location has been held by the supreme court of the United States to be sufficient.' So, where a lode has two names, and the deed conveyed all the grant- or's right to a certain lode, more particularly known as the '■ L " company's claim, it was held to include all the grant- or's interest, notwithstanding the fact that he derived title under two difl'erent and separate locations.* From which it follows that it is unsafe to use the name of a group or of a mine in a conveyance without specifying the exact interest conveyed, unless it is intended to convey all the grantor's interest in each of the locations making up such group or mine.^ And a deed referring to a location certificate for a description of the lode conveyed is a conveyance by the 1 Pekin M. & M. Co. v. Kennedy, Sherman M. Co., 12 Mont. 524, 31 81 CaL 356, 22 Pao. Rep. 679; Mc- Pac. Rep. 72. Shane v. Carter, 80 Cal. 810, 22 Pac. < Weill v. Lucerne M. Co., 11 Nev. Rep. 178. 200; Stinchfield v. Glllls, 107 Cal. 2 Morr. Min. Rights (8th ed.), 194 84, 40 Pac. Rep. 98. 3 Glacier Mt. M. Co. v. Willis, 127 6 Smith v. Sherman M. Co., supra. U. S. 471, 33 L. ed. 173; Smith v. § 1098.] MINING DEEDS GENERALLY. 909 metes and bounds contained in the location certificate.* And where a deed described the property by metes and bounds, and then as mineral entries numbers 87 and 88, lots 40 and 41, and patented as Walker and Walker Extension and Buckeye mining claims, mineral entries numbers 87 and 88, lots 40 and 41, the description by metes and bounds including the ground in controversy, which was not covered by the patent, and which was omitted from the remainder of the description, it was held that the instrument covered the entire claims, including the ground in controversy.^ Thus, in this respect, it will be seen that the general intent gov- erns, and the instrument will be restricted to the intention of the parties where this can be ascertained.' The Utah decision turned upon the ground that one de- scription included the land in controversy, while the other did not ; and the other being contradictory in itself was re- jected for the reason that where a grant contains two de- scriptions of the same property, and one is complete, definite and intelligible, and the other is undefined, contradictory and uncertain, in construing the grant the former will con- trol.* But the general rule is that a special intent and a special description will control a general intent or a general description.* § 1098. Corporation deed — Special case — A two-thirds majority held insufficient. — In Montana there is a statute providing that the trustees or oflBcers of a corporation should not have power to sell all its property except by consent of two-thirds of its stockholders.* In a recent case coming before the supreme court of that state, following the com- 1 Harris v. Equator M. & S. Co., 3 (jiass v. Wilbur, 103 Mass. 24; 3 McCrary, 13, 8 Fed. Rep. 863; Jones v. ClifEord, 3 C. & D. 779. McCurdy v. Alpha G. & S. M. Co., * 3 Devlin on Deeds, 1038, 1041 ; 3 Nev. 24; Carter v. Bacigalupi, 83 DriscoU v. Green, 59 N. H. 101. Cal. 187, 33 Pac. Rep. 361. * Ross v. Heatheook, 52 Wis. 557, 2 Crescent M. Co. v. Wasatch M. 9 N. W. Rep. 609, 3 M. R. 404. Co., 5 Utah, 624, 19 Pac. Rep. 198. " Compiled Stat, of Montana, 1897, §§ 492, 493, 494. 910 MISCELLANEOUS TITLES. [§ 1098. mon-law rule, it was held that, since at common law neither the directors nor a majority of the stockholders could trans- fer all the property of a corporation, where the same was a prosperous and going concern, able to achieve the objects of its creation against the dissent of a single stockholder, the Montana statute, permitting a sale of the corporate property by consent of two-thirds of the stockholders, does not enlarge the common-law rule in the case of a corpora- tion such as above described.' And plaintiff, a single stock- holder, was permitted to maintain injunction to prevent such disposition.^ In a recent Colorado case, one of the directors, having no power as such to make a sale of the corporate property, negotiated a sale of it. This sale was never formally rati- fied by the board of directors, though the president, who had power to sell the corporate property, joined in a peti- tion to the court for confirmation of the sale, the property having gone into the hands of an assignee ; and the court held the sale invalid.' These are extreme cases, and it may be laid down as a general rule that where the articles them- selves authorize a sale by consent of a certain majority of the capital stock of the corporation, or the statute author- izes the same thing, a sale so made is valid and binding, because the authority to do the act is vested in the officers and stockholders by the act of creation, and courts will not generally interfere to take the business of a corporation out of the hands of those authorized to exercise it.* 1 Forrester v, Boston & Montana 47 Pac. Rep. 813; Ashton v. Associa- E. & S. M. Co., 21 Mont. 544, 55 Pac. tion, 84 Cal. 61, 22 Pac. Eep. 660, 2S Eep. 229, citing Abbott v. Rubber id. 1091; Botts v. Road Co., 88 Ky. Co., 33 Barb. (N. Y.) 578; People v. 54, 10 S. W. Rep. 134; Smith v. Dorn, Ballard, 134 N. Y. 269, 32 N. E. Rep. 96 Cal. 73, 30 Pac. Rep. 1024; Barr 54; 7 Am. & Bng. Enoy. of Law (2d v. Plate Glass Co., 40 Fed. Rep. 412. ed.), pp. 734, 736; Gans v. Switzer, a Extension G. M. & M. Ca v. 9 Mont. 408, 24 Pac. Rep. 18; 9 Am. Skinner (Colo.), 64 Pac. Rep. 198. & Eng. Ency. of Law (2d ed.), p. 565. 4 1 Ttomp. Corp,, § 9; 4 id. 4446; 2 Forrester v. Mining Co., supra; 7 id. 8363, 8364; 5 id. 6133, 6134, citing Geary v. Bank, 19 Mont. 199, 6136. §§ 1099, 1100.] MINING DEEDS GENEKALLY. 911 § 1099. Deed in general — Common-law observations — Other descriptions — Deeds of scTcrance. — In all grants of mining claims and mining rights, from the earliest re- ported cases down to the present time, there is a striking similarity in the terms used to describe the character of the ■ rights intended to be conferred. It is described substan- tiallj' as a right to enter certain designated premises and search for minerals, to mine and work them, prepare and sell them. In some cases the premises may be used for manu- facturing only to the extent of preparing the raw material for use or sale ; in others the right to use premises for the purpose of manufacture is unlimited as to the nature and extent of the manufacturing powers. The right uniformly embraces the authority to go upon the land of another and perform there certain acts which could only be justified un- der authority derived from the owner, of severing from the land certain portions of the body of the land, so as to make it personal property, and preparing the same as against the right of another and all persons.' In Pennsylvania it was recently held that where a deed conveyed to M. a tract of land described by metes and bounds, and calling for other lands of P. P. Price (defendant) as adjoiner on the east, to- gether with the right of mining and removing all the min- eral that may be reached under said Price's land from the land above described and hereby conveyed, with a descrip- tion of the mineral conveyed, was suflBoiently certain, it be- ing equivalent to saying that it was the mineral in the land of defendant adjoining the land conveyed by him to M. on the east.^ § 1100. What conveyed — Sometimes surface, sometimes ores, — As we have seen, sometimes a conveyance conveys a mining right merely, and sometimes the ores or coals with right of occupation pending their removal. The courts have not been certain as to what name they would give such instruments, sometimes characterizing them as leases, 1 Massott V. Moses, 3 S. C. 168. 2 Peart v. Brice, 153 Pa. St. 177. 912 MISCELLANEOUS TITLES. [§ 1100. and at other times as deeds of an interest in the land, and in still other cases as a sale of the product. Thus a convey- ance of a tract of land, with the full right, title and privi- lege of digging and taking away stone and coal to any extent the grantee might think proper, from under an ad- joinmg tract owned by the grantor, is not a license, but a conveyance of the entire ownership of the coal in place be- neath the adjoining tract.^ An instrument conveying the right to dig for coal was construed as a deed sufficient to carry the exclusive property in the coal to the grantee.^ And an instrument of one undivided half part of certain premises upon which any valuable mineral substances may be found which the said grantee may deem proper to open, and may be on said undivided half of said land, is an agree- ment for one-half of the minerals with the right to operate, rather than a conveyance of an absolute fee in one-half of the premises.' But where in a deed of certain lands the grantee reserved the entire privilege of all ore on said premises with permission to enter thereon to mine, clean and take away the same, without let or hindrance from the 'grantees, it was held by the supreme court of Pennsylvania that this amounted to an exception, and that, as a consequence, the fee in the reserved mineral remained in the vendor.* A mining right upon a specific piece of ground is a right to enter and occupy the ground for the purpose of working it, either by underground excavations or open workings, to obtain from it the minerals or ores which may be deposited therein. By implication, the grant of such a right carries with it whatever is incident to it and necessary to its bene- ficial enjoyment.' 1 Caldwell v. Fulton, 31 Pa. St. » Eowell v. Bodfish (Me.), 10 Atl. 475, 3 M. E. 338; Irwin v. United Rep. 448. States, 16 How. 522; Johnstown * Thompson v. Mattem, 115 Pa. Iron Co. V. Cambria Iron Co., 32 St. 501, 9 Atl. Eep. 70. Pa. St. 241; Gloninger v. Franklin 'Smith v. Cooley, 65 Cal. 46, 2 Coal Co., 55 Pa. St. 9. Pao. Rep. 880; Clark v. Duval, 13 2 Lee V. Katz, 4 W, Va. 543. Cal. 85; Cave v. Crafts, 53 Cal. 135. § 1100.] MINING DEEDS GENEEALLT. 913 The right is usufructuary in its nature and character, and entitles the owner to the use of the land for the privileges which may be derived from its rents, or from quarrying and digging for its ores. And a deed conveying mining rights will be held to carry with it all these rights, the same as if expressed in full and complete terms.* The New York court of appeals recently decided that a grant of "mineral ores" did not include granite; also that the words " minerals and ores," in a deed, cannot be restricted to the same meaning as " mineral ores."^ This was a case where two deeds had passed between the parties, the first one conveying all " mineral ores," and the second, without referring to the first, but reciting the same consideration and describing the same premises, conveying all the "miner- als and ores." The court held that the words in the last deed were suflBcient to convey granite deposits, if the means of obtaining them without injury to the surface was also granted ; but that, inasmuch as the grant of mining privileges contained no provision for obtaining the granite deposits, the terms of the grant were limited to underground work- ings. In the course of the opinion, Andrews, C. J., speak- ing for the court, said : " We have been referred to several English cases where the right of open quarrying has been held to accompany a grant or reservation of mines or miner- als. The cases generally have arisen on the construction of reservations contained in acts of parliament, or rights of land-owners whose lands are compulsorily taken for public purposes or by public authority. In every case which has come to our attention involving the right of open quarrying, it has been sustained upon some special language in the act which indicated that the right of open quarrying was in- tended to be reserved." ' 1 Smith V. Cooley, 66 Cal. 46, 2 Pac. 65 N. Y. S. 621. See alsopost, § 1114; Eep. 880. Kincaid v. McGowan, 88 Ky. 91, 4 2 Armstrong v. Lake Champlain S. W. Rep. 802. Granite Co., 147 N. Y. 495, 42 N. E. 3 Armstrong v. Lake Champlain Rep. 186. But see Brady v. Brady, Granite Co., supra. 58 914: MISCELLANEOUS TITLES. [§§ 1101, 1102. § 1101. Same subject — General covenants — What con- veyed — Interest in land — Mining right — Severed es- tate. — It has elsewhere appeared at length in this work that a conveyance sometimes, and especially in the case of severance, conveys a mining right merely. Sometimes it conveys the ores or coals with right of occupation pending their removal.^ The courts have not been certain in all cases as to what name they would give to such instruments; sometimes characterizing them, as we have seen, as leases,^ and again as interests in land,' and in still other cases as a sale of the product.* The better and general rule seems to be that they should be characterized as a severance of the es- tate, unless they contain words expressly restricting the grant to a lesser purpose, and they should be held to convey an interest in the land co-extensive with the words and de- scription employed.* §1102. Same subject — What included — Dump room for a tunnel. — As we have elsewhere seen, the general practice has been to carve out by deed, lease or license, thus iSee ante, § 1100. See also Part 111. 371, 25 N. E. Eep. 795; Eowell XII, ch. IV; Jennings Bros. & Co. v. Eodfish (Me.), 10 Atl. Rep. 448; V. Beale, 158 Pa. St. 283, 27 AtL Ee Lazarus Estate, 145 Pa. St. 1; Eep. 748; Algonquin Coal Co. v. Stewart v. Northwestern C. & I. Northern C. & I. Co., 162 Pa. St. Co., 147 Pa. St. 613. 114, 29 Atl. Eep. 748; Moore v. 5 Henderson v. Verden, 78 111. Brown, 139 N. Y. 127, 34 N. E. Eep. App. 537; Catlin Coal Co. v. Lloyd, 773; Genet v. Delaware & H. Canal 176 111. 275, 52 N. E. Eep. 144; War- Co., 123 N. Y. 527, 25 N. E. Eep. 993. dell v. Watson, 93 Mo. 107; Detlor 2 See last preceding section. See v. Holland, 57 Ohio St. 493, 49 N. E. a.\so post, this Part, ch. II. Eep. 690; Williams v. Hay, supra; 3 Hope's Appeal (Pa.), 3 Atl. Eep. Mansfield Coal & Coke Co. v. Eoyal 33, 3 Cent. Eep. 43; Eankin's Ap- Gas Co., 27 Pittsb. L. J. (N. S.) peal, 1 Monaghan (Pa.), 308; War- 70; Delaware & H. Canal Co. v. dell V. Watson, 93 Mo. 107; Will- Hughes, 2 Laoka. Leg. News, 21; iams V. Hay, 120 Pa. St. 485, 14 Atl. Pearne v. Coal Creek M. & Mfg. Co., Rep. 379; Lee v. Baumgardner, 86 90 Tenn. 619, 18 S. W. Eep. 403; Mur- Va. 315, 10 S. E. Eep. 3; Thompson ray v. Allard, 100 Tenn. 100. 43 S. V. Mattern, 115 Pa. St. 501, 9 Atl. W. Eep. 355; Virginia C. & I. Co. Eep. 70. V. Kelley, 93 Va. 332, 24 S. E. Eep. * Cons. Coal Co. v. Sohmisseur, 135 1020. § 1108.] MINING DEEDS GENEEALLT. 915 accomplishing a severance, two or more estates from the same block of earth, and what is not included in one be- longs to the other, whether the severance be by deed or by reservation; and the possession of surface land is in no way adverse to the right of possession to the coal beneath the surface, by another, under an agreement for the sale of such coal. In short, the possession of one is not adverse to the other under circumstances of subordination, but is in all other cases ;^ and parol evidence is not admissible to show that more and different minerals were intended than those expressed, or the contrary.^ But a right of way for a tunnel through certain mining ground with the appurtenances has been held sufficient to convey a right for dumping at the mouth.^ Article B. Of Special Covenants. § 1108. The efifect of special covenants. 1109. Effect of reservations. 1110. A few of the leading cases — When reservations and when not. 1111. Who bound by covenants — Parties and privies. 1112. Consideration as means of interpretation — Sufficiency of. 1113. Special covenants — Reference to other instruments. 1114 Appurtenances, incidents and fixtures also pass. 1115. Restricted to intent. § 1108. The effect of special covenants. — Of course, in the interpretation of a deed where any ambiguity arises, the surrounding circumstances afford a valuable means of arriv- ing at a just conclusion. Likewise, special covenants will also tend to throw light on a general transaction, and, so far as they serve as a guide for the interpretation or con- struction of the deed, and show the intent of the parties, they are generally not only valuable but absolutely control- ling.^ 1 Lulay V. Barnes, 173 Pa. St. 331; ' Scheel v. Alhambra M. Co., 79 Hartwell v. Camman, 10 N. J. Eq. Fed. Rep. 831. 138, 3 M. R. 339. « Ross v. Heathcock, 53 Wis. 557, 2 Hartwell v. Camman, supra. 9 N. W. Rep. 609. See also Dexter 916 MISCELLANEOUS TITLES. [§§ 1109, 1110. § 1109. Effect of reservations. — What we have else- where said on the subject of reservations leaves little to be said now. It is not an uncommon thing in lode mining, as well as in coal and iron mining, to reserve something out of the grant to the use of the grantor and his assigns, operating sometimes as a severance of the estates, and in other cases, creating an easement, to which the granted estate becomes servient. This, as we have seen, is entirely competent for a grantor to do so long as the reservation is not as large a& the grant itself. When this is the case the reservation is generally but not always void. The courts have had under discussion many cases bearing upon these observations and we will cite — § 1110. A few of the leading cases — When reservations and when not.— Thus, where the owners of land conveyed a part of it to plaintiff, with a reservation to them and their assigns of the exclusive right to all oils, petroleum, asphal- tum, and other kindred mineral substances, and the right to do whatever was necessary to obtain and transport such minerals, including the erection of proper machinery and the laying of pipes, it was held that the defendants had no right to plaintiff's land further than was necessary to the exercise of the rights reserved in that tract alone, where similar grants were made to others, the plain intent being that they had the right to the possession of such land.^ A deed of bargain and sale, with words of inheritance^ granted certain lots, all gas from certain wells, and the per- petual right to mine and carry away coal, there being, how- ever, no condition nor covenant requiring him to mine, and the court decided that an exclusive right to mine and carry away coal was not granted.^ So, a conveyance of a full fee- simple, reserving to the grantor, his heirs and assigns, a free toleration of getting coal for their own use, does not reserve Co. V. Dexter Co., 6 R L 351; Ya- Pao. Rep. 423. See s. c. on rehear- hoola River, etc. M. Co. v. Irby, 40 ing, 95 Cal. 93, 30 Pac. Rep. 380. Ga. 479. 2 Jennings v. Beele, 158 Pa. St. 383, 1 Dietz V, Mission Transfer Co., 35 27 Atl. Rep. 948. §§ 1111, 1112.] MINING DEEDS GENEEALLT. 917 all the coal beneath the surface, but simply an incorporeal hereditament, or right, concurrent with the mining right of the grantee, to get and carry away such coal as the grantor and his assigns may personally need for fuel.' And where a grant of mineral rights in land is defeated by the grantee's failure to perform the particular acts stipulated to be done by him, in the instrument itself, and which form the real consideration therefor, the rights of the grantee become for- feited, and no re-entry is necessary by the grantor.^ § 1111. Who bound by covenants — Parties and privies. It must be apparent that mining deeds are liable to the same general rules of construction as ordinary deeds. This applies especially to the covenants of the deed, which bind, not only the immediate parties, but also their privies, in- cluding all persons participating, in any manner, in any of the rights granted or reserved.' But while the parties and privies are thus bound, the recitals in a deed are no evi- dence against strangers.* In this last case the court had under consideration a deed which recited that the grantors were the heirs at law of the former owner, and the court held that only parties in the deed and persons claiming under it were bound by this recital.* § 1112. Consideration as means of interpretation — Sufficiency of. — The consideration sometimes plays an im- portant part in the construction of a deed and in determin- ing the nature of the grant. For instance, where the con- sideration in a deed is an entire sum of money, demandable absolutely under the deed, and which may be assumed to include a valuation fixed by the parties, in consideration of 1 Algonquin Coal Co. v. Northern 353; Belcher Cons. M. Co. v. Defer- Coal & Iron Co., 163 Pa. St. 114, 29 rari, 63 Cal. 160; Oregon Co. v. AtL Rep. 403. Trulenger, 3 Greg. 1. 2 Hawkins v. Pepper, 117 N. C. 407, * Yahoola, etc. Co. v. Irby, 40 Ga. 83 S. E. Eep. 434. 479, 14 M. E. 460. See Eust v. Car- 3 Vermont M. Co. v. Windom penter, 18 Colo. 340. County Bank, 44 Vt. 489, 3 M. E. 5 Citing, which see, Carver v. 312; Hartford & Salisbury Ore Jackson, 4 Peters, 1, 83; 1 Green- Co. V. Miller, 41 Conn. 113, 3 M. E. leaf, Ev., § 23. 918 MISCELLANEOUS TITLES. [§ 1113. ■which the grantee was authorized to remove from the prem- ises all ore that might possibly be removed therefrom dur- ing the term of ten years, and by the further fact that the deed by its terms professed to sell and convey the mineral itself, as well as the right to search for and take it, it will be an absolute grant of the mineral.^ It is generally ad- visable to insert the actual consideration in all deeds, on ac- count of the bearing of the consideration upon the intent of the parties, if there is otherwise any uncertainty. Inde- pendent of thip question, however, in the absence of fraud or concealment, any valuable consideration will support the deed.^ This is elementary and settled beyond dispute. § 1113. Special covenants — Reference to other instru- ments. — Special covenants also tend to throw light on the general transaction, and so far as they serve as a guide for the interpretation of the instrument or a construction as to the intent of the parties, they are valuable. And where another deed is referred to as qualifying the one under con- sideration, either in matter of description or as covenants for title, it will be taken as a part of the transaction, and the two will be construed together.' In an early New York case plaintiff conveyed to defend- ants all that certain mining lode or claim known as the John mine, and the conveyance referred to the deed by which the plaintiff acquired title, which conveyed all the dips, spurs and angles and metals, ores, gold and silver bear- ing quartz and earth, and all privileges and franchises thereto incident, etc. It appeared that plaintifif had there- tofore executed a deed to another person of all that portion of the surface ground of the John mine lying and being south of the John mine, which meant the opening, com- mencing at the center of the vein and running its entire 1 Massott V.Moses, 3 S.C. 168; Lord 263; Tuck v. Downing, 76 111. 71. Mountjoy'sCase,Godb.l7;2Co.Litt. See Maloy v. Berkin, 11 Mont. 138, 165; Fairohild v. Dunbar Furnace 37 Pao. Rep. 443. Co., 128 Pa. St. 485, 18 Atl. Rep. 443. 3 Wallace v. Silsby, 43 N. J. L. 1, 2Neill V. Shamburg, 158 Pa. St. 3 M. R. 390. §§ 1114, 1115.] MINING DEEDS GENERALLY. 919 length, which deed contained the following words: "This deed is intended to convey the south 100 feet of the John mine," etc. It was held that this latter deed conveyed only the surface ground and did not include any of the mineral rights, and, therefore, constituted no defense to an action for the price of the mining claim, all the minerals having passed by defendant's deed.^ And where one deed conveyed one-half of the coal and minerals in a certain piece of land, except the minerals of all the precious kinds, and by another deed the same owner assumed to convey all the minerals, it was held that the latter deed created a cloud upon the title held under the former.^ § 1114. Appurtenances, incidents and fixtures also pass. — We have seen that where a deed conveys a piece of mining ground, or an interest or separate estate in it, all the means necessary for its enjoyment are likewise conveyed. Not to repeat at too great length, when a thing is granted, all the means to obtain it and all the fruits and effects of it are also granted. The term " mines and minerals," and all the privileges thereof, conveys the right to the minerals and the right to dig for them.' And where coal upon severance has become the property of the lessee, he has the right to enter and remove it, and to use the tramways or other modes of conveyance of the lessor on the premises for such purpose. It belongs to him and he has the right to take it.^ § 1115. Restricted to intent. — It is a general rule that a deed will be restricted or enlarged to conform to the in- 1 Mclntyre v. Buell, 10 N. Y. Sup. 10 Atl. Rep. 48; Bushnell v. Proprie- 332. tors, etc., 31 Conn. 150, 3 M, R. 258; 2 Pearne v. Coal Creek M. Co., 90 Caldwell v. Fulton, 31 Pa. St. 475. Tenn. 619, 18 S. W. Rep, 402. See But see ante, % 1100, notes 2 and 3, also McCurdy v. Alpha M. Co., 8 p. 913. Nev. 27; Stewart v. Northwestern ^Lykens Valley Coal Co. v. Dock, Coal & I. Co., 147 Pa. St. 523, 23 Atl. 62 Pa. St. 232, 8 M. R. 570; Genet v. Rep. 882; Brophy M. Co. v. Brophy Delaware & H. Canal Co., 123 N. Y. & Dale Co., 15 Nev. 101. 527, 23 N. E. Rep. 922; Mvinn v. 2 Griffin v. Fellows, 81 Pa. St. 114, Stone, 58 Mass. 146. 8 M. R 657; Rowell v. Bodfish (Me.), 920 MISCELLANEOtrS TITLES. [§ 1119. tent of the parties, as gathered from the instrument itself and surrounding circumstances, properly aided by parol testi- mony within the lines limited by the general rules of evi- dence, to explain it. And where the court is able, from any or all of these circumstances, to define and determine what was the real intent of the parties at the time, the deed must be construed in the light of such intent.^ The true rule is always to give effect to the intention of the parties if the words they have employed will admit of it. But if the words used, by their clearness and certainty, ab- solutely forbid the aid of extrinsic evidence in their inter- pretation, it would be changing a certain written contract of the parties to let in outside parol proof.^ The doing dominates the intent wherever there is an apparent conflict, on the implied principle that the intent is interpreted by the act.' Aetiole C. Of Statutory Deeds. § 1119. Short statutory deeds obviating covenants. 1130. Contrary rule — A peculiar case. 1121. Curative statutes. § 1119. Short statutory deeds obviating covenants. — Wherever the statute of the state has established a form of conveyance, it is believed that the mining law is equally in- grafted into that as is the other or general law of real prop- erty ; and. that the statutory conveyance, whereby covenants are considered as expressed, although not contained in the deed, the entirety of the estate conveyed being also omitted, nevertheless, all the estate held by the grantor, with all 1 Wilcox V. Lucas, 131 Mass. 31, 3 Granite Co., 147 N. Y. 495, 43 N. E. M. E. 380; Glass v. Hulbert, 103 Rep. 186, 187; Taylor v. Holter, 1 Mass. 34; Jones v. CliflEord, 3 Ch. Mont. 688, 3 M. R 833; Tymason t. Div. 779; Wasatch M. Co. v. Cres- Bates, 14 Weud. 673; Chester Emery cent M. Co., 5 Utah, 634, 19 Pac. Co. v. Lucas, 113 Mass. 484. Rep. 198. 3 Vanatta v. Brewer, 33 N. J. Eq. 2 Armstrong v. Lake Champlain 268, 6 M. R 358. §§ 1120-1124:.] MINING DEEDS GENERALLY. 921 rights and franchises, will be held to pass by the deed the same as if specific covenants therefor were contained in it.' § 1120. Contrary rule — A peculiar case. — In an early case in the circuit court of the United States for the district of California, which was a case under a Utah statute, passed when the state of Nevada was a part of the territory of Utah, it was held that the statute passed in said territory on the general subject of real property and the conveyance thereof did not apply to mining claims.^ But the proba- bilities are that no such doctrine would be announced by any court at this time, and that the rule as laid down in the preceding section may be said to be the true one. § 1121. Curative statutes. — Since the general rule throughout the entire country is that mining claims and mining interests are held as real property, obviously all statutes enacted for the purpose of affecting a correction as to defective conveyances will operate equally upon mining deeds and interests conveyed thereby.' Article D. Of Compromise Deeds. % 1134 Compromise deed generally operates as an end line in a lode claim. 1125. Metes and bounds produce a different rule. 1126. Miscellaneous deeds — Different names — Estoppel. 1127. Eule in other than lode mining — Parol evidence to explain. 1128. Beed without consideration. § 1124. Compromise deed generally operates as an end line in a lode claim. — Among the miners of the Pacific coast it is usually customary to convey an interest in a niin- 1 Evenson v. Webster, 3 S. Dak. 2 Kinney v. Cons. Va. M. Co., 4 382, 53 N. W. Rep. 747. 44 Am. St. Sawy. 382, 14 Fed. Cas. 611. See Rep. 803 ; Iron Co. v. Wright, 32 N. J. also Blodgett v. Potosi G. & S, M. Eq. 353; Barksdale v. Hairston, 81 Co., 34 Cal. 327. Va. 765. See also Montana M. Co. ' Carson v. Thompson, 10 Wash. V. St. Louis M. & M. Co., 102 Fed. 295, 38 Pac. Rep. 1116. Eep. 430. 922 MISCELLANEOUS TITLES. [§ 1124. ing claim by a certain number of linear feet, describing at the time the ground contained in the claim or a certain frac- tional part, undivided, of the claim.^ It is often necessary, however, when conflicts arise, either as to the surface ground or subterranean lodes and bodies of ore, to compromise dif- ficulties by establishing a compromise line, and deeding, one to the other, all ground on either side of it. As a general rule these compromise lines are drawn vertically. This is especially so if they are drawn crosswise of the lode. If they are lengthwise and parallel to the lode line, they are drawn vertically as to surface rights, but include, just as a congressional grant includes, all veins of ore apexing therein throughout their entire depth. This, of course, in the ab- sence of express covenant. Where the parties have expressly covenanted as to and fully described their rights, tfiey will, of course, be held rigidly to their bed as they have made it. Thus, in a leading case from Nevada where two mining companies having claims adjacent to each other agreed upon a line of division between themselves, which should be continued downward toward the center of the earth, it was held that the line was to be extended downward through the zones of ore in the property in their course toward the center of the earth.' And in the same case in the circuit court, before Justice Field and Circuit Judge Sawyer and District Judge Hilyer, it was held that this compromise line must be treated as an end line and carried down- ward vertically, and extended in its own direction the same way. The court in the opinion says : " The line thus des- ignated, extended down in a direct line along the dip of the lode, would cut the Potts chamber (the ore in dispute) and give the ground in dispute to the plaintiff. That it rdust be so extended necessarily follows from the character of some of the claims it divides. As the Richmond and Cham- pion were vein or lode claims, a line dividing them must be extended along the dip of the vein or lode, so far as iSee ante, §§ 1090-1093. ^Eiohmond M. Co. v. Eureka M. Co., 103 U. S. 846, 26 L. ed. 557. § 1125.] MINING DKEDS GENERALLY. 923 that goes, or it will not constitute a boundary between them. All lines dividing claims upon veins or lodes neces- sarily divide all that the location on the surface carries, and would not serve as a boundary between them if such were not the case." ^ § 1125. Metes and bounds produce a diiferent result. — As intimated in the preceding section, where the compro- mise is as to side lines, in the absence of a covenant to the contrary, there would be a longitudinal division of the claim much the same as the ordinary severance of estates under other conditions. Where, however, the parties have compromised by a deed describing their rights by metes and bounds, the rule, of course, must be different, and as to that, unquestionably the grantee would be entitled to the surface ground conveyed with all the metals contained, and all the rights incident thereto. Thus, in a case in Montana where they compromised their disputes as to overlapping sur- face, there was an agreement that the St. Louis Mining Com- pany should convey a certain strip of land thirty feet wide and four hundred and three feet long, which was really taken off a portion of the side line of the St. Louis claim,^ and it was contended that the northernmost line of this strip was drawn vertically against the Drum Lummon vein, a side vein in that claim. In denying this result to the deed and in holding that it had the effect to convey all extra-lateral rights, and to reserve the same on the north side of the line as to the grantor, the court uses these words : " Upon con- sideration of all the circumstances, we entertain no doubt that it was the purpose of the contracting parties to fix a boundary line between the two raining claims, reserving to each claim the rights that would have attached if the bound- ary line had been settled without controversy; and the language of the contract and of the deed sustains that con- clusion."' And this is but following the rule previously 1 Eureka M. Co. v. Richmond M. 2 See ante, § 860, p. 763, Fig. 29. Co., 4 Sawy. 303, 8 Fed. Cas. 819. ' Montana M. Co. v. St. Louis M. See also McCaig V.Stone, 9 CaL 600. & M. Co., 102 Fed. Rep. 430. 438. '924 MISOELLANEOTTS TITLES. [§§ 1126, 1127. noticed ^ of looking to the intention, of the parties for a con- struction of their deed. §1126. Miscellaneous deeds — Different names — Es- toppel. — Where, after notices of location of the L. and E. mining claims were filed, the owners of the E. claim moved the stakes at one end so as to conflict with the L. claim, and then conveyed, by separate deeds, their interest in the E, claim as described in the notice of location, it was held that they were estopped to maintain, under a subsequent pur- chase of the L. claim, that their deeds conveyed no part of the latter.^ And where the same lot of ground is covered by more than one location by the same grantor, his deed of one may be construed to convey the title under both loca- tions.' § 1127. Rule in other than lode mining — Parol evi- dence to explain. — The dividing lines and boundary planes, described in deeds elsewhere than in lode-mining claims in the public-land states, are drawn vertically, except the im- aginary lines between strata where the estates are severed, as we have seen. As an illustration : "Where there was a grant of the metals and minerals in a certain tract, begin- ning at the center of the vein of iron on the line between two points, and, in trespass for taking the ore, there was conflicting evidence as to whether there was any such vein, or whether there was more than one vein, and whether the par- ties agreed upon a line of rocks as marking the supposed vein, and whether, if there was any vein, it was a vein of emeryj and not a vein of iron ; the line was drawn vertically, and the court ruled the deed stood unaffected by parol evidence as to bound- ary, but if more than one vein existed, parol evidence could be admitted to show what was intended. It was also held See also Stinchfield v. Gillis, 107 'Morr. Min. Rights (8th ed.), 195; Cal. 86, 40 Pac. Rep. 9a Weill v. Lucerne M. Ca, 11 Nev. 1 See amfe, §1115. 200; Phillpotts v. Blasdel, 8 Nev. 2Shreve v. Copper Bell M. Co., 11 61, 4 M. R 341; Lebanon M. Co. v. Mont. 379, 28 Pac. Rep. 315. Cons. Republican M. Co., 6 Colo. 371. § 1128.] MINING DEEDS GENERALLY. 925- to be immaterial whether it was iron ore or emery; also' that the grant of the iron ore was a grant of the present estate in fee of the ore in situ, and gave the grantee posses- sion so as to maintain an action against a trespasser who removed the ore.' Recognized bouadaries and monuments which prove to have been inaccurately or indefinitely de- scribed in a deed may be established by proof that they wer& recognized as such by the parties.^ Two deeds have been held as one transaction where one is given for the purpose of correcting the other, or where they are mutual convey- ances.^ § 1128. Deed without consideration. — In the federal court in North Carolina, where a deed was without express consideration, and purported to convey all the " mineral and metallic interests " in certain lands, the instrument being properly under seal and duly delivered, it was held that in that state, following the English statute obtaining in that state since 1715, such a deed would pass a freehold estate in the lands ; but inasmuch as the deed further provided for plaintiff's ancestors, the grantees in the deed through whom the plaintiff acquired title, to make a fair test for minerals and metals on the aforesaid lands, that question of fact was- suhmitted to the jury under an instruction that it constituted a condition subsequent, and a judgment for the defendants was upheld.* Article E. Of Bills of Sale and Verbal Transfers, When Sufficient. g 1131. Verbal transfers — Early California and similar doctrine. 1133. Transfers by bills of sale. 1 Chester Emery Co. v. Lucas, 113 ' Wallace v. Silsbey, 43 N. J. Law, Mass. 434, 3 M. R. 348. 1, 3 M. R. 390; Armstrong v. Lake ' Chester Emery Co. v. Lucas, Chariiplain Granite Co., 147 N. Y. supra; Waterman v. Johnson, 13 495, 43 N. E. Rep. 186. Pick. 361 ; Cook v. Babcock, 7 Cush. * Adams v. Ore Knob Copper Co.^ 536; Sargent v. Adams, 3 Gray, 73; 7 Fed. Rep. 634. Putnam v. Bond, 100 Mass. 58; Stoops V. Smith, 100 Mass. 63. 926 MISCELLANEOUS TITLES. [§ 1131. § 1133. Same — Verbal transfers — Writings not under seal — How af- fected by recording statutes. 1184. Effect of recording statutes — Notice. 1135. Executory contracts for deeds. 1136. Doctrine of this chapter restated. §1131. Yerbal transfers — Early California and sim- ilar doctrine. — In California, before the enactment of the statute to the contrary, mining claims were regarded as .mere possessory rights, and were transferred orally by de- livery of possession. This unique mode of transferring real estate was not new, and had its birth at the common law be- fore conveyances by deed were known, in the ceremony of livery of seisin. These conveyances were repeatedly recog- nized as valid and binding by the California courts.^ This was affirmed by the supreme court of the United States.^ But even in California in those times it was necessary to actu- ally deliver possession, and that possession be retained by some notorious acts of ownership, such as to satisfy the statute and the requirements of the court.' In Colorado this doctrine was virtually supported, although that was not necessary to a decision of the case,* and it has been firmly set at rest in Montana.^ But the correctness of the rule was disapproved, or at least doubted, at a later date,^ where it Avas held that even though a verbal transfer might in some cases be good, it would not pass the title in that case, not- withstanding the fact that it was accompanied by delivery of possession. And still later, in a well-considered case, Mr. Justice Rhodes, speaking for the court, after taking up the cases authorizing and indorsing verbal transfers of min- ing claims, lays down this doctrine : " It is impossible to 1 Jackson v. Feather River Water 3 Patterson v. Keystone M. Co., Co., 14 Cal. 18 ; Table Mountain Tun- 23 Cal. 575 ; Atwood v. Fricot, 17 id. nel Co. V. Stranahan, 20 id. 198; 37; English v. Johnson, id. 107. . Antoine Co. v. Ridge Co., 23 Cal. * Omar v. Soper, 11 Colo. 389, 18 219; Gatewood v. McLaughlin, 23 Pac. Rep. 443. id. 178. 5 Hopkins v. Noyes, 4 Mont. 550, 2 Union Cons. S. Mining Co. v. 2 Pac. Rep. 280. Taylor, 100 U. S. 37. « Goller v. Fett, 30 Cal. 483. §§ 1132, 1133.] MINING DEEDS GENBEALLT. 927 reconcile those cases with the statute of frauds, except upoa the ground taken in the leading case, that rights resting upon possession only, and not amounting to an interest in the land, are not within the statute of frauds, and no con- veyance, other than a transfer of possession, is necessary to pass them. The doctrine in those cases, however, has an- other bearing when the interest held in a mining claim is considered as real estate.'" To which may be added that since the enactment of the federal statute treating mining claims from the inception as real property, these decisions are stripped of much of their force. § 1132. Transfers by bills of sale. — It was the practice in California, even after the enactment of the law of 1860 and other statutory provisions requiring the transfer of land by instruments in writing, to transfer mining claims by mere bills of sale, not under seal, and not acknowledged. And we think that it is not unreasonable to hold these trans- fers good.^ This doctrine is no doubt sound, and would be sufHcient to transfer the title in the absence of recording statutes, or statutes requiring an acknowledgment. It would certainly be suflBcient to require a valid title to be made, and upon which to base a suit for specific performance, as it has been held that even a bad deed will be construed as a covenant to make a good one.' § 1133. Same — Yerbal transfers — Writings not under seal — How affected by recording statutes. — So the doc- trine of verbal transfers became settled law, and received ' Hardenbergh v. Bacon, 33 Cal. 31 Pac. Eep. 761; Tarpey v. Deseret S56, 381. Salt Co., 5 Utah, 205; Adams v. 2 Myers v. Farquharson, 46 Cal. Reed, 11 Utah, 480, 40 Pac. Rep. 730; 190. See also Clark v. McElvy, 11 Allegheny Co. v. Snyder, 106 Fed. Ual. 154; Garthe v. Hart, 73 CaL Rep. 764; Barr v. Hatch, 3 Ohio St. 641, 15 Pac. Rep. 93; Sears v. Tay- 537; Williams v. Spriggs, 6 Ohio St. lor, 4 Colo. 38, 5 M. E. 318. 585; Abbott v. Bosworth, 36 Ohio 3 Barkley v. Tieleke, 3 Mont. 59; St. 605. Bayward v. Gardner, 5 Wash. 347, 928 MISCELLANBOTJS TITLES. [§§ 1134, 1135. the sanction of the supreme court of the United States.' And even where a writing was resorted to, being governed by the principle that they were mere possessory titles capa- ble of passing by the transfer of possession, it became, and is yet, the settled law that in the absence of recording stat- utes or statutes requiring real estate to be transferred in a particular way, mining claims may be conveyed by bill of sale, which need not be under seal even in those states where seals' were required.^ And in any case, as we have seen in the last preceding sections, any writing made and passed, or possession given with the intention of passing the title and possession of the property, would be sufficient upon which to base an action for specific performance, and fur- nishes sufficient foundation for a good deed. §1134. Effect of recording statutes — Notice. — Mani- festly, wherever mining claims are regarded as real estate, the general rules governing the transfer of real property must prevail, and to be absolutely valid and conclusive as against creditors or subsequent purchasers, deeds must be executed, witnessed, acknowledged and delivered in sub- stantially the manner required by the statute.' And to im- part notice to third parties, of course they must be recorded. § 1135. Executory contracts for deeds. — This is gov- erned so entirely by the general law on the doctrine of spe- cific performance that we do not deem it necessary to take up much time or space in adverting to it here, simply re- marking in passing that whatever contract is sufficient to enforce specific performance under general law is sufficient under the mining law. For instance, and for the purpose of distinguishing between a deed and an executory contract for a deed, plaintiff's grantors discovered a garnet mine on 1 Union M. Co. v. Taylor, 100 U. S. 1 Mont 514; King v. Eandlett, 33 37, 25 L. ed. 541. Cal. 318; Felger v. Coward, 35 Cal. 2McCarron v. O'Connell, 7 Cal. 650; Garthe v. Hart, 73 Cal. 541, 15 152; Draper v. Douglass, 23 id. 347. Pac. Rep. 93; Houtz v. Gisborn, 1 3 Hopkins v. Noyes, 4 Mont. 506, Utah, 173. 2 Pac. Rep. 280; Robertson v. Smith, § 1136.] MINING DEEDS GENEEALLY. 929' the public domain and acquired the right from the state to work the same upon a certain royalty. But before obtain- ing such right, they entered into a contract with defendant by which they agreed, for the consideration of five dollars per long ton royalty, to sell all or fifty tons of garnet out of the mine, with privilege to mine each and every year un- til all gone, etc. Plaintiff's grantors repudiated this con- tract, notwithstanding which the defendant took possession of the mine, and the court held that the contract under which the defendants claimed was not a conveyance, but simply an executory contract, giving the defendants no title to the estate of plaintiff's grantors in the mine nor any right to the possession thereof.' But such an executory contract is enforcible, and could be enforced the same as any other, and one occupying a fiduciary relation to another regarding a mining claim on the public domain, will be required to convey to such other person or stand as trustee for him.^ § 1136. Doctrine of this chapter restated. — It will thus be seen that the general doctrine of the law of real es- tate is only different in its application to mining claims to the extent of the natural difference between the principles in- volved ; the intent of the parties is generally to govern, where that can be gained either from the instrument itself and the surrounding circumstances or from parol testimony admitted within the general rules; that where several estates are created they are confined, each to its particular boundary and extent; that the consideration is important as govern- ing the intention of the parties; that the general rule is that a specific intent controls a general intent; where two descriptions are Inconsistent, that which more nearly ap- proaches the specific intent will govern ; that where com- promise or dividing lines are established between two es- 1 Moore v. Brown, 16 N. Y. S. 593, SLockhart v. Rollins (Idaho), 84 66 Hun, 618. See also Genet v. Pao. Eep. 413. In this branch of Delaware & Hudson Canal Co., 136 the law perhaps more than any jr. y. 593. other, each case is controlled by its 59 930 MISCELLANEOUS TITLES. [§ 1136. tates, they are drawn down vertically if crosswise of a lode or vein, and likewise if applied to anything but a lode claim located under the laws of the United States ; as to that, if running lengthwise of the claim and upon it, or parallel with it, the grantee gets the same rights in the land granted as the grantor or locator has, and the same rule applies to a conveyance by metes and bounds; that in the conveyance of an estate in lands less than the entire estate contained in the' block of earth, that is, where there is a severance, all means necessary to obtain and enjoy the estate granted or reserved, are likewise by intendment, incorporated into and made a part of the grant; that verbal transfers and bills of sale are valid in the absence of statute requiring a particu- lar form of conveyance, and are a contract for a good con- veyance in any case. own peculiar circumstances. Courts will therefore look to the con- tract under consideration, and, if possible, declare from its language, rather than its name, the rights of the parties under it. The con- tract, however, must generally be signed by the party against whom default is claimed. For instance, an indorsement, signed by the par- ties, on the back of a lease, that within a certain time the lessee •will pay a gross sum in lieu of rental, which will entitle him to a ■conveyance from the lessor, is an absolute contract' to purchase convey an interest in the land; thus, it has been held, both in England and in this country, that a lease of a right to mine coal is a grant of an interest in the land, and not a mere license to take coal.^ This, it seems to us, is the true rule. It has both reason and the weight of authority to support it. At the common law, and under all the old English cases, it was considered well settled that a leasehold estate was an interest in land equivalent to a fee-simple for the period of its duration.^ And in Virginia, a license whereby workmen were permitted to work in the mine was called a lease, but, because of its peculiar provis- ions, was held not to be assignable.' This we think is cor- rect law, and we will discuss it further on in this work. The only difficulty in the proposition is that the court called that a lease which we would call a license. In Pennsylvania it has been called a chattel real ; * and that court has also held that whatever else we might call a leasehold interest, oil lease- hold interests and buildings on leaseholds are not " goods and effects." * § 1165. Distinction between lease and absolute sale of the product — Option to purchase. — There have been some leases so worded, doubtless for good reasons surrounding their execution, that they did not convey and did not at- tempt to convey any interest in the land, but only an inter- est in the coal, together with a right to mine it. Such leases 1 Harlan v. Lehigh Coal Co., 35 * Titusville Works' Appeal, 77 Pa. Pa. St. 287, 8 M. R. 496; Carr v. St. 103, 9 M. E. 17. Benson, L. E. 3 Ch. App. 524. * Vandergrif t's and Foreman's 2B1. Comm. 816, 817; Co. Litt. 43, Appeal, 83 Pa. St. 126, 9 M. E. 897. 49; id. 172; Shep. Touch. 266, 268 A mining lease is practically a sale et seq. of a portion of the land. Gowan 'Hodgson V. Parkins, 84 Va. 706, v. Christie, L. E. 2 So. App. 373, 5 5 S. E. Rep, 710, 16 M. E. 116. Moalt, 114, 8 M. E. 688. 952 MISCELLANEOUS TITLES. [§ 1165. have universally been held to work an absolute sale of the product of the mine taken out by the lessee but not to con- vey an interest in the land. For instance, a lease of certain lands provided that the lessee should have all the coal un- derlying the lands for the term of ninety-nine years, the lessees were to mine a minimum number of tons of coal per year and pay so much per ton therefor until all the avail- able coal was removed, and the said minimum number of tons was to be paid for annually whether it was mined or not. It was held that this was an absolute sale of the coal conditioned upon its being removed.^ And a lease and demise of all the coal in, upon and under certain land, or so much thereof as the lessee can take of the same within and during the period of twenty-five years, is a sale of the coal and not a license to raise it.^ So, in Missouri, an agreement in writing purported, in consideration of certain stipulated royalties, to lease land for mining only, and subject to the limitation that the grantee's rights should not be interfered with, reserving to the grantor the right of occupation for the purpose of cultivation, and providing also that it should remain in force until the minerals were exhausted, but otherwise it had no fixed term. It was held that the agreement was not a lease, since it had no determinate period, but that it passed title to all the minerals within the land subject to the claim of the owner for royalties.' Another instrument which re- ceived consideration by the Missouri supreme court pur- ported to lease and convey all the coal in a certain tract of land for the period of twenty years, in consideration of a fixed sum per annum. The court held this to be a lease of all the coal the second party could mine during that period, and not an absolute sale of all the coal.^ Of course it was • In re Lazarus' Estate, 145 Pa. 3 Hobart v. Murray, 54 Mo. App. St. 1, 23 Atl. Rep. 373; Hope's Ap- 249. peal, 8 Atl. Rep. 23. i Austin v. Huntsville Coal & 2 In re Hancock's Estate (Pa Mining Co., 73 Mo. 535, 9 M. R. 115. Com. PI.), 7 Kulp, 36. § 1165.] MINING LEASES. 953 not an absolute sale of all the coal, but it would seem to us it was a sale conditioned upon removal within the pre- scribed period, rather than a lease. This is in harmony with the holding of the Pennsylvania court to the effect that a coal lease providing for a minimum annual rental until all the coal is mined is a contract for and sale of the coal con- ditionally upon the payment of the rent.^ Another provision in many mining leases or contracts which deserves and has received some attention by the courts is the clause giving the second party, or lessee, the option to purchase. It may be broadly stated that, unless expressly provided to the contrary in the instrument itself, this option must be exercised during the life of the lease or instrument creating it, and before forfeiture for failure by the lessee to keep any of his covenants. This question was considered by the supreme court of Canada, where a con- tract for the sale of phosphate mining rights provided that in case the purchaser, in working said mine, should find other minerals, he should have the privilege of buying the same for the price fixed by arbitrators. The purchaser worked the mine for a number of years and then discon- tinued it, and it was held that his option to purchase did not extend to other minerals not found while developing the phosphates.^ Aetiolb B. Oil and Oas Leases — Special. § 1170. Oil and gas leases in general — Preliminary. 1171. Ownership of severed oil or gas. 1173. Qualified ownership, when — Eights as to pumping. 1173. Exclusive rights of lessee within described area. 1174 Ownership of the fluid. 1175. Instances of ownership by owner of soil — Not changed by sever- ance. 1 Lehigh Coal Co. v. Wright, 15 Estate (Pa. Com. PI.). 7 Kulp, 36; Pa. Co. Ct. Rep. 433, 7 Kulp, 434. ante, § 925. See posf, §1177. See also Hancock's ^ Baker v. McClelland, 24 Can, Sup. Ct. 416. 954 MISCELLANEOUS TITLES. [§ 1170. § 1176. Boundaries in oil leases. 1177. Name of contract immaterial. 1178. Rights and duties under oil leases — Some special cases. 1179. Covenant to commence operations and to test and work, 1180. Must prosecute work with diligence. 1181. More diligence required in oil and gas operations than in ordi- nary leases — When performance waived. 1183. Construction of contract by parties adopted — Surrendering a lease will not discharge liability to lessor. 1183. Must comply literally with contract — Parties entitled to what they bargain for. 1184 Effect of failure to execute by lessor's wife. 1185. Lease subject to former lease no waiver of objection thereto. 1186. Possession. 1187. Good faith required. 1188. Same — Operating at a loss. 1189. The doctrme of this article restated, / § 1170. Oil and gas leases in general — Preliminary. — Since it is well settled that oil and gas in situ are both min- erals and a part of the soil, in many respects the general doctrine of raining leases will apply to them. There are,, however, a few special features peculiar to gas and oil leases,, as enunciated by the courts, which require special notice. That oil and gas in situ are a part of the soil was at one time seriously disputed by the supreme court of Pennsylvania.' But elsewhere the doctrine is established by a long line of cases, of which we shall select only a few.^ In correcting 1 Dunham v. Kirkpatrick, 101 Pa. Kenton Gas & Electric Co. v. Dor- St. 43, probably overruled in Gill v. ney, 17 Ohio C. 0. 101 ; Kier v. Peter- Weston, 110 Pa. St. 313. son, 41 Pa. St. 561 ; Thompson v. 2 Brown v. Spillman, 155 tJ. S. 665 ; Noble, 3 Pittsb. 201 ; Williamson v. Foster v. Elk Fork Oil & Gas Co., Jones, 39 W. Va. 231; Hague v. 90 Fed. Rep. 178; People's Gas Co. Wheeler, 157 Pa. St. 324, 27 AtL Rep. V. Tyner, 131 Ind. 277, 31 N. E. Rep. 719; Wood Co. P. Co. v. West Va. 59; Columbian Oil Co. v. Blake, 13 Trans. Co., 28 W. Va. 210; Wilson Ind. App. 680; State v. Ind. & Ohio v. Youst, 43 W. Va. 826; Carter v. Gas & M. Co., 120 Ind. 575, 6 L. R. Tyler Co. Ct., 45 W. Va. 806, 82 S. A. 579, 2 Interst. Com. 758; Hail v. E. Rep. 216; Murray v. Allard, 100' Reed, 15 B. Mon. 479; Shepard v. Mc- Tenn. 100, 43 S. W. Rep. 355: Atoh- Calmont Oil Co., 38 Hun, 37 ; Hughes ison v. Stevenson, 146 Pa. St. 239. V. United Pipe Lines, 119 N. Y. 423; § llTl.J MINING LEASES. 955 its former position and aligning itself with the other courts upon this question, the supreme court of Pennsylvania uses the following words : " Q-as is a mineral, and while m situ is part of the land, and therefore possession of the land is possession of the gas. But this deduction must be made with some qualifications. Gas, it is true, is a mineral, but it is a mineral with peculiar attributes which require the application of precedents arising out of ordinary mineral rights, with much more careful consideration of the princi- ples involved than the mere decisions. Water also is a min- eral, but the decisions in ordinary cases of mining, etc., have never been held as unqualified precedents in regard to flow- ing or even percolating waters. Water and oil, and still more strongly gas, may be classed by themselves, if the anal- ogy be not too fanciful, as minerals ferce naturce. Id com- mon with aminals and unlike other minerals, they have the power and tendency to escape without the volition of their owner. Their fugitive and wandering existence within the limits of a particular tract is uncertain. 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 subject to his control ; but when they es- cape and go into other lands, or come under another's con- trol, the title of the former owner is gone."^ §1171. Ownership of severed oil or gas. — The courts are somewhat at variance with each other as to the owner- ship of severed oil or gas. Obviously the rule is difl'erent in respect to both of them from what it would be generally with reference to water. Prima faoie, since gas and oil are part of the soil, until the owner of the soil voluntarily parts with his title they are his property.^ But at the same 1 Westmoreland & C. Nat. Gas 155 U. S. 665; Ontario Nat. Gas Co. Co. V. De Witt, 130 Pa. St. 235, 18 v. Gosfield, 18 Ont. App. 626. Atl.Eep.734,5L. R. A.731. See also 2 Hail v. Reed, 15 B. Mon. (Ky.) Brown v. Vandergrift, 80 Pa. St. 147, 479, 11 M. R. 103; Columbia Oil Co. followed in Atchison v. Stevenson, v. Blake, 13 Ind. App. 680, 42 N. E. 146 Fa. St. 239; Hague v. Wheeler, Rep. 334. 157 Pa. St. 324; Brown v. Spillman, ■956 MISCELLANEOUS TITLES. [§ 1172. time, since the rule of percolating water applies to oil and gas, oil lawfully taken through the land of the taker is his property, even though it percolates from adjoining land.^ There are a few cases supporting the doctrine that where the primary purpose ol the well is to obtain oil, the inci- dental escapement of gas being unavoidable, the lessee may collect and use the same for his own purposes.^ But, mani- festly, he may not market it without paying the royalty required in the lease upon its value the same as oil.' And while oil and gas are generally spoken of together, the terms are obviously not synonymous. Following which principle, where land is leased to be worked for oil, with a provision that the lease shall be void vnthin a certain time unless oil is found, the lease is not satisfied by finding gas within that time.* § 1172. Qualified ownership, when — Bights as to pump- ing. — It has recently been held that there is at least a ■qualified ownership of gas under the land sufficient upon which to base injunction proceedings against the exhaustion of the gas by pumping.* In this case the court said: " The right of each owner to take the gas from the common res- ervoir is recognized by the law, but this right is rendered valueless if one well owner may so exercise his rigbt as to destroy the reservoir, or to change its condition in such manner that the gas will no longer exist there." * It is well settled, by the better considered cases and a long line of 1 Brown v. Vandergrift, 80 Pa. St 210; Eaton v. Wilcox, 43 Hun, 61: 147; Westmoreland & C. Nat Gas Williamson v. Jones, supra, Co. V. DeWitt 130 Pa. St 235,18 3 Taylor v. Peerless Eef. Ca, 7 Atl. Eep. 731; Williamson v. Jones, Ohio Dec. 368, 14 Ohio 0. C. 315. 39 W. Va. 231, 25 L. R. A. 223; State < Tnaby v. Palmer, 4 Cent Eep. V. Indiana & Ohio G. & M. Ca, 120 925. Ind. 575,6 L. E. A. 579; People's » Manufacturers' G. & O. Co. v. Oas Co. V. Tyner, 131 Ind. 277, 16 Ind. G. & O. Co., 155 Ind. 461, 57 L. R A. 483; Ohio Oil Co. v. Indi- N. E. Eep. 912. ana, 177 U. S. 190. <> Id., citing (which see) Ohio Oil 2 Wood County Petroleum Co. v. Co. v. Indiana, 177 U. S. 190, 213, 44 West Virginia Trans. Co., 28 W. Va. L. ed. 729, 740. § 1173.] MINING LEASES. 95T decisions, that the common owners of the reservoir may prevent by injunction the taking by unnatural means, such as pumping.^ But Pennsylvania stands squarely upon the- ground that there is no ownership of oil until it is reduced to possession, and holds that where the defendant was using a pump to accelerate the production of oil on land adjoining that of plaintiff he might, for the reasons aboved stated,, lawfully do so.^ § 1173. Exclusive rights of lessee within described area. — It seems equally well settled that, from the nature of the enterprise, the right to bore for oil or gas within a given area is necessarily exclusive.' The supreme court of the United States, in illustrating the necessity of this rule, uses this language: "From the nature of gas and gas oper- ations the grant of a well right is necessarily exclusive. It was so held in a Pennsylvania case,^ although in that case the plaintiff had a mere license to enter, etc., and not, as here, a lease of the land. And it is exclusive in the pres- ent case over the whole tract. As already said, the clause relative to the three hundred yards distance was a restric- tion on the privilege granted, and not a reservation of any land or any boring rights to the lessor, and a well upon the prohibited portion was just as damaging to the lessees as- 1 Manufacturers' Nat. Gas Co. v. Nat. Gas & Oil Co. v. Albright, 18 Ind. G. & O. Co., 155 Ind. 461, citing Ind. App. 151, 47 N. E. Rep. 683; (which see) State V.Ohio Oil Co., 150 Shephard v. McCalmont Oil Co., Ind. 31, 49 N. E. Rep. 809; affirmed, 38 Hun, 37; Woodland Oil Co. v. Ohio Oil Co. V. Indiana, 177 U. S. 190; Crawford, 55 Ohio St. 16: Duffield Jamison v. Ind. Nat G. & O. Co., 128 v. Hue, 139 Pa. St. 94, 18 Atl. Rep. Ind. 555, 38 N. E. Rep. 76; Towns- 566; Duke v. Hague, 107 Pa. St- end V. State, 147 Ind. 624, 47 N. E. 57; Brown v. Beeoher, 120 Pa. St. Rep. 19. See also Tyner v. People's 590: Kitchen v. Smith, 101 Pa. St.. Gas Co., 131 Ind. 408, 31 N.E. Rep. 61. 543; Stoughton's Appeal, 88 Pa. St. 2 Jones V. Forest Oil Co., 194 Pa. 198; Funk v. Haldeman, 53 Pa. St 379, 44 Atl. Rep. 1074. St 239; Union Petroleum Co. v. 5 Breckinridge V. Parrott, 15 Ind. Bliven Petroleum Co., 72 Pa. St. App. 411, 44 N. E. Rep. 66; Ed- 173. munds v. Mounsey, 15 Ind. App. * Funk v. Haldeman, 58 Pa. St- 399, 44 N. E. Rep. 196; Kokomo 239. 958 MISCELLANEOTJS TITLES. [§§ 1174, 1175. upon any other portion of the tract. The drilling of the well threatened by the respondents is therefore in violation of the lease and should be enjoined." ^ But it has been held that an agreement giving the right to work lands for oil upon shares of the product brought to the surface gives no estate in the land or the mineral except an interest in such of the product as is really produced.^ Under a statute in JSTew York, oil and gas' leases are classed as personal prop- erty ; but in Pennsylvania, under a statute, a leasehold mort- gage is classed as real property.* § 1174. Ownership of the fluid. — Oil is different from water in one sense and identical with it in another. The water taken from the spring of another, for instance, when severed becomes the exclusive property of the person tak- ing, assuming that the taking is in consequence of a license expressed or implied. Not so with oil. It has a distinctive value different from that of water ; and even though it may be severed from the freehold, that is, drawn from the well or pipe, it is still the property of the owner of the soil from which it is taken until he. shall have parted with the title. This, of course, upon the principle that it is drawn from his land against his will or surreptitiously. It is otherwise when it is taken pursuant to a license or lease by the terms of which the ownership is to pass to the lessee or licensee on payment of a rent or royalty.^ § 1175. Instances of ownership by owner of soil — Not changed by severance — Thus, oil discovered in a well sunk by the owner of the land is his exclusive property, whether 1 Brown v. Spill man, 155 U. S. 2 Thompson's Appeal, 101 Pa. St. 665, 673, 673, quoting from West- 225. moreland & Cambria Nat. Gas ' Willetts v. Brown, 42 Hun, 140. Co.'s Appeal, 130 Pa. St. 235. See * Gill v. Weston, 110 Pa. St. 313, also DufiHeld v. Hue, 26 W. N. C. 1 Atl. Rep. 931. 387; s. c, 139 "Pa. St. 94; Chicago ^Hail v. Reed (Ky.), 15 B. Mon. & A. Oil & M. Co. V. United States 479, 11 M. R. 103. Petroleum Co., 53 Pa. St. 83; Duf- field V. Rosenweig, 144 Pa^ St. 527. § 11Y6.] MINING LEASES. 959 drawn from an underground current of oil or found stand- ing; and the case is not analogous to the surface owner's right in running streams of water.' The severance of the oil from the freehold does not divest the oil from the owner, nor deprive him of his right of immediate possession, nor prevent his recovery of the oil so taken by action of re- plevin, or its value, from one who took it from the well.^ § 1176. Boundaries in oil leases. — Oil like water per- colating through the earth's crust underneath the sur- face of the ground, its exact locality and subterranean boundaries are often matters of conjecture merely, seldom definitely known. It is customary in some parts of the country to insert in oil leases a provision for a protection strip of a limited number of feet around the surface bound- aries, within which space the lessee or licensee may not bore for oil. In some of the states this is even regulated by statute. It will be unnecessary, however, to notice any of these statutes, because they are a subject of constant change, so that any reference to them would be of little value. The rule, independent of statute, was commented on in Pennsylvania where a plaintiff and his grantors leased cer- tain lands to the defendant, reserving a protection around the same, and the defendant, the lessee, in boring, en- croached upon such protection strip by entering through the corner of the restricted area, which, apparently, was not ex- pressly reserved. The court, in passing upon the rights of the parties, took occasion to say in very emphatic language that it was absurd to suppose that the parties to the con- tract containing the reservation intended to leave a gap at the corner of the reservation and thus defeat its purpose. It was accordingly held that the lessor was entitled to the same protection at the corners as at the sides of the rteser- iHail V. Eeed(Ky.), 15 B. Mod. v. Ashland Iron Co., 66 Pa. St. 97; 479, 11 M. R 103; Dark v. Johnston, Columbian Oil Co. v. Blake, 13 Ind. 55 Pa. St. 164; Wilson's Appeal, 77 App. 680, 43 N. E. Rep. 234; Koea Pa. St. 231. V. Bartlett, 41 W. Va. 559, 23 S. E. 2 Hail V. Reed (Ky.), supra; Green Rep. 684. 960 MISCELLANEOUS TITLES. [§§ 1177, 1178, vation, and an injunction restraining defendants from inter- fering with the corner, or any portion of this tract, was granted.! So it would seem that while a man has a right to do as he chooses with his own, the maxim which we have had occasion to advert to frequently, sia utere tuo ut alienum non loedas, steps in and compels obedience to its injunction^ observing which, while he may bore for oil on his own lands, he has no right to draw the oil from the land of his neighbor by such means, and if the injury can be detected and proved it will be prevented. § 1177. Name of contract immaterial. — The name em- ployed by the parties to the contract is immaterial. Any instrument which authorizes the boring for oil or gas for a compensation by way of rent or royalty will be construed as a lease, and gives the right accordingly.^ But an agree- ment in the form of a lease has been held to be in effect a sale.' § 1178. Eights and duties under oilleases — Some spe- cial cases. — While the rights and duties of the parties under oil leases are not essentially different from those under any other, there have been a few circumstances worthy of no- tice, as where the lessee is bound to begin operations within a specified time or forfeit, and to pay a minimum royalty at all events. In the one case he will be bound to commence or the lessor will have the option to forfeit the lease, and in the other the minimum royalty must be paid.* So, where 1 Allison & Evans' Appeal, 77 Pa. Co., 20 Ind. App. 165, 50 N. E. Rep. St. 221, 11 M. R. 142; Stewart's Ap- 400; Steelsmith v. Gartlan, 45 W. pea), 6 P. F. Smith, 413; Kleppner Va. 27, 29 S. K Rep. 979; Harris v. V. Lemon, 35 Atl. Rep. 109. See Ohio Oil Co., 57 Ohio St. 118, 48 N. ante, § 1173; post, § 1630. E. Rep. 502. 2 Woodland Oil Co. v. Crawford, SDmnot's Estate, 39 Pittsb. Leg. 55 Ohio St. 161, 44 N. E. Rep. 1093, J. 105; Wilson v. Youst, 43 W. Va. 34 L. R. A. 62; Chambers v. Smith, 826, 38 S. E. Rep. 781, 89 L. R. A 183 Pa. St. 122, 36 Atl. Rep. 522; 292. But see ante, % 1165. Chandler V. Pittsburg Plate Glass * Petroleum Co. v. Coal & Coke § 1179.] MINING LEASES. 961 it was stipulated in a lease that the lessees should bore for oil, and that the lessor should retain possession for other purposes, and in the event that oil was not found, a rent should be paid for such period as the premises should be retained, although the lessees made no attempt to pro- cure oil, and never took possession, they were liable for rent until they made a formal surrender of the right to operate for oil, and it was not sufficient that they tested surrounding land and found no oil vein therein.^ But where a lease is made for a term of years, or so long as oil or gas is found in the premises, and it is provided that a special rental shall be paid during the term, and the gas or oil fails, or it be- comes impracticable to use it, it has been held that the lessee is no longer responsible for minimum rent.^ § 1179. Covenant to commence operations and to test and work. — The duration of the tenancy, notwithstanding some specified fixed period, as hereafter shown, is limited to actual operations. Whence it follows that the duty to commence and to test and bore for oil or gas, whether im- posed as a covenant or expressed as a condition, generally operates as the latter, and the failure to test and work promptly avoids the lease at the option of the lessor.' But Co., 89 Tenn. 381, 18 S. W. Eep. 65; St. 569, 33 Atl. Rep. 95; Double v. Smith V. Munhall, 139 Pa. St. 203, Union Heat & Light Co., 172 Pa. 21 Atl. Eep. 735; Jamestown Co. v. St. 388, 33 Atl. Rep. 694 See Stahl Egbert, 152 Pa. St 83, 25 Atl. Rep. v. Van Vlecke, 53 Ohio St. 136, 41 151; Columbian Oil Co. v. Blake, N. E. Rep. 35; Coville v. Oilman, 13 Ind. App. 680, 42 N. E. Rep. 234; 13 W. Va. 314 Breckenridge v. Parrot, 44 N. E. ^ Matthews v. People's Nat. Gas Eep. 66; Edmonds v. Mounsey, 15 Co., 179 Pa. St. 165, 36 Atl. Rep. 216; Ind. App. 399, 44 N. E. Rep. 196; Mississinewa M. Co. v. Andrews, 22 Galey v. Kellerman, 123 Pa. St. Ind. App. 523, 54 N. E. Rep. 146; 491. Elk Fork Oil & Gas Co. v. Jen- 1 Jamestown Co. v. Egbert, supra, nings, 84 Fed. Rep. 839, citing (q. v.) See also post, % 1187. Guffey v. Hukill, 34 W. Va. 49, 11 2 Indianapolis Gas Co. v, Teters, S. E. Rep. 754; Mullin's Adm'r v. 44 N. E. Rep. 549. See also Blair v. Carper, 37 W. Va. 215, 16 S. E. Rep. Northwestern Gas Co., 12 OhioCir. 527; Biuestone Coal Co. v. Bell, 38 Ct. 78; Shellar v. Shivers, 171 Pa. W. Va. 297, 18 S. E. Rep. 493; Bett- 61 962 MISCELLANEOUS TITLES. [§ 1180. a lease providing for the drilling of one well in eight months and another one at a time not specified raises no presumption that wells are to be drilled as often as cus- tomary.^ § 1180. Must prosecute work with diligence. — Since the purposes of the lease, so far as the rights of the lessor are concerned, are twofold, namely, the development of the land, and the reception of an income by way of rent and royalty, it is a manifest duty on the part of the lessee, whether expressed in the lease or not, to prosecute work, in the way of producing and marketing oil and gas, with rea- sonable diligence.^ But the lessee who expends his own time and money in the enterprise has the right to exercise his own judgment as to the way he shall work, and no court man v. Harness, 43 W. Va. 433, 26 a E. Rep. '371; Crawford v. Eitchey, 48 W. Va. 252, 27 S. E. Rep. 220; McNish V. Stone, 15 Pa. St. 457; Whitcomb v. Hoyt, 80 Pa. St. 409; Brown v. Vandergrift, 80 Pa St. 143; Duffield v. Hue, 139 Pa. St. 94, 18 Atl. Rep. 566; MoKnight v. Mfg. Nat. Gas Co., 146 Pa. St. 185, 23 Atl. Rep. 164; Venture Oil Co. V. Fretts, 153 Pa. St. 451, 25 Atl. Rep. 733; Cochran v. Pew, 159 Pa. St. 184; Barnhart v. Lock wood, 153 Pa. St. 83, 25 Atl. Rep. 287; Bartley V. Phillips, 165 Pa. St. 328, 30 AtL Rep. 843; Western Pa. Gas Co. v. George, 161 Pa. St. 47; Cowan v. Radford Iron Co., 88 Va. 547, 8 S. E. Rep. 120; River Iron Co. v. Trout, 83 Va. 397, 2 S. E. Rep. 713; Oil Co. V. Kelley, 9 Ohio Cir. Ct. 511; Eaton V. Alleghany Gas Co., 123 N. Y. 416, 25 N. E. Rep. 981. See also Hen- derson V. Ferrell, 183 Pa. St. 547, 38 Atl. Rep. 1018; Stage v. Boyer, 183 Pa. St. 560, 88 Atl. Rep. 1035. 1 Stoddard v. Emery, 128 Pa. St. 436, 18 Atl. Rep. 339. 2 Foster v. Elk Fork Oil & Gas Co., 90 Fed. Rep. 178, 181; Central Trust Co. of New York v. Berwind- White Coal Co., 95 Fed. Rep. 391; Elk Fork Oil & Gas Co. v. Jennings, 84 Fed. Rep. 839; Kokomo Nat. Gas & Oil Co. v. Albright, 47 N. E. Rep. 682; Bettman v. Shadle, 33 Ind. App. 543. 53 N. E. Rep. 662; Colum- bian Oil Co. V. Blake, 13 Ind. App. 680, 43 N. E. Rep. 334; Harris v. Ohio Oil Co., 57 Ohio St. 118, 48 N. E. Eep. 502; Kunklev. People's Nat Gas Co., 165 Pa. St. 518; Gibson v. OUver, 158 Pa. St. 377; Venture Oil Co. v. Fretts, 152 Pa. St. 451, 35 Atl. Rep. 732; Jamestown & F. Ry. Co. v. Egbert, 153 Pa. St. 53; Aye v. Phila- delphia Co., 193 Pa. St. 451, 44 AtL Rep. 555 ; Cowan v. Radford Iron Co., 83 Va. 547, 3 S. E. Rep. 120; Fleming Oil & Gas Co. V. Southern Pennsyl- vania Oil Co., 87 W. Va. 645; Bett- man V. Harness, 43 W. Va. 433, 26 S. E. Rep. 371. § 1181. j MINING LEASES. 963 has power to impose upon him the duty of accepting its judgment or that of any other person. So long as he acts in good faith he may act in the way that his business judg- ment dictates.^ § 1181. More diligence required in oil and gas opera- tions than in ordinary leases — When performance waived. In a well-reasoned case in the circuit court of appeals for the fourth circuit it is held that, oil and gas being the most uncertain, fl uctuating, volatile and fugitive of minerals, a more rigid rule should be applied in the construction of such leases than in the case of ordinary minerals, and, unlike ordinary mining leases, they will be construed most strongly in favor of the lessor. And where a five years' lease provided for a well to be driven within ninety days, with a penalty of fifty dollars for failure to drive within that time, the only other compensation being a share of the proceeds derived from operating the well, the lessee having absolutely failed to begin operations within that period, it was held that, not- withstanding the tender by him of the fifty dollars, the lessor had tfie right to declare the lease forfeited ; the fifty-dollar payment being construed as security for the performance of the conditions rather than as an alternative condition.^ In a later case from the same state ("West Virginia), in the same court, where the lessee had partially but not en- tirely completed the driving of a well within the prescribed period, and the lessor had acquiesced in his operations, by boarding the men at work on the well and representing to the lessee that his action was satisfactory, it was held that the lessor had waived the right to claim a forfeiture, and a lease by him to a third party during such operations was invalid.' 1 Colgan V. Forest Oil Co., 194 Pa. 2 Huggins v. Daley, 99 Fed. Eep. St. 234, 45 Atl. Rep. 119; Young v. 606. See a,lso pout, § 1187. Same, 194 Pa. St. 343, 45 Atl. Rep. ^Duffield v. Michaels (C. C. A.), 131. 103 Fed. Rep. 820. 96-i MISCELLANEOUS TITLES. [§ 1182. § 1183. Construction of conti'act lt»y parties adopted — Surrendering a lease will not discharge liability to lessor. In Indiana in a late case the appellate court had occasion • to pass upon a contract providing, inter alia, for the pay- ment of $100 per annum rent if gas was found in paying quantities, for the commencement of work within a month, or the payment of $2 per day until work commenced or lease surrendered, and providing that lessee had the right to surrender and be released from all moneys due and condi- tions then unfulfilled, and that from that time the lease should be void and no longer binding on either party. On a default in payment, and after forfeiture on another point not necessary to the present inquiry, action was brought by the lessors for rent due, and thereupon the lessees, after suit, elected to surrender and did surrender the lease, and con- tended that that discharged them under the terms of the contract. The court, however, took a different view of the contract, and held that tlje agreement to commence work within a month or pay the $2 per day was absolute and in- dependent of th(j right to surrender; and further, properly, we think, that the surrender could not be called a payment and was not so contemplated by the parties. In affirm- ing the judgment the court calls to its aid many cases which appear in the note, and in its decision was controlled by the construction the parties themselves had by their ac- tions adopted, and in the course of its reasoning says: "To adopt the construction for which counsel contend — that upon surrender all rentals are lost — is to say that some of the substantial provisions of the lease mean nothing. It contains a plain, unequivocal promise or covenant to begin a well at a certain time or pay a certain rental. . . . To adopt appellant's view is, in effect, to say there was no consideration for the contract; that it was not binding upon either party. The parties had acted upon it; had treated it as valid, and, while the conduct of the parties is not conclusive, yet it may be looked to in construing a contract that is ambiguous." §§ 1183, 1184.] MINING LEASES. 965 "We think the decision was ri^ht and that the intent of the parties could not have been given full effect by any other. Moreover, they had substantially construed it that way, and in such a case that ought to control.' § 1183. Must comply literally with contract — Parties entitled to what they bargain for. — It has been held that one undertaking to drill a gas well to a certain depth, and of a certain size, must comply literally with the contract, even though no gas be found, and a well of smaller bore is just as effective in determining that no gas can be found there at that depth.- In the principal case cited in the margin the court reasons that the parties were not merely bargaining for a test well, but likewise for a well of certain efficiency in output, and the lessor was not compelled to be satisfied with less than he bargained for.' § 1184. Effect of failure to execute by lessor's wife. — "Where a wife of a lessor failed to join in the lease, but made no objection, and the lessee went into possession and oper- ated the well for a considerable space of time without objec- tion to the incomplete nature of the lease, it was held that the lessee could not set up this after-discovered fact to re- lieve it from payment for a benefit it had already received.* 'Bettman v. Shadle, 22Ind. App. 1065; Clark v. Jones. 1 Denio, 516. 543, 53 N. E. Rep. 662, citing (q. v.) See also post, §§ 1238, 1339. Edmonds v. Mounsey, 15 Ind. App. ^ Gillespie Tool Co. v. Wilson, 133 404, 44 N. E. Eep. 196; Columbian Pa. St. 19; 16 Am. & Eng. Enoyc. Oil Co. V. Blake, 13 Ind. App. 680, Law (1st ed.), 333; 13 Cent. Law J. 43 N. E;. Rep. 234; Leatherman v. 503. See also Duffield v. Michaels, Oliver, 151 Pa. St. 646, 25 Atl. Rep. 102 Fed. Rep. 830; May v. Hazle- 809: Woodland Oil Co. V. Crawford, wood Oil Co., 152 Pa. St. 518, 25 55 Ohio St. 161. 44 N. E. Rep. 1093, Atl. Rep. 564; Ohio Oil Co. v. Har- 84 L. R. A, 63; Ogden v. Hatry, 145 ris, 1 Ohio N. P. 132; Kleppner v. Pa. St. 640, 23 Atl. Rep. 334; Galey Lemon, 35 Atl. Rep. 109. V. Kellerman, 123 Pa. St. 491, 16 3 GiUgspie Tool Co. v. Wilson, 123 Atl. Rep. 474; Wills v. Mfg. Nat. Pa. St. 19, 16 Atl. Rep. 36. Gas Co., 130 Pa. St. 333, 18 Atl. «Kunkle v. People's Nat. Gas Co., Rep. 731; Ray v. Western Pa. Gas 165 Pa. St. 133, 33 L. R. A. 847. See Co., 138 Pa. St. 576, 20 AtL Rep. Presidio M. Co. v. Bullis, 68 Tex. 581, 4 S. W. Rep. 860. 966 MISCELLANEODS TITLES. [§§ 1185-1187. § 1185. Lease subject to former lease no waiver of ob- jection thereto. — Where a lease was made to an oil and gas company " subject to an outstanding lease in J.," it was held that the taking of such lease in this form constituted no ad- mission of the validity of the J. lease, and that the oil com- pany had the right to insist upon and claim that the J. lease was in fact abandoned and forfeited, and that it had a good and valid lease notwithstanding those words, upon compli- ance with the terms of its own contract.^ § 1186. Possession. — One who controls the gas — has it in his grasp, so to speak — is the one who has possession in the legal as well as in the ordinary sense of the word.^ And courts of equity will not ordinarily interfere with such pos- session either by injunction or bill to quiet title.' But in all such cases affecting the right of possession, the courts will ordinarily refer the parties to their action in ejectment.* Where, however, a gas company is in possession and operat- ing natural gas wells, the lessor may not interfere with such possession, and he will be restrained if he attempts to do so.' § 1187. Good faith required. — No mere perfunctory work will satisfy the law, nor will minimum rent or royalty in all cases be sufficient. The lessor is entitled to have the wells operated to the full reasonable capacity, or to receive as much rent or royalty as he would if they were operated with due diligence. The courts say the lessor is entitled to 1 Elk Fork Oil & Gas Co. v. Jen- 3 Erskin v. Forest Oil Co., 80 Fed. nings (C. C. W. Va.), 84 P'ed. Rep. Eep. 383; California Oil & Gas Co. 839. See Schaupp v. Hukill, 34 W. v. Miller, 96 Fed. Rep. 12. Va. 375, 12 S. E. Rep. 501; Wolf v. Hodgson V. Perkins, 84 Va. 706, Rep. 47. 5 S. E. Rep. 710, citing 2 Minor's ■* Thompson v. Brownlie (Ky.), 45 Inst., p. 23. 6 fh); Barksdale v. Hair- S. W. Rep. 871. ston, 81 Va. 764. In this case the §§ 1343, 1344.J MINING LEASES. 1053 transfer of his interest by the lessor, of course his right to maintain an action against the lessee for a breach of cove- nants ceases.^ § 1343. Lessee liable notwithstanding assignment of lease. — It is well settled, from the very nature of the con- tract relation, that the lessee is liable for all the covenants, notwithstanding the assignment.^ The reason of this rule is obvious. The lessee, by the contract, expressly promises the lessor that the covenants will be kept. This promise is mutual, and an assignment or sale by the lessor of the prop- erty would in no way relieve him from his contract obliga- tions with the lessee. He would stand as a guarantor that his successor would keep his covenants.' The lessee is in a similar position. An assignment of the lease, whatever the relationship between him and his assignee, will not discharge his obligations to his lessor. In the absence of assent he is still liable unconditionally.* For if such a rule could suc- cessfully be invoked, it would be, as aptly stated by the Pennsylvania court, " a new way of paying old debts which no court of justice can recognize." ' It would not be diflB.- cult to imagine a case where a different rule should apply ; as, for instance, where the assignment is made with the express written consent of the lessor, who agrees to take the promise of the assignee in lieu of that of the original lessee. In such case practically a new contract would be made, and of course the lessee would no longer be liable. § 1344. Lessee and his assignee equally liable But while the lessee is bound absolutely, as between him and the 1 Stoddard v. Emery, 128 Pa. St. ' Washington Nat. Gas Co. v. 436, 18 Atl. Rep. 339. Johnson, supra. 2 Washington Natural Gas Co. v. * Pittsburg Cons. Coal Co. v. Johnson, 133 Pa. St. 576, 16 Atl. Greenlee, supra. Rep. 799; Pittsburg Cons. Coal Co. ^Id., quoting from Gas Co. v. V. Greenlee, 164 Pa. St. 549, 30 Atl. Johnson, supra. Rep. 489; Edmonds v. Mounsey, 15 Ind. App. 399, 44 N. E. Rep. 196. 1054 MISCELLANEOUS TITLES. [§ 1345. lessor, this must not be construed as in any manner dis- charging the assignee from the obligation to perform all covenants which accrue during the occupancy of the prem- ises by him;' and this regardless of any express promise on his part, in the written assignment, to keep such cove- nants, but arising from the privity of estate, by reason of the ownership and right to enjoy the benefit of the lease,^ and because, as we shall presently see,' these are covenants run- ning with the land. And this rule extends to an assignee of a lease which provides that the lessee will prosecute the oil business with due diligence for the common benefit of the parties ; * and to the purchaser of a leasehold interest at sheriff's sale.' It will also bind the assignee of a lease to pay a stipulated yearly rental, provided as the penalty for failure to complete a well.^ § 1345. Limitations — Intermediate assignee. — Each successive assignee of a lease is only liable for the perform- ance, and responsible for the breaches, of the covenants which mature while he holds title.' Consequently, an as- signee who acquires title after a covenant should have been performed, as, for instance, one who takes possession after a well should have been completed, is not liable for the per- formance of such covenant.^ And this has been held to be the rule even though, as the Pennsylvania court puts it, " his assignment be to a beggar." ' But while this would iFennell V. GuflFey,155Pa. St. 38, 5 Aderhold v. Oil Well Supply Id., 39 Pa. St. 341, 20 Atl. Eep. lOiS; Co., 158 Pa. St. 401, 38 Atl. Eep. 22. Woodland Oil Co. v. Crawford, 55 6 BreckenridgeV. Parrott, 15 Ind. Ohio St. 16, 34 L. R. A. 32. App. 411. 44 N. E. Eep. 66. 2 Edmonds v. Mounsey, 15 Ind. ''Bradford Oil Co. v. Blair, 113 App. 399, 44 N. E. Eep. 196, citing Pa. St. 83, 4 Atl. Eep. 218. Watson C. & M. Co. v. Casteel, 73 s Washington Natural Gas Co. v. Ind. 296; McDowal v. Hendrix, 67 Johnson, 123 Pa. St. 576, 16 Atl. Rep. Ind. 513; Gordon V. George, 12 Ind. 769;Negleyv. Morgan, 46 Pa. St. 408; Stewart v. Long Island Ry. 281; Borland's Appeal, 66 Pa. St. 470. Co., 103 N. Y. 607, 8 N. E. Rep. 200. » Washington Natural Gas Co. v. 2 Post, § 1346. Johnson, supra; Negley v. Morgan, 4 Bradford Oil Co. v. Blair, 113 sitpra; Borland's Appeal, sitpra. Pa. St. 83, 4 AtL Eep. 218. §§ 1346, 1347.] MINING LEASES. 1055 undoubtedly be the rule as between the assignee and lessor, we think it would depend upon the assignment itself whether it would apply equally as between the assignee and his assignor. § 1346. Covenants running with the land — Actual entry not necessary. — As intimated in a former section,^ covenants to pay rent and royalty, as well as the other cov- enants in the lease, run with the land, and are payable by the constructive occupant.^ And it is not material that the lessee or assignee has not in fact entered into possession of the land, if possession is open to him to enter if he chooses.' This right to rent is not waived as against either the lessee or his assignee by failure on the part of the lessor to demand it promptly when due.* And it is an unassailable rule that taking oil, by the assignee of the lessee, fixes the lessor's right to royalty from him.^ § 1347. Summary — The doctrine of this sub-title re- stated. — From the matter outlined in this article we are jus- tified in extracting the following conclusions as general principles of law: First. That in the absence of covenants to the contrary, or a controlling custom which will be considered as read into the lease, or an intention to the contrary provable 1 Ante, §1344. SFennell v. Guffey, 139 Pa. St. 2 Edmonds v. Mounsey, 15 Ind. 341, 20 Atl. Rep. 1048; Id., 155 Pa. App. 399, 44 N. E. Rep. 196, quoting St. 88, 25 Atl. Rep. 785; Springer v. from and citing Taylor, Landl. & Citizens' Gas Co., 145 Pa. St. 430, 22 Ten., § 450; Walton v. Cronly's Atl. Rep. 986 ; Aderhold v. Oil Well Adm'r, 14 Wend. 63; Walker v. Supply Co., 158 Pa. St. 401, 28 AtL Reeves, 2 Doug. 461; Williams v. Rep. 22; approved in Edmonds v. Bosanquet, 1 Bred. & B. 288; Bur- Mounsey, swpra. ton V. Barclay, 7 Bing. 745; Cook * Pittsburg Cons. Coal Co. v. V. Harris, lLd.Raym. 367; Babcock Greenlee, 164 Pa. St. 549, 30 AtL V. Scoville, 56 111. 461 ; Smith v. Rep. 489. Brinker, 70 Mo. 148; Willi v. Dry- 'Hankey v. Kramp, 12 OhioC. C. den, 52 Mo. 319. Compare Fisher 95; Taylor v. Peerless Ref. Ca, 7 V. Guflfey, 193 Pa. St. 393, 44 AtL Ohio Deo. 368. Rep. 452. 1056 MISCELLANEOUS TITLES. [§ 1347. within the rules of evidence, every mining lease is assign- able. Second. Parties may, and often do, make their leases non- assignable, and, of course, they are enforceable in the form they are made, but it will be enough to hold such instru- ments non-assignable as are expressly made so in form. Third. There are some cases attempting to hold leases non-assignable, but a critical examination wilt^demonstrate that they base their conclusions upon authorities found in the construction of licenses, where this rule very generally obtains. And this is the main distinction between licenses and leases, as we have attempted to demonstrate. The rea- son assigned by one court for this conclusion is that the contract is for skilled labor. But this ground is untenable. It is undoubtedly the law that all persons acquiring rights under the lease are bound by its terms until released by the lessor, or until he consents to an assignment which amounts to a release in terms. It may well be, indeed it is indispu- table, that by the mere assignment the original lessee will not be relieved from liability as upon the covenants of the lease. But it will be enough to say that he remains a guar- antor for their performance without declaring the lease non-assignable, in the absence of a provisory covenant mak- ing it so. Fourth. Pennsylvania seems not entirely at peace with it- self upon this question. It is safe to say, however, that better reasoned cases agree with the statements in the last preceding sub-head. Fifth. As said before, all persons asserting rights under a lease are bound by its terms, independent of the covenants running with the land, all of which must, of course, be per- formed. CHAPTER III. OF THE GENERAL WORKING BOND OR CONTRACT, AND OF TITLE RESTING UPON CONDITIONS, TO PERFORM LABOR IN NATURE OF CONDITION SUBSEQUENT. § 1355. Preliminary and introductory. 1356. The general working contract — Pay out of mine. 1357. Right to abandon work reserved — Pay out of proceeds. 1358. Purchase price payable from ore. 1359. Generally construed as options merely. 1360. Contract enforceable only in terms as made. 1361. Title resting upon condition. 1862. Performance of work as consideration — Damages for breach. 1363. Contrary rule where, by agreement, title rests on condition. § 1355. Preliminary and introductory. — There is a working bond or lease largely in use in the Eocky Mountain states and the states of the Pacific coast, which sometimes assumes the form of a lease, pure and simple, with a bond or contract for the conveyance of the title upon the per- formance of certain conditions and the making of certain payments. In many instances it is a contract or bond merely in form, with the additional stipulation that during its life-time, and pending the conveyance of the full title, certain work is to be performed. Sometimes it contains stipulations as to any ores taken out, and in other cases it is, in all its essential features, a requirement of the perform- ance of certain dead work, which means certain prospect- ing or development work. In other cases the title is con- veyed absolutely as to a portion of the claim, and as part of the same transaction a contract is entered into by the terms of which certain work is to be performed as a consid- eration for the deed, and the title is made to rest upon the performance of such work as a condition subsequent, either expressly or impliedly from the surrounding circumstances. 67 1058 MISCELLANEOUS TITLES. [§ 1356. Happily the courts have been called upon but few times to construe or determine the rights of the parties under these contracts, and there is to some extent a dearth of authority as to the rights of the parties in such cases. A practice which is becoming more and more popular in the west is for the owner to give the prospective purchaser •an option, the contract for which provides that a deed of the property may be deposited in escrow, to be delivered to the purchaser upon payment of the agreed price, or re- turned to the grantor in case of failure. § 1356. The general working contract — Pay out of mine.— As we have stated, parties frequently enter into ■contracts for mining operations whereby the party doing the work £^grees to get his pay therefor from the proceeds of the mine. In such cases primarily they will be held to the exact letter of their contract as they have made it. But where the action of one party to the contract puts it beyond his power to perform, it constitutes a breach of the contract and the other party may be compensated in damages. Thus, in a Nevada case, defendants owned mining property; plaintiff built a mill upon it whicb cost more than was an- ticipated, and in adjusting their differences it was agreed that plaintiff should get his pay out of the mine. The ore was refractory, and the mine never paid and was abandoned. Plaintiff sued defendant for the balance agreed upon. The court, in upholding the judgment of the lower court sus- taining a demurrer to the complaint, says: " It is admitted that there have been no proceeds after payment of the ex- penses; and, more than that, it appears that the proceeds have fallen far short of paying the actual expenses. . . . It is not alleged nor does it appear that the Poe company failed to do anything which it should have done, or did any- thing which it ought not to have done under its contract. There is no allegation of fraudulent acts, or even errors of judgment. It worked its mine, and reduced its ores, as it agreed to do. In so acting, debts were contracted which it § 1357.] GENERAL WOEKING CONTEAOT. 1059 was unable to pay, and the result was a forced sale of the property." It was held that plaintiff was not entitled to recover.' So where A. assigned to B. a certain interest in a lease of a gold and quicksilver mine for certain cash payments, the balance payable when two hundred and fifty flasks of quick- silver should be produced, it was held that, in the absence of a showing that B. had not used reasonable efforts to produce the quicksilver, A. was not entitled to recover.^ So, where a lease was executed which did not forbid subletting or as. signing, and provided for certain profits to go to the owner of the land, it was held that the sub-assignment did not so put it beyond the power of the lessee to perform as to make him liable as upon the original contract, and for damages.' § 1357. Right to abandon work reserved — Pay out of proceeds. — "Where plaintiff was to drill a prospect hole a ■certain depth for a fixed amount, and there was a provision that, if he struck what was known as " conglomerate " or ironstone before reaching the required depth, he might abandon ; and by another provision of the same contract he bound himself to bore any number of feet at four dollars per foot; and under this provision the defendant insisted that it was plaintiff's duty, at his election, which had been -communicated, to continue to prosecute work, but plaintiff refused, and brought his action for the amount of work performed under the contract, the supreme court upheld the judgment of the lower court in his favor.* And a prom- issory note payable out of the proceeds of a mine, in the hands of the original payee, or not being negotiable, in any -case may be defended against, on the ground that the mine has not produced.^ But in order to make a promissory note, 1 Toombs V. Cons. Poe M. Co., 15 397, 56 Pac. Eep. 350; Wolf v. Nev. 444 See also Sargent v. Lin- Marsh, 54 Cal. 238; Sargent v. Lin- den M. Co., 55 CaL 204. den M. Co., supra. 2Ray V. Hodge, 15 Oreg. 20, 13 Pao. < Lambert v. Fuller, 88 IlL 261. Hep. 599. svVorden v. Dodge, 4 Denio, 159; 3 Caley V. Portland, 12 Colo. App. Aspach v. Bast, 53 Pa. St. 356; 1060 MISCELLANEOUS TITLES. [§§ 1358, 135&. or any other agreement for wages, payable out of the pro- ceeds of the mine, the parties must have expressly so agreed, for the law will not imply any such agreement.' §1358. Purchase price payable from ore. — Manifestly the same rule controls with reference to sales of the mine or any part thereof, and the purchase price is payable from ore or other proceeds. Thus, where A. and B. enter into a contract whereby A. sells certain mining property to B. for certain cash pay- ments, and the balance is stipulated to be paid out of the proceeds of ore sales of the mine; and afterwards B. releases a large portion of the ground embraced in the contract under an adverse claim and later conveys a large portion of the claim and surrenders the management of it to C, B. has thereby put it out of his power to perform the contract ac- cording to the terms thereof, and the payment is due.^ A contract providing for payment out of the net proceeds of the mine does not impliedly require that the mine will be continuously operated, since the court cannot make con- tracts for the parties.' § 1359. Generally construed as options merely. — Owing to the speculative nature of mining operations it may be laid down as a general rule that these bonds or options to purchase, working bonds, or bonds for deeds, by whatever name they may be known or called, are generally unilateral in their nature ; that is to say, the lessee or obligee of the bond has the right and option to purchase, but is not bound to do so. Perhaps as extreme a case as will be found in the books recently arose in Colorado, where A. owned a Eckle V. Murphy, 15 Pa. St. 488; i Sargent v. Linden M. Co., 55 Cal. Myers V. South Feather River 204. WaterCo., 14Cal. 368. See Tempest 2 Linn v. Butler, 8 Colo. 355, 8 V. Ord. 1 Madd. Ch. 59; Pennsyl- Pac. Rep. 588. vania Co. v. Brady, 14 Miuh. 260; ^Hawkes v. Taylor, 70 111. App. s. c, 16 Mich. 322. See Tuck v. 255. Downing, 76 111. 71; Morgan v. Skiddy, 62 N. Y. 319. § 1360.] GENERAL WOEKING CONTEAOT. 1061 half interest in the title bond and lease of. a mine, and con- veyed it to B. in consideration of fifteen hundred dollars cash and the performance of the conditions of the lease and bond. B. agreed to pay the bond, and in the event of failure so to do to forfeit all payments and improvements as liqui- dated damages. He elected to forfeit. In an action by A. for an interest in the property it was held that the right was dependent upon B.'s election to take up the bond, and that it was an option merely.^ It may be said in passing that many of the covenants of the contract, especially be- tween plaintiff and defendant, indicated a purpose and an intention to take up the bond and pay for the mine, while the original contract with the owner was an option merely. And, while the court did not consider this feature of the case in its opinion, it is quite apparent that A. and B. could > not be bound by higher terms than was A. with the owner of the land. § 1360. Contract enforceable only in terms as made. — Pursuing the same line of thought contained in the last preceding section, it may be said, and it is a rule controlling the interpretation of all bonds and contracts, that men are only bound by the terms of the contract as made, and nei- ther party nor the courts can read into the contract en- gagements and obligations which it does not contain, or which are not fairly implied from its terms. Thus, in one case B. entered into a contract with C, by the terms of which C. was to obtain for B. a working bond and lease upon mining property the ultimate price of which should not exceed three hundred thousand dollars. C. ob- tained the lease and bond within the price named, but it contained a stipulation that all ore mined was to be left upon the damp and was not to belong to C. or his as- signs until the mine was fully paid for, and the net pro- ceeds were to be deposited to the credit of the owners. In an' action by C. against B. for damages the court denied C.'s right to recover, using much subtile reasoning as to the 1 Gold Coin M. & M. Co. v. Gourlay (Colo. App., 1901), 65 Pac. Rep. 410, 1062 MISCELLANEOUS TITLES. [§ 1361. meaning of an open and unopened mine, not necessary to the determination of the case, and basing the decision upon the ground that the parties had stipulated for the usual working bond and lease, which would give B. the right to work the mine in the usual way, while this restricted him to mining at his own expense and prohibited him from marketing the ore, except fifty tons, until the mine should be paid for. This not being what they bargained for, C. was not entitled to recover. In the course of its reasoning the court makes use of the following definition of the term " work " as applied to a mine: "In general, among miners, the phrase ' working a mine ' means more than exploring or develop- ing a mine. The right to work a mine is not simply the right to explore or develop a mine, but to do in regard to a mine what an owner might do. The agreement obtained by plaintiff limited the work to the exploration of the min- ing ground. In this particular the agreement was not of the character defendant stipulated for." ' § 1361. Title resting upon condition. — Where the title to the property in question nominally passes to the grantee^ but there is at the same time an agreement forming part of the consideration that the title is to become void in case of the non-performance of the condition, manifestly the old doctrine of estates upon condition must apply in such cases, and the estate become forfeited in case of non-performance. This rule was recognized in the federal court in a case arising in the western district of North Carolina.^ In this case the court held that, under certain conveyances authorized by statutes which have abolished livery of seisin, a condition may be annexed to an estate, upon the breach of which the estate in the grantee will be defeated and at once revest in the grantor or his heirs, or revert to the third party to 1 Bailey v. Bond, 77 Fed. Rep. Co., 33 Cal. 83; Buck v. Lodge, 18 406. See also Bicknell v. Austin Ves. Jr. 450, 14 M. R. 623. M. Co., 63 Fed. Eep. 482; First Nat. ^ Adams v. Ore Knob Copper Co., Bank v. Bissell, 4 Fed. Rep. 701 ; 7 Fed. Eep. 634. Real Del Monte M. Co. v. Pond M. § 1362.] GKNEEAL WOEKING OONTEACT. 1063 whom limited, without any formal act of possession. Also that mere silent acquiescence in an act constituting a breach would not amount to a waiver.' § 1362. Performance of work as consideration — Dam- ages for breach. — Where there is an absolute conveyance, and the performance of work is in the nature of consider- ation for it, rather than as a condition for a breach of which the estate is defeated, the remedy, in case of breach, is usually an action for damages.^ And in such case, unless the facts are undisputed, or such that concerning them rea- sonable men cannot differ, the question whether the work has been performed according to contract is one of fact. But of course the construction of the contract itself is purely a question of law.^ In the Missouri case just cited, the conveyance was absolute, and the contract accompany- ing it provided that the grantee should cause a shaft to be sunk "to the depth of five hundred feet upon the vein of ore cropping out on said claim." It was admitted that at the depth of three hundred and thirty feet the ore was ex- hausted and further operations discontinued. After instruct- ing the jury to return a general verdict for the plaintiff, and what would be the measure of damages, the trial court further instructed them that if they believed from the evi- dence that the plaintiff would not have been benefited by the sinking of the shaft to the depth specified, their verdict might be for nominal damages only. This was the verdict returned and the plaintiff appealed. The supreme court, by reading into the contract something it did not contain, arrived at the conclusion that it was the intention of the parties that whenever the ore in the vein should be ex- hausted, further sinking should cease. Of the two evils, we think the trial court's position is the lesser; but how much better than either one it would have been to hold the 1 For the discussion of a similar 2 "Woodworth v. McLean, infra; rule as applied to the failure of the Davis v. Eames, infra. lessor to demand rent, see ante, ^ Woodworth v. McLean, 97 Mo. §1346. 325, 11 S. W. Rep. 43; Davis v. Eames (Cal.), 35 Pao. Rep. 566. 1064 MISCELLANEOUS TITLES. [§ 1363. parties bound by their contract, which was free from am- biguity, or liable for its breach. This is substantially what the California court did,' and is in harmony with law, rea- son and common sense. Unless parties intend to be bound by their contracts they should not make them. § 1363. Contrary rule where, by agreement, title rests oil condition. — As was noted in a preceding section, and from considerations of manifest justice, as well as following the established law relative to estates upon condition, wher- ever, by the agreement of the parties, the title is made to rest upon condition that certain work will be done, or where that forms the consideration in its entirety, or where the parties have agreed that if after doing certain work they do not desire to hold the property they will reconvey it, or if these facts can be gleaned from the surrounding circum- stances, the estate thus created is one upon condition and no ultimate title passes until the full performance thereof.^ Somewhat at variance with this doctrine, the supreme court of California, in a case where defendant agreed to perform certain labor in payment for certain interests in a mining claim, and there was no stipulation providing that in case of forfeiture by failure to work, a reconveyance would be made, held that there was no obligation to recon- vey.^ But in a later case the court, while following the former one, plainly intimated that if the intention of the parties, as gleaned from the instrument and the surrounding circumstances, showed that they intended that, upon a for- feiture by breach of condition, a reconveyance was to be made, the rule would be different.^ Likewise in a Tennes- see case a conveyance of a mining interest being forfeitable if at the end of the year defendant could not or would not mine, the defendant defeated a reconveyance by proof that it could and would mine.^ 1 Davis V. Eames, 35 Pao. Rep. 566. ' Lawrence v. Gaiety, 78 Cal. 338, ^Ante. § 1361. See also Adams 20 Pac. Rep. 382. V. Ore Knob Copper Co., 7 Fed. Rep ^Downing v. Eademaoher, supra. 634; Downing v.Rademacher (Cal.), 'Barnard v. Roane Iron Co., 85 63 Pac. Rep. 1055. Tenn. 139, 3 S. W. Rep. 31. CHAPTER lY. OF EXECUTORY CONTRACTS FOR DEEDS, LEASES AND SIMI- LAR INSTRUMENTS. § 1370. Specific performance of executory contracts for leases and simi- lar instruments. 1371. Same — An example — That is certain which can be made cer- tain. 1373. Mere offer to perform does not satisfy. 1373. Unreasonable delay. 1374. Statute of frauds — How affects executory contracts, 1375. Entitled to what they bargain for. 1376. Time essential. 1377. Same — Mining property and other property of fluctuating value. 1378. Same — Distinction between option to purchase and contract of sale. 1379. Deed sometimes held only to be a contract. 1380. Nominal damages satisfying. 1381. Remedies as to mining property must be diligently pursued — Laches bars the right. § 1370. Specific performance of executory contracts for leases and similar instruments. — Agreements for lease are not essentially ditferent from other contracts except as to the subject-matter. Owing to the peculiar nature of the undertaking the^^ are generally strictly construed.^ Specific performance of a contract for a lease has been repeatedly enforced, as it applies to real estate generally, and there is no reason why the same doctrine should not apply, and indeed it does apply, to mining leases, the only requirement being that it be such an agreement as to be 1 Cochrane v. Justice M. Co., 16 Brumagin, 33 Cal. 394; Saffern v. Colo. 415, 36 Pao. Rep. 780; Kille v. Butler, 31 N. J. Eq. 410; Hurd v. Reading Iron "Works, 141 Pa. St. Gill, 45 N. Y. 341. 430, 21 AtL Rep. 666; Hawley v. 1066 MISCELLANEOUS TITLES. [§ 1371^ capable of enforcement. In Michigan it has been upheld, but under a statute authorizing it.' In Colorado the su- preme court recently had this question before it, and en- forced specific performance of a contract existing in propo- sitions and acceptances. The court, in passing upon the question, used this language : " If one makes to another an, offer, verbal or written, direct, by letter or by telegram, im- plying nothing to be done except to assent or decline, and the latter accepts, adding no qualification, there is thus- constituted a mutual consent to the same thing at the same time; in other words, a contract."^ §1371. Same — An example — That is certain which can be made certain. — In a Colorado case a company ad- vertised to lease certain of its mining property; plaintiff,, who had formerly had a lease upon it, made a proposition to lease the whole property at a certain royalty for a fixed period, and proposed to spend a certain amount each month in development work, lease to date from the time of com- mencing work, "settlements as usual;" defendant's board of directors met, and by vote decided to accept the proposi- tion, and, in accordance therewith, its president wired plaint- iff that his proposition was accepted ; defendant had a lease prepared requiring a shaft six hundred feet deep at a place to be designated by it, and requiring plaintiff to pay certain taxes, and also containing the following requirement of the plaintiff: " Shall use his best ability and endeavors to obtain the best price for all ores rained under this lease, . . . and whenever the lessor can obtain better terms as to treat- ment and sale of the ores mined than the lessee, the lessor shall have the right to dispose of the ore so as to realize greater profit to lessor and lessee." The court, in passing 1 Grummett V. Gingrass, 77 Mich. 322; Cheeney v. Transportatiou 369, 43 N. W. Eep. 999. Line, 59 Md. 557; Highland Co. v.. 2 Cochrane v. Justice M. Co., 16 Eose, 26 Ohio St. 411; Wells v. Bail- Colo. 415. See also Smith v. Coleby, road Co., 30 Wis. 605. 106 Mass. 562; Bishop, Contracts, |§ 1372, 1373.] EXECUTOEY CONTEAOTS. 1067' upon the case, declared these provisions as inserted in the proposed lease to be unreasonable and unheard of, and not within the terras of the proposition; also that the words "settlement as usual," as contained in the proposal, meant either as had been the practice between the parties, or ac- cording to the custom of the vicinage; and that, viewed in this light, the proposal was sufficiently definite, and its ac- ceptance constituted a valid contract for a lease; that plaint- iff's proposed lease in accordance therewith as tendered should have been executed, and that plaintiff was entitled to- specific performance accordingly.^ § 1372. Mere offer to perform does not satisfy.^ It is only announcing the general rule to say that where a lease of coal or other mineral lands contains an option to pur- chase at any time during the lease period, upon notice to- the other party, the option is not exercised so as to com- plete the contract on the part of the would-be purchaser by mere offer to purchase and notice of such intention; nor until the purchase-money has been tendered and the tender kept good.^ Granting specific performance of any contract being so largely in the discretion of the court, it will gen- erally require the person seeking the same to act promptly in asserting his rights and to be himself without fault. § 1373. Unreasonable delay. — As an illustration of the principle announced in the last section, where one who has agreed to obtain title to a coal mine and lease it to another 1 Cochrane v. Justice M. Co., 16 Cheney v. Transportation Line, 59' Colo. 415, 26 Pac. Rep. 780, citing Md. 557 ; Wharton v. Stoutenbergh, Kennedy v. Lee, 3 Mer. 441; Fowie 35 N. J. Eq. 366; Blaney v. Hoke, 14 V. Freeman, 9 Ves. 351; Crossley v. Ohio St. 292; Clark v. Clark. 49 Cal. Maycock, L. R. 18 Eq. 180; Thomas 586. See also Haywood v. Cope, 25 V. Dering, 1 Keene, 729; Gibbons v. Beav. 140; Smith v. Colby, 106 Mass. Board, 11 Beav. 1; Skinner v. Mc- 561. Douall, 2 De Gex & S. 265; Jaques 2Flynn v. White Breast Coal & V. Miller, 6 Ch. Div. 153; Pratt v. Iron Co., 72 Iowa, 788, 32 N. W. Rep. Hudson River Ry. Co., 21 N. Y. 305 ; 471 ; Grummett v. Gingrass, 77 Mich, Mackey v. Mackey, 29 Gratt. 158; 369, 43 N. W. Rep. 999. 1068 MISCELLANEOUS TITLES. [§§ 1374, 1375, does not tender possession to the lessee until nearly five years have elapsed, during which time nearly six thousand tons have been taken from the mine, and the machinery has greatly deteriorated in value, the lessee is justified by the delay in refusing the lease.* § 1374. Statute of frauds — How affects executory contracts. — It has been said that the statute of frauds is the jpons assinorum of the courts. And from the unfortunate dis- position of some courts to shut their eyes to the relation- ship which any given principle of the law bears to all others, this would seem to be so. But, happily, there are other courts not transfixed by the circumstance that " the legisla- ture has spoken," and. created a fetish which all must wor- ship. It is now firmly settled by all courts whose opinions are worthy of consideration that part performance of a parol contract, otherwise void by statute, takes it out of the oper- ation thereof. Thus, a parol agreement between the owner of the land and his lessee on the north side of the road, vrhereby the owner agrees to lease to said lessee certain lands on the south side of the road, provided he can develop coal theron, and the lessee opens and develops a pit and does other work, is not affected by the statute of frauds, and must be specifically performed.^ So, payment of rent in ac- cordance with the proposed lease was held a sufficient part performance to take an agreement for lease out of the stat- ute.' In this case the payment was evidenced by a receipt which only showed the amount received and the premises, hut not the terms of the lease itself. § 1375, Entitled to what they bargain for The rule that in mining contracts, whether for lease or deed, the par- 1 Kille V. Reading Iron Works, 143. See Gordon v. Swan, 45 CaL 141 Pa. St. 440, 31 Atl. Rep. 666; 564; Reriok v. Kern, 14 S. & R. 367, Colorado Fuel & Iron Co. v. Adams 16 Am. Dec. 497; post, § 1416. (Colo. App.), 60 Pac. Rep. 867. 3 Nunn v. Fabian, 35 L, J. Cli. ^Haywood v. Cope, 25 Beav. 140; 140, L. R. 1 Ch. 85; posf,§ 1896. -Heilman v. Weinman, 189 Pa. St. §§ 1376, 13T7.] EXECUTOEY CONTEAOTS. 1009' ties are entitled to exactly what they contract for, is thus- illustrated by the supreme court of New Hampshire : " If the purchaser demand such a deed as the contract calls for, and the vendor refuses to give it, but insists on his receiv- ing a different and inferior title, the contract may be re- garded as broken, and the purchaser may sue at once and recover the money paid." ' § 1376. Time essential. — For obvious reasons, in rain- ing operations, owing to the fluctuating character of the property and its product, and the change which a few hours' work in the mine may effect, it has become well recognized that time is material and essential in all executory contracts- affecting the purchase or lease of mines. And the failure of either party to strictly perform his side of the contract within the time required, generally releases the other or entitles him to specific performance, as the case may be.^ § 1377. Same — Mining property and other property of fluctuating value. — Mr. Fry, in his work on Specifie Performance, aptly states the rule applicable to mining contracts when he says: "The nature of all mining trans- actions is such as to render time essential, for no science, forethought or examination can afford a sure guaranty against sudden loss, disappointment and reverses." ' And the supreme court of Idaho announced what should be the 1 Keddington v. Henry, 48 N. H. 926, 28 Pac. Rep. 425; Dikeman v.. 273, citing (which see) Footev. West, Sunday Creek Coal Co., 184 111. 546, 1 Denio, 544; Baker v. Bobbins, 3 54 N. E. Rep. 864; Waterman v. id. 136; Camp v. Morse, 5 id. 161; Banks, 144 U. S. 394; Presidio M. Lawrence v. Taylor, 5 Hill, 107; Co. v. BuUis, 68 Tex. 581, 4 S. W. Judson V. Waas, 11 Johns. 525; Lit- Rep. SeO"; Idaho G. M. Co. v. Union tie V. Paddleford, 13 N. H. 167; G. M. Co. (Idaho), 47 Pac. Rep. 97; Swan V. Drury, 22 Pick. 485. See Lindl. Mines, sec. 859, pp. 1110, Cochrane v. Justice M. Co., 16 Colo. 1111 ; Fry on Specific Performance^ 415, 26 Pac. Rep. 780; Pease v. §716: Waterman, Specific Perform- Bro wn, 104 Mass. 291 ; United Mines ance, § 460. Co. V. Hatcher, 79 Fed. Rep. 517. ' Fry on Specific Performance^ 2Durant v. Comegys, 2 Idaho, §716. 1070 MISCELLANEOUS TITLES. [§ 1378. general rule, to the effect that a court of equity, with all its great and varied power, will not enforce specific per- formance of a mining contract, unless the party seeking it has in all respects complied with his part of the contract.' This because of the fluctuating character of mining prop- erty. § 1378. Same^ — Distinction between option to purchase and contract of sale. — There is a decided distinction be- tween an option to purchase, which may be exercised or not by the prospective purchaser, and an absolute contract of sale, wherein one of the parties agrees to sell and the other to buy certain property, the sale to be completed within an .agreed time. In the latter case, of course, the mere lapse of time, with the contract unperformed, does not entitle either party to refuse to complete it,^ and therefore time is not of the essence of the contract. But where the contract is merely an option, generally without consideration, and es- pecially as applied to mining property, of course, as pointed •out in the last preceding sections, time is of its essence, and the prospective purchaser must act promptly within the time specified or his right to purchase is gone. This rule was recently ably illustrated by the supreme court of the United States in a case wherein the court reversed a judgment of the circuit court for the northern district of California de- creeing specific performance of an option to purchase. The facts showed that the option was given in 1881 by E. W. Waterman to his brother, as a sort of security for moneys advanced, which, however, were afterwards repaid. The 1 Settle V. Winters, 3 Idaho, 199, St. 463; Prendergast v. Turton, 1 10 Pao. Rep. 316. See also Pom. Y. & C. Ch. 98; Langdon v. Fogg, SpecificPerformance, §385; Water- 18 Fed. Rep. 5; Morgan v. Skiddy, man. Specific Performance, 460; 68 N. Y. 319; Lake Superior Iron Fry, Specific Performance, §§ 713, Co. v. Drexel, 90 N. Y. 87; post, 718; Green v. Covillaud, 10 Cal. § 1381. 317, 330; Jennison v. Leonard, 31 ^Ranelagh v. Melton, SDrew. &8. Wall. 302; Goldsmith V. Guild, 92 278. See also posi, § 1380. Mass. 339; Christie's Appeal, 85 Pa. § 1379.] EXEODTOEY CONTKAOTS. 1071 instrument provided that conveyance would be executed at any time within one year, upon demand, subject to his por- tion of the expenses. No demand for a conveyance was made within the year, nor until after the death of the party to whom it was given, when his executrix sought to compel one. The court, after calling special attention to the fluctu- ating character of mining property, held time to be of the essence, and ordered the action dismissed.^ § 1379. Deed sometimes held to be only a contract. — Construed in the light of the circumstances surrounding its execution, a deed executed and delivered and placed on record may sometimes not pass the entire title and will be treated ■as an executory contract of sale. This is illustrated in a case in Montana, where the parties entered into an agreement for the sale of mining property, and a deed was executed, to be placed in the hands of a bank as escrow, pending the payment of the entire purchase-money, one hundred thou- sand dollars being paid down ; the parties in England, de- siring an abstract of title, procured a duplicate deed to be executed by the vendor and to be placed on record in order to enable them to promote the enterprise; it was not intended that this should in any wise alter the original contract as •evidenced by the first deed placed in escrow, and the court, giving effect to their intention, held that it did not change the contract nor pass the title.^ Where the owners of a mining claim entered into an agreement to convey it to another party, pursuant to which agreement a deed was simultaneously executed and deliv- ered to said party, who thereupon executed a deed of the same property and placed it in escrow to be delivered to the 1 Waterman v. Banks, 144 U. S. 385; Brown v. CovilIaud,6Cal. 566; 394, following Taylor v. Longworth, Green v. Covillaud, 10 Cal. 317, 334; 14 Pet. 173, citing Prendergast v. Magoffin v. Holt, 1 Duv. 95. See Turton, 1 Young & C. Ch. 110; also Porter v. Banks, 144 XJ. S. 408. Doloretv. Rothschild, 1 Sim. &Stu. ^Minah Cons. M. Co. v. Briscoe, 590, 598; Fry, Specific Performance, 47 Fed. Rep. 376. §§ 714, 715; Pom. Contracts, 384, 1072 MISCELLANEOUS TITLES. [§§ 1380, 1381. owners, upon the failure of such party to perform the con- ditions of the escrow, it was held that the three instruments amounted merely to an agreement to sell, and, until the con- ditions of the escrow were performed, were not sufficient to divest the original owners of title to the property, and that they were qualified to maintain ejectment proceedings against third parties.^ * §1380. Nominal damages satisfying. — The Pennsyl- vania superior court in 1898 held that for a breach of an agreement to buy an interest in an oil lease the vendor can only recover nominal damages where he retained the prop- erty, without being obliged to make a sale of it at a lower price, and made no tender of a conveyance ; ^ and to be en- forceable, the contract must be mutually binding.' § 1381. Eemedies as to mining property must be dili- gently pursued — Laches bars the right. — As we have endeavored to show in the preceding sections,^ owing to the fluctuating nature of mining property as respects its value, it would be unjust to permit parties to sleep upon their rights and then seek to assert them after the property had become developed by the energy and expense of another. Property worth but little to-day might, by the discovery of large ore bodies, become worth many millions in a few days, and to permit the assertion of supposed rights after unrea- sonable delay would manifestly be unconscionable and un- just, this principle was recognized by the supreme court of the United States in an early case in the following words: " Property worth thousands to-day is worth nothing to-mor- row.; and that which would to-day sell for a thousand dol- lars at its fair value, may, by the natural changes of a week 1 Conway v. Hart, 129 Cal. 480, 63 478; Tyson v. Watts, 1 Md. Ch. 13. Pac. Rep. 44. See also Stage v. Boyer, 183 Pa. St. 2 Garner v. Peters, 9 Pa. Super. Ct. 560, 88 Atl. Rep. 1035. 29, 43 W. N. C. 261. *■ Ante, g§ 1276-1278. SGeiger v. Green, 4 Gill (Md.), § 1381.] EXECUTOET CONTEACTS. 1073 or the energy and courage of desperate enterprise, in the same time be made to yield that much every day. The in- justice, therefore, is obvious of permitting one holding the right to assert an ownership in such property to voluntarily await the event, and then decide, when the danger which is over has been at the risk of another, to come in and share the profit." 1 Again, in a case following the one mentioned in the last paragraph, the court say: "Under such circumstances, where property has been developed by the courage and energy and at the expense of the defendants, courts will look w^ith disfavor upon the claims of those who have lain idle while awaiting the results of this development, and will re- quire not only clear proof of fraud, but prompt assertion of plaintifif's rights." ^ It is not enough that plaintiff commences his suit in due time, but he must prosecute it with diligence ; ' and in all such cases the court will refuse its aid to set aside a sup- posed illegal transfer to enforce specific performance, or permit the assertion of a supposed right long dormant.* 1 Twinlick Oil Co. v. Marbury, 91 mond v. Hopkins, 143 U. S. 224, 36 U. a 587, 592, 23 L. ed. 328, 381; L. ed. 134; Great West M. Co. v. followed in Johnston v. Standard Woodmas of Alston M. Co., supra. M. Co., 148 U. S. 360, 37 L. ed. 148. See also Grymes v. Sanders, infra. See also Kinney v. Cons. Va. M. Co., ^ Johnston v. Standard M. Co., 4 Sawy. 383, 14 Fed. Ca& 611; Great supra; Hawes v. Orr, 10 Bush, 437; West M. Co. V. Woodmas of Alston Ehrman v. Kendrick, 1 Met. (Ky.) M. Co., 14 Colo. 90, 23 Pac. Rep. 908; 149; Watson v. Wilson, 2 Dana, 404; Galligher v. Cadwell, 145 U. S. 368; Ferrier v. Busick, 6 Iowa, 258; By- Hall V. Eussell, 3 Sawy. 506, 11 Fed. bee v. Summers, 4 Oreg. 361. Cas. 248. * Johnston v. Standard M. Co., 2 Johnston v. Standard M. Co., supra; ante, % 1377: Norway v, sttpra, citing (which see) Felix v. Ro we, 19 Ves. 144; East Jersey Iron Patrick, 145 U. S. 317, 334, 26 L. ed. Co. v. Wright, 33 N. J. Eq. 332; 719, 727; Hoyt v. Latham, 143 U. S. Grymes v. Sanders, 93 U. S. 55. 553, 567, 36 L. ed. 259, 265; Ham- 68 CHAPTEE Y. OF MINING LICENSES IN GENERAL. Aetiole a. Distinctions from Lease — General Features. § 1390. Mining licenses in general — Nature and character — Definition. 1391. Same — Ordinarily license not exclusive — An illustration. 1392. Limitations — Purpose and extent of license — When exclusiva 1393. What a license, deed, lease, contract. 1394 Wherein license differs from lease generally. 1395. How created— Writing — Parol. 1396. Statute of frauds. 1397. Licensee tenant at will — In such case license revocable and countermandable. § 1390. Mining licenses in general — Nature and char- acter — Definition. — A mining license is an authority to go upon the land of another and to mine or otherwise se- cure the mineral contained therein, whether in the form of ore, coal, oil or gas, and appropriate the same to the use of the licensees, under such circumstances as that the act would be a trespass except for such authority, and generally carrying no permanent interest in the land.* 1 Norway v. Rowe, 19 Ves. 158; 89; Rhodes v. Otis, 33 Ala. 578; Feniman v. Smith, 4 East, 107; Wheeler v. West, 71 Cal. 136, 11 Wood V. Leadbitter, 13 M. & W. Pac. Rep. 871; Bracken v. Rush- 838; Bird v. Higginson, 3 Ad. & ville, 37 Ind. 346; Beatty v. Greg- El. 696; s. 0., 6 id. 834; Ruffey v. ory, 17 Iowa, 109; Harkness v. Bur- Henderson, 17 Q. B. 574; Doe v. ton, 39 Iowa, 101; Cook v. Stearns, Wood, 3 Barn. & Aid. 734; Lynch 11 Mass. 534; Arnold v. Richmond V. Seymour, 15 Can. Sup. Ct. 341; Iron Works, 5 Cush. 503; Hill v. Tupper V. Annand, 16 id. 718; Ges- Cutting, 113 Mass. 110; Hartford ner v. Cairns, 3 Allen, 595; Grubb Iron Co. v. Cambria Iron Co., 93 V. Baird, 3 Wall. Jr. 81, 11 Fed. Cas. Mich. 93; Boone v. Stover, 66 Mo. § 1391.] MINING LICENSES IN GENEEAL. 1075 The law of licenses has grown out of mining operations more than an}' other single field of human industry; and while the subject is one deserving attention in a special work, in view of its unsettled and unsatisfactory condition, the subject, so far as it relates to mining operations, will be specially treated here. As said by Blanchard & Weeks in their Leading Cases on Mines: "The law in relation to raining licenses is in many respects in an extremely unsat- isfactory condition, and perhaps, in view of its expressly unsettled state and the conflicting decisions upon the sub- ject, no better or safer advice can be given to the miner than this: He should never rely upon a license if it be pos- sible for him to obtain a lease." ' §1391, Same — Ordinarily license not exclusive — An illustration. — By an instrument in writing the owner of land conveyed to C. a fire brick manufactory, with power to dig fire clay from certain lands for a term; by a subse- quent deed he conveyed to B. the coal mines and seams of coal, also "all mines, seams, veins or beds of iron stone and fire clay found in connection with such coal seams as are workable as coal seams," under the same lands as those de- scribed in C.'s license. C. undertook, through an old pit, to open a seam known as the " stone coal seam," and secure the fire clay therein. Previously to this B. had sunk a pit through the " stone coal seam," and had taken samples there- from which C. tested, and had also sold some of the fire clay 430; Lockwood v. Lunsford, 56 Mo. Iron Co. v. Cambria Iron Co., 32 68; Lee v. McLeod, 13 Nev. 280; Pa. St. 341; Big Mountain Coal Woodbury v. Parshley, 7 N. H. 237; Co.'s Appeal, 54 Pa. St. 361 ; List v. Dodge V. McClintook, 47 N. H. 388; Cotts, 4 W. Va. 543; Mapel v. John, East Jersey Iron Co. v. Wright, 33 43 W. Va. 30, 34 S. E. Eep. 608; N. J. Eq. 348; Silsby v. Trotter, 29 Ganter v. Atkinson, 35 Wis. 48; N. J. Eq. 228; Manganese Iron Co. Tipping v. Bobbins, 37 N. W. Rep. V. Trotter, 29 N. J. Eq. 561; Hurd 437; Smith v. Jones, and Smith v. V. Gill, 45 N. Y. 341; Wilson v. Forbes (Utah), 60 Pao. Eep. 1104. Chalfant, 15 Ohio St. 348; Snyder i Blanchard & Weeks, Lead. Cas., V. Vaux, 3 Eawle, 438; Funk v. p. 487. Haldeman, 53 Pa. St. 39; Johnston 1076 MISCELLANEOrS TITLES. [§ 1392. to C. ; after C. had incurred considerable expense in sinking a pit, but before he reached the stone coal seam, B. notified him that such would be an invasion of his rights; C. filed a suit for injunction against B., seeking to restrain him from working any seam under the ground to which his license applied. The Tice-chancellor granted the writ, but it was reversed upon the grounds — first, that in construing the words " coal seams workable as coal seams," regard must be had to the power referred to in the lease, which showed that the stone' coal seam was workable at a profit when both coal and fire clay were taken into account, and both were, therefore, included in B.'s lease; second, that C.'s license was not exclusive, and the licensor could, therefore, deal with the property in any manner he saw fit, not inconsistent with the terms of the license; third, that B.'s possession was prior to that of C, and that, therefore, the latter could not restrain him.^ § 1392. Limitations — Purpose and extent of license, when exclusive. — It would be hardly necessary to state that the license will be strictly limited to its express pur- pose and to the express objects sought to be impressed with it. Th)is, in an Iowa case it was held that where a license to mine a particular vein was given, it was not permissible to search through the stratum into another vein.^ And, as we have seen, it will be restricted to the particular interests of the licensor.' It is not generally exclusive, but will be exclusive as to the particular part of the mine in which the licensee is permitted to work in the particular case.* And the possession of the licensee can never be adverse.' These licenses are sometimes, but not always, controlled by custom. But of course, in such cases, the custom must be reasonable, ' 1 Can- V. Benson, L. R. 3 Ch. 524. * Johnstown Iron Co. v. Cambria See also j?os*, § 1406. Iron Co., 33 Pa. St. 241. See Glon- 2 Upton V. Brazier, 17 Iowa, 153. ninger v. Franlclin Coal Co., 55 Pa. 3 Omaha, etc. Co. v. Tabor, 13 St. 9, 9 M. R. 273. Colo. 41, 16 M. R. 184, 21 Pac. Rep. s Desioge v. Pearoe, 88 Mo. 588, 9 926. M. R. 247. § 1393.] MINING LICENSES IN GENERAL. 107Y of universal application, and so widely known and univer- sally recognized as to create the presumption that the par- ties contracted with reference to it.' The Iowa court took the position that these licenses are terminable by notice.^ And, of course, this would generally be the rule as to all licenses except executed ones, that is, where permanent, valuable improvements have been the result of the execution. But wherever they may be re- voked by notice, they are presumed to continue until so revoked.^ And the doctrine is universal that they are a complete defense to , all acts done under them. This has become elementary. § 1393. What alicense, deed, lease, contract.— ^ "We have already seen that parties and courts sometimes disagree as to the name which ought to be given to a particular instru- ment. Sometimes they call it a lease or deed, but the courts are compelled to construe it with reference to the language used and the surrounding circumstances, and the intent gleaned therefrom, rather than the name with which it is christened. Thus, in a Canada case the instrument was called a lease, and the lessee was given exclusive right for ten years to enter, dig, mine and carry away iron ores upon an agreed royalty, with elaborate covenants as to tim- ber, taxes and preventing nuisances, provisions for termi- nating before the term, and for quiet enjoyment. The lessor, under the statute of Anne,* claimed a lien for a year's rent as lessor. It was held by an evenly-divided court, and without much show of reason, that the instrument was a license and no lien existed.' In California a quitclaim deed was held to be a mere iBushv. Sullivan. 3 G.Greene, 344, is the statute giving the lessor a 9 M. R. 214; Beatty v. Gregory, 17 lien upon the property of the Iowa, 109, 9 M. R. 384 lessee for rent, and probably the 2 Bush V. Sullivan, supra. parent of all modern statutes. 3 Keeler v. Green, 31 N. J. Eq. 37. 5 Lynch v. Seymour, 15 Can. Sup. 4 Stat. 8 Anne, ch. 14, sec. 1. This Ct. Rep. 341. 1078 MISCELLANEOUS TITLES. [§§ 1394, 1395. license to mine ; ^ and further, which is indisputable and un- necessary to the decision of the case, that the grantor could acquire an outstanding superior title in opposition to that conveyed by a quitclaim deed." In Utah, parties entered into a contract of purchase and sale, absolute in form, ex- cept that payment was to be made only out of the gold dust produced from the claim, and it was held to be an option merely, coupled with a license to work.' § 1394. Wherein license diilers from lease generally. There is a wide distinction between a lease of mines and a right to work them. The former is a distinct conveyance of an actual interest or estate in lands for a term long or short,^ while the latter is simply an authority to do a cer- tain act or series of acts upon another's land without pos- sessing any estate therein;^ a mere incorporeal heredita- ment," to be exercised in the lands of others.' § 1395. How created — Writing — Parol. — From the very nature of a license, when the definition is correctly under- stood,^ there would seem to be no question that it may be cre- ated either by writing or orally. There is, however, consider- 1 Baker V. Clark, 128 Cal. 181, 60 Iron Co., 33 Pa. St. 341; Cobb v. Pac. Rep. 677. Davenport, 3 Vroom (N. J.), 389. 2 Ibid., citing Lord v. Sawyer, 57 " Bainb. Mines (1st Am. from 3d Cal. 65; Borland v. Magilton, 47 Lon. ed,1, p. 361; Am. & Eng. Enc. Cal. 485; Franklin v. Borland, 38 Law (1st ed.), vol. 15, p. 594, note 3; Cal. 180; Garibaldi v. Shaddock, Collier on Mines, pp. 8, 9; MoSwin- 70 Cal. 512, 11 Pac. Rep. 778. ney, Mines, 249; Brandt v. MoKee- 3 Smith V. Jones, and Smith v. ver, 18 Pa. St. 71 : Funk v. Halde- Forbes (Utah), 60 Pac. Rep. 1104. man, 53 Pa. St. 239 ; Grove v. Hedges, ■• Heywood v. Fulmer (Ind., not 55 Pa. St. 504; Grubb v. Bayard, 3 off. rep.), 32 N. E. Rep. 574, 18 L. R. Wall. Jr. 81, 11 Fed. Cas. 89. A. 491, 495, and authorities. ' Bainb. Mines, 261 ; Harlan v. 5 3 Kent Com. 453, a profit aprere- Lehigh Coal Co., 25 Pa. St. 387; dre which may be held apart from Armstrong v. Caldwell, 53 Pa. St. the possession of the land; Chicago, 284; Brown v. Corey, 43 Pa, St. etc. Oil Co. V. United States Petro- 495. leum Co., 57 Pa. St. 83; Johnstown ^Ante, § 1395. Coal & Iron Co. v. Cambria Coal & § 1396.] MINING LICENSES IN GENEEAL. 1079 able respectable authority, especially among the older cases and text- writers, holding a writing to be necessary.^ Mr. Bain- bridge bases his reasoning that this is especially true con- cerning mining licenses, upon the ground that such a license being a privilege to enter upon and remove the ores and minerals from the estate — to commit waste, as it were, — it is such an interest in the land that a writing is necessary to take it out of the statute of frauds. But it must be remem- bered, as we have elsewhere seen,^ that mining in the proper manner is not considered waste at all. This being true, it must follow that mere permission to go upon the land, or a certain specified portion thereof, and extract and market the product, but conveying no interest in the land itself, may be given by parol. This rule as applied to the general law of real estate has been recognized by a long line of decisions, and has also received express recognition in several of the mining cases.' We will elaborate further upon the nature of the privilege thus granted in a subsequent section.* § 1396. Statute of frauds. — If the reasoning in the last section is sound, it must be apparent that a mere license is not ordinarily void under the statute of frauds for want of a written memorandum or part performance, especially if it 1 Bainb. Mines, pp. 119, 236; Wood Dark v. Johnston, 55 Pa. St 164, 9 V. Leadbitter, 13 M. & W. 858; Bird M. R. 283, 93 Am. Deo. 733. V. Higginson, 2 Ad. & El. 696; s. a, 2 Ante, § 944; post, § 1438. 6 Ad. & El. 834; Holmes v. Seller, 3 Riddle v. Brown, 20 Ala. 412, 56 3 Levinz, 505; Fentiman v. Smith, Am. Dec. 203; Wheeler v. West, 71 4 East, 107; Hawlins v. Shippam, Cal. 126, 11 Pac. Rep. 871; Bush v. 5 B. & C. 231; Cocker v. Cowper, Sullivan, 3 G. Greene, 344, 54 Am. 1 Cr. M. & R. 418: Wallace v. Har- Deo. 506; Beatty v. Gregory, 17 rison, 4 M. & W. 538; Ruffey v. Iowa, 114,85 Am. Dec. 546; Dark v. Henderson, 17 Q. B. 574, 21 L. J. Q. Johnston, supra. See also Steel- B.49; Cookv. Stearns, 11 Mass. 534; smith v. Gartlan, 45 W. Va. 27, 29 Woodbury v. Parshley, 7 N. H. 337; S. E. Rep. 978; Smart v. Jones, 33 Mumford v. Whitney, 15 Wend. L. J. 0. P. 154, 15 C. B. (N. S.) 717. 880; Babcock v. Utter, 1 Keyes, 397; * Post, § 1419. Wilson V. Chalfant, 15 Ohio St. 348; 1080 MISCELLANEOUS TITLES. [§ 1397. is followed by possession.* The authorities to the contrary- are generally based upon the theory that the license is an interest in the land, which we will notice later.' § 1397. Licensee tenant at will — In such cases license revocable and conntermandable. — While a license, as we have seen, is a mere personal contract between the licensor and the licensee, yet the line of demarkation between a license and a lease is sometimes faint and shadowy, or, at least, said by the courts to be so, the reason of which is not at all times plain or satisfactory. If we shall at all .times bear in mind the essential points of differentiation, there ought to be no considerable difficulty in distinguishing be- tween a license and a lease. And it is safe to say that where the instrument creates an interest and exclusive right of possession in the land and is essentially assignable, unless there is a prohibition to the contrary, it must necessarily be construed as a lease ; and it matters not the period of dura- tion of the interest: it is sufficient that one is created. On the other hand, any transaction, whether in writing or by parol, falling short of this, is in general a license merely. It is not to be understood from this, however, that no license can create an interest in the land. On the contrary, where the license is so far executed, and money spent upon it in such a way as that a revocation would work a fraud upon the licensee, there is, to this extent, indeterminate though it be, a quasi-intevest in the land. Not absolute nor exclu- sive, it is true, but sufficient merely to protect the licensee. So, it may be said, as a general rule, that in most cases, except where such a quasi-iuterest in the land is created, or where money is spent or improvements made, under such circumstances as to work an equitable estoppel, the licensee 1 Anderson v. Simpson, 31 Iowa, 11 Allen, 141. But see Desloge v. 399, 9 M. R. 263. Pearce, 38 Mo. 533; O'Neill v. New 2Bainb. Mines, 219; Wood v. York Co., 3 Nev. 136. See also Laye, Sayer, 1; Winter v. Brock- ante, § 1873. well, 8 East, 308; Drake v. Wells, ^Post, §§ 1419, 1420. § 1405.] MINING LICENSES IN QENEEAL. 1081 is a mere tenant at will,^ but may not be summarily ousted ; ^ nor can the license ordinarily be revoked except upon notice.' But a mere license, unaccompanied by any vested interest in the real estate, created by deed or other writing, and in- dependent of any title acquired by grant, prescription or adverse possession, and claimed for the period of the statute of limitations, must be deemed to be in its own nature es- sentially countermandable and revocable at the will of the licensor or owner of the fee. It can give no irrevocable right to hold possession of the realty and continue working the mines indefinitely, and against the will of the owner of the land.* Aeticlb B. 0/ the Assignability of Licenses. § 1405. Generally not assignable — Personal privileges. 1406. Not exclusive. 1407. Same — An illustration by Bainbridge — Lord Mount joy's Case. 1408. Exclusive right may be granted. § 1405. Generally not assignable — Personal privileges. A license being more in the nature of a privilege to do cer- tain acts which would otherwise be a trespass, that is to say, being in the nature of a mere profit a prendre, the con- clusion is easily deducible that, ordinarily, and as a general 1 Johnstown Iron Co. v. Cambria ^ Bingo M. Co. v. Felton, 78 Mo. Iron Co., 32 Pa. St. 241; Funk v. App. 210. Haldeman, 53 Pa. St. 239; Musket SDesloge v. Pearoe, 38 Mo. 588, V. Hill, 5 Bing. N. C. 694; East 9 M. R. 247; Bush v. Sullivan, 3 G. Jersey Iron Co. v. Wright, 32 N. J. Greene (Iowa), 344. Compare Beatty Eq. 248; Bracken v. Rushville, 27 v. Gregory, supra. Ind. 346; "Woodward v. Seely, 11 ^Pierpont v. Barnard, 2Seld. 279; III. 157; Beatty v. Gregory, 17 Iowa, Liggins v. Inge, 7 Bing. 682; Wood 109; HufE V. McCauley, 53 Pa. St. v. Leadbitter,13M.& W.838; Wolfe 206; Wheeler v. West, 73 Cal. 136, v. Frost, 4 Sandf. Ch. 72; Sampson 11 Pao. Rep. 871 ; Gillet v. Treganza, v. Burnside, 1 3 N. H. 364 ; Desloge v. 6 Wis. 243; Doe v. Wood, 2 B. & Pearce, sttpra. Aid. 724; Upton v. Brazier, 17 Iowa, 153. 1082 MISCELLANEOUS TITLES. [§ 1406. rule, whenever the license is essentially personal to the licensee, it is not assignable without the consent of the licensor, and so it may be said that it is only assignable in such cases, and under circumstances where it is also not rev- ocable.i In other words, these conditions and departures from the general rule go hand in hand, and one may not be exercised without the othei;. Thus it is that the au- thorities agree in saying that a license pure and simple is a mere personal privilege; it extends only to him to whom it is given and cannot be granted over or assigned.^ It has even been held that, where money was paid for it, it is rev- ocable at law at the pleasure of the licensor;' but perhaps the better rule is that this would elevate it to the dignity of a higher estate, as we shall see in the next article. So it has been held that the death of either party will terminate it,^ and even licenses under seal have been held revocable at the will of the licensor.* Likewise, that a conveyance of the land in question by the licensor will, ipso facto, termi- nate it.' All of these rules have their limitations and ex- ceptions, which will be fully considered in the next suc- ceeding article. § 1406. Not exclusive. — It would seem to be equally well settled that a license is not exclusive, and, as a general rule, other licenses may be granted with reference to the same subject-matter; but, manifestly, not so as to conflict with property rights.' Indeed, this, as we have seen, forms 1 Harris v. Gillingharn, 6 N. H. * Liggins v. Inge, supra; Wood v. 11; Hill V. Cutting, 113 Mass. 107; Leadbitter, 13 IVJ. & W. 845. Winter v. Brockwell, 8 East, 308; "^ Cook v. Stearns, 11 Mass. 588; Liggins V. Inge, 7 Bing. 682; WalHs Stevens v. Stevens. 11 Met. (Mass.) V. Harrison, 4 M. & W. 538; Jack- 251; Wallis v. Harrison, SMpro, 538; son V. Baboock, 4 Johns. 418. East Jersey Iron Co. v. Wright, 32 2 Prince v. Case, 10 Conn. 875; N. J. Eq. 348. Jackson v. Babcock, supra; Hovyes '' French v. Brewer, 3 Wall. Jr V. Ball, 7 Barn. & Cress. '481. 346, 19 Fed. Cas. 774; Funk v. Hal- SHetfleld v. Central E. Co., 5 deman, 53 Pa. St. 229; Johnstown Dutch. 221; s. c, id. 571. Iron Co. v. Cambria Iron Co., 82 Pa. 4 Johnson v. Carter, 16 Mass. 443. St. 241; Meyer v. Marshall, 34 W. §§ 140Y, 1408.] MINING LICENSES IN GENERAL. 1083 one of the principal distinctions between a license and a lease. As said by the supreme court of Pennsylvania: " That such a right was not exclusive in the grantees, but was to be enjoyed in common with the grantor, his heirs and assigns, has been held in all the cases from that of Lord Mountjoy." ' § 1407, Same — An illustration by Bainbridge — Lord Moimtjoy's Case.— The rule is thus stated by Mr. Bain- bridge: "It may be stated as a general rule, that a license to work mines is not exclusive of the similar rights of the grantor, or those who may claim under him by virtue of a similar authority. This was decided in a very early case. Lord Mountjoy, being seized in fee of the Manor of Can- ford, sold it in fee with the reservation and with a covenant on the part of the purchaser that Lord Mountjoy, his heirs and assigns, might dig for ore in the lands (which were great wastes) parcel of the manor, or dig turf also for the making of alum. It was held that, notwithstanding this grant, the purchaser, his heirs and assigns, might dig also, like the case of common, sans notnhre. ... It appears, therefore, that the exclusive right to minerals will not nec- essarily be conferred by the grant of a license to work them. But it must be concluded from these decisions that the license to work may not be in such a form as to effectu- ally vest in the grantee an undisturbable right to the min- erals." ^ § 1408. Exclusive riglit may be granted.^ But it must not be understood by the foregoing, nor by anything said in any of the cases, that an exclusive right may not be Va. 42, 11 S. E. Rep. 730, 732. See Chetham v. Williamson, 4 East, 469- also § 1391. 476. 1 Johnstown Iron Co. v. Cambria ^ Bainb. Mines (1st Am. from 3d Iron Co., 33 Pa. St. 341, citing (q. v.) Lond. ed.), p. 369, citing Lord Lord Mountjoy's Case, 1 Godb. 17- Mountjoy's Case, Godb. 17, 18, 4 34; Grubb v. Guilford, 4 "Watts, 334; Leon. 140, Co. Lift. 165a; Chetham Grubb V. Bayard, 3 Wall. Jr. 100; v. Williamson, 4 East, 469. 1084 MISCELLANEOUS TITLES. [§ 1415. granted. While it has been held that full and free liberty to work is sufficient to grant an exclusive right, yet the in- tention of the parties must govern ; and even those words would not be sufficient if it conflicted with the rights of others. And if exclusive rights were given to two persons referring to the same property, of course there would be a conflict; but where the words employed show a clear in- tention to confer an exclusive right upon the licensee, he will generally secure it, and the first in time will be stronger in right.^ Article 0. Of the Revocability of Mining Licenses. § 1415. Same principles apply to mining as to other licenses. 1416. License held revocable — License of government. 1417. Same — License to dump tailings revocable. 1418. Contrary doctrine. 1419. Whence the diversity of opinion. 1420. Same — Irrevocable license — Lease — Further examination of the authorities. 1431. Summary. § 1415. Same principles apply to mining as to other licenses. — There is a great diversity of opinion among the adjudged cases as to whether a license is always revocable at the will of the licensor. "We will not attempt a complete discussion of this question, since the law of licenses is sub- stantially the same when applied to mining as to ordinary real estate. There are several cases, however, wherein this question has been considered with special reference to mining licenses, which ought to be noticed. These, while not so numerous as those relating to other questions — the iBainb. Mines, pp. 270, 371; Doe Hedges, id. 504: Caldwell v. Ful- V. Wood, 2 Barn. & Aid. 724: Chi- ton, 31 Pa. St. 435; Upton v. Bra- cago & Alton Oil & M. Co. v. zier, 17 Iowa, 153; List v. Cotts, 4 United States Petroleum Co., 57 W. Va. 543; Norway v. Rowe, 19 Pa. St. 83; Gloninger v. Franklin Ves. 156: Roberts v. Davey, 4 Barn. Coal Co., 55 Pa. St. 9; Grove v. & Aid. 672. §§ 1416, 1417.] MINING LICENSES IN GENERAL. 1085 right to lay water-courses over the lands of another, for in- stance — are equally as variant, so that anything like a reconciliation of them is impossible. §1416. License held revocalble ^ License of govern- ment. — The right of the licensor to revoke a mining license has been expressly recognized by several authorities.' The reasoning of these cases seems to be based upon a correct understanding of the term " license," namely, that it is only a permission to enter upon the lands of another for certain purposes — the mining and removal of certain minerals. Therefore, these acts will be permitted to continue only dur- ing the pleasure of the person granting the privilege. This, of course, where there is no contract fixing the duration of the license. The courts have generally shown a desire to place the parties in statu quo, if possible, before permitting a revoca- tion. This should always be done. Thus, in the Iowa case,^ where it appeared that the miner had been induced, under a parol license, to sink a shaft and run drifts, but before he had an opportunity to prove the ground the license was revoked, the court held that he was entitled to the six months' notice to quit, recognized by the common law, unless the moneys expended by him were refunded. And this is substantially the holding of the Missouri court,^ where six months' notice to quit was held to terminate the right. The California court, on the other hand, held the license to be revocable at pleasure.* And the license of the government upon its lands is revoked when the title passes to another party.* §1417. Same — License to dump tailings revocable. — In a recent case in Oregon the court held that a parol 1 Desloge v. Pearoe, 38 Mo. 588, 9 Iowa, 114, 85 Am. Dec. 546, 9 M. R M. R. 347; Riddle v. Brown, 20 Ala. 234; Harkness v. Burton, 39 Iowa, 412, 56 Am. Dec. 203; Bush v. Sulli- 101. van, 3 G. Greene, 344, 54 Am. Dec. ' Desloge v. Pearce, supra. 506; Wheeler v. West, 71 Cal. 126, ■'Wheeler v. West, supra. 11 Pac. Rep. 871. 5 Omaha & G. S. & R. Co. v. Tabor, 2 Bush V. Sullivan, supra; fol- 13 Colo. 41, 31 Pac. Rep. 925, 5 L. R. Irfwed in Beatty v. Gregory, 17 A. 286. 1086 MISCELLANEOUS TITLES. [§ 14:18. license to dump tailings and debris upon the lower placer claim of another is revocable, and further continuance of the acts was enjoined.^ The court distinguishes this from its former decision that a parol license under w^hich ex- penditure has been incurred is irrevocable, upon the ground that it does not appear that anything was paid plaintiff for it, or that his land would in any manner be benelited thereby. But, according to the authorities which we will presently notice,^ this has never been the true test ; it is whether the licensee has been put to expense by representations of the licensor, to such an extent that he cannot be placed in statu quo. And this is not different from the previous position of the Oregon court; for the building of a dam upon anoth- er's land, for instance,' cannot be any improvement to the land of the licensor. We think the last decision * is correct, for the reason that the privilege claimed amounted to noth- ing more than the right to deposit tailings upon another's land so long as it pleased that person to permit it, and be- cause there was no attempt to convey any interest in the land itself; if it had it would probably have been void under the statute of frauds because not in writing. It is difScult, however, to see wherein the facts differ materially, except in the decision of them, from the previous decisions of that court.* § 1418. Contrary doctrine. — Other authorities are just as emphatic to the effect that a license, if coupled with an interest,^ or where an incorporeal hereditament is granted,' if the licensee has made expenditures upon the faith of it,^ becomes irrevocable. But an examination of these cases satisfies us, and in the next section we will attempt to satisfy 1 Miser v. O'Shea, 37 Oreg. 231, 62 5 gee cases cited in 68 Pac. Eep. Pac. Eep. 491. 498. ^-Post,%% 1418, 1419. 6 Funk v. Haldeman, 53 Pa. St. 3 Hallock V. Suitor, 37 Oreg. 9, 60 229. Pac. Rep. 384 ' Bainb. Mines, p. 268. * Miser v. O'Shea, supra. 8 Darke v. Johnston, 55 Pa. St. 164, 93 Am. Deo. 732. § 1419.] MINING LICENSES IN GENEEAL. 1087 the reader, that the license, so called, under consideration, if it ever had been one in fact, had ceased to be such, having been elevated to the dignity of an estate in the land. § mo. Whence the diversity of opinion. — As -we have noticed in a preceding section,i there is a clear distinction between a license and a lease or an easement. The latter is defined by an eminent law writer as " a permanent interest in another's land, with the right at all times to enter and enjoy it." ^ If these definitions are borne in mind in consid- ering the cases on both sides of the question of revocability of licenses, much of the apparent diflBculty will vanish. From the very nature of a license it would seem to be rev- ocable. For if it is only a privilege of doing a certain act or series of acts upon the lands of another, it must follow that the owner of the land has the right to order the dis- continuance of these acts at pleasure, in the absence of a fixed term, and at the expiration of the term at all events. This being true, it must follow that a license cannot be so worded as to be " coupled with an interest in the land," as stated by some of the authorities. Because the minute it ripens into an interest in the land, it ceases to be a license and rises to the dignity of an easement or a lease, as the case may be. Perhaps the line of this distinction is rather shadowy at times, but it is always discernible if the true spirit and intent of the law is kept in mind. And this dis- tinction furnishes a reason why an easement must be created by writing, unless it is acquired by prescription, while a license may be created either by writing or parol.^ An able and exhaustive examination of all the authorities upon the question of the revocability of licenses to create a burden upon land, followed by expense in pursuance thereof, is found in a recent volume of the Lawyers' Eeports Anno- tated.* 1 Ante, § 1394 * See note to Pifer v. Brown, 45 2 3 Kent Com., p. 453. W. Va. 413, 49 L. R. A. 497. 3 Ante, § 1895. 1088 MISCELLANEOUS TITLES. [§ 1420. § 1430. Same — Irrevocable license — Lease — Further examination of the authorities. — In the leading Pennsyl- vania case^ the contract in question provided that, in con- sideration of one hundred dollars already paid by the second party, he was given the exclusive privilege to sink wells and oil pits upon the lands in question for the term of ten years; he to pay a further compensation, in case operations were begun, of ten dollars per year for each well from which he continuously pumped oil. The court held this to be an irrevocable license. Of course it was irrevocable within the term for which it was granted ; but if " a convey- knce of a specified portion of a mine, for a fixed period of years, in consideration qf rent or other recompense," ^ consti- tutes a lease, it would seem to us that this is what the con- tract in this case should be called. And in the federal case,^ the instrument' conveyed to the grantee the absolute privilege, " from time to time and all time hereafter, to dig, , take and carry avray all iron ore found within the bounds " of the land. The court called this an irrevocable license; but if it is possible to sever an estate by deed, granting the minerals and reserving the surface, it would seem that this is what was done in that case. It seems to us that in both of these cases the right granted amounted to an interest or estate in the land, and that therefore it was not a license, but something greater, more nearly a lease. With the result reached we have no criticism, but merely with the name given the instrument under consideration. But the Pennsylvania court has a reckless habit of bestowing names upon instruments and contracts, which if it were important might lead to serious difficulty. However, since " a rose would be as sweet by any name," perhaps no quarrel ought to be made with the court if it calls an instrument the same in form, a license one day, a 55 Pa. St. 3 Grubb v. Bayard, 2 Wall. Jr. 81, 11 Fed. Cas. 89. 1 Darke V. Johnston, 164. 2 Ante, § 1143. § 1421.J MINING LICENSES IN GENERAL. 1089 lease the next, and a sale of the coal or mineral in place on the third. It is the rights which the contract confers, after all, that is important. § 1421. Summary. — From the foregoing we conclude: That a mining license is not materially different from other licenses: it is the privilege to go upon the lands of another and mine and extract the product; that it is not ordinarily exclusive, it being within the power of the licensor to grant a like privilege to others ; that it will always be restricted to the purpose for which it was created ; that it differs from a lease or easement in that it does not convey any estate in the land itself; that it may be created either by writing or orally, and is not void under the statute of frauds; that it is sometimes, but not always, assignable, depending upon the nature and objects of its creation ; that there is a great con- trariety of opinion as to whether it is revocable, the pre- vailing opinion being apparently to the effect that it is; and that whenever it purports to convey any interest in the land itself, it is elevated to the dignity of an estate in the land itself, and is no longer a license. 69 PART XIV. GENERAL RIGHTS AND DUTIES OP MINING OPER- ATORS INTER SESE. CHAPTER I. OF TENANCY IN COMMON. Article A. Rights and Duties of Co-tenants as Between Themselves. ! 1430. Tenancy in common — In general — Definition. 1431. Possession of one co-tenant not adverse to others. 1433. Same — Statute of limitations. 1433. Different from mining partnership. 1434. Eights and duties of co-tenants as between themselves. 1435. Right to work property. 1436. Eight to work — Majority and minority. 1437. Ordinary work not waste — The old rule to the contrary. 1438. Not waste for co-tenant to mine. 1439. Same — Mr. Bain bridge's view. 1440. Same — Co-tenant's right of occupation. 1441. When not co-tenants — One tenant binding all. 1443. No exclusive possession or right — Unreasonable interference. 1443. When possession of one co-tenant not possession of alL 1444. Non-assenting co-tenant's right to account. 1445. Measure of the account — What included. 1446. Same — When rent the proper basis. 1447. Same — Rents and profits. 1448. Matters for consideration in allowing rent to excluded co-tenant. 1449. Surplus over co-tenant's share. 1450. Another measure — Value of coal at pit's mouth. 1451. Ore in place as measure of damages and account. 1458. Lien for expenditures — Equitable right to profits. 1453. What may be offset — Repairs, taxes, etc. 1454. Whether agreement necessary. 1455. What acts of individual co-tenant inure to benefit of alL § 1430.] TENANTS IN COMMON. 1091 § 1456. Purchases by and from co-tenants. 1457. Same — Interest of one purchased by another does not inure to benefit of third. 1458. Further as to rights and duties of co-tenants — Action for dam- ages. 1459. Fixtures and improvements — Ownership of. 1460. Injunctions by and against co-tenants. 1461. Injunction in proper cases. 1463. Equity — Pennsylvania doctrine — Other remedies. 1463. When lessor liable for trespass. § 1430. Tenancy in common — In general — Definition. — A tenancy in common for the working of mines may be created in various ways. It exists when two or more per- sons locate, buy, or otherwise own or use mining property, whether personal or real, as owners, for the time being or in fee.i It is scarcely the purpose of this work to deal ex- tensively with the subject of tenancy in common. The present writing is therefore limited to special features in- 1 Clegg V. Clegg, 31 L. J. Ch. 153, 14 M. R 389; Durham, etc. Ey. Co. v. Wawn, 3 Beav. 119; Simpson v. Tell- wright, 3 Lutw. 1347; Denys v. Shuckburg, 4 Y. & C. 43; Huntley v. Russel, 13 Q. B. 573; Tupper v. An- nand, 16 Can. Sup. Ct. 718; 420 Min. Co. V. Bullion M. Co., 3 Sawy. 634, 9 Fed. Cas. 593, No. 4,989; Union Cons. M. Co. V. Taylor, 100 U. S. 37; Bissell V. Foss, 114 U. S. 253, affirming s. C, First Nat. Bank v. Bissell, 8 Mc- Crary, 73, 4 Fed. Eep. 694; Williams V. Morrison, 28 Fed. Eep. 873; Kahn V. Central S. Co., 102 U. S. 641; Mc- Cord V. Oakland Q. M. Co., 64 Cal. 134, 37 Pac. Rep. 863; Hihn v. Peck, 18 Cal. 640; GoUer v. Fett, 30 Cat 482; Barnum v. Landon, 25 Conn. 137; Manville v. Parks, 7 Colo. 128, 2 Pac. Eep. 212; Huff v. McDonald, 23 Ga. 131; Murray v. Haverty, 70 111. 318; Dodge v. Davis, 85 Iowa, 77; Adam v. Briggs Iron Co., 7 Cush. 361; Duncan v. Sylvester, 24 Me. 483; Anaconda Copper M. Co. v. Butte & B. M. Co., 17 Mont. 519; Capner v. Flemington, 3 N. J. Eq. 467; Vervalen v. Older, 8 N. J. Eq. 98; Eeed v. Eeed, 16 N. J. Eq. 248; Boston Franklinite Co. v. Condit. 19 N. J. Eq. 394; Mallett v. Uncle Sam M. Co., 1 Nev. 188; Van Valkenburg V. Huff, 1 Nev. 142; Vietti v. Nesbitt, 23 Nev. 390, 41 Pac. Eep. 151; Cole- man's Appeal and Grubb's Appeal, 63 Pa. St. 252 ; Irwin v. Covode, 24 Pa. St. 163; Frisby's Appeal, 88 Pa. St 144; Brunson v. Lane, 91 Pa. St. 153; Sayers v. Hoskinson, 110 Pa. St. 473; Angier v. Agnew, 98 Pa. St. 587; North Pennsylvania Coal Co. v. Snowden, 43 Pa. St. 488; Blewett v. Coleman, 40 Pa. St. 45; Coleman v. Grubb, 33 Pa. St. 393; Early v. Friend, 16 Gratt. 21, 78 Am. Dec. 649; Graham v. Pierce, 19 Gratt. 38. 1092 EIGHTS AND DUTIES OF OPERATOES. [§ 1431. separable from mining law generally. "What we have to do with here is that species of co-tenancy which exists when two or more co-owners own or operate mining property.^ § 1431. Possession of one co-tenant not adverse to oth- ers.— In mining, as in all other kinds of real property, the possession of one co-tenant is the possession of all. There- fore one co-tenant cannot hold adversely to the others, ex- cept after ouster.^ As to what constitutes an ouster by one co-tenant against another, it may be stated that mining claims are subject to the same rules as other real property, namely, that the acts claimed to constitute it must be more open, notorious and hostile than would be required in the case of a stranger claiming to hold adversely. There must be outward acts of exclusive ownership, unequivocal and notorious, of such a character that they are calculated in their very nature to give notice to the ousted co-tenant;^ such, for instance, as the holding of exclusive possession,, openly and notoriously, after demand by the ousted co-ten- ant, sufficient to sustam an independent action in ejectment.* There must be a denial in toto by the adverse holder of the further existence of the co-tenancy, followed by acts caU culated to exclude the co-tenants from all participation as such.^ But when this occurs, as we shall presently see,* the ouster is accomplished, and the ousted co-tenant may assert his rights by ejectment. This rule was recognized by the supreme court of the United States in the case just cited,'^ to the extent of holding the ousted co-tenant, against whom the statute had not run, entitled to his interest, notwith- 1 See authorities in note 1, ante, 2 Union Cons. S. M. Co. v. Taylor,, p. 1091; Freeman, Co-tenancy, § 3; 100 U. S. 37, following Van Valken- Bainb. Mines (1st Am. from 3d Lon. burg v. Huff, 1 Nev. 142. ed.), pp. 53, 332, 333, 403; Van Valk- s Freem. Co-ten., g§ 221, 301. enburg v. Huff, infra; Moore v. « Day v. Davis, 64 Miss. 253. Hanimerstag, 109 Cal. 122; Adams 5 Coleman v. Clements, 23 Cal. 345. V. Briggs Iron Co., 7 Cush. 361 : 6 Post, § 1443. Husbes.T. Devlin, 23 Cal. 501; Mor- 7 Union Cons. S. M. Co. v. Taylor,, ganstern v. Thrift, 66 Cal. 577, 6 supra. Pac. Rep. 689. §§ 1432, 1433.] TENANTS IN COMMON. 1003 standing his failure for several years to contribute his por- tion of the assessment work. The reason for the latter part of this decision is apparent, since the failure to contribute is a matter for which a special remedy is provided by stat- ute,' and can be taken advantage of only in that way, and, if that remedy is not invoked, the right to it, or any other, is waived. § 1432. Same — Statute of limitations. — This being true, of course the statute of limitations does not begin to run in favor of one co-tenant attempting to claim adversely to another until actual ouster.^ Therefore the burden is on the person seeking to assert such adverse title to show an ouster of his co-tenant, followed by open, adverse and ex- clusive possession for a period equal to the statute of the state.' It is also the rule in some jurisdictions that where the co-tenant claiming an ouster is a foreign corporation, it is not entitled to claim the benefits of the statute of limita- tions, which will not run in its favor.* § 1433. Different from mining partnership. — While many of the features of co-tenancy in mining claims are sim- ilar, in their application, to mining partnership, when the subjects are carefully analyzed, the distinction between the two is apparent. Mining partnership, as we will notice later,' exists when two or more owners of a mining claim, for the purpose of operating it, actually engage in working thereon. This requirement of uniting for working the claim does not exist in the case of a co-tenancy. It is sufficient that they are joint owners in the claim. ^ Nor is it neces- 1 R. S. U. S., § 2334. See also ante, rial S. M. Co., 5 Nev. 44; Barstow v. § 520 et seq. Union Coos. S. M. Co., 10 Nev. 386. 2 Union Cons. S. M. Co. v. Taylor, « Post, g 1500 et seq., especially 100 U. S. 37. §§ 1504, 1505. 8 Freem. Co-ten., § 323 et seq. « Vietti v. Nesbitt, 33 Nev. 390, 41 * Union Cons. S. M. Co. v. Taylor, Pao. Rep. 151. See also Cline v. supra, following the Nevada su- James, 101 Fed. Rep. 737. preme court in Robinson v. Impe- 1094 EIGHTS AND DUTIES OF OPEEATOES. [§ 1433. sary, under some of the authorities,^ that they are joint owners in the mine, if they have such a community of in- terest in the -vi'orking of it as to make them joint owners in the product. Thus, in a Nevada case,^ the owners of a mine, who also owned a mill in connection, leased the mine and contracted with the lessee to treat the ore in their mill for a share of the net proceeds, -and the court held them all tenants in common of the ore; and because the owners of the mine were not engaged in working it, having leased it to others, they were held tenants in common of the prop- erty and not mining partners, which we think is undoubt- ■edly correct. The Idaho supreme court recently had under considera- tion a case where the facts showed that plaintiff owned an undivided seven-eighths of the property and the defendant the remaining eighth; that defendant was engaged in work- ing off a large portion of the property, to the exclusion of plaintiff and without his consent; that defendant had ac- knowledged itself liable for an accounting and had offered to permit plaintiff to come upon the premises and witness the clean-up, but had forbidden him from in any manner participating in it. The court held these parties to be mining partners,' and cited as authority the Idaho statute,* which says that " a mining partnership exists when two or more persons, who own ... a mining claim, . . . act- ually engage in working the same." Any extended criti- cism could serve no useful purpose ; hence we content our- selves with the statement that we are unable to see in what respect these parties were engaged in working the mine. We think they were, unquestionably, tenants in common, in which case plaintiff had his action for an accounting, or for damages for withholding possession.^ But to say they 1 Vietti V. Nesbitt, 22 Nev. 300, 41 3 Hawkins v. Spokane Hydraulic Pao. Rep. 151 ; Hudepohl v. Liberty M. Co., 2 Idaho, 970, 28 Pac. Rep. 433. Hill Con. M. & W. Co., 80 Cal. 553, « R. S. Idaho, § 3300. 22 Pao. Rep. 339, 340 and cases. » Paul v. Cragnas (Nev.), 59 Paa 2 Vietti V. Nesbitt, supra. Rep. 857, 47 L. R. A. 540. §§ 1434, 1435.] TENANTS IN COMMON. 1095 were partners, not only advertised an ignorance of the mean- ing of their own state statute, but of the plainest principles governing mining partnership as well. § 1434. Rights and duties of co-tenants as between themselves. — Whatever the law has been in the past, it is now well settled that any co-tenant has the right of posses- sion and use of the common property ;i and while mining property is generally so situated and worked as that each co-tenant or co-owner cannot work separate from the others to advantage, yet, if they can do so, they have a perfect right to operate in that manner,^ subject to the same ac- countability between each other.' § 1435. Right to work property. — It seems well settled, from the very earliest cases * down to the present time," that one co-tenant of a mine has a perfect right to enter upon any part of it and mine and remove the product. The Eng- lish case ° holds that he is limited to his share, but this rule should not prevail because of its impracticability. For any person, or any court, to assume to look at a mine and say iMcCord V. Oakland Q. M. Co., Pearce, 19 Gratt. 28; Job v. Potton, 64 Cal. 134, 37 Pac. Rep. 863; Pico L. E. 20 Eq. 84; Clegg v. Clegg. 31 V. Columbet, 12 Cal. 414; Ord v. L. J. Ch. 153; Simpson v. Tell- Chester, 18 Cal. 77; Coleman v. wright, 2 Lutw. 1247. See also Clement, 23 Cal. 245; Morganstern Bainb. Mines (1st Am. from 3d Lon. V. Thrift, 66 Cal. 577, 6 Pac. Rep. ed.), pp. 53, 54; McSwinney, Mines, 689; Findley v. Smith, 6 Mumf. 134; 110; Rogers, Mines (2d ed.), p. 267. Conrad t. Saginaw, 54 Mich. 249; 2 Bainb. Mines, 54; Early v. Ward V. Carp River Co., 47 Mich. Friend, supra; Simpson v. Tell- 65; Anaconda Copper M. Co. v. wright, supra; Ord v. Chester, 18 Butte & B. M. Co., 17 Mont. 519, 43 Cal. 77; Blewett v. Coleman, 40 Pac. Rep. 924; Vervalen v. Older, Pa. St. 45. 8 N. J. Eq. 98; Gaines v. Green ^ (ji-aham v. Pearce, swpra. Pond M. Co., 33 N. J. Eq. 603; El- * Job v. Potton, L. R. 20 Eq. 84, 14 well V. Burnside, 44 Barb. 447; Neel M. R. 329. V. Neel, 19 Pa. St. 328; Irwin v. * People ex reL Breene v. District Covode, 24 Pa. St. 163; Angler Ct. of Lake County (Colo.), 62 Pac. V. Agnew, 98 Pa. St. 587; Early v. Rep. 206. Friend, 16 Gratt. 21; Graham v. » Job v. Potton, sitpro. 1096 EIGHTS AND DUTIES OF OPEEATOES. [§§ 1436, 143T. when a co-tenant has mined his portion, if not impossible, would be very diflBcult. The better doctrine would seem _ to be that he may work the mine, even to exhaustion, being liable to his co-tenants for their portion of the proceeds.' But of course he may not work it to the exclusion of his co-tenants.^ Nor will one be permitted to work other prop- erty through the works of the co-tenancy without the per- mission of the other co-tenants.' JSTeither has the right to interfere with or impede the working of the other. § 1436. Bight to work — Majority and minority. — It is sometimes thought that a majority in interest controls the working of a mine. The supreme court of California, out of the exigencies of the particular case, evolved the doctrine that a majority of the interest, and not of numbers, con- trolled the working of the claim, but cited as authority a mining partnership case.* While this is generally true as to mining partners, it is not as to tenants in common.' It should not, therefore, have been applied ,in the Idaho case.* Any tenant in possession may lawfully work the mine.^ § 1437. Ordinary work not waste — The old rule to the contrary. — The old rule prevailing in England in former times is thus stated by Mr. Bainbridge: "Coparceners, joint tenants, and tenants in common are also liable to each other for waste ; and actions of account are maintainable for the receipt of more than the proper share of profits. All such owners may also be restrained by injunction from wilful destruction of the common property. But they may 1 Simpson v. Tellwright, 2 Lutw. 2 People ex rel. Breene v. District 1247; North Pennsylvania Coal Co. Court (Colo.), 62 Pac. Rep. 206. V. Snowden, 42 Pa. St. 488; Ver- sid. valen v. Older, 8 N. J. Eq. 98; Rus- * Dougherty v. Crary, 30 Cal. 291. sell V. Merchants' Bank, 47 Minn. 5 Duryea v. Burt, 28 Cal. 569. 286; McCord v. Oakland Q. M. M. "Hawkins v. Spokane H. M. Co., Co., 64 Cal. 134, 27 Pac. Rep. 963; 2 Idaho, 970, 28 Pac. Rep. 433; s. C, Anaconda Copper M. Co. v. Butte 33 Pac. Rep. 40. & B. M. Co., 17 Mont. 519, 43 Pac. TAnte, § 1435. Rep. 924. § 1438.] TENANTS IN COMMON. 1097 all concur among themselves in an act of waste. The con- ■currence must include all. In one case five of the owners had authorized the construction of a railroad upon the land held in common, against the wishes of the remaining owner, who proceeded to remove the rails, and the court of chancery- refused to restrain him." ' Pursuing the same principle, it has always been held that the license of one co-tenant was insufficient to protect a purchaser of ore taken from a mine.^ § 1438. Not waste for co-tenant to mine. — Mining by a ■co-tenant in the usual manner should never be considered waste. His entry upon the common property, for the pur- pose of mining, is always lawful, as we have seen,' and, there- fore, so long as he prosecutes his operations in a miner-like manner he is not impeachable for waste.* The reason for this is plain. The working of mining property by a per- son not entitled to the possession, no matter how carefully done, is of necessity waste for which he is liable; for, of course, it is impossible for a trespasser to acquire any rights by virtue of his possession, even though obtained peaceably. But it must be apparent that the same rule does not apply to one or more tenants in common. The very nature of mining property, especially in the western states and terri- tories, requires that it be worked. In the latter, until patent issues, a failure to do so makes it liable to forfeiture. To «ay that, when one co-tenant complies with this requirement and saves the claim from forfeiture, he becomes liable to the others for waste, would be to announce a rule which we think should not be followed by any court. This question is ably reasoned by the supreme court of California^ in an 1 Bainb. Mines (1st Am. from 3d 13 Colo. 41, 31 Pac. Eep. 925. See Lon. ed.), 53, citing Co. Litt. 576 and Job v. Pottou, L. E. 20 Eq. 84. 3706; Bacon, Abr., Waste, G. ; 4 & 5 ' Ante, % 1435. Anne, ch. 16, sec. 37; Denys v. «McCord v. Oakland Q. M. Co., 64 Shuckburg, 4 Y. & C. 43; Durham Cal. 134, 37 Pac. Eep. 863. ■8c S. Ey. Co. V. Wawn, 3 Beav. 119. sjicCord v. Oakland Q. M. Co., 2 Omaha & G. S. M. Co. v. Tabor supra, citing CaL Code C. P., § 732; 1098 EIGHTS AND DUTIES OF OPEEATOES. [§ 1439. opinion substantially in accordance with the views here ex- pressed. But the supreme court of West Yirginia, in a re- cent case, announces a somewhat different doctrine, holding that the removal of gas from the premises by a tenant own- ing three-tenths of the co-tenancy, by means of a well bored by him, is waste.^ A close examination of this case, how- ever, including the manner in which the rights of the par- ties were adjusted, shows no material conflict with our posi- tion. Of course the working co-tenant must account to his fellows for the net proceeds from ores mined and marketed, and we think he should be held liable for careless or negligent mining; not for mere errors of judgment, but for a violation of the. ordinary rules of good mining. Beyond this his lia- bility should cease. The question of the measure of damages for such work will be discussed later.^ § 1439. Same — Mr. Bainbridge's view. — "Such are the rights of limited or qualified owners, when the mines are unsevered from the right to the surface ; but when they form a separate inheritance, it is obvious that the ordinary rules respecting waste have no application ; for it would be man- ifestly absurd to suppose that express grants or limitations of mines in that condition were not intended t© be at all times fully enforced and enjoyed. In all these cases, there- fore, such owners will have the right to work the mines, whether opened or unopened, new or old, according to the duration of their interest, if not other wise prevented. . . . For there can be no action of trespass in such cases, on ac- count of the unity of possession. The remedy of account is, however, open to those who do not co-operate." ' El well V. Bumside, 44 Barb. 447; ^ Post, %% Ui4r-77. Neel V. Neel, 19 Pa. St. 328; Pico v. ' Bainb. Mines, pp. 53, 54 Se& Columbet, 13 Cal. 414; Finley v. also Heil v. Strong, 44 Pa. St. 264; Smith,6 Mumf. 134;AVat.Tres.,947; Kier v. Peterson, 41 Pa. St. 361; Irwin V. Covode, 24 Pa. St. 163. North Pennsylvania Coal Co. v. 1 Williamson v. Jones, 43 W. Va. Snowden, 43 Pa. St. 488. 562, 38 L. E. A. 694. §§ 1440, 1441.J TENANTS IN COMMON. 1099 § 1440. Same — Co-tenant's right of occupation.— That each co-tenant has an equal right to the possession of every part of the co-tenancy is indisputable. This right is one of the essential elements of a co-tenancy.^ That possession of mining property would almost invariably be useless without the further right to extract the minerals must be equally obvious. Therefore, unless a co-tenant is entitled to work the mine subject to the terms previously suggested,^ it would be entirely within the power of one co-tenant, owning ever so small an interest, to effectually block operations for an indefinite period, and, in a case like the one in "West Yir- ginia,' for instance, until the oil, which would otherwise en- rich the parties, is lost to them forever, by being drained through wells on adjoining premises. The California court recognizes this rule in very emphatic language.* But the "West Virginia court ^ places co-tenants and life tenants in the same class, and holds the opening of new mines by either to be waste. In this case the other co-tenants were only remaindermen, who were not entitled to possession until the death of the life tenant, to whose interest Jones had suc- ceeded. Eut this circumstance could make no difference, since they would be entitled to an accounting, notwithstand- ing this fact. "We are unable to agree with this part of the decision, though we do think the ultimate adjustment of the rights of the parties was just and equitable. It is a case where a wrong reason was given for a righteous decision. § 1441. "VVlien not co-tenants — One tenant binding all. Enough has appeared in the branch of this work relating to severance to demonstrate that the owners of two severed I Freem. Co-ten., § 67. 162. See also Early v. Friend. 16 ■'■ Ante, § 1438. Gratt. 21, 78 Am. Deo. 649; Edsall 3 "Williamson v. Jones, 42 W. Va. v. Merrill, 37 N. J. Eq. 114; Capner 562, 38 L. R. A. 694. See also s. C, v. Fleming, 3 N. J. Eq. 467; Smith 39 W. Va. 231, 25 L. R A. 222. v. Siiarp (N. C), Busb. 91 ; Morgan- 4 McCord V. Oakland Q. M. Co., 64 stern v. Thrift, 66 Cal. 577, 6 Pao. CaL 134, 27 Pac. Rep. 867, quoting Rep. 689. from Irwin v. Covode, 24 Pa. St. * Williamson v. Jones, supra. 1100 EIGHTS AND DUTIES OF OPEEATOES. [§ 1442. ■estates are not co-tenants, even though their estate is con- tained within the same wedge of earth.i There is a single case announcing a rule or doctrine contrary to the text, but it seems not to have been followed.^ It has been held that •one co-tenant may bind all ; ' but while this may sometimes be true, the general rule 'must be to the contrary. For if one co-tenant may not himself work the mine without being liable for waste, as some courts hold,* and for damages for withholding possession,' it must follow that he cannot per- mit a stranger to do acts concerning it which will bind his co-tenants without their consent.^ § 1442. No exclusive possession or right — Unreason- able interference. — Enough has appeared in the foregoing to demonstrate that no co-tenant may lawfully exclude a co-tenant from the possession and use of the common prop- erty.'' It would seem, however, that this would not give the non-assenting co-tenant the right of unreasonable inter- ference. If he cannot consent to the acts of his co-tenant and feels injured by such acts, he may resort to the courts for protection,* but he has not the right to forcibly obstruct or prevent reasonable operations, including use, production and consumption in the ordinary course of mining.' 1 Virginia Coal & Iron Co. v. Kelly, v. Spokane H. M. Co., 3 Idaho, 970, 93 Va. 332, 34 S. E. Rep. 1080. See 28 Pac. Rep. 433, 33 Pac. Rep. 40. Bronson v. Lane, 91 Pa. St. 153; 'Early v. Friend, 16 Gratt 31, 78 Marvin v. Brewster Iron Co., 55 Am. Deo. 649; Graham v. Pierce, N. Y. 538; Erickson v. Michigan 19 Gratt. 28; Izard v. Bodine, 11 N. Co., 50 Mich. 604; Smith v. Cooley, J. Eq. 403, 69 Am. Dec. 595; Cole- 65 Cal. 46, 2 Pac. Rep. 880. man v. Grubb, 23 Pa. St. 393. 2Murray V. Haverty, 70 111. 318. SBainb. Mines (1st Am. from 3d sCrary v. Campbell, 34 Cal 684 Lon. ed.), 54; Lindl. Mines, sec. 790; * Ante, % 1488, note 6, infra. Roberts v. Eberhardt, Kay, 148. ^Ante, % 1438. » Freem. Co-ten. (2d ed.), § 249a; 6 See Omaha & G. S. & R Co. v. Job v. Potton, L. R. 30 Eq. 84, 14 M. Tabor, 18 Colo. 41, 31 Pao. Rep. 925, R 329. Compare Murray v. Hav- 5 L. R A. 236; Williamson v. Jones, erty, 30 111. 320, decided under spe- 43 V7. Va. 563. See also Hawkins cial statute. §§ 1443, 1444.J TENANTS IN COMMON. 1101 § 1443. When possession of one co-tenant not posses- sion of all. — While, as we have seen,^ the possession of one co-tenant is ordinarily the possession of all, so far as it re- lates to adverse occupancy, this does not continue after actual ouster. When there is an ouster the relationship of co-tenants ceases, and thenceforth the parties deal with each other at arm's length.^ And where the party in pos- session does not enter as a tenant in common with the other, but as the owner of the entire claim, claiming it under a separate conveyance, in hostility to the other, no co-tenancy exists and the statute will run from such entry.' § 1444. Non-assenting co-tenant's right to account. — By the early common law there was no accounting between tenants in common.* In this case Moncure, J., uses these words: " At common law joint tenants and tenants in com- mon had no remedy against each other, where one alone re- ceived the whole profits of the estate, since he could, not be charged as bailiff or receiver to his companion unless he actually made him so."^ This was changed by the statute of Anne.* Following that statute the law has become firmly- rooted that the operating tenant must account to the non- assenting co-tenant;' this both as to profits and waste,, ■where the latter is committed, for both of which he is liable.*" ^Ante, g§ 1431-32; Coleman v. supra; Mallett v. Uncle Sam M.. Clements. 28 Cal. 245; Partridge v. Co., supra. McKinney, 10 Cal. 181; Mallett v. 3 Abernathie v. Cons. Virginia M. Uncle Sam M. Co., 1 Nev. 188; Van Co., 16 Nev. 260; Telloch v.Worrall,. Valkenburg v. Huff, 1 Nev. 142; 49 Pa. St. 133. Southmayd v. Southmayd, 4 Mont. * Early v. Friend, 16 Grat. 21. 100. sCitinglTho. Co. 788. 2 420 M. Co. V. Bullion M. Co., 3 ^4 Anne, ch. 16, § 27; Early v. Sawy. 634, 9 Fed. Cas. 592, 602. See Friend, supra. See Henderson v. also cases, in note 1, supra; Part- Mason, 17 Q. B. 701; McMahon v. ridge v. McKinney, supra; Susque- Burchell, 3 Hare, 97. hannah, etc. Co. v. Quick, 61 Pa. St. '' Bainb. Mines (1st Am. from 8d 228; Van Valkenburg v. Huff, Lond. ed.), pp. 53* 54, 56; Denys v. 8 Williamson V. Jones, 43 W. Va. Virginiaespeoially,thisisregulated 562, 38 L. R. A. 694. See also note by statute. Laws 1891, ch. 93, § 2.. 7, supra. And in some states, West 1102- EIGHTS AND DUTIES OF OPEEATOES. [§§ 1445, 1446. § 1445. Measure of the account — What included.— The measure of this account, however, is a matter upon which the courts are not agreed. What seems to be the greater weight of reason and authority favors the rule that the measure of the accounting to a non-assenting co-tenant who refuses to take the risli of possible loss is fair rental value.' Of course, rent would be payable under this rule whether the operations of the working co-tenant are suc- cessful or not. On the other hand, some courts of equal character and strength hold that the true measure of the account and liability of the operating co-tenant is the pro- portionate share of the net proceeds after deducting actual operating expenses fairly and honestly incurred.''' This rule opens a broad field as to what are and what are not proper expenditures. § 1446. Same — When rent the proper basis. — Of course the same rule which generally applies to ordinary real es- tate, the earning capacity of which, by way of rental, is readily ascertainable, could not always be invoked in meas- uring compensation for the use of mining property. In the latter case the earning capacity must necessarily depend upon the number of openings and the amount of mineral extracted. Therefore any fixed rental would not, in such Shuckburg. 4 Y. & C. 42; Job v. Nev. 188; Frisbee v. Irvin, 88 Pa. Potton, L. R. 20 Eq. 84; Bradburne St. 144; Bronson v. Lane, 91 Pa. St. V. Botfield, 14 M. & W. 559; Kahn 153; Coleman's Appeal and Grubb's V. Central S. Co., 102 U. S. 641; Mc- Appeal, 62 Pa. St. 252; Allen v. Cord V. Oakland Q. M. Co., 64 Cal. Barkley, 1 Speers' Eq. 264, 14 M. R. 134, 27 Pac. Rep. 863; Holbrooke v. 246; Early v. Friend, infra; Gra- Harriugton (Cal., 1894), 36 Pac. Rep. ham v. Pierce, 19 Grat. 28. 365; Abel v. Love, 17 Cal. 233; Neu- i Early v. Friend, 16 Grat. 21, 78 man v. Dreifurst, 9 Colo. 228, 11 Am. Dec. 649; Edsall v. Merrill, 37 Pac. Rep. 98; Barnum v. Landon, N. J. Eq. 114; Allen v. Barkley, 1 25 Conn. 137; Huff v. McDonald, 22 Speers' Eq. (S. C.) 264. Ga. 131; Stenger v. Edwards, 70 2Ruffner v. Lewis' Ex'rs. 7 111. 631; Adam v..Briggs Iron Co., Leigh, 720; Graham v. Pearce, 19 7 Gush. 361; Boston Franklinite Grat. 28. And see McCord \. Oak- Co. V. Condit, 19 N. J. Eq. 394; Ed- land Q. M. Co., 64 Cal. 134, 27 Pac. sail V. Merrill. 37 N. J. Eq. 114; Rep. 862. See also Pickering v. Mallett V. Uncle Sam M. Co., 1 Pickering, 63 N. H. 468. § 1447.] TENANTS IN COMMON. 1103 cases, be an accurate mode of measuring compensation. Cases might occur, however, where the rights of the parties could be equitably adjusted in this manner. For instance, in an early Virginia case, where the property consisted of a salt well which had been worked by one of the co-tenants, the court fixed compensation for this upon a basis of yearly rental.' It appears, however, that there was an arrange- ment for rent between some of the co-tenants and the one working the well, which seems to have furnished the chief reason for the court's decision. It seems to us that an ad- justment upon the basis of royalty on the value of the prod- uct mined would usually be more satisfactory.^ § 1447. Same — Rents and profits. — Another mode of accounting, which has become quite general in several juris- dictions, is upon the basis of rents, issues and profits con- sidered as in other actions; the operating tenant being charged with all receipts for minerals extracted, and cred- ited with all expenses on account of the operating of the mine, — this, as one court puts it, " supposing the tenant to have been capable and faithful." ^ This rule was announced at, an early date by the Yirginia court,* and has since been followed by that court in the case of the tenant operating lead mines ^ and iron mines,* by the supreme court of Penn- sylvania in a coal mine case,' and by the West Virginia court in an oil and gas case ; ^ while the California court recognizes substantially the same rule.' These cases pre- sent many cogent reasons for the rule announced, and gen- erally may be safely followed. 1 Early v. Friend, 16 Grat. 31, 78 ' Winton Coal Co. v. Pancoast Am. Deo. 649. Coal Co., 170 Pa. St. 443, 33 A^l. 2 See the next sections post. Eep. 110. ' Graham v. Pierce, 19 Grat. 28, ^ Williamson v. Jones, 43 "W, Va. 100 Am. Dec. 658. 563, 88 L. R. A. 694. * RuflEner v. Lewis, 7 Leigh, 720. » McCord v. Oakland Q. M. Co., 64 5 Graham v. Pierce, supra. Cal. 134, 27 Pac. Eep. 863. <* Newman v. Newman, 27 Grat. 733. 11U4 EIGHTS AND DUTIES OF OPEEATOES. [§§ 1448, 1449^ § 1448. Matters for consideration in allowing rent to excluded co-tenant. — In making rent the measure of ac- countability the courts must take into consideration the- question as to whether the non-assenting co-tenant is ex- cluded from possession or not, as the operating co-tenant would not be liable for rent unless he was so excluded, nor unless the working tenant put it to some profitable use other than mere occupancy.^ But, of course, where profit is derived by the operating tenant, and that is made the basis of accounting, the non-assenting co-tenant would be entitled to his share of the profits, whether allowed rent or not.2 § 1449. Surplus over co-tenant's share. — The supreme court of Georgia, in considering the measure of accounting in case of operations by one co-tenant to the exclusion of the others, held it to be the surplus over the operating co- tenant's share, together with any profits derived therefrom by him.' The greatest objection to such a rule, however, would be, as previously noted,* the diflBculty, if not impos- sibility, of determining what portion of the output is sur- plus. Unless the mine is worked to absolute exhaustion this could never be determined in anything like a practical manner. And whether the mine is exhausted would almost invariably be a question of fact concerning which reason- able men might easily differ. The better rule^ would seem to be to base the measure of accounting upon the value of the product already mined, estimated in some one of the modes here pointed out. iHamby v. Wall, 48 Ark. 135, 3 Davis, 85 Iowa, 77; Carver v. Fenni- S. W. Rep. 705: Sailer v. Sailer, 41 more, 116 Ind. 236; Bowen v. Swan- N. J. Eq. 398, 5 Atl. Rep. 319; Var- der, 131 Ind. 164, 33 N. E. Rep. 725. num V. Leek, 65 Iowa, 751, 23 N. W. See also ante, § 1447. Rep. 151. 3 HufiE v. McDonald, 33 Ga. 131, 14 2 Holmes v. Best, 58 Vt. 547, 5 M. R 262. See Docker v. Somes, 3 Atl. Rep. 885; Almy v. Daniels, 15 Myl. & K. 655; Story's Eq., §g 445,. R. I. 313, 4 Atl. Rep. 753, 10 Atl. 465. Rep. 654; Scantlin v. Allison, 33 < .4n 2 Lindl. MineF, 800, citing Lindl. ' ^nte, § 1530. Part, p. 600. See also Dougherty 1150 EIGHTS AND DUTIES OF OPEEATOES. [§§ 1539-il. ness or course of business of the firm or like firms be not such that therefrom such a power may be implied, then there is no reason for holding a firm bound for a loan made to and on the sole credit of one partner, simply because he may have used the money for a partnership purpose." ^ § 1539. Power to borrow money. — From the position of the Texas court as stated in the last preceding section, it cannot be gainsaid, indeed it would seem plain, that the agent, the operating partner, has not the implied power to borrow money on the credit of the firm. In that case the authorities were carefully collected, and the consensus of opinion stated in the following words: " It has been gener- ally held that mining partnerships are non-trading partner- ships, and the individual members of the ^rm without power to borrow money on the credit of the firm, unless the power be given otherwise than by implication from the or- dinary nature of the business." ^ § 1540. Not a trading partnership. — In the last casein the preceding section the court distinguishes between a mining and trading partnership, quoting from a leading authority in the following words: " A mining partnership is a non-trading partnership, and its members are limited to expenditures necessary and usual in the particular business." ' § 1541. Management of property — Compensation of manager. — It must be apparent that the management of a 1 Randall v. Meredith, 76 Tex. ' Childers v. Neely, 47 W. Va. 70, 669, 13 S. W. Rep. 576. 34 S. E. Rep. 828. See also Bates, 2 Randall v. Meredith, 76 Tex. 669, Partn. 329; Waldron v. Hughes, 44 13 S. W. Rep. 576, citing (which W. Va. 126,29 8. E. Rep. 505; Judge see) Bates, Partn., g§ 329, 371; v. Braswell, 13Bush,67; McConnell Lindl. Partn. 266-270; Colly, v. Denver, 35 Cal. 365: Pooley v. Partn. 658, 686, note 2; Pars. Partn. Whitiuore. 27 .^m. Rep. 735; Dear- 108, 218 and note; Story, Partn., dorf v. Thatcher, 78 Mo. 128: Pease S 126; 1 Story, Cont. 279; Daniel, v. Cole, 53 Conn. 53, 22 Atl. Rep. Neg. Inst., ijg 357-359; Childers v. 681. Neely (W. Va.), 34 S. E. Rep. 828. I 1545.] MINING PAETNBKSHIPS. 1151 partnership must be committed to some person. In this re- spect it is similar to a corporation. When once committed, the manager must be free from irregular interference. Lord Eldon illustrated this truth as follows : " In my country, where there are frequently twenty owners of the same mine, if each is to have a set of miners going down the shaft to work his twentieth part, it would be impossible to continue working the mine. Must not a contract be implied that it was to be carried on in a practicable and feasible way ? Where there are part owners of a mine, and they cannot by contract agree to appoint a manager, this court will manage it for them." ^ As a general rule, the managing partner is not entitled, in the absence of a special agreement, to com- pensation.^ Aeticle 0. Distinctions from Tenancy in Common. g 1545. General distinctions from tenancy in common. 1546. When parties treated as partners. 1547. Rule where tenants in common unite to work mine — May sell to each other — No right of pre-emption. 1548. The rule as to ditch associations. 1549. Partners in the extraction of ora 1550. Part of common law. § 1545. General distinctions from tenancy in common. It will thus be seen that tenants in common are not neces- sarily partners, nor does the mere doing of assessment work make them such. The distinction, and the only one material here, arises when they unite in operating beyond mere assess- ment work, instead of operating separately. The supreme court of Colorado says: " To the extent of their interest in the property they are tenants in common, and in the work- 1 Jefifrey v. Smith, IJ. & W. 398, lor, 15 Ves. 10; Denys v. Shuckburg, followed in Roberts v. Eberhardt, 1 4 Y. & E. 42. Kay, 148. See also Walters v. Tay- 2 Godfrey v. White, 43 Mioh. 171. See Levy v. Carrack, 13 Iowa, 158. 1152 EIGHTS AND DUTIES OF OPEBATOES. [§§ 1546, 1547. ing of the mine they are to be considered as partners." ' But a dissenting tenant in common is not a partner in working the mine when operated by others against his wish.^ § 1546. When parties treated as partners.— Here, as in all other branches of the law, courts look to the actions of the parties, rather than the* name they give themselves, in determining their rights and duties. Thus, where th& parties designate themselves a corporation, but fail to prop- erly file their articles and otherwise comply with the law,, they will not be recognized as a corporation, but will be held as partners.' In the California case the facts showed the mining property to have been worked by the owners as an unincorporated company, which they styled the Hibernia Mining Company. The principal question for determina- tion, it seems, was whether certain of the members had for- feited their interest. Therefore the court, while holding that there was no corporation, expressed no further opinion on that point. But it must be apparent that the parties were mining partners, pure and simple. § 1547. Rule where tenants in common unite to worlt mine — May sell to each other — No right of pre-emption. Where tenants in common of a mine unite for the purpose of working it, each owner is entirely free to act, touching his interest in the mine, as he may see fit. There is no right of pre-emption of the interest of a retiring partner. Each member has power to dispose of his interest in the mine to whomsoever he wishes, and is free to deal with his 1 Manville v. Parks, 7 Colo. 128, & B. M. Co., 17 Mont. 519, 43 Pac. 2 Pac. Rep. 313, citing Dougherty Rep. 934. V. Creaiy. 30 Cal. 800; Duryea v. ^pirgt Nat Bank v. G. V. R M. Burt, 38 Cal. 569; Skillman v. Laoh- Co., 89 Fed. Rep. 449. man, 23 Cal. 200. See also Lyman 3 Hill v. Beach, 13 N. J. Eq. 31;: V. Schwartz, 13 Colo. App. 318, 57 Abbott v. Omaha S. Ca, 4 Neb. 416. Pac. Rep. 735; Higgins v. Arm- See also New York Iron Mine v. strong, 9 Colo. 38, 10 Pac. Rep. 233; First Nat Bank, 39 Mich. 644; Wise- Anaconda Copper M. Co. v. Butte man v. McNulty, 35 Cal. 230. §§ 1548-1550.] MINING PAETNEESHIPS. 1153 associates or with a stranger in regard to such interest; and either owner may buy from his associates and thus enlarge his interest without reference to the partnership relation.' § 1548. The rule as to ditch associations. — In the early history of California it was customary for several persons to combine their efforts for the purpose of constructing water ditches, the water from which they sold to placer miners. In determining the rights of these parties they were held to be tenants in common.^ And this must be the true rule, since they were not the owners of a miae engaged in op- erating it, requisite to constitute them mining partners; and the recognized right of any of them to sell his interest without working a dissolution destroyed oije of the essen- tial elements of a general partnership. These associations have now ceased to exist, however, and any extended dis- cussion of the question could serve no useful purpose, even if it were proper in a work of this kind. § 1549. Partners in the extraction of ore. — A contract providing that one party should have a certain undivided interest in all ores extracted from certain mines, and should bear a proportionate share of the expense of extracting the same, the other parties to have remaining interest in the ore, and to bear the balance of the expense, and also that the first parties should furnish a mill for concentrating the ore, the expense ©f concentrating and rental of the mill to be divided among the parties, renders them partners in the extraction of the ore,' but not mining partners. § 1550. Part of common law. — Thus, the law governing' mining partnerships is not only a part of the common law of mining, but also of the general common law. The fol- 1 First Nat. Bank v. Bissell, 3 Mc- TJ. S. 513. See also Harris v. Lloyd, Crary, 73; s. C, 4 Fed. Rep. 694; 11 Mont. 390. 38 Pao. Rep. 736. S. c, Bissell V. Foss, 114 U. S. 353; 2BradIey v. Harkness, 36Cal. 69; Kahn v. Central Smelting Co., 103 McConnell v. Denver, 35 Cal. 365. U. S. 641 ; Kimberly v. Arms, 139 » Ashenfelter v. Williams, 7 Colo. App. 333, 43 Pac. Rep. 664. 73 1154: EIGHTS AND DUTIES OF OPEEATOES. [§ 1550. lowing doctrine was laid down in a dissenting opinion by Mr. Justice Boreman, in a Utah case,^ and was afterwards upheld as law by the supreme court of the United States in another branch of the same litigation : ^ "So we find that mining partnerships did not have their birth upon this west- ern coast, but were known and recognized as a necessity in other lands long before California even was known as a mining country. "With the increase of mining in California, as elsewhere, these partnerships have grown up and become, as it were, a part of the common law, The courts of Cali- fornia, following the English rule, recognized them as a necessity, and the legislature of that state in its wisdom has not seen proper, after a trial of the system for nearly thirty years, to do away with them. . . . Miners are accus- tomed to them, and great business interests have been car- ried on under them. At this date, therefore, after years of acquiescence by the people generally, it is the duty of the courts to uphold the system and not unsettle mining inter- ests by changing the rule. If that which has become a sec- ond nature to mining enterprises had best be modified or abrogated altogether, let the appeal be made to the legis- lative authority to do the work, making the proper savings of present acquired rights and interests. . . ."^ Aeticle D. How Created and How Established. § 1555. How partnership may be created and established — In writing and by parol. 1556. By act of the parties. 1557. When existence question of law and fact. 1 Kahn v. Old Telegraph M. Co., Burt, 38 Cal. 569; Skillman v. Lach- 2 Utah, 174, 317. man, 23 Cal. 198; Dougherty v. 2 Kahn v. Central Smelting Co., Creary, 30 Cal. 290; Settembre v. 103 U. S. 641. Putnam, 30 Cal. 490; Mallett v. 3 Citing Blanchard & Weeks, Uncle Sam G. & S. M. Co., 1 Nev. Lead. Min. Cas. 561, 566; Nolan v. 188, 203; Blanchard & Weeks, 129, Lovelock, 1 Mont. 224; Duryea v. 130: Coll. Mines, 95. §§ 1555, 1556.] MINING PAETNEESHIPS. 1155 § 1555. How partnership may be created and estab- lished^ — In writing and by parol. — It may be stated as a general rule that a partnership itself may be created either in writing or by parol, and that parol evidence is sufficient to establish it.^ Since the contract Itself may be made by the verbal agreement of the parties, it may be proved the same as anj'' other fact.^ But, of course, the party charged with the burden of proving partnership, like the person having the burden in any other case, must estab- lish it by clear and competent proof.' There is one case which seems to announce a somewhat different rule. The supreme court of Is'evada, ignoring the partnership contract entirely, and the equitable principle, taking a partly ex- ecuted parol contract out of the statute of frauds, refused to recognize a mining partnership not established by writ- ing, upon the ground that it was contrary to the statute of frauds of that state, which prohibited the acquisition of an interest in mines by any contract not in writing.^ § 1556. By act of the parties. — Says Mr. Bainbridge: ^'The other mode of creating a partnership is by just pre- sumption from the acts of the parties. Thus, a communion or participation of profits; a person suffering the use of his name in a business, or admitting any property to be the joint property of himself and another person ; the attendance at partnership meetings; the general admission or representa- tion of being a partner, or any voluntary act which may 1 Perkins V. Peterson, 3 Colo. App. M. R. 562; Southmayd v. South- 242,29 Pao. Rep. 1135; May hew v. may d, 4 Mont. 100; Duryea v. Burt, Burk (Idaho), 29 Pac. Rep. 106; 28 Cal. 569; Moritz v. Lavelle, 77 Welland v. Huber, 8 Nev. 203. Cal. 10, 18 Pac. Rep. 808; Lawrence This case is not noticed in the later v. Robinson, 4 Colo. 567; Meagher v. case. Craw v. Wilson, infra. See Reed, 14 Colo. 335, 24 Pao. Rep. 681. also Settembre v. Putnam, 30 Cal. 3 Mayhew v. Burk, supra. See 490; Jones v. Clark, 42 Cal. 180. Ranahan v. Gibbons (Greg.), 63 Pac. 2Murley v. Ennis, 2 Colo. 300; Rep. 773. Hirbour v. Reading, 3 Mont. 13; *Craw v. Wilson, 23 Nev. 385, 40 Snyder v. Burnham, 77 Mo. 52, 15 Pac. Rep. 1076. 1156 EIGHTS AND DUTIES OF OPEEA.TOES. [§ 1557. show a joint interest in the object of speculation, have all been held suflScient to constitute a partnership with respect to third persons." ^ In several states there is express stat- utory provision that no express agreement to become part- ners is necessary.^ And even in those jurisdictions where there is no statute on the subject the best authority is to the effect that no agreement is necessary; a mere indefi- nite understanding that thej' will expend their time and skill and pay their share of the expenses being held suffi- cient.' § 1557. When existence question of law and fact. — From which it must necessarily follow that the acts neces- sary to constitute a mining partnership are matters to be determined by the court. But the existence of those facts in the particular case is a question of fact.* In other words, no agreement to become partners being necessary, it is for the courts to say what facts, if proved, are sufficient to create such an organization; after which the existence or non- existence of those facts is determined the same as in any other case. The Colorado court also holds that the same strictness of proof is not required of a plaintiff to charge iBainb. Mines (1st Am. from 3d Cal. 569; Jones v. Clark, 42 Cal. Lend, ed.), p. 347, citing Smith v. 180; McConnell v. Denver. 35 CaU Keyes, 4 Beav. 503; Waugh v. 365; Smith v. Cooley, 65 Cal. 46, 2 Carver, 2 H. Black. 285; Bird v. Pac. Eep. 880; Slater v. Haas, 15 Aston, 6 Bing. 788; Lawler v. Ker- Colo. 574, 25 Pao. Eep. 1039; Man- shaw, 1 Mood. & M. 93; Shep. villa v. Parks, 7 Cola 128: Charles Touch. 71; Guidon v. Robson, 2 v. Eshleman, 5 Colo. 107, 111. Campb. 803; Young v. Axtell, 2 H. -See statutes in Appendix B. Black. 242; Spencer v. Billing, 3 ' Besides the authorities in note 1, Campb. 310; Goode v. Harrison, 5 supra, see especially Childers v. B. & Aid. 150; Maudsley v. Le Neely, 47 W. Va. 70, 34 S. E. Rep. Blanc, 2 Car. & P. 409; Braithwait 828, 49 L. R. A. 468. v. Schofield, 9 Barn. & Cresw. 401 ; * Hurd v. Tompkins, 17 Colo. 294, Harvey v. King, id. 356; Vice v. 30 Pac. Rep. 247, citing Manville v. Lady Anson, 7 B. & C. 409, 1 M. & Parks, 7 Colo. 128, 2 Pac. Rep. 212; E. 113, 3 C. & P. 19; Dickinson v. 2 Greenl. Ev. (13th ed.) 483; Dwin- Valpy, 10 B. & C. 128, 5 M. & R. ell v. Stone, 30 Me. 884; Everitt v. 126. See also Duryea v. Burt, 28 Chapman, 6 Conn. 347. §§ 1565, 1566.] MINING PAETNEESHIPS. 1157 the defendants as partners as would be necessary if the suit had been instituted by instead of against the flrm.^ But as between themselves, of course, each is bound by the agreement he makes, the same as in any other contract.'' Aetiole E. Bights and Duties Inter Sese. § 1565. Eights, obligations and duties of mining partners inter sese — Fair dealing. 1566. Skill bargained for — When representatives not entitled to por- tion. 1567. General rule — Representatives of deceased partner entitled to full share of remainder. . § 1565. Eights, obligations and dnties of mining part- ners inter sese — Fair dealing. — "While perhaps the rule of uberrima fides may not be so rigidly enforced in mining as in commercial partnerships, for the reason that all are not agents, yet, manifestly, neither partner has the right to engage in any operations calculated in their very nature to operate to the detriment or disadvantage of the partner- ship property,' nor to negligently operate such property.* § 1566. Slfill bargained for — When representatives not entitled to portion. — Where a partnership was formed to continue during the terra of a lease, and where the main contribution was the skill of the partners, notwithstanding it was carried on as a general partnership and not specially as a mining partnership, it was held that the general rule which gives the representatives of a deceased partner the iHurd V. Tompkins, 17 Colo. 394 Arms, 129 TJ. S. 512; Jennings v, 2 Hodgson V. Fowler, 24 Colo. 278, Bickard, 10 Colo. 395, 15 Pac. Rep. 50 Pac. Rep. 1034; Meagher v. Reed, 677; Continental Divide M. Co. v. 14 Colo. 335, 24 Pac. Rep. 681. Bliley, 23 Colo. 160, 46 Pac. Rep 3 Fawoett v. Whitehouse, 1 Russ. 633: Jones v. Dexter, 130 Mass. 360 & M. 132; Clegg v. Edmondson, 8 Hirbour v. Reading, 3 Mont. 13; De Gex, M. & G. 787; Burton v. Collins v. Case, 23 Wis. 230. Wookey, 6Madd. 367; Kimberly v. ^ Ante, % 1532. 1158 EIGHTS AND DtTTIES OF OPEEATOES. [§§ 1567, 1575. proper share of proceeds of a partnership continued after his death by the others, with firm assets, did not apply .^ § 1567. General rule — Representatives of deceased partner entitled to full share of remainder. — Without criticising too much the position of the New Jersey court in the last section, which was doubtless justified under the peculiar terms of the partnership in question, it suffices to say that the general rule established by a long line of cases in England, and recognized in this country, gives due observ- ance to the interest of representatives of deceased partners, and recognizes their right to participate either in the con- tinuing mining partnership or in the proceeds after the debts are paid, it being remembered that the death of the partner does not dissolve the partnership, and the same can only be dissolved by the voluntary action of one or more of the parties.^ Aeticle F. Dissolution, § 1575. Dissolution and termination of partnership relation — How ac- complished. 1576. Notice must be given to prevent future liability. 1577. When court of equity will intervene. 1578. By death under the old rule — By statute in England. 1579. Rights of incoming and outgoing partners. 1580. Generally no dissolution by mere forfeiture. 1581. Summary — Doctrine of this chapter restated. § 1575. Dissolution and termination of partnership re- lation — How accomplished. — Since the death, withdrawal, or sale of his interest by a member does not operate as a 1 Phillips V. Reader, 18 N. J. Eq. De Tastet, Jac. 284; Wederburn v. 95. To the same effect, see DufBeld Wederburn, 2 Kean, 723; Palmer V. Brainard, 45 Conn. 434; Burdon v. Mitchell, 3 M. & K 672; Stocken V. Barkus, 4 De Gex, F. & J. 43. v. Daivson, 9 Beav. 239; Feather- 2 Brown v. Litton, 1 P. Wms. 140; stonhaugh v. Turner, 39 Beav. 383; Hammond v. Douglass, 5 Ves. 539; Simson v. Chapman, 4 De Gex, M. Crawshay V. Collins, 15 Ves. 318, 1 & G. 154; Stoughton v. Lynch, 1 Jac. & W. 467; Featherstonhaugh Johns. Ch. 467. V. Fenwiok, 17 Ves. 398; Brown v. §§ 16Y6, 1577.] MINING PAETNEKSHIPS. 1159 dissolution/ it would seem that, ordinarily, there would be no occasion for a dissolution or winding up of its affairs until the object for which it w^s created had been accom- plished, unless all the members so desired. Any member who becomes dissatisjfied with the management may sever his connection with it by disposing of his interest, just as the holder of stock in a corporation may withdraw from it. Of course there is a technical dissolution, and a complete one, so far as the withdrawing member is concerned, when- ever one of the members sells out or withdraws.^ Cases may often arise, however, where the withdrawal of a member would work a great hardship upon him, and an appeal to a court of equity is the only practical solution of the difficulty. We will notice this elsewhere.' § 1576. Notice must be given to prevent future liabil- ity. — Since a member of a mining partnership may retire at pleasure, as a general rule, being liable only for such spe- cial damage as might actually result from breach of the con- tract, he must give substantially the same notice as in a trading partnership in order to end his liability and evade future responsibility.* This, as to those having knowledge of his membership in the firm, and no other notice or knowl- edge of its dissolution, and who have dealt with the firm on his liability or promise to answer. § 1577. When court of equity will intervene. — As pre- viously noticed,* it is within the province of a court of equity to order the dissolution and winding up of the affairs of a mining partnership. In this as in all matters requiring 1 Ante, §§ 1503, 1514. 3 post, § 1577. 2 See Slemmer's Appeal, 58 Pa. St * Vice v. Fleming, 1 Y. & J. 237; 163, 11 M. R. 437. This is not, Carter t. Whalley, 1 B. & Ad. 11; strictly speaking, a mining partner- Heath v. Samson, 1 Nev. & Man. ship case, yet it contains many of 104; Martyn v. Gray, 14 C. B. 824; the essential elements of such an Waller v. Davis, 59 Iowa, 158; Hixon organization. See porf, §1577. The v. Pixley, 15 Nev. 475. rule in this respect is similar to the * Ante, § 1575. one applicable to prospecting con- tracts. See post, § 1602 et seq. 1160 BIGHTS AND DUTIES OF OPEEATOES. [§§ 1578, 1579. equitable interference, no fixed rule ought to be laid down as to what facts are necessary to justify the invocation of this remedy. It is sufficient to say that, when the court is satisfied that the members are discordant, and the partner- ship hopeless of prosperity, or for any other good reason the rights of the parties would be best subserved by a dis- solution, it should not hesitate^to order it.' The most equi- table mode of settling the business, in such case, would seem to be by the appointment of a receiver to take charge of the property, and, if partition is Impracticable, sell it and divide the proceeds, after a full accounting.^ § 1578. By death under the old rule — By statute in England. — The old rule in England, according to Bain- bridge, seems to have been that death, outlawry or bank- ruptcy dissolved a mining partnership,' but, as we have seen, this has long since ceased to be the rule. Since 1848 the rule in that country has been that all organizations, whether corporations or partnerships, must be wound up under the joint-stock companies winding-up act.* § 1579. Bights of incoming and outgoing partners.— Of course, in the absence of some special custom or circum- stance to the contrary, the incoming partner is not liable 1 Childers v. Neely, 47 W. Va. 70, the extent that withdrawal of one, 34 S. E. Rep. 828, 49 L. R. A. 468. in the manner provided, worked no 2 Id. See also Slemmer's Appeal, dissolution. A disagreement hav- 58 Pa. St. 163, 11 M. R. 437. The ing occurred between one and the parties to this case were four broth- other three, necessitating an appeal ers, who entered into a written to the courts, the supreme court agreement of partnership for the ordered a sale of the property to purpose of working a certain oil the highest bidder, both sides being lease. The contract provided that permitted to bid. either of the members might with- 3 Bainb. Mines (1st Am. from 3d draw, in which case his interest Lond. ed.), p. 360; Waters v. Tay- should be acquired by the others, lor, 2 Ves. & B. 299. See Ferreday without working a dissolution, v. Wightwiok, 1 Euss. & M. 49; Jef- The case thus differing from a min- f erys v. Smith, 1 J. & W. 298. ing partnership, the interest in ^7 & 8 Viot, ch. Ill; 8 & 9 Vict, which might have been acquired ch. 98; ColL Mines, p. 132; Wyld v. by any one; but being similar to Wheal Lovell Co., 18 L. J. Ch. 139. § 1580.] MINING PAETNEBSHIPS. 1161 generally for previous engagements of the partnership; ^ but he succeeds to all the rights ; ^ and there are some cases which hold that he takes it with its burdens. § 1580. Generally no dissolution by mere forfeiture. — One notable distinction between the ancient cost-book sys- tem and the mining partnership of to-day is that the former rule of forfeiture for non-contribution of assessments is not generally recognized at this day. The California court has so far departed from the old rule as to refuse to declare a forfeiture of interest, and a consequent dissolution as to them, where the parties agreed in writing that their inter- ests might be forfeited for non-payment of assessments, which were to be levied every four weeks.' This decision may be justified by the peculiar circumstances of the case, but it is a dangerous precedent to follow ; for if a partner cannot contract in writing for the forfeiture of his interest in case of failure to meet his obligations, there is no remedy against him except by a suit in court. It is well recognized that parties may make an agreement, which will be bind- ing, to submit their difiiculties to arbitration; and we fail to see why they cannot also make a binding agreement pro- viding for forfeiture in a case such as this, since there is no material distinction in principle. In Colorado, where a mining partnership existed, and the members were engaged in operating a lease which one of the parties surrendered, taking a new one in his own name, it was held that the new one, as to the other partner, was a ■continuation of the old, and this notwithstanding the other partner had failed to pay his portion of the expense of working the lease for upwf.rJs of ninety days.^ It will be observed, though, that there was no agreement in this, as 1 Babcock v. Stewart, 58 Pa. St, » Wiseman v. McNulty, 25 Cal. 179; Counts v. Holthouse, 85 Pa. 230. St. 235: Atwood V. Lockhart, 4 Mc- ^Continental Divide M. Co. v. Lean, 350, 2 Fed. Cas. 201. Bliley, 23 Colo. 130. 2Misbet V. Nash, 53 Cal. 540; Snyder v. Burnham, 77 Mo. 52. 1162 EIGHTS AND DUTIES OF OPEEATOES. [§ 1581, in the California case, that failure to contribute should work a forfeiture. § 1581. Summary — Doctrine of this chapter restated. It will thus be seen that the mere ownership as tenants in common of a mining claim will not constitute a mining part- nership. It is only when the owners operate it as such that, the relationship is created. When once created, the gen- eral liability of each partner is measured, like his profits, by the relation which his interest bears to the whole; that, the doctrine of selection of persons has no application, and that the selling out of one, or any other manner of chang- ing the ownership, does not work a dissolution, but the suc- cessor in interest takes the place of the former owner; that. each partner has not the right to bind his copartners in re- spect of the partnership business, but such authority must be delegated to a common agent who may be one of th& partners ; that their general liability may be increased and extended beyond these limits by any act which, und«r the rule of the law merchant, would make them liable, but such act only binds the individual interest of the acting partner,, as it would a special person, and does not change the rela- tionship of the other persons to him, or to each other; that the working of leases constitutes a mining partnership, as a general rule. It may be further stated that a trust rela- tionship is nevertheless created between mining partners, and they may not ignore the rights of each other in respect to partnership funds; that while a location may be made, or any other business done by one partner, it will not generally inure to the benefit of his copartners in a general partner- ship unless partnership funds are used ; yet, when one of the partners in a mining lease, or in any mining property, does some act in respect to his possession which he could not do, and would not do except on account of his relationship to- his copartners, as, for instance, where one of the partners- in a mining lease surrenders it before its expiration, and takes a new lease to himself, the new one will, as to the other partner, be considered as a continuation of the old. CHAPTEE III. PROSPECTING OR GRUB-STAKE CONTRACTS. § 1590. Prospecting or "grub-stake" contracts — In general. 1591. Prospecting contracts — Grub-stake contracts — History in this; country. 1592. Same — Sometimes formed in writing, sometimes by parol. 1593. Other examples of a prospecting contract — Statute of frauds. 1594. Protected by estoppel. 1595. General controlling principles — Implied contracts — Expenses — Abandonment. 1596. Grub-stake contract — Implied rights. 1597. Mixed questions — Neither partnership nor grub-stake contract.. 1598. Rights and duties of outfitter and prospector. 1599. Duty of outfitter. 1600. Right to abandon. 1601. Where prospector may not abandon. 1602. Abandonment and dissolution. 1603. As to agency of the parties. 1604. Necessary for outfitter to give notice. 1605. Summary — The doctrine of this chapter restated. § 1590. Prospecting or *' grub-stake " contracts — In general. — Following, by close analogy, the cost-book sys- tem, a relation generally amounting to a mining partner- ship has grown out of what are popularly called " prospect- ing or grub-stake contracts." These are generally formed by one or more persons, called " outfitters," advancing or becoming liable for the expenses of a certain sum to an- other person called the "prospector" or "adventurer; " by which engagement the latter undertakes to locate or other- wise acquire mining property for the joint use and bene- fit of all concerned. Generally the quantity of interest to- be owned by each is provided for in advance; if not, they will be presumed to own equally.' 1 McDonald v. Upper Canada M. Crary, 43, 16 Fed. Rep. 903; Fuller Co., 15 Grant Ch. 179; S. c, id. 551; v. Harris, 29 Fed. Rep. 814; Gore Johnstone v. Robinson, 3 Mc- v. McBrayer, 18 Cal. 582; Miller v.. 1164 EIGHTS AND DUTIES OF OrEEATOES. [§ 1591. § 1591. Prospecting contracts— Grub-stake contracts — History in this country. — In the days of the gold excite- ment in California the hope of securing large rewards at small expense, and the fabulous fortunes made at gold mining, naturally excited the cupidity of even the slow-going New Englanders, and it became of very frequent occurrence that one or more persons would engage^one or more other persons to go out to California to prospect for gold. The persons making the engagement were called the "outfit- ters," the others the "prospectors." By these contracts, generally, the outfitters were to have a certain interest in all the mines discovered, or the prospector or agent was to pur- chase mines and they were to furnish the money and were to have a certain interest therein. JS'aturally, bad bargains were made and dishonest prospectors encountered, the nat- ural result of which was litigation. This habit, having its birth under those circumstances, with the cost-book system •of England as a precedent, was carried into the western states, where it became of such frequent occurrence as to Butterfield, 79 Cal. 63, 21 Pao. Eep. Iron Co., 49 Mich. 39, 12 N. W. Eep. 543; Settembre V. Putnam, 30 Cal. 901; Esconvas v. Louisiana Coal- 490; Henderson v. Allen, 23 Cal. oil Co., 33 La. An. 280; Breed v. 519; Page v. Summers, TO Cal. 121, Judd, 1 Gray, 455; Pierce v. Buok- 13 Pac. Rep. 120; Harris v. Hille- lin, 7 Allen, 261; Goodell v. Smith, gass, 54 Cal. 463; Moritz v. Lavelle, 9 Cush. 592; Field v. Woodmansee, 77 Cal. 10, 18 Pac. Rep. 803; Mur- 10 Cush. 437; Duff v. Maguire, 107 ley V. Ennis, 2 Colo. 300; Lawrence Mass. 87; Boucher v. Mulverhill, 1 ■V. Robinson, 4 Colo. 567; Chad- Mont. 306; Hirbour v. Reading, 3 bourne v. Davis, 9 Colo. 581; Jen- Mont. 13; Isaacs v. McAndrew, nings V. Riokard.lO Colo. 395; Mey- 1 Mont. 437; Welland v. Huber, 8 lette V. Brennan, 20 Colo. 242, 38 Nev. 203; Harvey v. Coffin, 44 N.H. Pac. Rep. 75; Abbott v. Smith, 3 563; Cotheal v. Talmage, 9 N. Y. Colo. App. 264, 32 Pac. Rep. 843; 551; Rhea v. Van Noy, IJones' Eq. Hoyt v. Smith, 23 Conn. 177; s. c, 282; Eagle v. Bucher, 6 Ohio St. .37 Conn. 63; S. C, 28 Conn. 466; 295; Scott v. Clark, 1 Ohio St. 382; North Georgia M. Co. v. Latimer, 51 Waring v. Cram, 1 Pars. Sel. Eq. Ga. 47; Skidmore v. Eikenberry, Cas. 516; Fletcher v. Hrewkins, 2 53 Iowa, 621; Oliphant v. Wood- R. I. 330; Thompson v. Prouty, 27 burn Coal Co., 63 Iowa, 33g, 19 Vt. 14. .N. W. Eep. 213; Corapo v. Jackson §§1592-93.] PEOSPEOTING OE GEDB-STAKE C0NTEACT8. 1165 establish certain and definite rights and corresponding du- ties in favor of each of the respective parties, and was the subject of much litigation. It will not, however, require an extensive examination here, as one of the relationships thus created was, as noted in the preceding section, that of mining partnerships, which we discussed in the last preced- ing chapter. § 1592. Same — Sometimes formed in writing, some- times by parol. — As a general rule the parties define their rights and duties by written contracts, which necessitate, at the hands of the courts, construction only. In other cases, the relations are established by oral contracts, and in still others by necessary implication from the acts of the parties. These latter relations are the sources of the great- est difficulty, as it becomes a question where the rights of the respective parties begin and end. It is a matter of in- difference whether these contracts are in writing or parol. The courts enforce them if they are acted upon.' § 1593. Otlier examples of a prospecting contract — Statute of frauds. — The situation and relation of the par- ties is thus stated by the supreme court of Colorado, in a case which has been followed a number of times: "If two- or more go into the public domain together to search and explore for mines, with the agreement to occupy and de- velop such discoveries as may be made for the joint benefit, and such discovery, development and joint occupation fol- low, it is clear that while each explorer becomes- invested with his due share and estate in the premises, no provision of the statute of frauds is violated. . . . Each associate is the agent of all the others, and every act done by either about the joint adventure is the act of all. In such case, as in the case of partnership transactions, the effect of the contract of association is simply to fix the terms of the 1 Gore V. MoBrayer, 18 Cal. 582; Pao. Rep. 803; Hirbour v. Reading,. Welland v. Huber, 8 Nev. 203; 3 Mont. 13; Murley v. Ennis,2Colo. Moritz V. Lavelle, 77 Cal. 10, 18 300. 1166 EIGHTS AND DUTIES OF OPEEATOES. [§§ 1594, 1595. agency and to determine how far each may be said to act for himself, and how far for his co-adventurers. Such con- tract of association is merely the creation of an agency in «ach of those contracting, and is no more a violation of law than a contract of partnership or association in any lawful calling. The contract of association is equally valid, al- though, by the terms thereof,,one of the associates is to con- duct the exploration and perform the work of development, while the others provide and furnish the supplies neces- sary." ^ § 1594. Protected by estoppel. — Peculiar rights similar to mining partnership and resembling a prospecting con- tract may sometimes be created by estoppel and protected by that principle; that is, where one person has acted in such a manner, and made such representations to another, as that the law will not permit him to dispute such person's title acquired on the faith of those representations. For in- -stance, where Harris and Juneau organized the Harris min- ing district in the presence of three Indians, to make up a supposed requisite number of five, and Juneau, who was pros- pecting for plaintiff as outfitter, sold his interest in a claim located in said district to others, and Harris located a con- flicting claim over the claim of plaintiff and Juneau so lo- ■cated, but in the meantime wrote plaintiff that the claim of plaintiff and Juneau was the oldest claim in the district, and plaintiff continued to act upon that belief, it was held that .Harris was thereby estopped to maintain that his own loca- tion was the oldest.^ § 1595. General controlling principles — Implied con- tracts — Expenses — Abandonment Of course, where the parties have defined their rights by written contracts, it is iMurleyv.Ennis, 4Colo. 300, 304; 2 Fuller v. Harris, 29 Fed. Rep. Meylette v. Brennan, 20 Colo. 243; 814. The rights of these parties Hirbour v. Reading, 3 Mont. 13; under a relocation attempted by- South mayd V. Southniayd, 4 Mont, one to the exclusion of the other 100, 5 Pac. Rep. 318; Lakin v. Sierra are discussed in a previous section. JButtes M. Co., 25 Fed. Rep. 337. Ante, § 587. ■§ 1596.] PROSPECTING OK GEL'B-STAKE CONTEACTS. 1167 only necessary for the courts to construe these and fix the rights of the parties accordingly. But, as previously stated, it not infrequently occurs that the contracts are partially •or wholly implied. "We will notice a few of these special cases which have received attention by the courts. Thus, five men engaged a sixth man to go to California with a view of examining properties and buying the same, and agreed to advance such sum, not exceeding five thousand dollars each, as should be necessary to purchase any such properties; the sixth man (defendant) went to California, for which purpose the others advanced him five hundred dol- lars; he remained some six months, and examined several properties, and partly engaged for the purchase of some of them, when the outfitters changed their minds and wired him accordingly. Defendant returned home, and in an .action for services rendered it was held that he was en- titled to five-sixths of his expenses and salary at the rate of three hundred dollars per month, less one-sixth of the five hundred dollars already advanced.^ The prospector is not liable for unavoidable losses.^ He is entitled to his expenses, not only in going, but also in returning.' But the general rule is that if, before the con- tract is abandoned, forfeited or dissolved, the prospector ■engages in another business whereby he reaps a profit, and the prospecting contract provides for the employment •of all his time in the business of the adventure, his co-adven- turers are entitled to an accounting and to their share of the profits.* § 1596. Grub-stake contract — Implied rights. — So it has been held that where the prospector makes locations in 1 Duff V. Maguire, 107 Mass. 87, 13 12 M. R. 390; Isaacs v. McAndrew, M. R. 353. See also Berry v. Wood- 1 Mont. 437, 9 M. E. 690. iburn, 107 Cal. 504, 40 Pao. Eep. 802. « Hoyt v. Smith, 38 Conn. 466, 13 2 Pierce v. Bucklin, 7 Allen, 361, M. R. 825; Murley v. Ennis, 3 Colo. 13 M. R. 340. 300; North Georgia M. Co. v. Lati- 3 Thompson v. Prouty, 37 Vt. 14, mer, 51 Ga. 47, 12 M. R. 367. 1168 EIGHTS AND DUTIES OF OPEEATOES. [§ 1697. his own name, without joining his co-adventurers, no mat- ter whether they simply furnish the supplies in the form of a " grub stake," whether the contract was simply oral, they agreeing to furnish certain money and the prospector agree- ing to furnish his time, or whether it is in writing, definitely fixing their rights, the result is the same — they are entitled to their share.^ There is an implied promise that the pros- pector will. convey, without demand, the interest to which each is entitled.^ And specific performance will be enforced in such cases ' which are not within the statute of frauds.* § 1597. Mixed questions — Neither partnership nor grulb-stake contract. — In a late case in California it was held, under the civil code of that state, that a contract by which a stranger agrees to work the mine, paying one-half of the expenses and receiving one-half of the product as compensation, is merely a contract for hiring and does not constitute him a partner, nor yet create a grub-stake con- tract.^ A still more recent decision of that court held an allegation that plaintiffs furnished money to defendant " as a grub stake to enable him to go to Alaska or the Northwest Territory, Canada, te prospect for gold and other precious metals, and to locate and acquire mines and mining claims," did not state a mining partnership agree- ment under the California code, because it did not appear that the parties were actually associated together for the purpose of owning and operating a mining claim; and that it failed to state a grub-stake contract because it did not 1 Settembre v. Putnam, 30 Cal. Collins, 5 Colo. 498; North Georgia 490, 11 M. R 425; Boucher v. Mul- M. Co. v. Latimer. 51 Ga. 47. verhill, 1 Mont. 306; Eagle v. ^ Hirbour v. Eeeding, 3 Mont. 13, Buoher. 6 Ohio St. 295, 13 M. R. 11 M. R. 514; Southmayd v. South- 330; McDonald v. Upper Canada mayd, 4 Mont. 100, 5 Pac. Eep. 818; M. Co., 15 Grant's Ch. 179; Harris Lakin v. Sierra Buttes M. Co., 35 V. Hillegass, 54 Cal. 463. Fed. Rep. 337. See also ante, § 1593. ^ Welland v. Huber, 8 Nev. 203. sgtuart v. Adams, 89 Cal. 367, 26 3 Welland v. Huber, supra; Mur- Pac. Rep. 970. ley V. Ennis, 2 Colo. 300; Sears v. §§ 1598-99.] PEOSPEOTING OE GEUB-STAKE CONTEACTS. 1169 appear that the property in question was acquired pursuant to the grub-stake contract.^ § 1598. Rights and duties of ontiitter and prospector. The outfitter, upon advancing the sum stipulated for, or per- forming the conditions required of him, has the right to the undivided time and labor of the prospector. Whence it follows that so long as the outfitter complies with his engage- ments, the -prospector has no right to engage in any other business, nor acquire any other property without the con- sent of the outfitter, and, if he does so, the outfitter is en- titled to his share thereof. As was said by the Pennsylvania common pleas court, quoting from Sir John Leach: "It is, says Sir John Leach, in that case, ' a maxim of the courts of equity that a person who stands in a relation of trust or confidence to another shall not be permitted, in pursuit of his private advantage, to place himself in a situation which gives him a bias against the due discharge of that trust and confidence.' JSTor will equity permit that parties bound to each other by express or implied contract to promote an undertaking for the common benefit, should any of them engage in another concern, which necessarily gives them a direct interest adverse to the original objects of their asso- ciation."^ § 1599. Duty of outfitter . — On the other hand, it is the duty of the outfitter to seasonably pay and discharge all legitimate demands provided for in the contract, or within the reasonable scope of the enterprise. This is a part of the contract. It is one of the conditions upon which the pros- pector agrees to go out and search for and develop mining claims. A failure on his part to keep this engagement, after having been given a fair opportunity to do so, is sufficient 1 Prince v. Lamb (Cal., 1900), 60 citing Glassington v. Thwaites, 1 Pac. Rep. 689. Sim. & S. 124, 138; Fanning v. 2 Waring v. Cram, 1 Pars. Sel. Eq. Chadwick, 3 Pick. 240. See also Cas. 516, 12 M. R. 280, quoting from Hoyt v. Smith, 23 Conn. 177; s. C, Burton v. Wookey, 6 Madd. 367, and 28 Conn. 466 74 1170 EIGHTS AND DUTIES OF OPEEATOES. [§§ 1600, 1601. justification, under some of the authorities,^ for the prospector to consider the whole adventure abandoned, and thenceforth act entirely on his own account. It would certainly be suf- ficient provocation, in any case, to justify him in giving the outfitter notice that the contract is abandoned.^ § 1600. Right to abandon. — In the absence of an agree- ment specifying a fixed period of time for the duration of the relationship, it would seem that either party has the right to abandon the enterprise at any time. But, like the cost-book rule, he must close up and settle all arrearages and render an account before he will be discharged. Where a company was organized to go to California, and entered into writings in the nature of a prospecting partnership agreement, and where a majority vote was to control, and after arriving in California a majority decided to disband, it was held that there was no undertaking on the part of the defendant, who, it seems, did not vote for a dissolution, that it would continue the specified time, and that his ac- tion constituted no breach; also, that in the absence of stip- ulations to the contrary such contracts may be dissolved at pleasure.' § 1601. Where prospector may not abandon. — As a general rule, where the parties stipulate in their contract that it shall continue for a specified time, a mere major- ity vote will not dissolve the partnership.* And where the parties known as outfitters engage the prospector on ac- count of special skill, he is not at liberty to retire at pleas- ure.* But, as a general rule, forfeitures are not favored.* 1 Goodell V. Smith, 9 Cush. (Mass.) And if a specified penalty has been 592; Hurley v. Ennis, 3 Colo. 300. provided for a breach, it will be 2 See next four sections post. enforced. Von Schmidt v. Hunt- 3 Harvey v. CofiSn, 44 N. H. 563, ington, supra. This is on the score citing Goodell v. Smith, 9 Cush. of liquidated damages. Cotheal v. (Mass.) 593; Field v. Woodmansee, Talmage, 9 N. Y. 551; Fletcher v. 10 Cush. 437. Dyche, 3 T. R. 83; Astley v. Wei- *Von Schmidt v. Huntington, 1 don, 3 Boss. & Pul. 346; Smith v. Cal. 55. Smith, 4 Wend. 468. 6 Eagle V. Bucher, 6 Ohio St. 395. « Wiseman v. McNulty, 35 Cal. §§ 1602-4:.] PEOSPECTING OE GETTB-STAKE OONTEAOTS. 1171 § 1602. Abandonment and dissolution. — But where there is nothing in the terms of the contract to the con- trary, the prospecting contract may usually be dissolved at the pleasure of either party without previous notice to the other. This may always be done unless such conduct on the part of either party would work an injury upon the other, such as the advancement of unearned money by the outfitter, or the earning of unpaid money by the prospector. In all such cases there must be a full and complete settle- ment and accounting before the relations can be severed, except by mutual consent.^ But it may be treated as aban- doned upon the breach by either party .^ § 1603. As to agency of the parties. — The rule was an- nounced at an early day in Colorado,' that an agreement between two or more persons to engage in the business of prospecting for and development of mining property is in the nature of a partnership agreement, and each is the agent of the other. What the court meant by this was, very likely, that, to the extent of locating any claims in his own name, each acted as the agent of the other, and the title thus ob- tained would inure to the benefit of all. This would undoubt- edly be the correct rule, as we have attempted to show.* § 1604. Necessary for outfitter to give notice. — While either party may dissolve a prospecting agreement at pleas- ure,^ this may not be done arbitrarily, or without notice to the other. Before he will be permitted to so treat it, he must give clear and unequivocal notice to that effect to the others. Thus, where there is a prospecting agreement be- tween the outfitter and a prospector, under which the out- 330; Coleman v. Clements, 23 Cal. Harvey v. Coffin, 44 N. H. 563. 12 245. M. R. 336; Page v. Summers, 70 1 Lawrence v. Robinson, 4 Colo. Cal. 131, 13 fac. Rep. 120. 567; Crawshay v. Maule, 3 Swanst. ^ Lawrence v. Robinson, 4 Colo. Ch. 495, 11 M. R 323. 567. 2Murley v. Ennis, 2 Colo. 300; « ^»fe, §g 1596, 1598. Chadburn v. Davis, 9 Colo. 581; sjlnfo, §§ 1600, 1603. 1172 EIGHTS AND DUTIES OF OPEEATOES. [§ 1605» fitter furnishes necessary supplies, and the prospector dis- covers mines which they own jointly as mining partners, and the outfitter furnishes all the supplies for years, but finally notifies a co-outfitter that he wants a settlement, this act alone will not dissolve the partnership, nor be treated as an abandonment of the prospecting contract.' He must notify the prospector of any intention to abandon. § 1605. Summary — The doctrine of this chapter re- stated. — A careful review of the foregoing sections justifiea the conclusion that prospecting or grub-stake contracts are recognized and upheld by the law, and are recognized by the courts, and that they need not be in writing. The utmost good faith is due from the prospector to the outfitter, and he may not, so long as the contract subsists,, prospect on his own account, and consequently cannot locate claims on his own account. He is not liable, however, for unavoidable losses, and is generally entitled to his expenses where not otherwise ex- pressly provided for in the contract. In respect to any claim located, whether in the name of the prospector or in the names of both, they are mining part- ners while operating it, and where located in the name of the prospector he is a trustee for the outfitter and for the partnership, and is bound to convey upon demand. It is the duty of the outfitter to seasonably pay all reason- able demands fairly within the terms of the contract, and upon his failure to do so the prospector has the right to elect that the relationship be terminated. Unless there is a fixed period stipulated for, or a fixed district or country to be prospected, either party has the right to abandon at any time, but never to the injury of the other, nor for the purpose on the part of the prospector of prospecting the same district for his own account. 1 Abbott V. Smith, 3 Colo. App. 335, 24 Pac. Rep. 681; Eagle v. 264, 32 Pao. Rep. 843, citing Chad- Buoher, 6 Ohio St. 295; Boucher v. bourne v. Davis, 9 Colo. 581, 13 Pac. Mulverhill, 1 Mont. 30& Rep. 731; Meagher v. Reed, 14 Colo. CHAPTEE lY. OF THE MINING SUPERINTENDENT. § 1611. Preliminary and introductory. 1612. Scope of treatment — Mine boss. 1613. General authority and duties of mine superintendent — Implied authority. 1614. Necessaries furnished by third persons. 1615. Promissory note — Borrow money. § 1611. Preliminary aud introductory. — Since it would be impossible, in the case of a mining partnership, for the management to be undertaken directly by the entire part- nership, they being similarly situated in that respect to a corporation, it becomes necessary for both a partnership and a corporation to operate through the intermediary of a mining superintendent, who is no more than a general or special agent, as the case may be, and whose general powers and duties are fixed and circumscribed by the general law of agency ; yet, there are a few special matters relating to the powers of a mining superintendent that are not entirely out of place in a work of this kind. §1612. Scope of treatment — Mine boss. — In the next succeeding part of this work we shall treat of those stat- utory provisions obtaining in some of the states whereby a certain functionary, called mine boss, with certain required qualifications, must be employed in obedience to statute. All of which has nothing to do with the matter in hand. § 1613. General authority and duties of mine superin- tendent — Implied autliority. — It seems that the mining superintendent is impliedly authorized to purchase all nec- essary supplies and provisions for the operation of the mine 1174: EIGHTS AND DUTIES OF OPEEATOES. [§§ 1614, 1615. in the usual manner.^ What we have said in the preced- ing chapter with reference to the powers of one mining partner to bind another applies with equal force here. Thus, it has been held with reference to the operating co- partner who is, for the particular place, superintendent, that he can bind the partnership under his implied authority for those engagements, fixtures, appliances and supplies usual and necessary in the operation of the mine in the custom- ary manner.^ § 1614. Necessaries furnished by third persons. — So it has been held in California that the owner of a mine is lia- ble for the price of necessary provisions furnished to the boarding-house keeper with whom the miners boarded, where it was also shown that the superintendent was in the habit of purchasing provisions for the use of the boarding-house, which were paid for by the owners of the mine, and all of this was within the knowledge of plaintiff, who parted with his goods on the faith of such custom.' But in all such cases the authority of the superintendent to act must be established, either by the nature of the transaction itself or by express agreement. And where A. had agreed to give B. a certain interest in a mine after he. A., should receive a certain sum out of it, that relationship did not give B. such an interest in it as to bind the mine, in his contract with C, for necessaries or for supplies,* the fact being that A. had the absolute title to the mine. § 1615. Promissory note — Borrow money. — It has been held that the superintendent of a mine cannot borrow money on the credit of the mine owner,^ but he has power 1 Stuart V. Adams, 89 Cal. 367, 26 i Eaton v. Eocco, 75 Cal. 93, 16 Pao. Rep. 970. See also Heald v. Pac. Rep. 529. Hendy, 89 Cal. 632, 27 Pao. Rep. 67. ^Hawtayne v. Bourne, 7 M. & W. 2Eandall V.Meredith, 76 Tex. 669, 507; Randall \. Meredith, 76 Tex. 13 S. W. Rep. 576. 669, 13 S. W. Rep. 576. 3 Heald v. Hendy, 89 Cal. 632, 27 Pac. Rep. 67. 1615.] THE MINING SUPEEINTENDENT. 1175 to enter into a contract for the sale of all the ores of the mine produced within a given period.' And wherever the authority of the superintendent is doubtful, if there is any ratification made with such knowledge as to work an es- toppel, of course that settles the question and the owners are bound.^ 1 Robert E. Lee M. Co. v. Omaha & G. S. & R. Co., 16 Colo. 118, 26 Pac. Rep. 326, citing Story, Ag., § 93; 1 Pars. Cont. 44; Ang. & A. Corp. 297, 298; Bates v. Iron Co., 7 Mete. (Mass.) 224; Smith v. Peoria Co., 59 111. 412; Packet Co. v. Par- ker, id. 23; Fay v. Noble, 12 Cush. 16; Green's Brioe's Ultra Vires, 426, note; Union, etc. M. Co. v. Rocky Mt. Nat. Bank, 1 Colo. 532, 2 Colo. 248; McKiernan v. Lenzen, 56 Cal. 61. 2 Shaver v. Bear River, etc. W. & M. Co., 10 Cal. 396. See also au- thorities in last preceding note; Reese v. Bald Mountain Con. G, M. Co. (Cal.), 65 Pac. Rep. 578. CHAPTER V. OF CERTAIN REMEDIES ANB THEIR PECULIAR RELATION TO MINING. Aeticle a. Working Out of Bounds — Measure of Damages. § 1630. General observations. s 1621. Measure of damages — Innocent taking — Honest belief of own- ership. 1623. Absence of negligence essential 1623. Same — The general rule. 1624. Damages — How proved. § 1620. General obserTations. — The action for damages for working out of bounds, either in the direct form of tres- pass and damage, damages alone when the title is not in dispute, or the action of ejectment and damages for with- holding, are all appropriate remedies in their proper cases for injuries occasioned in consequence of mining outside of the limits of one's own claim and in that of his neighbor, commonly called " working out of bounds." ' As said by Mr. Bainbridge : " There is no more fertile cause of annoy- ance to mine owners than the working out of bounds; for it not only is a serious trespass in itself, often involving much loss of property, but it may occasion irremediable dis- asters to mining works. The premature bursting of barri- ers may occasion the most fatal effects, both to property and to life. For this evil a very inadequate remedy is pro- vided." ^ All of which was true at that time, when the in- jured party was compelled to rely solely upon his action of 1 Bainb. Mines (1st Am. from 3d 23 Cal. 306; GoUer v. Fett, 20 id. Lond. ed.), 514; Hilton v. "Woods, 481. L. R. 4 Eq. 433; Maye v. Tappen, 2 Bainb. Mines, supra. § 1621.J OEETAIN EEMEDIES. 1177 trespass for relief.* But, as we shall see later on in this work, while he may maintain the action for damages in either of the forms mentioned above, he may besides that, and without waiting for serious injury, resort to the remedy of preventive justice by obtaining an injunction against the further trespass.^ § 1621. Measure of damages — Innocent taking — Hon- est belief of ownership. — There are some cases holding the measure of damages to be the value of the ore or coal at the pit's mouth,, or on the dump of the mine, without anything for breaking or bringing it to the surface.* An- other line of cases holds that the value after severance and before removal is the true measure of damages;* while still others, and what is believed to be the better reasoned cases and more consonant with exact justice, fix the measure of damages at the value of the ore or coal as it existed in place before it was broken down.^ This, as we shall see later on,* 1 Bainb. Mines, 511 See also note Reitz, 14 Ind. App. 478, 43 N. E. Rep. 1, ante, p. 1176; Coleman's Appeal, 46; Barton Coal Co. v. Cox, 39 Md. 62 Pa. St. 252; Bennett V.Thompson, 1; Franklin Coal Co. v. McMillan, 3 Iredell Law, 146; Lykens Valley 49 Md. 549. Coal Co. V. Dock, 62 Pa. St. 232. ' 5 Wood v. Morewood, 3 Q. B. 440; 2 Post, art. B, this chapter; Nor- Re United Merthyr Coal Co., L. R ris V. Chambers, 30 L. J. Ch. 385. 15 Eq. 46; Hilton v. Woods, L. R. 4 3 Martin v. Porter, 5 M. & W. 351 ; Eq. 432; Livingstone v. Rawyards, Morgan V. Powell, 8 Q.B. 278; Wild L. R 5 App. Cas. 25; Powell v. V. Holt, 9 M. & W. 672; McLean Aikin, 4 Kay & J. 343; Clowser v. County Coal Co. v. Long, 81 III 359. Joplin M. Co., 4 Dillon, 469; Colo- See Jegon V. Vivian, L. R. 6 Ch. rado Cent. M. Co. v. Turck, 70 Fed. 742; Bennett v. Thompson, 13 Ired. Rep. 294; Cheeseman v. Shrieve, 40 rima facie one for the legislature itself, and courts will not interfere unless the province of the legislature has been manifestly transcended.' Such laws are within the general powers of the state so long as they do not conflict with the federal constitution; and presumptions are in favor of their validity.^ § 1642. Police regulations — Legislative power — In- junction by the state. — These statutes, as we have already observed, may be generally regarded as police regulations, involving the power of the legislature, especially in this country, to enact the legislation; that the legislature in most of the states has power to pass laws for the general health and safety of persons engaged in, or connected with, mining may be said to be well settled.' In the Illinois case, the one mentioned first in the note, the contention was that the statute providing for a check-weighman was obnoxious to the provision of the constitution against class legislation, and was not " due process of law." The court, however, 74, 32 N. E. Eep. 447; Shell v. Peo- ^Davock v. Moore, 105 Mich. 133, pie, 93 111. 129: Sangamon Coal M. 63 N. W. Rep. 424; Burrows v. Co. V. Wiggerhaus, 65 111. App. 77, Delta Trans. Co., 106 Mich. 594, 188 III 279; Daniels v. Hilgard, 77 64 N. W. Rep. 501: People v. Smith, 111. 640; Springside Coal M. Co. v. 108 Mich. 527, 66 N. W. Rep. 388. Grogan, 53 111. App. 60; Muddy 3 Millett v. People, 117 111. 394, 7 Valley M. & M. Co. v. Phillips, 39 N. E. Rep. 631; Shell v. People, 111. App. 376; Chicago W. & O. 93 111. 129; People v. Petherman, Coal Co. V. People, 181 III. 270, 54 64 Mich. 252; Commonwealth v. N. E. Rep. 961; Fell v. Rich Hill Conyngham, 66 Pa. St. 99; Hamil- Coal M. Co., 23 Mo. App. 316; Les- ton v. State, 103 111. 369; Warren lie V. Rich Hill Coal M. Co., 110 v. Sohn, 113 Ind. 313, 13 N. E. Rep. Mo. 31; State v. Anaconda C. Co., 863; State v. Anaconda Copper Co., 33 Mont. 498, 59 Pac. Eep. 854; 23 Mont. 498, 59 Pao. Rep. 854; Durkin v. Kingston Coal Co., 171 State v. Ohio Oil Co., 150 Ind. 21, Pa. St. 193; Northumberland 49 N. B. Rep. 809, 150 Ind. 698, 50 County V. Zimmerman, 75 Pa. St. N. E. Eep. 1125; afiSrmed, Ohio Oil 76. . Co. V. Indiana, 177 U. S. 190 1 Daniels v. Hilgard, 77 111. 640. 1198 SPECIAL PEOVISIONS FOE HEALTH, ETC. [§ 1643. while reversing the case upon other grounds, upheld the statutes as bearing equally upon all \vbo come within its terms. In the Montana case was involved the question as to the validity of a state statute requiring the use of safety cages and a " bonnet " over all cages used in shafts of a greater depth than three hundred^ieet, the purpose of which was to prevent miners from falling off the cages, and to prevent any loose article in the shaft from falling on them, and the law, although attacked for unconstitutionality, was upheld. In the Indiana case was involved the validity of a stat- ute requiring the prevention of the escape and wasting of gas in all gas wells. The statute was attacked as an un- warranted interference with private property, and the law was upheld both by the state court and the supreme court of the United States, and it was further held that the state was not limited to the penal feature and punishment by fine, but might enforce obedience by injunction. § 1643. Proper subjects of police regulation. — In Indi- ana a statute regulating the pressure of natural gas trans- ported in pipes to not to exceed three hundred pounds pressure to the square inch was upheld by the supreme court of that state in this language : " "We come now to a consideration of the question of the inherent dangerous qualities of natural gas as affecting the power of the state to regulate its use. We have already declared that it is a dangerous substance, requiring regulation, and we shall only add, to what we have said, a quotation from the opinion in the Missouri case : ' 'It was unnecessary,' said the court, ' to aver that coal oil is inflammable or to prove it. Courts and juries will take cognizance of such matters as are of com- mon knowledge, and pertain to the experience and affairs of almost every man's daily life. Courts do not require proof that fire will burn or powder explode, or gas illumi- nate, or that many other processes in nature and art produce 1 State V. Hayes, 78 Mo. 307. § 1643.] HEALTH AND SAFETY STATUTES. 1199 certain known effects.' ' As natural gas is dangerous, it is a proper subject for police regulation, and the aflBrmation of this proposition is a sufficient refutation of appellee's argu- ment that it may be assumed that the statute, under guise of the police power, attempts to regulate interstate com- merce, and thus usurp a federal power. "What the rule would be if natural gas were an article not dangerous, such as corn, wheat, or the like, we need not inquire, since the record does not present any such question." ■' 1 1 Greenl. Ev., § 56; Brown v. Piper, 91 U. S. 37, 33 L. ed. 200 Udderzook's Case, 76 Pa. St. 340 Garth v. Caldwell, 73 Mo. G32 Nagel V. Mo. Pao. B. Co., 75 Mo. 665, 666. 2 Jamiesou v. Indiana Nat. Gas & Oil Co., 138 Ind. 555, 28 N. E. Rep. 76. See also Maple v. John, 43 W. Va. 80, 24 S. E. Rep. 60S; Ohio Oil Co. V. Indiana, 177 U. S. 190; Id., 312, 213; State v. Ohio Oli Co., 150 Ind. 31, 698, 49 N. E. Rep. 809, 50 N. E. Rep. 1125; State v. Indiana & Ohio Oil, Gas & M. Co., 120 Ind. 575, 82 N. E. Rep. 778; People's Gas Co. V. Tyner, 131 Ind. 277. 81 N. E. Rep. 59; Townsend v. State, 147 Ind. 624, 49 N. E. Rep. 14; Brown v. Vander- grift, 80 Pa. St. 142; Jones v. Forest Oil Co., 194 Pa. St. 379, 44 Atl. Rep. 1074; Hague v. Wheeler, 157 Pa. St. 834, 37 Atl. Rep. 719. CHAPTEE 11. OF STATE STATUTES. Article A. Statutes Generally Considered. § 1650. Special statutory provisions — Subjects of statuta 1651. Exception when applied to fellow-servants. 1652. Where new outlets required in old mine — Sufficient man-way question for jury. 1653. Second opening. 1654. Mine boss — Fellow-servant — Separate openings. 1655. Ventilation in coal mines. 1656. The English rule — Suspension of work. § 1650. Special statutory provisions — Subjects of stat- ute. — Pursuing this principle, the legislature may provide for fencing or otherwise protecting the month of the shaft, incline or other dangerous opening.'' It may also provide for and require the opening and maintenance of man- ways, escapement shafts and other means of ingress and egress separate from the main working openings,^ and may pro- vide for and require proper inspection, including the em- ployment of a special inspector or mine boss.' It may also require the observance of proper regulations against damps iCatlett V. Young, 143 IlL 74, 33 111. App. 448; Com. v. Bonnell, 8 N. E. Eep. 447; Bartlett C. & I. Co. Phil. 434; Hamilton v. State, 102 V. Roach, 68 111. 174; Catlett v. 111. 367; McDonald v. Rock Hill I. Young, 38 111. App. 198; Springside & C. Co., 135 Pa. St. 1; Chicago W. Coal M. Co. V. Grogan, 53 111. App. & V. Coal Co. v. People, 181 IlL 270, 60; Spiva v. Osage Coal M. Co., 88 54 N. E. Rep. 961. Mo. 68; Wiggins v. Henderson, 22 » victor Coal Co. v. Muir, 20 Colo. Nev. 103, 36 Pac. Rep. 459; Duke of 320, 38 Pac. Rep. 378; Kellyville Oil Devonshire v. Stokes (Q. B.), 76 Co. v. Hill, 87 111. App. 434; Daniels Law T. Rep. 424. v. Hilgard, 77 111. 640; Shell v. Peo- 2 Haddock v. Com., 103 Pa. St. pie, 93 111. 129; Woodruff v. Kelly- 243, reversing 1 Luzerne Leg. Reg. ville Coal Co., 182 111. 480, 55 N. E. 320; Com. v. Reynolds, 1 Luzerne Rep. 550; Pawnee Coal Co. v. Eoyoe, Leg. Reg. 218; Loose v. People, 11 56 N. E. Rep. 631; Con. C. Co. v. §§ 1651, 1652.] STATUTES GENEEALLT CONSIDBEED. 1201 and gases, and proper inspection for the purpose of pre- venting their accumulation.^ It may also prohibit the wast- ing of gas, and provide against the employment of women,, or male persons under a certain age.^ § 1651. Exception, when applied to fellow-servants. — But the Pennsylvania act of March 3, 1870, providing for the- fencing off of dangerous machinery in mines, imposes no lia- bility on the part of the master, where proper protection was made, and the plank was removed by a co-employee.' This, of course, upon the familiar principle that, the delict being that of a fellow-servant, the master was not liable. § 1652. Where new outlets required in old mine — Suf- ficient man-way question for jury. — Where an old mine has Schiller, 42 UL App. 619; Linton C. & M. Co. V. Persons, 11 Ind. App. 264, 39 N. E. Eep. 214; State v. Ana- conda Copper M. Co., 23 Mont. 498, 59Pac. Rep. 854; Commonwealth v. Reynolds, 1 Kulp, 218; Common- wealth V. Conrad, 3 id. 381; Com- monwealth V. Hutchison, 4 C. C. R. 18; Commonwealth v. Wigton, 13 Penn. C. C. R. 55, 2 Dist. Rep. 51; Commonwealth v. Waddell, 6 Kulp, 95; Delaware & Hudson Canal Co. V. Carroll, 89 Pa. St. 374; Redstone Coke Co. V. Roby, 115 Pa. St. 364, 8 Atl. Rep. 593; Weaver v. Iselin, 161 Pa. St. 386, 29 Atl. Rep. 49; Gra- ham V. Newberg Orrel C. & C. Co., 38 W. Va. 273, 18 S. E. Rep. 584; Brough V. Homfray, L. R. 3 Q. B. 771, 37 L. J. M. C. 177. 1 Deserant v. Cerrillos Coal R Co., 20 Sup. Ct. Rep. 967, 178 U. S. 409; Sommer v. Carbon Hill Coal Co., 89 Fed. Rep. 54; Mosgrove v. Zimbleman Coal Co., 110 Iowa, 169, 81 N. W. Rep. 227; Coalrun Coal Co. V. Jones, 127 IlL 379, 8 N. E. 76 Rep. 865; Muddy Valley M. & M. Co. V. Phillips, 39 IlL App. 376; State V. Ohio Oil Co., 150 Ind. 21, 49 N. E. Rep. 809; People's Gas Co. V. Tyner, 131 Ind. 281, 31 N. E. Rep. 60; Townsend v. State, 147 Ind. 624, 47 N. E. Rep. 19; Krause v. Morgan, 53 Ohio St. 26; Commonwealth v. Tompkins, 1 L. L. R. 341; Com- monwealth V. Conrad, 14 id. 311; Commonwealth v. Bonnell, 8 Phil. 534; Com. v. Wilkesbarre Coal Co., 29 Leg. Int. 213; Haddock v. Com- monwealth, 103 Pa. St. 243; Coal Creel M. Co. v. Davis, 90 Tenn. 711; Graham v. Newburg Orrel C. Co., supra; Hall v. Hopwood, 49 L. J. N. C. 17, 41 L. T. (N. S.) 797; Reg. v. James, 8 Car. & P. 131; Brough v. Homfray, L. R. 3 Q. B. 771 ; Knowles V. Dickinson, 2 El. & El. 705. 2 Reg. V. Handley, 9 L.T. (N. S.)837. See also State v. Ohio Oil Co., 150 Ind. 21, 698, 49 N. E. Rep. 809, 50 N. E. Rep. 1125, 177 TT. S. 190. 'Honor v. Albrighton, 93 Pa. St. 475. 1202 SPECIAL PEOVISIONS FOE HEALTH, ETC. [§§ 1653-1655, •the statutory outlets, and is then worked several hundred feet further along the seams, it then becomes a new mine, and an outlet for ventilation and escape is required by the Pennsyl- vania act of 1870.^ In an action for death by negligence the question whether a man-way required by the Pennsylvania act of April 18, 1870, is sufHcient, is one for the jury.^ g 1653, Second opening. — In cutting the second opening required by the third section of the act of March 3, 1870, the production of coal for market by the men authorized or •employed for the purpose of cutting said opening is not permitted by the act, except so far as it is incident to driv- ing on through a seam or stratum towards a second outlet.' § 1654. Mine boss — Fellow-servant — Separate open- ings. — In Pennsylvania a mining boss is a fellow-servant of a miner working in a mine, and the company employing him is therefore not liable for the death of such miner from an explosion caused by the negligence^ of such boss in failing to properly ventilate.^ So, the statute of Pennsylvania passed June 30, 1885, requiring the employment of a competent mining boss in each mine, only requires such boss to be em- ployed for each general system and not for each of several drifts or openings in the same property the coal from which is taken out through one general entrance.^ § 1655. Tentilation in coal mines. — The supreme court of the United States, construing the act of congress * requir- ing the owners or managers of coal mines in the territories of the United States, of the depth of one hundred feet or more, to provide an adequate amount of ventilation of not 1 Com. V. Wilkesbarre C. Co.. 29 v. Roby, 115 Pa. St. 364; Waddell v. PhiKLeg. Int. 213, 15M.M.Rep.31. Simonson, 112 Pa. St 567, 4 Atl. 2 Cambria Iron Co. v. Shaffer Rep. 725. (Pa. St.), 8 AtL Rep. 204. . sgerfass v. Driesbach (Pa. Com. 3 Com. V. Bonnell (Pa.), 8 Phila. PI.), 12 Pa. Co. C. Rep. 60. 534. 6 Act of March 3, 1891, 26 Stat, at < Delaware & H. C. Co. v. Carroll, L., p. 1105; sec. 6, 2 Supp. R. S. TJ. S. 89 Pa. St. 374; Redstone Coke Co. 948. §§ 1656, 1661.J STATUTES GENERALLY CONSIDERED. 1203 less than fifty cubic feet of air per second for each fifty men at work in the mine or drift, holds that its provisions are imperative; and in an action for the death of a coal miner, resulting from an explosion in the mine, the management cannot escape liability because some VForkman has disre- garded instructions. In such case the privilege of deter- mining the reasonableness or sufficiency of the ventilation is not given to the employer, but the provisions of the stat- ute must be complied with.^ § 1656. The English rule — Suspension of work. — Under the English statute ^ requiring ventilation constantly if col- liery be vs^orked, the suspension of actual work from Satur- day to Monday will not suspend the requirements as to ventilation during that time.' Article B. As Affecting Liability for Negligence, and Herein of Contributory Neg- ligence. % 1661. Increasing liability for negligence — Competent fellow-serv- ants — Timbering — Special cases — Signals. 1662. Same — An example. 1663. Power of company to frame rules. 1664. Contributory negligence. 1665. The rule in Pennsylvania. § 1661. Increasing liability for negligence — Competent follow-servants — Timbering — Special cases — Signals. So the legislature, generally, may enforce the observance, on the part of the master, of all those special duties toward the servant which experience has proved to be essential for the servant's welfare ; not leaving him solely to his civil remedy, but, as a means of enforcing precautionary meas- iDeserant v. Cerrillos Coal Co., 218 & 19 Vict, ch. 108, § 4. 178 U. S. 409, 20 Sup. Ct. Rep. 967, 3 Knowles v. Dickinson, 3 Ell. & reversing s. c, 9 N. Mex. 495, 49 Ell. 705, 6 Jur. (N. S.) 678. Pac. Rep. 807. 1204 SPECIAL PEOYISIONS FOE HEALTH, ETC. [§ 1661. ures, enhancing his right to recover for a breach of statu- tory duty, in addition to those duties which the commoQ law imposes, a breach of which is negligence.' These duties required by statute, it seems, must be performed at all events, and even where there might be co-acting con- tributory negligence, if the efficient cause of any injury is traceable to the violation of the statute, the servant has a cause of action. These statutes are most salutary in their purpose, throw- ing as they do further and proper safeguards around the miner ; the frailty of human nature and the desire for em- ployment as a means of obtaining a livelihood on the one side, and the cupidity of employers on the other, sometimes require additional restraints to those furnished by the com- mon-law action for personal injury. Thus, these statutes, speaking from the experience of many states, are quite exten- sive in detail, covering many protective provisions for the health and safety of miners, and which local and sometimes general experience has found necessary. It is believed that specification of particular provisions is more the work of a treatise upon master and servant, or upon negligence, than upon mining law; but we observe in passing that among the questions met and provided for by statute are those of employment of competent servants in iCons. Coal Co. of St. Louis v. 28 N. W. Rep. 56; Ashland C. L & Maehl, 130 III. 551, 32 N. E. Rep. 715: Ry. Co. v. Wallace's Adm'r, 101 Ky. Nlantic Coal & M. Co. v. Leonard, 636, 43 S. W. Rep. 307; Spiva v. 126 III. 316, 19 N. E. Rep. 394; Litoh- Osage Coal & M. Co., 88 Mo. 68; field V. Taylor, 81 IlL 590; Chicago Durant v. Lexington Coal M. Co., & V. C. Coal Co. V. Peterson, 39 111. 97 Mo. 63, 10 S. W. Rep. 484; Leslie App. 114; Cons. Coal Co. of St. Louis v. Rich Hill Cons. M. Co., 110 Ma V. Soheller, 43 111. App. 619; Girard 31; State v. Anaconda Copper Co., Coal Co. V. Wiggins, 53 111. App. 69; 33 Mont. 498, 59 Pao. Rep. 854; Coalrun Coal Co. v. Jones, 19 111. Honor v. Roberts, 5 L. L. R 9: Red- App. 365; Sangamon Coal M. Co. v. stone Coal Co. v. Roby, 115 Pa. St. Wiggerhaus, 133 111. 379, 13 N. E. 364; Mulhern v. Lehigh Coal Co., Rep. 648; Cons. Coal Co. of St. Louis 161 Pa. St. 370; Graham v. New- V. Bokamp, 75 111. App. 605; Crabell burg Orrel C. & C. Co., 38 W. Va. V. Wapello Coal Co., 68 Iowa, 751, 273, 18 S. E. Rep. 584 §§ 1662, 1663.] STATUTES GENEEALLT CONSIDEEED. 1205 particular places,^ of providing for signals in proper cases,^ of forbidding servants to ride on cars in certain places,' of providing proper safety cages,* of lighting,' of properly, and in a particular manner, propping the roof of coal mines,* of proper ventilation,'' and many other subjects, only a few of which can be specially noticed in this work, it being our purpose to demonstrate general rules rather than specific local statutory provisions. § 1662. Same— An example. — The Missouri act of March 23, 1881 (Laws 1881, p. 165), required the owner or opera- tor of a coal mine operated by shaft to provide safe means of hoisting and lowering persons in a cage covered with boiler-iron, " so as to keep safe as far as possible persons de- scending into and persons ascending out of such shaft." In an action against the company for an injury to a eager caused by the dropping of a lump of coal on him while en- gaged in loading cars on to the cage, the cage not being covered with boiler-iron, it was held that the injury was one intended to be guarded against by the statute, and the company was liable.' § 1663. Power of company to frame rales. — "Where power is given by statute to frame rules for the government of persons employed in or about a mine the employee is bound by such rules, even after his discharge, though such discharge took place in the mine; and for any injury re- sulting from a violation of such rules by the discharged employee the master is not liable.' 1 Cona Coal Co. of St. Louis v. ^ Cons. Coal Co. of St. Louis v. Maehl, 130 111. 551; Niantio Coal & Maehl, supra. M. Co. V. Leonard, 126 id. 216. « Ashland C. L & Ry. Co. v. Wal- 2 Sangamon Coal M. Co. v. Wig- lace's Adm'r, 101 Ky. 626. gerhaus, 122 111. 279. ' Graham v. Newburg Orrel C. & 3 Crabell v. Wapello Coal Co., C. Co., 38 W. Va. 273. 68 Iowa, 751. SDurant v. Lexington Coal Co., * Cons. Coal Co. of St. Louis v. 97 Mo. 63. See also Litchfield Coal Maehl, supra; State v. Anaconda Co. v. Taylor, 81 111. 590. Copper Co., 28 Mont. 498. » Higham v. Wright, 2 L. R 3 C. P. Div. 397, 10 M. R. 34. 1206 SPECIAL PEOVISIONS FOE HEALTH, ETC. [§ 1664. §1664. Contributory negligence. — Whether these stat- utes change the rule as to contributory negligence seems not well settled, some cases holding that in no case should a recovery be allowed under a special statute where the servant is guilty of such contributory negligence as that the accident is traceable to that as the proximate or efficient cause,' ■ while other authority holds that the mine owner cannot evade responsibility for a wilful violation of the stat- ute upon any theory of contributory negligence. Thus, in Illinois, in an action against defendant for the death of plaintiff's intestate, caused by the alleged violation of a statute requiring the top of the shaft to be fenced, the su- preme court, speaking through Baker, J., said : " The ques- tion raised by the rules of the trial court . . . , and the principal question at issue between the parties to this suit, is whether or not, in a suit prosecuted under section 14, above quoted, for an injury to person or property for a loss of life, or a wilful violation of any of the requirements of the act providing for the health and safety of persons em- ployed in coal mines, or a wilful failure to comply with any of its provisions, it devolves upon plaintiff to allege and prove exercise of ordinary care on his part, or on the part of the deceased, and whether or not contributory negligence on his part or on the part of the deceased will preclude a recovery. . . . The present statute, so far as the ques- tion now under consideration is affected, is substantially the same as that of 1872. "When the legislature, in 1879, re-enacted, in substance, the act of 1872, and re-enacted in the same language section 14, which gives the right of ac- tion, it must be regarded that it acted in view of interpre- tation that more than three years before had been placed 1 Reese v. Biddle, 113 Pa. St. 72; stone Coke Co. v. Roby, 115 Pa. St. Waddell v. Simonson, 112 Pa. St. 364; Lineoski v. Susquehanna Coal 567; Howells v. Landore Siemens Co., 157 Pa. St. 153; Lehigh Valley Steel Co., Lu R. 10 Q. B. 62, 83 L. T. Coal Co. v. Jones, 86 Pa. St 433; (N. S.) 19; Delaware & H. Canal Krause v. Morgan, 58 Ohio St. 36, Co. V. Carroll, 89 Pa. St. 374; Red- 40 N. E. Rep. 886. , § 1664.] STATUTES GENEEALLT CONSIDERED. 1207 by the court upon said act of 18T2 and upon said section 14, and intended that, in case of injuries occasioned by any wil- ful violation of the act of 1879, or by wilful failure to com- ply with any of its provisions, the right of recovery should not depend upon the exercise of ordinary care of the person injured or the deceased, or be precluded by contributory negligence. ... In our opinion it was not error to re- fuse to instruct the jury that if they believed from the testi- mony that the defendant, in good faith, for the protection of the entrance boarded and fenced it, and arranged the car and operation of it to act as a gate or covering for the shaft, and that such protection was sufficient to protect a person in the exercise of the care that a person of ordinary care should, under the circumstances, exercise, from falling into the shaft, then the act of the defendants was not wilful, and the verdict should be for them. That which the statute re- quired was that the top of the shaft should be securely fenced by gates, properly covering and protecting the shaft and entrance thereto. As was said in a previous case,^ the very object to be obtained by the statute was to prevent injuries to persons employed in coal mines, so that the negligence on their part in the manner of doing their work should not prove fatal. . . . By the hypothesis of the instruction no liability is imposed by the statute upon the mine owner, if the party injured or killed could, by the exercise of what would be ordinary care in view of all the circumstances, avoid the injury, no matter how entirely insufficient the covering and protection to the shaft and the entrance thereto. This is placing a construction on the statute that would ren- der it ineffectual to accomplish the objects that it was in- tended should be accomplished." ^ iBartlett C. & M. Co. v. Roach, 81 111. 590; Illinois Fuel Co. v. Par- 68 111. 174. sons, 38 111. App. 182; Pawnee Coal 2Catlett V. Young, 143 111. 74, 33 Co. v. Royce, 56 N. E. Rep. 631; N. E. Rep. 447. See also Woodruff Mosgrove v. Zimbleman Coal Co., V. Kelly ville Coal Co., 55 N. E. Rep. 110 Iowa, 169, 81 N. W. Rep. 337; 550; Litchfield Coal Co. v. Taylor, Eureka Ext. Co. v. Allen, 9 Vict. 1208 SPECIAL PEOVISIONS FOE HEALTH, ETC. [§§ 1665, 1670. § 1665. The rule in Pennsylvania. — Injuries received by a coal miner having been caused proximately by his own negligence, his right of action against the mine owner there- for is not supported by proof of the defendant's violation of the provisions of the act of June 30, 1885, when such vio- lation in no way proximately caused or contributed to the injuries.' But, of course, as we have seen, if the violation of statute furnishes the proximate and efficient cause of the injury, the converse of the proposition above stated becomes true, and the master is liable. Article C. Protection as to Earnings — Weighing. § 1670. Protection as to earnings — Weighing — Credit for coaL' 1671. A proper protection to miners. 1673. Contrary doctrine. 1673. Proper police regulation — Statute generally upheld. 1674. Same — Constitution the highest authority — No superior natural right. 1675. Same — Right to have weighed in original form. § 1670. Protection as to earnings — Weighing — Credit for coal. — Safeguards may also be provided whereby the miner will secure intact the enjoyment of his earnings, and to this end provision may be made for the proper weighing of coal at the mine,^ and punishments may be inflicted in a proper case for violation of the statute.^ This duty in- volves not only properly weighing the coal, but likewise that the miner have proper credit on the books of the cor- poration or mine owner for the same.* Law Eep. 341; Deserant v. Cerrillos ^gmith v. State, 90 Tenn. 575, 18 Coal R. Co.. 178 U. S. 409, reversing S. W. Rep. 248; State v. Jenkins, 90 9 N. Mex. 495, 49 Pac. Rep. 809; Tenn. 580, 18 S. W. Rep. 249; Peel Foster v. Owen, 62 L. J. M. C. 7, Splint Coal Co. v. State of West 61 L. T. 72. Virginia, 36 W. Va. 802. 17 L. R A. 1 Christner v. Cumberland & Elk 885; State v. Pasco (Ind.), 54 N. E. L. C. Co., 146 Pa. St. 67. See also Rep. 802. Beaucoup Coal Co. v. Cooper, 13 III. 3 State v. Pasco, supra. App. 373; Higham v. Wright, L. R. < State v. Pasco, supra. 2 C. P. Div. 397. ^§ 1671-16Y3.] STATUTES GENEEALLY CONSIDEEED. 1209 § 1671. A proper protection to miners. — The supreme •court of appeals of West Yirginia uses this language : " If such legislation, directed against one class of corporations only, is not objectionable as class legislation, it is difiScult to see why laws directed against other corporations, and directly intended to prevent popular disturbance and dis- ■content, by regulating the manner of weighing coal and prohibiting what is popularly known as the 'Pluck-me' method of payment, should not be deemed a legitimate ex- ercise of the police power of the state." ' Indiana also sup- ports this general doctrine.^ § 1672. Contrary doctrine. — But the supreme court of Illinois declared a statute of that state requiring the weigh- ing of coal hoisted from mines, " whose product is shipped by rail or water," to be unconstitutional.' But the great weight of authority seems to regard such legislation as a proper exercise of police power and enforceable accord- ingly. § 1673. Proper police regulation — Statute generally upheld. — Pursuing the thought adverted to in the last sec- tion, it is proper to observe that the courts of West Virginia, Pennsylvania, Indiana and some others have generally up- held these statutes as a proper exercise of the police power. Speaking of the elementary principle this is manifestly true. ■Courts have not the right, from any abstract notions as to the policy of the law, to say that it is unconstitutional ; they can only say so when the repugnancy to the constitution is apparent and the matter is not in doubt. It is a well set- tled proposition of constitutional law that the presumption is in favor of the constitutionality of a statute, and it is the 1 Peel Splint Coal Co. v. West » Harding v. People, 160 111. 459, Virginia, 36 W. Va. 802, 17 L. R. A. 43 N. E. Rep. 624, 32 L. R. A. 445. 385, 391. See also Millett v. People, 117 IIL 2 Hancock v. Yaden, 121 Ind. 366, 294, 7 N. E. Rep. 631. 23 N. E. Rep. 353. 1210 SPECIAL PEOVISIONS FOE HEALTH, ETC. [§ 1674, duty of the court to uphold its constitutionality, unless its repugnance is shown beyond all reasonable doubt. The principle in hand was finely illustrated by the su- preme court of "West "Virginia in an early case, where the- controlling principles were collaborated in the following words : " It is the duty of a court to uphold a statute whea the conilict between it and the constitution is not clear, and the implication which must always exist, that no violation! has been intended by the legislature, may require in some eases, where the meaning of the constitution is in doubt, to- lean in favor of such a construction of the statute as might not, at first view, seem most obvious and natural. "Where the meaning of the constitution is clear, the court, if pos- sible, must give the statute such a construction as will en- able it to have effect. It is always to be presumed that the- legislature design the statute to take effect, and not be a nullity. "Wherever an act of the legislature can be so con- strued and applied as to avoid a conflict with the constitu- tion, and give it the force of law, such construction will be- adopted by the court. The expediency or inexpediency of an act is a question for the legislature and not for the court. The judiciary cannot inquire into the motives and neces- sities which may have superinduced the passage of the- act. The courts have no right to set aside, to arrest, or nul- lify a law passed in relation to a subject within the scope of legislative authority, on the ground that it conflicts with their notions of natural right, absolute justice or sound mo- rality." 1 § 1674. Same — Constitution the highest authority — No superior natural right. — So it may be considered as- settled in this country by the highest authority on written constitutions that there is no right, natural or real, superior 1 Slack V. Jacob, 8 W. Va. 612, 13 Am. Rep. 640; Munn v. Illinois,, quoted -with approval in Peel Splint 94 TJ. S. 113, 24 L. ed. 77; State v- Coal Co. V. State, 36 W. Va. 802, 17 Workman, 35 W. Va. 367, 14 L. E. L. R A. 385, 15 S. E. Rep. 1000. See A. 600, 14 S. E. Rep. 9. also Osborn v. Staley, 5 W. Va. 85, § 1675.] STATtfTBS GENEEALLT CONSIDEEED. 1211 to the constitution itself, and no statute can be declared void out of any nice notions as to its policy; these questions are for the legislature. And the courts are confined in their inquiry by the sole question as to whether the act in ques- tion is contrary to the constitution, and this must clearly appear before the act can be said to be void. In one of the cases cited in the preceding section the controlling principle in hand was enunciated in the following words: "A further principle, at one time held in some doubt, but now, as we think, finally decided, is that the judiciary cannot annul or pronounce void any act of the legislature upon any other ground than that of repugnancy to the constitution. It was at one time supposed that the judiciary could resort to the principles of natural justice or common right, and pronounce a legislative act void because in conflict with such supposed principles. This view, however, I think we may regard as finally abandoned. In fact, one of our earliest writers upon this subject lays down the principle, which has been sanc- tioned and adopted by our own state, ' that, although an act of the legislature contrary to the first principles of the social compact is not rightful, — as, for instance, to make a man judge in his own cause; or seizing the property of the citizen honestly acquired, without compensation; or retrospective laws in general, — yet it seems the law cannot be declared void by a court of justice merely because it violates these general principles, if not prohibited by the constitution of the state in which it is passed, or of the United States.' ^ V . , . It may be said, therefore, that the doctrine of a. higher law than the constitution has no longer any foothold in American jurisprudence."^ § 1675. Same — Right tohave weighed in original form » The purpose of these statutes being to furnish a reliable means upon which to base the miner's compensation and to 1 Sergeant, Const. Law, 348; Tied- 2 Peel Splint Coal Co. v. State of eman, Pol. Pow., p. 7, sec. 3 and West Virginia, 36 W. Va. 802, 17 notes. L. E. A. 385, 15 S. E. Rep. 1000. Sea 1212 SPECIAL PEOVISIONS FOE HEALTH, ETC. [§ 1675. protect him in the payment for all the coal he mines, he not ■only has the right to have it justly and honestly weighed in the original form in which he loaded it, but he has the right Also to have a true record kept of it.^ also Slack v. Jacob, 8 W. Va. 612; iPeel Splint Coal Co. v. State, 36 -Commonwealth V. Perry, 155 Mass. W, Va. 803; Smith v. State, 90 117, 14 L. E. A. 835, 28 N. E. Eep. Tenn. 575, 18 S. W. Eep. 348. 113& CHAPTEE III. MINERS' LIENS IN GENERAL. Aeticle a. Scope of Treatment — Creature of Statute, § 1680. Scope of the chapter. 1681. Provided for in all the states. 1683. Creature of statute — A legislative mortgage. 1683. Mortgage and lien — Improvements. 1684. Labor statutes — Liens in consequence of. 1685. Distinction — Must have been located as a mining claim. § 1680. Scope of the chapter. — Miners' liens generally are so nearly like all other statutory liens that it is scarcely within the purposes of this work to go into any extensive- discussion of the subject, but rather to limit it to a few special circumstances where the decisions of the courts have had special significance because the subject of the lien was- mining property. We shall not discuss equitable liens in any form, as they have no place here. Nor will we discuss any special statutory provisions, because statutes are constantly being repealed and changed on this subject, so that it cannot, now be said that the lien law has reached any settled and definite condition and status. § 1681. Provided for in all the states. — Without excep- tion, it may be said, the legislation of all the states where mining is carried on, extends the right to the lien to all per- sons who, by virtue of a contract with the owner, shall per- form any labor on any mine, tunnel, shaft or other workings,, with much elaborateness of detail, not necessary to be noted here. Nor will a general examination of these statutory provisions be necessary, as they are constantly changing to- the extent that it may be now said that the lien law of this- 1214: SPECIAL PEOVISIONS FOE HEALTH, ETC. [§ 1473. country, as indicated in the last section, is still in its formative state. Generally it may be stated that the right to a lien is given to every person who performs labor on a mine, limited, of course, to the description of persons mentioned in the statute, where there is such description, but it gener- ally extends to all persons.^ iln re Hope M. Co., 1 Sawy. 710, 13 Fed. Cas. 487, No. 6,681; Flag- staff S. M. Co. T. Cullins, 104 U. S. 176. See also United Mines Co. v. Hatcher, 79 Fed. Eep. 517; Central Trust Co. V. Sheffield Coal, Iron & Ry. Co., 43 Fed. Rep. 106; Eaman v. Bashford, and Hewitt v. Bashford, 37 Pac. Rep. (Ariz.) 24; Gardner v. Resumption M. & S. Co., 35 Pac. Rep. 674; Dickenson v. Bolyer, 55 Cal. 885; Helm v. Chapman, 66 Cal. 291, 5 Pac. Rep. 352; Williams v. Mountaineer G. M. Co., 102 Cal. 184, 34 Pac. Rep. 703; s. C, 36 Pac. Rep. 388; Jurgensen v. Diller, 114 Cal. 481, 46 Pac. Rep. 610; Palmer v. Unoas M. Co., 70 CaL 614, 11 Pac. Rep. 666; Tredinnick v. Red Cloud •Cons. M. Co., 73 Cal. 78, 13 Pac. Rep. 153; Malone v. Big Flat Gravel M. Co., 76 Cal. 578, 18 Pac. Rep. 772; Bewick v. Muir, 83 Cal. 368, 23 Pac. Eep. 390; Sylvester v. Coe Quartz M. Co., 80 Cal. 510, 23 Paa Rep. 317; Morse v. De Adro, 107 Cal. 632, 40 Pac. Rep. 1018; Fernandez v. Burle- son, 110 CaL 164, 42 Pac. Rep. 566; Asoha V. Fitch (Cal.), 46 Pac. Rep. 298; Barnard v. McKenzie, 4 Colo. 251; Keystone M. Co. v. GaUagheif, 5 Colo. 23; Mellor v. Valentine, 3 •Colo. 260; Wilkins v. Abell, 26 Colo. 462, 58 Pac. Rep. 612; Bassick M. Co. V. Schoolfield, 10 Colo. 146, 14 Pac. Rep. 65; Folsom v. Cragen, 11 Colo. 305, 17 Pao. Rep. 515; Rara Avis G. .& S. M. Co. V. Bouscher, 9 Colo. 385, 12 Pac. Rep. 433; Rico R & M. Co. V. Musgrave, 14 Colo. 79, 33 Pac. Rep. 458; Steel v. Argentine M. Co. (Idaho), 42 Pac. Rep. 585; White v. Mullins (Idaho), 31 Pao. Rep. 801; Hopkins v. Hudson, 107 Ind. 190; ShuU v. Fontanet M. Ass'n, 128 Ind. 331, 26 N. E. Rep. 790; Warren v. Sohn, 112 Ind. 313, 13 N. E. Rep. 863; McLaren v. Byrnes, 80 Mich. 375, 45 N. W. Rep. 143; Allen v. Frumet M. Co., 73 Mo. 688; Small- house V. Kentucky & Montana G. & S. M. Co., 3 Mont. 443; Johnson V. Puritan M. & M. Co., 19 Mont 30, 47 Pac. Rep. 337 ; Alvord v. Hendree, 3 Mont. 115, modified in Davis v. Alvord, 94 U. S. 545; Smith v. Sher- man M. Co., 12 Mont. 624, 31 Pac Rep. 72; Pelton v. Minia Cons, M. Co., 11 Mont. 281, 38 Pac. Rep. 310; Beck V. O'Connor, 53 Pao. Rep, 94, 21 Mont. 109; Hunter v. Savage Cons. S. M. Co., 4Nev. 153; Skyrme V. Occidental M. & M. Co., 8 Nev. 219; Capron v. Strout, 11 Nev. 304; Rosina v. Trowbridge, 20 Nev. 105, 17 Pac. Rep. 751; Gould v. Wise, 18 Nev. 253, 3 Pao. Rep. 80 (last case for ore hauling); Williams v. To- ledo Coal Co., 25 Oreg. 426, 36 Pac. Rep. 159; Devine v. Taylor, 13 Ohio C. C. 723; Esterly's Appeal, 54 Pa. St 193; Vandergrift's Appeal, 83 Pa, St. 136; Shinline's Appeal, 2 Walk. 825; Cullins v. Flagstaff & M. Co., 2 Utah, 319. §g 1682-1684:.] miners' liens in genesal. 1215 In all the cases cited in the note, miners' liens have been ■considered in their general aspect and have been declared prior as of date when the first labor or materials, as the case may be, were furnished upon the mine against which the lien was claimed. § 1682. Creature of statute — A legislative mortgage. The lien as it exists to-day is a legislative mortgage — a creature of statute, — and generally those who seek it must reasonably comply with the spirit and, bj'^ some decisions, the letter of the statute.' That is to say, as to the right the statute is liberally construed; but as to the remedy, those "who seek to avail themselves of theTight must strictly fol- low the statute. § 168B. Mortgage and lien — Improvements. — While the lien is superior, as of the date of the commencement of the labor or improvements, as to all subsequently created mortgages, a prior mortgage upon the land retains its pri- ority as a lien, as to the land, but the lien holds priority over the mortgage as to the value of the improvements placed there by claimant, and to the extent thereof.^ § 1684. Labor statntes — Liens in consequence of. — In many of the states there are lien statutes whereby the la- borer is given a superior claim in the case of insolvency of a mine owner, generally extending to proceeds, but often to the improvements, and in some cases to the mine itself; while in still others, upon insolvency of the mine owner, the laborer or miner has been held entitled to a receiver- 1 Ascha V. Fitch (Cal.), 46 Pao. Rep. lisk M. & C. Co., 15 Mont. 24, 37 Pao. 298. Rep. 387; Murray v. Swanson, 18 2 Johnson v. Puritan M. & M. Co., Mont. 533, 46 Pao. Rep. 441; Davis 19 Mont. 30, 47 Pac. Rep. 337. citing v. Alvord, 94 U. S. 545; Conrad v. and following Opera House Co. v. Starr, 50 Iowa, 470; Smith v. Sher- Maguire, 14 Mont. 558, 37 Pao. Rep. man M. Co., 12 Mont. 524, 81 Pac. 607; Montana L. & M. Co. v. Obe- Rep. 72. 1216 SPECIAL PKOVISIONS FOE HEALTH, ETC. [§ 1685. ship. In all these cases following the letter of the statute^ the laborer has a preferred claim.^ § 1685. Distinction — Must have been located as a mining claim. — The California supreme court has arrived at the conclusion that the words " mining claim," used in the statute, are not sufficiently comprehensive to include a mine upon or in land patented as agricultural land or under a Mexican grant.^ But the correctness of such narrow con- struction may be doubted, since a mine is a mine, in what- ever ground or land it may be found. While these proceed- ings are in invitum, still, the general rule is that this applies more strongly to the proceedings upon declaring and fore- closing the lien than to the subject-matter of it.' Whil© the court in the last case cited seems to review the question by attempting a reconciliation of its position in the various cases cited by the court, and, in the course of its opinion, quotes an accepted definition of the term " mining claim " as generally understood, it totally ignores the conditions existing in the state and of which it was bound to take ju- dicial notice,^ and the presumption that the legislature knew that a portion of the mining in the state was being carried on in lands the title to which was acquired in other ways than by location, and therefore enacted the legislation of the state with reference to all such conditions. Moreover, it ignored the broad and comprehensive definition of min- ing claim, which would make it extensive and include all kinds of mines, as the term was understood in other coun- 1 Hioks V. Cons. Coal Co., 77 Md. Beatty's Appeal, 3 Grant, 213; 86, 85 Atl. Rep. 979; Grandby M. Wood's Appeal, 80 Pa. St. 274; Tay- & S. Co. V. Turley, 61 Mo. 875; lor v. Smith, 1 Ches. Co. 106. Meistrell v. Beach, 56 Mo.App. 243; 2 winiams y. Santa Clara M. Co. Springfield Found. & Maoh. Co. v. of Baltimore," 66 Cal. 193, 5 Pac. Cole, 130 Mo. 1, 81 S. W. Eep. 922; Rep. 85; Morse v. De Adro, 107 CaL Warren v. Sohn, 112 Ind. 213, 13 N. 622, 40 Pac. Rep. 1018. E. Eep. 863; ShuU v. Fontanet M. ^Seeposi, g§ 1692, 1701. Ass'n, 128 Ind. 331, 26 N. E. Rep. < See Irwin v. Phillips, 5 Cal. 140. 790; Reed's Appeal, 18 Pa. St. 235; § 1690.] miners' liens in. geneeal. 1217 tries, and in other states in this country, as possibly exist- ing separate from the other estate. To say that the legisla- ture intended the miner on a regularly established location to have his lien, but denied it to the miner mining upon an agricultural claim or a Mexican grant, is to impeach the common sense of the legislators. Aettcle J6. For What Services Allowed, § 1690. Who entitled in general — Superintendent — Teamster. 1691. Same — Carrying on works — Drifting in tunnel. 1692. General principles — Liberal construction — Remedy. 1693. Assignability. 1694 Same subject — Assignable — General provisions. § 1690. Who entitled in general — Superintendent — Teamster. — As before intimated, the lien law is a creature of statute. It is a statutory mortgage fixed upon the prop- erty, and is generally preferred over all other contempora- neous claims, and, as a general rule, relates to the commence- ment of the employment, so as to cut off all intervening mortgages or claims. In some states, too, laborers are pre- ferred over all others, while the superintendent is not in- cluded.^ But the older and prevailing doctrine, founded upon justice, principle and reason, is that the superintendent is entitled to his lien just as much as any other employee.^ In Colorado, under a statute allowing a lien for work and labor on a mine, which the court construed to mean and in- clude work done in the development, conservation or im- 1 Smallhouse v. Kentucky M. Co., Uncas Co., 70 Cal. 614, 11 Pac. Rep. 2 Mont. 443, 9 M. R. 388. 666; McLaren v. Byrnes, 45 N. W. 2 Rara Avis G. & S. M. Co. v. Rep. 143; Skyrme v. Occidental M. Bousoher, 9 Colo. 385, 12 Pac. Rep. Co., 8 Nev. 219; Boyle v. Mountain 433; Capron v. Strout, 11 Nev. 304; Key M. Co. (N. Mex.), 50 Pac. Rep. Flagstaff M. Co. v. Cullins, 104 U. S. 347. See also Knight v. Norris, 13 176; S. C, 2 Utah, 310; Palmer v. Minn. 473. 77 1218 SPECIAL PROVISIONS FOK HEALTH, ETC. [§ 1691. provement of the mine, it has been held that a teamster has no lien for hauling ore.^ But this is certainly against the weight of reason and authority. There is no valid reason why the ore-hauler who contributes to the marketing of the product from the mine, or to hauling supplies thereto, can- not be equally protected. As said by Hillier, District Judge : " The mill upon which the lien is claimed is one for crush- ing the quartz and separating the precious metals therefrom, and the labor performed by petitioner (this was in bank- ruptcy proceedings) was hauling quartz for the bankrupt to be crushed at this mill. This, it is said, is not the perform- ing of labor in carrying on the milling, but I think it must be so considered. These laws always receive a liberal con- struction in favor of laborers' liens. The labor of haul- ing the quartz to a mill of this character is indispensable to carrying it on, and the language of the statute will not have to be strained in the least to include within its terms the person performing such labor." ^ It has even been held that a co-tenant has a preferred claim for improvements against the mortgagee.' §1691. Same — Carrying on works — Drifting in tun- nel. — In Nevada, under a statute authorizing a lien upon mines and also for carrying on any work upon mills or re- duction works, it was held that a teamster hauling ore to the mill was entitled to a lien ; * but in California it was held as matter of law that " drifting in a tunnel " was not syn- onymous with " mining a tunnel," for which a lien was au- thorized by statute, nor was it labor in construction, altera- 1 Barnard v. Kelly, 4 Colo. 351. Abbott's Pr.(N.S.) 339; Hill v. New- See Wickham v. Hardy, 5 Jur. 871; man, 38 Pa. St. 151. Cumberland Ry. Co. v. Slack, 40 3 stenger v. Edwards, 70 IlL 631, Md. 161. 9 M. R. 868; Mellor v. Vallentine, 3 2 In re Hope M. Co., 1 Sawy. 710, Colo. 360. 9 M. E. 364. See also Warner v. « Gould v. Wise, 18 Nev. 353, 3 Hudson River R. Co., 5 How. Pr. Pao. Rep. 30. But see, to the con- 454; Atcherson v. Troy R Co., 6 trary, Barnard v. Kelly, 4 Colo. 351. §§ 1692, 1693.J MINEES' LIENS IN GENERAL. 1219 tion or repairs of any building, or improvement on or in any mine, and the claim of lien was denied.^ §1692. General principles — Liberal construction — Remedy. — The purpose of our excursion into the subject of liens at all forbids any extended examination into gen- eral principles. We have sought to confine our inquir}'^ to special matters relating to mines and mining property and to persons performing labor or making improvements thereon. We have attempted to show that the lien law is remedial in its nature and character, and that a liberal rule of construction should be applied. With reference to the remedy, however, the rule becomes more stringent, and in enforcing the remedy the statute must be strictly pursued. Eespecting the general rule that the statute, as regards the right itself, should be liberally construed, the supreme court of ]S"evada said : " We have repeatedly declared tliat the act relating to mechanics' liens should be liberally construed ; that the spirit and purpose of the law is to do substantial justice to all parties who may be affected by its provisions ; and that courts should ' avoid unfriendly strictness and mere technicality.' " ^ § 1693. Assignability. — Much doubt originally existed as to whether a lien of any kind, being a personal right at the common law, could be assigned. But the later decisions settle the doubt in favor of the assignability of all liens, and in many of the states they are made assignable by statute.' 1 Jurgensen v. Diller, 114 Cal. 493, Nev. 28; Lonkey v. Wells, 16 Nev. 46 Pac. Rep. 610. See as to notice 374. See also Ascha v. Fitch, 46 to owner of such work being per- Pac. Rep. 398; Rico R. & M. Co. v. formed, Avery v. Clark, 87 Cal. 619, Musgrave, 14 Colo. 79, 23 Pac. Rep. 25 Pac. Rep. 919. 458. See especially Watson v. sMalter V. Falcon M. Co., 18Nev. Noonday M. Co., 87 Greg. 387,60 209, 3 Pac. Rep. 50, citing Skyrme Pac. Rep. 994. V. Occidental M. & M. Co., 8 Nev. ' Skyrme v. Occidental M. Co. 231; Hunter v. Truokee Lodge, 14 See post, § 1694. 1220 SPECIAL PEOVISIONS FOE HEALTH, ETC. [§ 1694. § 1694:. Same subject — Assignable — General provis- ions. — Substantial compliance with the statute is generally requisite, and the lien attaches in favor of all persons who fairly come within the provisions of the statute, their claims, of course, being based upon contract.^ A claim in excess of the real amount does not vitiate the lien for the amount actually due.^ Being a mere personal right, the old authorities held that it was not assignable, but the later decisions have taken a more practical view of the sub- ject, and we think the correct one ; and it may now be con- sidered as settled that, in the absence of statute to the contrary, even a claim for a miner's lien is assignable. The debt would be assignable in the absence of the lien, and no good reason can be found, and it is believed that none exists, why the statutory adjunct or mortgage should not also be assignable.' Where claims are worked in a group, the lien attaches to the entire group.* Aeticle C. Against Whom, What Interest and What May Be Reached — Lessee's and Working Bond Interests. § 1700. Against whom — Leases and working bonds. 1701. To what may attach — Mineral land not so located. 1702. On mine worked by option holder. 1703. Iowa rule — Lessor held liable. 1704. Prospecting gives no right to Hen, 1705. Agent — Who is. 1706. Notice and foreclosure. 1707. Knowledge of owner — Strict construction. 1708. Summary — The doctrine of this chapter restated. 1 Malone v. Big Flat Gravel Co., Co., 73 Mo. 688; Davis v. Alvord, 76 CaL 588, 18-Pac. Eep. 773; Rosina 94 U. S. 545. V. Trowbridge, 20 Nev. 105, 17 Pac. 3 gkyrme v. Occidental M. Ca, Eep. 751; Folsom v. Cragen, 11 supra; Ford Gold M. Co. v. Lang- Colo. 205, 17 Pac. Rep. 515; Skyrme ford, 1 Colo. 63; Tattle v. Howe, 14 v. Occidental Co., 8 Nev. 219; Mai- Minn. 150. ter V. Falcon M. Ca, 18 Nev. 209, 2 < Tredinnick v. Red Cloud Co., 13 Paa Rep. 50. Pac. Rep. 153; Bassick M. Co. v. 2 Nolan V. Lovelock, 1 Mont. 224, Schoolfield, 10 Cola 146, 14 Pac. 9 M. E. 360; AUen v. Frumet M. Rep. 65. §§ 1700, 1701.J miners' liens in geneeal. 1221 § 1700. Against whom — Leases and working bonds. — It may be stated as a general rule that no lien will exist except by virtue of a contract with the owner. Whence it follows that in all cases of leases and working bonds, where the owner has no interest in the work itself, except the re- ception of certain proceeds in the way of rent or royalties, his interest will not be the subject of a lien for work done or liabilities incurred by the lessee.' And in such case the lien, if one lies at all,^ will only reach the leasehold inter- est.' A correct illustration of this rule is found in Montana, where this subject has been regulated by statute which pro- vides in effect that the interest of the proprietors in leased premises may not be charged with a lien for labor per- formed for the use and benefit of the tenants and lessees.'' The supreme court, in construing a contract by the terms of which S. was to operate a mine for one year; to have exclusive charge of the work; furnish all labor and materi- als, and to receive as compensation eighty per cent, of the net returns of all ores marketed, which should be marketed in the name of the owner, held S. to be a lessee of the mine, and therefore that the interest of the owner was not chargeable with a lien for labor and materials furnished at the request of S.^ § 1701. To what may attach — Mineral land not so lo- cated. — Ordinarily, in the absence of statute, a lien will not attach to a leasehold interest, and of course, as previously stated,* where it does attach it is only to the lessee's and not lUnited Mining Co. v. Hatcher, JMont. 281, 38 Pac. Rep. 310; Stin- 25 C. C. A. 46, 79 Fed. Eep. 516, son v. Hardy, 27 Oreg. 584, 41 Paq. modifying s. c, 75 Fed. Rep. 368; Rep. 116. Jurgensen v. Diller, 114 Cal. 491, ^Post. % 1701. 46 Pac. Rep. 610; Davidson v. Jen- ^Post, § 1703. nings (Colo.), 60 Pac. Rep. 354; * Act March 9, 1887, Extra Sess. Schweizer v. Mansfield, 14 Colo. 1887, p. 71. App. 236, 59 Pac. Rep. 843; Little speiton v. Minah Cons. M. Co., Valeria G. M. & M. Co. v. Ingersoll, supra. 14 Colo. App. 340, 59 Pac. Rep. 970; •* Ante. § 1700. Pelton V. Minah Cons. M. Co., 11 1222 SPECIAL PEOVISIONS FOE HEALTH, ETC. [§ 1701. the lessor's or proprietor's interest. This matter has been regulated by statute in nearly all the mining states, in some of which the miner is given a lien on the lessee's interest in the property, while in others it is restricted to freehold estates, or leasehold interests exceeding two years.' The supreme court of California, as we have already seen,^ has adopted the very narrow construction as to the meaning of the words " mining claim " as used in the statute, and re- stricted the operation of the lien law to mining claims which were located as such.^ In the last case the meaning of the court is somewhat obscured by unnecessary dictum, but, if we glean the correct conclusion, it was that where a mining claim was partly made of regular mining claims and partly of land patented as a Mexican grant, the lien would not extend to the portion not located as a mine, and sub- stantially the same rule was announced in the other case; but, as above noted, we have fully discussed this matter elsewhere. The strength of our reasoning and' the weakness of that of the court is illustrated by the rule laid down by the supreme court of Oregon, that where a statute gives a lien on a mining claim for work and materials, this has been held to apply to a mining claim where valuable minerals have not, as well as to land where they have, been discov- ered.* The general rule which applies to the description of mining property in conveyances, viz., that it must be described with such particularity as that the exact land intended to be in- cluded can be readily ascertained, must be followed in the description of property sought to be charged with a miner's or mechanic's lien. Failure to do this makes the lien ineffec- tual. For instance, where a notice of lien incorrectly de- 1 A synopsis of the statutes of the 66 Cal. 193, 5 Pao. Eep. 85, cited ante, different states upon the subject of § 1685; Bewick v. Muir; 83 Cal. 368, miners' liens is contained in Ap- 33 Pac. Rep. 389. pendix B, post. * Williams v. Toledo Coal Co., 25 ^Ante, § 1684. Oreg. 436, 36 Pac. Eep. 159. 3 Williams v. Santa Clara M. Co., I 1702.] MINEES' LIENS IN GENERAL. 1223 scribed the property by metes and bounds, attempting to further identify it by giving the name of its owner, who, it appeared, owned other mining property in the neighbor- hood, it was held void for uncertainty.' § 1702. On mine worked by option holder. — There has been some contrariety of opinion as to whether a mine ■worked by an option holder was liable to a lien for work performed by a miner who was employed by such option holder. It would seem, as a general rule, on principle, that practically the same rule would apply as to a lessee, and no lien could attach to any greater interest than the option holder had. Otherwise it would make the owner of the mine liable for work not done at his request — make him a debtor against his will; and it would be no answer to this to say that he received the benefit of it. He cannot be called upon to take the risk of losing his mine on account of non-payment of any such claims. This, of course, where nothing more than a bare, naked option exists. But in Arizona, under a lease and contract of purchase, it was held that for the purpose of the lien statute the lessee and con- tractor (Mott) was an agent of the owners (Bashford and others), and it was held under the peculiar circumstances of the case, including the reading of the instrument, which, among other things, provided for said Mott to have charge and control of the mill and mines, the miners and mill-men were entitled to a lien.^ It may be that this conclusion is barely justifiable under the peculiar provisions of the instrument under consider- ation, but if it is, it is certainly as far as the courts ought to go in that direction. We would not deprive a miner of a single remedy or right given him by virtue of the lien statute, but the true intent of the law can be best subserved by limiting the right to a contract with the owner or his agent. 1 Fernandez v. Burleson, 110 Cal. 2 Eaman v. Bashford (Ariz.), 37 164, 42 Pac. Eep. 556. See also post, Pac. Rep. 34 § 1706. 1224 SPECIAL PEOVISIONS FOE HEALTH, ETC. [§§ 1703, 1704. In Montana, where the owner of a mine granted posses- sion thereof for a limited period, with the privilege to pur- chase the property and to mine ores therefrom, but pro- vided certain conditions for the conducting of the work for which he should pay, and it was further provided that the owner was to receive a certain percentage of the ore ex- tracted, which should apply on the purchase if the option were exercised, otherwise to be retained by the lessor, it was held that persons performing labor or furnishing ma- terials for the lessee had no lien upon the mine.^ § 1703. Iowa rule — Lessor held liable. — In Iowa, under a statute of that state which reads: "Every laborer or miner, who shall perform labor in opening, developing or operating any coal mine, shall have a lien on all the prop- erty of the person, firm or corporation owning or operating such mine, and used in the construction or operation thereof, includmg real estate and personal property, for the value of such labor, to the full amount thereof, to be secured and en- forced as mechanics' liens are," the court held that such statute formed a part of every contract of lease, and that where the lien was claimed for labor or materials, done and furnished by plaintiff and his assignors, which permanently enhanced the value of the property (an air shaft, tracking and a siding), the lessor was liable for the actual value of such improvements, to the extent that the property had been enhanced in value thereby ; expressly refraining from pass- ing upon the rights of a miner whose claim would be for re- moving the coal and diminishing the value of the property.^ § 1704. Prospecting gives no right to lien. — Where the work is that of prospecting, for the benefit of the prospector, 1 Block V. Murray, 13 Mont. 545, nolds v. Black, 91 Iowa, 1, 58 N. W. 31 Pac. Rep. 550. See also Pelton Eep. 923; St. Paul T. L & T. Co. v. V. Minah Cons. M. Co., 11 Mont 381, Diagonal Coal Co., 95 Iowa, 551, 64 38 Pao. Rep. 310; ante, § 1700. N. W. Rep. 606; Lambert v. Davis, 2 Mitchell V. Burwell, 110 Iowa, 116 Cal. 393, 48 Pac. Rep. 123. 10, 81 N. W. Rep. 193, citing Eey- § 1705.] miners' liens in general. 1225 to ascertain whether he desires a lease oa the property, he is not entitled to any lien. Thus, drilling a hole in land for pros- pecting purposes only, for no other purpose than to ascertain the existence of minerals in sufficient quantity to justify working, and where the prospector was interested in the result, was held not to entitle him to a lien.^ But, of course, the rule would be different if the prospecting was done under employment by the owner and for his benefit. § 1705. Agent — Who is — "Where the statute authorizes a lien for work done by authority of an agent, the agency must be established, and it is said to be not established by proof and finding " that at said time defendant P. was in possession of said premises described in the complaint under a contract theretofore entered into between said defendant P. and the other defendant mining company, under which contract said P. was authorized and empowered to occupy and hold possession of said premises and make extensive improvements and prosecute development work and pros- pecting thereon and therein." ^ This is clinging to the line of strict construction, to say the least; yet it is nevertheless true, of course, that the agent authorizing the work must be in fact the agent of the owner sought to be charged ; and where the agency is denied, the failure to find upon it is error,' as the agency will not be presumed.* " A party desiring to hold and enforce a lien upon the property of one who did not employ him must bring his case clearly within the terms of the statute. The lien is a creation of the statute, and the statute creating it must be looked to, both for the right to such lien and the mode by which it may be enforced."^ 1 Colvin V. Weimer, 64 Minn. 37, 439, 26 Pao. Rep. 203, 13 L. R. A. 65 N. W. Rep. 1079. 187, 23 Am. St. 313; Reese v. Mining 2 Reese v. Bald Mountain Cons. Co., supra. M. Co. (Cal.), 65 Pac. Rep. 578. * Reese v. Mining Co., supra. 3 Soto V. Irvine, 60 Cal. 436; Ma- « Spinney v. Griffith, 98 Cal. 151, lone V. Bosch, 104 Cal. 681, 38 Pac. 33 Pac. Rep. 974; Reese v. Mining Rep. 516; Spect v. Spect, 88 Cal. Co., supra. See also Ayers v. Green 1226 SPECIAL PEOVISIONS FOE HEALTH, ETC. [§ 1706. § 1706. Notice and foreclosure. — The purposes of this work, and lack of space alike, forbid a general examination into the contents of the notice and the pleadings and pro- ceedings on foreclosure. It is sufficient to say, in a general way, that the notice of lien must substantially conform to the statute,' and if essentially defective in substance it can- not be aided by complaint or evidence. While the law is, in one sense, remedial, and hence entitled to liberal con- struction, it must be remembered that all these proceedings are in invitum, dependent for their force and validity upon the statute and a substantial compliance therewith ; whence the rule that if the statute is not complied with in all es- sential particulars no lien results. By this it is not meant that a slavish technical adherence is required, but simply a fair, substantial compliance. As was said by the supreme court of Nevada: "This rule should always be followed when the objections urged serve only to perplex and em- barrass a remedy intended to be simple and summary, with- out adding anj^thing to the security of the parties having an interest in the property sought to be affected. But in following this rule, courts should always be careful not to impair the force of the statute or fritter away its meaning by construction. It must always be borne in mind that a mechanic's lien is purely of statutory creation, and that it can only be maintained by a substantial observance of, and compliance with, the provisions of the statute. It is a ' rem- edy given by law,' which secures the preference provided for, but which does not exist, however equitable the claim may be, unless the party brings himself within the provis- ions of the statute, and shows a substantial compliance with all its essential requirements." ^ Gold M. Co., 116 Cal. 335, 48 Pac. Parker, 48 Wis. 551; Rugg v. Rep. 221; Jurgensen v. Diller, 114 Hoover, 38 Minn. 407, 10 N. W. Cal. 493^ 46 Pac. Rep. 611. Rep. 473. 1 Malter v. Falcon M. Co., 18 Nev. 2 Malter v. Falcon M. Co.. supra; 309, 2 Pac. Rep. 50; Mays v. Ruff- Phil. Meoh. Liens, sec. 89: Skyrme ners, 8 W. Va. 386; Bertheolet v. v. Occidental M. Co., 8 Nev. 221; §§ 1707, 1708.] MINEES' LIENS IN GENERAL. 1227 §1707. Knowledge of owner — Strict construction. — In California, it seems there is, to say the least, an unfortu- nate disposition to sacrifice the rights sought to be con- ferred by the statute upon the altar of strict construction. First it is said that drifting in a tunnel is not running a tunnel, all of which is a question of fact.^ Then it is said that while the statute requires the owner with knowledge of work being done upon his land to give notice of non- responsibility within three days,^ still he is not liable for not so doing because labor in a mine is not an improvement upon land within the meaning of the statute." All of which merely serves to show that it is one thing to enact a statute and another thing to have it enforced. § 1708. Summary — The doctrine of this chapter re- stated. — The most that can be said in conclusion is that the law of miners' and mechanics' liens is still in its formative state, and courts are yet widely divided both in respect of the subject-matter comprehended by the statute, and what is a sufficient compliance therewith in its enforcement. We think we are justified in saying, however, that better and the great weight of authority require that the statute should be substantially followed in all its particulars, which is far from saying that a slavish adherence thereto is re- quired. That all labor bestowed upon a mine, whether manual or supervisory, resulting in its substantial development for the owner or under his direction personally or through his agent, is the proper subject of a lien. The statute of the particular jurisdiction, however, when properly and fairly construed, must be the ultimate guide in all these proceed- ings. Hunter v. Truckee Lodge, 14 Nev. 2 California Code C. P., § 1193; 28; Lonkey v. Wells, 16 id. 374. See Jurgensen v. Diller, supra; Reese v. also ante, § 1700. Bald Mountain Cons. Mining Co. 1 Jurgensen v. Diller, 114 CaL 492, (Cal.), 65 Pac. Rep. 578. 46 Pac. Rep. 611. ' Reese v. Milling Co., supra. APPENDIX. PART XVI. APPENDIX A. FEDERAL STATUTES. 1 The Law of 1866. II. Placer Law of Jxjly 9, 1870. IIL The Law of 1872, and Prior and Subsequent Enactments as Embraced in Title XXXII, Chapter 6, Revised Statutes. IV. Acts of Congress Passed Subsequent to the Revised Stat- utes, in Addition to the Amendments Thereto. a. An act to authorize the entry of lands chiefly valuable for building stone under the placer mining lawa b. An act to authorize the entry and patenting of lands con- taining petroleum and other mineral oils under the placer mining laws of the United States. c. An act extending the mining laws to saline lands. d. An act to repeal the timber-culture laws, and for other pur- poses. 6. An act making appropriations . . . and for other purposes. (Restricting amount of land which may be entered.) f. An act authorizing the citizens of Colorado, Nevada and the territories to fell and remove timber on the public domain for mining and domestic purposes. g. An act to exclude the public lands in Alabama from the opera- tion of the laws relating to mineral lands, h. An act to exclude the states of Missouri and Kansas from the provisions of the act of congress entitled " An act to promote the development of the mining resources of the United States,'' approved May tenth, eighteen hundred and seventy-two. L An act to open forest reservations in the state of Colorado for the location of mining claims, j. Extract from appropriation act of June 4, 1897, providing for the restoration to the public domain of mineral lands in forest reservations. V. Provisions of the Revised Statutes op the United States Relative to Coal Lands. 1232 APPENDIX A. VI. General Provisions of the United States Law Eelating to THE District of Alaska. a. General provisions. b. An act extending the homestead laws and providing for right of way for railroads in the district of Alaska, and for other purposes. (Eelating to citizens of Canada.) c. Portion of an act mailing further provisions for Alaska, and for other purposes. d. Land department regulations governing Alaska. VII. An Act to Create the California Debris Commission and Eegulatb Hydraulic Mining in the State of Cali- fornia. I. The La-w of 1866. An Act granting the right of way to ditch and canal owners over the public lands, and for other purposes. (14 Stats, at Large, ch. 362, p. 251.) Be it enacted, etc.: § 1. [Who may locate — What laws govern.] — That the mineral lands of the public domain, both surveyed and un- surveyed, are hereby declared to be free and open to ex- ploration and occupation by all citizens of the United States, and those who have declared their intention to be- , come citizens, subject to such regulations as may be pre- scribed by law, and subject also to the local customs or rules of miners in the several mining districts, so far as the same may not be in conflict with the laws of the United States. (Kepealed May 10, 1872, § 1 ; E. S., § 2320.) § 2. [Entry and patent — Extra-lateral rights.] — And he it further enacted, that whenever any person, or associa- tion of persons claim a vein or lode of quartz, or other rock in place, bearing gold, silver, cinnabar, or copper, having previously occupied and improved the same according to the local customs or rules of miners in the district where the same is situated, and having expended in actual labor and improvements thereon an amount of not less than one thousand dollars, and in regard to whose possession there is no controversy or opposing claim, it shall and may be FEDEEAL STATUTES. 1233 la^vful for said claimant, or association of claimants, to file in the local land office a diagram of the same, so extended laterally or otherwise as to conform to the local laws, cus- toms, and rules of miners, and to enter such tract and re- ceive a patent therefor, granting such mine, together with the right to follow such vein or lode, with its dips, angles, and variations, to any depth, although it may enter the land adjoining, which land adjoining shall be sold subject to this condition. (Eepealed May 10, 1872, §§ 6, 9; E. S., §§ 2325, 2328.) §3. [Patent proceedings.] — And he it further enacted, that upon the filing of the diagram as provided in the sec- ond section of this act, and posting the same in a conspicu- ous place on the claim, together with a notice of intention to apply for a patent, the register of the land oflBce shall publish a notice of the same in a newspaper published near- est to the location of said claim, and shall also post such no- tice in his office for the period of ninety days; and after the expiration of said period, if no adverse claim shall have been filed, it shall be the duty of the surveyor-general, upon ap- plication of the party, to survey the premises and make a plat thereof, indorsed with his approval, designating the number and description of the location, the value of the labor and improvements, and the character of the vein ex- posed; and upon the payment to the proper officer of five dollars per acre, together with the cost of such survey, plat, and notice, and giving satisfactory evidence that said dia- gram and notice have been posted on the claim during said period of ninety days, the register of the land office shall transmit to the general land office said plat, survey and de- scription; and a patent shall issue for the same thereupon. But said plat, survey or description shall in no case cover more than one vein or lode, and no patent shall issue for more than one vein or lode, which shall be expressed in the patent issued. (Eepealed May 10, 1872, §§ 6, 7, 9; E. S., §§ 2325, 2326, 2328.) 78 1234 APPENDIX A. § 4. [Surveys — Length of claim — Number of claims to each locator — Extra-lateral right — Surface to accom- pany lode.J — And he it further enacted, that when such lo- cation and entry of a mine shall be upon unsurveyed lands, it shall and may be lawful, after the extension thereto of the public surveys to adjust the surveys to the limits of the premises according to the location and possession of plat aforesaid, and the surveyor-general may, in extending the surveys, vary the same from a rectangular form to suit the circumstances of the country and the local rules, laws, and customs of miners; provided, that no location hereafter made shall exceed two hundred feet in length along the vein for each locator, with an additional claim for the discovery to the discoverer of the lode, with the right to follow such vein to any depth, with all its dips, variations and angles, together with a reasonable quantity of surface for the con- venient working of the same, as fixed by local rules; and provided fv/rther, that no person may make more than one location on the same lode, and not more than three thousand feet shall be taken in any one claim by any association of persons. (Repealed May 10, 1872.) § 5. [States may supply legislation regulating the working of mines.] — And he it further enacted, that as a further condition of sale, in the absence of necessary legis- lation by congress, the local legislature of any state or territory may provide rules for working mines involving easements, drainage, and other necessary means to their complete development; and those conditions shall be fully expressed in the patent. (Repealed May 10, 1872, § 5; E. S., § 2324.) § 6. [Adverse claim — Stay of proceedings.] — And he it further enacted, that whenever any adverse claimants to any mine, located and claimed as aforesaid, shall appear before the approval of the survey, as provided in the third" section of this act, all proceedings shall be stayed until final settlement and adjudication, in the courts of competent jurisdiction, of the rights of possession to such claim, when FEDERAL STATUTES. 1235 a patent may issue as in other cases. (Eepealed May 10, 1872, § 7; E. S., § 2326.) § 7. (Preserved in E. S., § 2343, which see.) § 8. (Preserved in E. S., § 2477, which see.) § 9. (Preserved in E. S., § 2339, which see.) § 10. (Substantially preserved in E. S., § 2341y which see.) § 11. (Preserved in E. S., § 2342, which see.) II. Placer Law op July 9, 1870. An Act to amend "An act granting the right of way to ditch and canal owners over the public lands, and for other purposes." (16 Stats, at Large, ch. 235, p. 217.) Act of 1866 amended. Be it enacted liy the Senate and House of Representatives of the United States of America in Congress asserribled, that the act granting the right of way to ditch and canal owners, and for other purposes, approved July twenty-sixth, be, and the same is hereby amended, by adding thereto the follow- ing additional sections, numbered twelve, thirteen, fourteen, fifteen, sixteen and seventeen, respectively, which shall hereafter constitute and form a part of the aforesaid act. § 12. [Placers subject to entry — Size of claim — Group claims.] — And he it further enacted, that claims usuallj'- called " placers," including all forms of deposit, excepting veins of quartz, or other rock in place, shall be subject to entry and patent under this act, under like circumstances and conditions, and upon similar proceedings as are provided for vein or lode claAvas; j>rovided, that where the lands have been previously surveyed by the United States, the entry, in its exterior limits, shall conform to the legal subdivisions of the public lands, no further survey or plat in such case being required, and the lands may be paid for at the rate of two dollars and fifty cents per acre; provided further, that legal subdivisions of forty acres may be subdivided into ten- acre tracts ; and that two or more persons, or association of persons, having contiguous claims of any size, although such claims may be less than ten acres each, may make joint entry 1236 APPENDIX A. thereof; and, provided further, that no location of a placer claim, hereafter made, shall exceed one hundred and sixty acres for any one person or association of persons, which location shall conform to the United States surveys; and nothing in this section contained shall defeat or impair any honafide pre-emption or homestead claim upon agricultural lands, or authorize the sale of the improvements of any hona fide settler to any purchaser. (Embraced substantially in § 2329, which see ; post, III, this Appendix.) § 13. (Is substantially the same as § 2332, K. S.) § 14. (Preserved in E. S., § 2335.) § 15. [Fees.] — And he it further enacted, that registers and receivers shall receive the same fees for services under this act as are provided by law for like services under the acts of congress ; and that effect shall be given to the fore- going act according to such regulations as may be prescribed by the commissioner of the general land office. (See K. S., § 2388.) § 16. [Public surveys extended.] — And he it further enacted, that so much of the act of March third, eighteen hundred and fifty-three, entitled " An act to provide for the survey of the public lands of California, the granting of pre-emption rights, and for other purposes," as provides that none other than township lines shall be surveyed where the lands are mineral, is hereby repealed. And the public surveys are hereby extended over all such lands ; provided, that all subdividing of the surveyed lands into lots of less than one hundred and sixty acres may be done by county and local surveyors at the expense of the claimants, and provided further, that nothing herein contained shall require the survey of waste or useless land. § 17. [Easements for water rights.] — And he it fur- ther enacted, that none of the rights conferred by section five, eight, and nine of the act of which this is amendatory shall be abrogated by this act; and the same are hereby extended to all public lands affected by this act; and all patents granted, or pre-emption or homesteads allowed, FEDERAL STATUTES. 1237 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 rec- ognized by the ninth section of the act of which this act is amendatory. But nothing in this act shall be construed to repeal, impair, or in any way affect the provisions of the "Act granting to A. Sutro the right of way and other priv- ileges to aid in the construction of a draining and explor- ing tunnel to the Cornstock lode, in the state of Nevada," approved July twenty-fifth, eighteen hundred and sixty-six. (Embraced substantially in §§ 2340, 2344, R. S., which see; •post, III, this Appendix.) III. The Law of 1872, and Peioe and Subsequent Enact- ments AS Embeaced in TrrLE XXXII, Chaptee 6, Revised Statutes. Sec. 2318. [Mineral lands reserved.] — In all cases lands valuable for minerals shall be reserved from sale, except as otherwise expressly directed by law. (Act July 4, 1866, ch. 166, § 5, 14 Stat, at L., p. 86.) Sec. 2319. [Mineral lands open to purchase by citizens.] 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. (Act May 10, 1872, ch. 152, § 1, 17 Stat, at L., p. 91.) Sec. 2320. [Length of mining claims upon veins or lodes.] — Mining claims upon veins or lodes of quartz or other rock in place bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposits, heretofore located, shall be governed as to length along the vein or lode by the cus- 1^38 APPENDIX A. toms, regulations, and laws in force at the date of their lo-") cation. A mining claim located after the tenth day of May, eighteen hundred and seventy-two, whether located by one or more persons, may equal, but shall not exceed, one thou- sand five hundred feet in length along the vein or lode ; but 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. No claim shall extend more than three hundred feet on each side of the middle of the vein at the surface, nor shall any claim be limited by any mining regulation to less than twenty-five feet on each side of the middle of the vein at the surface, except where adverse rights existing on the tenth day of May, eighteen hundred and seventy-two, render such limitation necessary. The end lines of each claim shall be parallel to each other. (Act May 10, 1872, ch. 152, § 2, IT Stat. atL., p. 91.) Sec. , and that I am acquainted with the mining ground described in this notice of looation,and herewith called the ledge, lode or claim, that the ground and claim herein described or any part thereof has not, to the best of my knowledge and belief, been located according to the laws of the United States and of this state, or if so located, that the same has been abandoned or forfeited by reason of the failure of such former locators to comply in respect thereto vrith the requirements of said laws, and (in case of quartz claims) that I have opened new ground to the extent or depth of ten feet as required by the laws of Idaho. (Jurat.) Civ. Code 1901, sec. 2564. Notice must he recorded — By whom, — Fee. — The location notice herein required to be recorded must be recorded by the deputy ap- pointed for the district, or the person appointed for that purpose as above provided (when the legal fee therefor is tendered), in a book to be STATE STATUTES ANNOTATED — EECOED, IDAHO, MONT. 1285 kept for that purpose. Said book must be indexed, with the names of all the locators arranged in alphabetical order, according to the family or surname of each. The fee to be tendered for such record, administer- ing the oath to the locator and certifying the same, for indexing the names appearing on the notice, and to include recording the notice by the recorder as hereinafter required, and indexing by said recorder, is two dollars, which fee must be equally divided between the recorder and the deputy or other person acting under an election as hereinbefore provided, and no additional sum of money must be demanded or re- ceived by either of them for any services connected with the recording of any location notice made pursuant to the requirements of this chap- ter. Civ. Code 1901, sec. 2568. Deputy must transmit notices to recorder. — The deputy recorder of mining claims of each district, or the person temporarily appointed, as herein above provided, to make the record in case of the failure of the recorder to appoint a deputy, must at least once in each month, trans- mit to the recorder at the county seat, all the notices of location filed with him for record, and not previously transmitted, which must at ■once be' recorded by said recorder, in a book to be kept in his oflSce,-and be known as the "Book of Mining Claims." The names of all persons appearing in every notice of location must be indexed by the recorder, said names being arranged in said index in alphabetical order, according to the first letter of the surname of said locators. Civ. Code 1901, sec. 2569. Restrictions on deputy recorder.— The deputy recorders provided for in this chapter, are not, by virtue of the provisions hereof, authorized "to perform any other than the special duties herein specified. They must keep an ofiBcial seal, and the records in their custody are public records, but the seal of a deputy recorder must not be attached to any paper except for the purpose of authenticating certificates attached to the transcripts of the records in his custody as deputy recorder. Civ. Code 1901, sec. 2570. Montana. — Contents of location notice. — Any persona citizen of the United States, or one who has declared his intention to become such, who discovers a vein or lode bearing gold, silver, cinnabar, lead, tin, copper or other valuable deposits, or who discovers or locates a placer deposit of gold or other deposits of minerals, including building- stone, limestone, marble, clay, sand or other mineral substance having a, commercial value, may locate a claim upon such vein, lode or deposit by defining the boundaries of the claim in the manner hereinafter de- scribed, and by posting a notice of such location at the point of discov- ery, which must contain: 1st. The name of the lode or claim. 2d. The name of the locator or locators. 3d. The date of the location. 1286 APPENDIX B EECOED, ETC., MONTANA, NET ABA. 4th. If a lode claim, the number of linear feet claimed in length along the course of the vein, each way from the point of discovery, ■with the width on each side of the center of the vein and the general course of the vein or lode as near as may be. oth. If a placer or mill-site claim, the number of acres or superflcial feet claimed. Eev. Pol. Code, 1895, § 3610. Record — Verification — Contents. — Within sixty days of posting- the location notice upon the claim there shall be filed in the office of the county clerk of the county in which the lode or claim is situated, at declaratory statement which shall contain: 1. The name of the lode or claim. 2. The name of the locator or locators. 3. The date of location and such description of the location of said claim with reference to some natural object or permanent monument as will identify the claim. 4 and 5 same as location certificate, ante. 6. The dimensions and location of the discovery shaft, cut or tunnel,, or its equivalent, sunk upon lode or placer claims. Such declaratory statement must be verified by the oath of the lo- cator, or one of the locators, and in case of a corporation, by an officer thereof duly authorized to act. Rev. Pol. Code, 1895, § 3612, as amended,, act of March 15, 1901. Nevada. — Location notice — Contents. — Same as Montana, except words "bearing gold" to "having commercial value" in the body of section, "if a lode claim," in fourth subdivision, and all of fifth subdi- vision omitted. Act March 16, 1897, g 1; Comp. Laws 1900, § 208. Contents of record. — Within ninety days of the date of posting the- location notice upon the claim the locator shall record his claim with the mining district recorder and the county recorder of the mining dis- trict or county in which such claim is situated by a location certificate which must contain: 1, 3, 8 and 4 same as Montana, except "if a lode claim " omitted from> beginning of fourth subdivision. 5. Same as sixth subdivision of Montana, 6. The location and description of each corner, with the markings- thereon. . . . Act of March 16, 1897, § 3; Comp. Laws 1900, § 210. Notices must he recorded with county recorder in all cases. — Where there is no mining district or where a district having once existed tlie- residence of the officers within the district and their places of business within the district where the books are kept are not publicly known, district recording shall not be required of the locator or claim-owner. But recording shall be required in the office of the county recorder in all cases — as well where there is a district recorder as where there is none. Comp. Laws 1900, § 232; Laws 1899, p. 95. STATE STATUTES ANNOTATED — EECOED, ETC., NEVADA. 1287 An Act to provide for the better preservation of the mining records of this state, and to repeal all other acts in conflict with this act. 1. Duties of milling recorders — Duplicate notices. — It shall be the duty of each and every mining recorder of the several mining districts of the state to require all persons locating and recording a mining claim to make a duplicate copy of each and every mining notice, vrhich copy the said mining i-ecorder shall carefully compare veith the original, and mark " duplicate " on its face or margin, and he shall immediately de- posit with or transmit the same to the county recorders of the respect- ive counties in which said mining district may be located. 2. Fees to be collected. — The said district mining recorders, at the time of comparing said duplicate notices with the original, shall collect from the locators of said mining claims the sum of one dollar for each and every notice compared, which sum he shall transmit, together with the said duplicate notices, to the county recorders of the respective counties in which said mining claims shall be located. 3. Duplicates to be filed. — Whenever, owing to the distance of the mining district from the county seat, it becomes inconvenient for the district mining recorder to personally deposit the duplicate copy with the county recorder, then in that case he may forward the same by mail or express, or such other manner as will insure safe transit and deliv- ery to the county recorder. 4. Fees for recording. — The county recorders of the several counties shall receive for their services for recording each of said duplicate no- tices mentioned in section two of this act, the sum of one dollar; pro- vided, that in case the location is made outside of an organized mining district or in the absence of a mining recorder in any organized district, then the person or persons making such location shall within ninety days after making such location transmit a duplicate copy of such no- tice to the recorder of the county in which the location is made, and the recorder shall record the same for a fee of one dollar. As amended, Stats. 1897, p. 77. 5. Duplicate notice to have force. — The record of any original or du- plicate notice of the location of a mining claim in the oflSce of the county recorder, as herein provided, shall he received in evidence, and have the same force and effect in the courts of the state, as the original mining district records. Id. 6. Penalty. — Any person neglecting or refusing to comply with the provisions of this act shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be punished by a fine not exceeding five hundred dollars, or by imprisonment in the county jail not exceeding six months, or by such fine and imprisonment. Comp. Laws 1900, §§ 344-249. New Mexico. — Notice of location — Contents — Record. — Any person or persons desiring to locate a mining claim upon a vein or lode of quartz 1288 APPENDIX B — EECOED, NOETH DAKOTA, OEESON. or other rock in placs bearing gold, silver, cinnabar, lead, tin, copper or other valuable deposits, must distinctly mark the location on the ground so that its boundaries may be readily traced, and post in some conspicuous place on such location, a notice in writing stating thereon the name or names of the locator or locators, his or their intention to locate the mining claim, giving a description thereof by reference to some natural object or permanent monument as vrill identify the claims; and also within three months after^posting such notice, cause to be re- corded a copy thereof in the ofiSce of the recorder of the county in which the notice is posted. And provided, no other record of such notice shall be necessary. Comp. Laws 1897, § 2286; Act Jan. 11, 1876, § 1. Probate clerk to provide books for records. — In order to carry out the intent of the preceding section, it is hereby made the duty of the probate clerk of the several counties of this territory, and they are hereby re- quired to provide at the expense of their respective counties such book or books as may be necessary and suitable in which to enter the record hereinbefore provided for. The fees for recording such notice shall be ten cents for every one hundred words. Id., § 8887, § 8. North Dakota. — Contents of location certificate and record. — Same as Colorado to subdivision 5, except " sixty days " instead of " three months," and " register of deeds " instead of "recorder." 5. The number of feet in width claimed on each side of the vein or lode. 6. Same as Colorado, subd. 5. R. S. 1899, § 1428. Fee for recordwig. — The register of deeds shall be entitled to receive the sum of $1 for each location certificate recorded and certified by him and shall furnish the locator with a copy of such location cer- tificate when demanded, for which he shall be entitled to receive fifty cents. R. S. 1899, § 1441. Oreg'on. — Who may locate — Sow. — Same as Montana to "vein or lode," then " of minei-al-bearing rock in place upon the unappropriated public domain of the United States within this state, may locate a claim upon such vein or lode so discovered, by posting thereon a notice of such discovery and location, which said notice shall contain: " 1, 8 and 3 same as Montana. 4. The number of linear feet claimed along the vein or lode each way from the point of discovery, with the width on each side of the said lode or vein. 0. The general course or strike of the vein or lode as nearly as may be, with reference to some natural object or permanent monument in the vicinity thereof: and by defining the boundaries upon the surface of such claim so that the same may be readily traced. Laws 1898, p. 16, § 1, as amended by Laws 1901, p. 140, § 1. Record — Contents — Fee. — Such locator shall, within sixty days from and after the posting of location notices by him upon the lode or STATE STATUTES ANNOTATED — EECOED, S. DAK., UTAH. 1289 ■claim, file for record with the recorder of conveyances, if there be one, who shall be the custodian of raining records and miners' liens, other- wise with the clerk of the county wherein the said claim is situated, a copy of the notice so posted by him upon the lode or claim, having at- tached thereto an afiBdavit showing that the work required to be done by section 3 of this act has been done and performed, and shall pay to the recorder or clerk a fee of $1 for such record thereof, which said sum the recorder or clerk shall immediately pay over to the treasurer of such county and shall take his receipt therefor, as in case of other county funds coming into the possession of such officer. Such recorder or clerk «hall immediately record such location notice and the affidavit annexed thereto. No location notice shall be entitled to record, or recorded, until the work required by section 3 of this act has been done and the affidavit in proof thereof is attached to the notice to be recorded. Laws 1898, § 2, as amended Laws 1901, p. 140, g 3. South Dakota. — Contents of location certificate and record. — Same as North Dakota; then add: "7. That when a location certificate is filed for record in the office of the register of deeds, the register of deeds shall immediately furnish to the locator or locators a certificate giving the name of the location, the name of the locator or locators, the date of filing in the office of the register of deeds; and the book and page where recorded, for which certificate the register of deeds shall receive the sum of ten cents in addition to the amount now allowed by law for filing and recording location certificates, which certificate shall be delivered to the locator or locators who shall post the same or a copy thereof, on the said claim ■on the same post or tree where the original notice is posted, and in a conspicuous place. And if said certificate or a copy thereof, is not so posted within ninety days from the date of the original notice, the said claim shall be deemed abandoned ground and subject to relocation by another qualified locator. The said register of deeds shall, at the time ■of issuing said certificate, maks a notation on the margin of the recorded certificate giving the date of the delivery of said certificate, which no- tation shall be prima facie evidence of the delivery and posting of the same as herein provided." Comp. Laws Dak. Ty. 1887, as amended by Laws S. Dak. 1899, p. 147. Fees of county recorder for recording mining location. — The reg- ister of deeds of each county is entitled to one dollar for each location •certificate recorded and certified by him, and to fifty cents for each ■certified copy. Comp. Laws Dak. Ty., § 2013. Utah. — Contents of location notice — Monument.— The locator, at the time of making the discovery of such vein or lode, must erect a monument at the place of discovery, and post thereon his notice of lo- oation, which shall contain: 1, 2, 3 and 4 same as Montana, then add at end of 4, " and such a de- 1290 APPENDIX B- scription of the claim, located by reference to some natural object or permanent monument as will identify the claim." 5. If a placer or mill-site claim, the number of acres or superficial feet claimed, and such a description of the claim or mill site located by reference to some natural object or permanent monument as will identify the claim or mill site. Act March 3, 1899, § 2; Laws 1899, p. 26. Contents of record — Fee. — Within thirty days from the date of posting the location notice upon the claim, the locator or locators, or his or their assigns, must file for record in the officer of the county re- corder of the county in which such claim is situated, if said claim be situated without and beyond an original mining district, a substantial copy of such notice of location. Such county recorder shall charge and collect a fee of seventy-five cents for filing and recording and indexing and abstracting such notice; provided, that such notice of location shall not be abstracted unless a subsequent conveyance affecting the same- property be filed for record, when said notice shall be abstracted. Act March 3, 1899, § 4; Laws 1899, p. 26. Reorganization of mining district. — Mining districts may be or- ganized, and all existing districts may be reorganized and the rules and regulations of the said mining district shall govern the said district ac- cording to the laws of the United States, in cases where a district or- ganization is desired ; provided, that the nearest boundary line of any mining district shall not be within ten miles from the county recorder's- office of any county. Act approved March 3, 1899, § 7; Laws of 1899,. p. 27. Copying records — Expense. — Upon application of the district min- ing recorder of any mining district to the board of county commission- ers of the county having in custody the records of the said mining dis- trict, the said board of county commissioners shall cause the records of said district to be copied by the county recorder and shall cause all records of documents pertaining to district mining records, recorded since June 4, 1896, up to the time of delivery, to be recorded in the- original records of the mining district in which the property is situated and the original records jvhen so amended, shall be delivered to such district mining recorder. The copy so made shall remain in the office of the county recorder, and shall be considered as the original record. One-half of the expense of copying such records shall be paid out of the county treasury and one-half shall be paid out of the state treasurj'.. Act approved March 3, 1899, § 8; Laws of 1899, p. 37. Duplicate notice of location — Fee — Penalty. — It shall be the duty of every district mining recorder to require every person depositing for record a notice of location to make a duplicate copy thereof, which copy said mining recorder shall carefully compare with the original and mark " duplicate " and indorse thereon his name, and the date and hour and fact of filing in his office of the original. He shall, at th» STATE STATUTES ANNOTATED — EECOED, ETC., TJTAH. 129'1 time of filing the duplicate notice with the original, collect, in addition to his own fee, the sum of seventy-five cents, which shall be the fee for the county recorder for recording such duplicate. He shall immedi- ately deposit the duplicate copy with the county recorder of the county in which the greater part of the said mining district is located for record, or forward the same to him by mail or express, or in such other manner as will insure safe transit and delivery. The fee of seventy-five cents shall accompany the duplicate. The county recorder shall record said duplicate with the indorsements thereon for said fee. The record of said duplicate notice in the oflice of the county recorder shall be con- sidered an original record. Every person neglecting or refusing tO' comply with any of the provisions of this section shall be deemed guilty of a misdemeanor, and, upon conviction thereof shall be punished by a fine not exceeding five hundred dollars or by imprisonment in the county jail not exceeding six months, or by both such fine and im- prisonment. Act approved March 3, 1899, § 9; Laws of 1899, p. 38. County recorder may m ake certified copien of district records — Receiv- able as evidence. — Where books, records and documents pertaining to the office of district mining recorder have been or shall hereafter be deposited in the oflSce of any county recorder of this state, such county recorder is authorized to make and certify copies therefrom, and such certified copies shall be receivable in all tribunals and before all ofiicers of this state in the same manner and to the same effect as if such records had been originally filed or made in the ofiice of the county recorder. Act approved March 3, 1899, § 11; Laws of 1899, p. 88. County recorder to record rules — Certified copies. — It shall be the duty of each county recorder to record the mining rules and regula- tions of the several mining districts in his county without fee, and cer- tified copies of such records shall be received in all tribunals and before all officers of this state as prima facie evidence of such rules and reg- ulations, and it shall be his duty to record, index and abstract all min- ing location notices presented for record, for a fee not to exceed seventy- five cents for each notice and to file and index all aflidavits of labor presented for filing afi'ecting one mining claim for a fee not to exceed twenty -five cents; provided, that when an affidavit of labor contains the name of more than one mining claim, an additional fee of ten cents shall be charged for each additional claim named therein. Act ap- proved March 3, 1899, § 12; Laws 1899, p. 28. Recorder of mining district to give bond, — The recorder of each min- ing district shall take the oath of ofiSce and give bond with sureties in the penal sum of $1,000. Such bond must be approved by the district judge and filed in the office of the county clerk of the county in which the greater part of the said mining district is located. Where the re- corder of any mining district appoints a deputy, the recorder and his bondsmen shall be responsible for the official acts of such deputy. Act approved March 3, 1899, § 13; Laws 1889. p. 29. 1292 APPENDIX B EECOED, ETC., WASHINGTON, WYOMING. District recorder to make copies. — It shall be the duty of the recorder of a mining district upon request and payment or tender of the fees therefor, to make and deliver to any person requesting the same, duly certified copies of any records in his custody and for a failure so to do, or for receiving larger fees for any such service than those provided he shall be deemed guilty of a misdemeanor. Act approved. March 3, 1899, g 14; Laws 1899, p. 29. Vacancy — County recorder to receive records. — Whenever there is a vacancy in the office of recorder of any mining district, or the person holding such office shall remove from the district, leaving therein no qualified successor in office; or whenever from any cause there is no person in such district authorized to retain the custody and give certi- fied copies of the records, it shall be the duty of the person having cus- tody of the records to deposit the same in the office of the county re- corder of the county in which such mining district or the greater part thereof is situated, and the county recorder shall receive such records and is hereby authorized to make and certify copies therefrom, and such certified copies shall be received in evidence in all courts, and be- fore all officers and tribunals. The production of a certified copy so made, shall be, without other proof, evidence that such records were properly in the custody of the county recorder. Act approved March 3, 1899; Laws 1899, p. 29. Fees of mining recorder. — Every mining recorder shall be allowed the same fees for recording and making copies of any record in his custody as are allowed by law to county recorders for similar services; pro- vided, that fees for recording location notices may equal but shall not exceed $1 for each notice. Act approved March 3, 1899, g 16; Laws 1899, p. 29. Washington. — Record and contents. — The discoverer of a lode shall within ninety (90) days from the date of discovery, record in the office of the auditor of the county in which the lode is found, a notice contain- ing the name or names of the locators, the date of location, the number of feet in length claimed on each side of the discovery, the general course of the lode and such description of the claim or claims located by reference to some natural object or permanent monument as will, identify the claim. Act March 8, 1899, sec. 1, Laws 1899, p. 69. See also post, § 5. The Washington statutes also permit the miners of a district to elect a district recorder whose records of location notices and transfers are deemed public. Hill's Ann. Stats., §§ 2214-13. Wyoming. — Record — Contents. — The discoverer of any mineral, lead, lode, ledge or vein, shall, within sixty days from the date of dis- covery, cause such claim to be recorded in the office of the county clerk and ex officio register of deeds of the county within which such claim STATE STATUTES ANNOTATED — LOCATION, REQUISITES. 1293- may exist, by a location certificate which shall contain the following facts: 1. The name of the lode claim. 3. The name or names of the locator or locators. 3. The date of location. 4 The length of the claim along the vein measured each way from the center of the discovery shaft, and the general course of the vein as far as it is known. 5. The amount of surface ground claimed on either side of the center of the discovery shaft or discovery workings. 6. A description of the claim by such designation of natural or fixed object, or if upon ground surveyed by the United States system of land- survey, by reference to section or quarter section corners, as shall iden- tify the claim beyond question. R S. 1899, § 3546. See post, § 5, p. 1296. Necessity for verification discussed, text, g§ 430-23. Contents of location notice discussed, text, g§ 365-377; Contents of record discussed, text, gS 403-433. § 4. Location certificate void unless containing certain elements.— (Mills' Ana. Stats., § 3151; Gen. Stats. 1883, p. 722.) Any location certificate which shall not contain the name of the lode, the name of the locator, the date of location, the number of linear feet claimed on each side of the discovery shaft, the general course of the lode, and such description as shall identify the claim with reasonable certainty, shall be void. Arizona. — Until each and all the above specified things (Ariz, note to § 3, ante, p. 1383) shall have been done, no right thereto shall have- been acquired. R. S. 1901, § 3233. The failure to do all the things enumerated in this section in the time and place specified shall be construed into an abandonment of the- claim, and all right and claim thereto of the discoverer and locator shall be forfeited. Id., § 3235. Note. — This undoubtedly x'efers to the previous section when it says " this section," another evidence that state legislators do not always say just what they mean. Nevada. — Any record of the location of a lode mining claim which does not contai n all the requirements named in this section shall be void. All reoo rds of lode or placer mining claims, mill-sites or tunnel rights heretofore made by any recorder of any mining district or any county re corder are hereby declared to be valid and to have the same force and effect as records made in pursuance of the provisions of this act. And any such record, or a copy thereof, duly verified by a mining. 1294 APPENDIX B DISCOYEET AND NOTICE. recorder shall be prima facie evidence of the facts therein stated. Com p. Laws, 1900, § 310; Act March 16, 1897, § 3. North Dakota, — Same as Colorado, except " the number of feet in width claimed " inserted between " discovery shaft " and " the general course." E. S. 1899, § 1439. Oregon. — Any and all locations or attempted locations of quartz mining claims within this state, subsequent to the thirty-iirst day of December, 1898, that shall not comply and be in accordance with the provisions of this act, shall be null arid void. Sess. Laws 1898, p. 16, § 10. South Dakota. — Same as North Dakota. Comp. Laws Dak. Ter., 1887, § 3000, as adopted by state legislature. Wyoming. — Any certificate of location which shall not contain all the requirements in the preceding section, together with such other de- scription as shall identify the lode or claim with reasonable certainty, shall be void. R. S. 1899, § 2547. §5. Discovery shaft and preliminary notice.— (Mills' Ann. Stats., § 3152; Gen. Stats. 1883, p. 723.) Before filing such location certificate, the discoverer shall locate his claim by: First. Sinking a discovery shaft upoh the lode to the depth of at least ten feet from the lowest part of the rim of such shaft at the surface, or deeper, if necessary, to show a well- defined crevice; Second. By posting at the point of discovery on the sur- face a plain sign or notice, containing the name of the lode, the name of the locator, and the date of discovery; Third. By marking the surface boundaries of th^ claim. Arizona. — Time to complete location. — From the time of location of a mining claim, as above specified, the locator shall be allowed ninety days within which to do or cause to be done the following things: 1. To cause to be recorded in the oflSce of the county recorder of tlie county in which the claim is situated a copy of the location notice. (See also Ariz, note to § 16, p. 1308, post) 2. Same as subd. 1, Colorado, to " if necessary," then " until there is disclosed in said shaft mineral in place." 3. To monument the claim on the ground so that its boundaries can be readily traced. B. S. 1901, § 3234. Fee for recording. — There shall be a uniform fee of one dollar charged by each county recorder in the territory of Arizona for recording eacli notice of location of a mining claim, including certificate of work done to comply with the law regarding locations, the said one dollar to be in STATE STATUTES ANNOTATED — DISCOVERY, IDAHO, N. MEX. 1295 full for filing, recording and indexing said notice and certificate and certifying to same under seal. R. S. 1901, § 3359. Idaho. — Discovery shaft. — Within sixty days after such location, the locator or his assigns, must sink a shaft upon the lode to the depth of at least ten feet from the lowest part of the rim of such shaft at the sur- face. Andof not less than sixteen square feet area. . . . Any located claim upon which work has been done in compliance with the above requirements is not, unless abandoned, subject to relocation for a period of ninety days from and after the date of location. Civ. Code 1901,.g 2558. Montana, — Before the expiration of sixty days from the date of posting such notice upon the claim the locator or locators must sink a discovery shaft upon the lode or claim (mill site claims excepted) to the depth of at least ten feet from the lowest part of the rim of such shaft at the surface, or deeper, if necessary, to show a well defined crevice or valuable deposit. Its equivalent in work must be done upon placer claims. . . . Eev. Pol. Code 1895, § 3611, as amended by Act of March 15, 1901, § 1. Nevada. — Before the expiration of ninety days from the posting of such notice upon the claim the locator must sink a discovery shaft upon the claim located to the depth of at least ten feet from the lowest part of the rim of such shaft at the surface, or deeper if necessary to show by such work a lode deposit of mineral in place. . . Act of March 16, 1897, § 2; Comp. Laws 1900, § 809, as amended by Laws 1901, p. 97. Discovery work on placers. — Within ninety days after the posting of the notice of location of a placer claim, the locator shall perform not less than twenty dollars' worth of labor upon the claim for the develop- ment thereof, and shall have recorded by the mining district recorder and the county recorder of the district and county in which the claim is situated a certificate which shall state the name of the claim, desig- nating it as a placer claim, name of locator or locators, date of location, number of feet or acres claimed, a description of the claim with regard to some natural object or permanent monument, so as to identify the claim, and the kind and amount of work done by him as herein re- quired, and the place on the claim where said work was done. This certificate, or the record thereof, or a duly certified copy of said record, shall be prima facie evidence of the recitals therein. But if such certifi- cate do not state all the facts herein required to be stated, it shall be void. As amended. Stats. 1899, p. 94; Comp. Laws 1900, § 221. New Mexico. — That the locator or locators of any mining claim, located after this act shall take effect, shall, within ninety days from the date of taking possession of the same, sink a discovery shaft upon such claim, to a depth of at least ten feet from the lowest part of the rim of such shaft at the surface, exposing mineral in place, or shall drive a tunnel, adit, or open cut upon such claim, to at least ten feet below the surface, exposing mineral in placa Comp. Laws 1897, § 3298; Act Feb. 11, 1887, § 5. 1296 APPENDIX B — DISCOVEKY, ETC. OEEG., WTO. North Dakota. — Before filing such location certiflcate the discoverer shall: 1. Locate his claim by first sinking a discovery shaft thereon suffi- cient to show a well defined mineral vein or lode. 2. Same as subd. 3, Colorado, then add: "the number of feet claimed in length on either side of the discovery and the number of feet in width claimed on each side of the lode." 3. Same as Colorado. R. S. 1899, § 1430. Oregon. — Discovery shaft. — Before the expiration of sixty days from the date of the posting of the notice of discovery upon his claim as aforesaid, and before recording the notice of location as required by section 2 of this act, the locator must sink a discovery shaft upon the claim located to a depth of at least ten feet from the lowest part of the rim of such shaft at the surface, or deeper if necessary, to show by such work a lode or vein of mineral deposit in placfe. . . Such work shall not be deemed a part of the assessment work required by the Re- vised Statutes of the Unij;ed States. The locator, or some one for him who did work upon and has knowledge of the facts relating to the sink- ing of the discovery shaft, shall make and attach to the copy of the no- tice of location to be recorded, an afii davit showing the compliance by the locator with the provisions of this section, this affidavit shall be recorded with such copy of the location notice. Laws 1898, p. 16, § 3, as amended Laws 1901, p. 140. Sonth Dakota. — Before filing such location certificate, the discoverer shall locate his claim by first sinking a discovery shaft thereon suffi- cient to show a well defined mineral vein or lode, not less than ten (10) feet in depth on the lowest side; second and third same as North Dakota. Comp. Laws Dak. Ty. 1887, as adopted by state legislature, § 2001. Washington. — See Washington note, § 7, p. 1300, post, marking boundaries. Wyoming. — Discovery shaft — Posting notice. — Before the filing of a location certificate in the office of the county clerk and ex officio reg- ister of deeds, the discoverer of any lode, vein or fissure shall designate the location thereof as follows: 1. By sinking a shaft upon the discovery lode or fissure to the depth ■sf ten feet from the lowest part of the rim of such shaft at the surface. 3. By posting at the point of discovery, on the surface, a plain sign or notice, containing the name of the lode or claim, the name of the dis- coverer and locator and the date of said discovery. R S. 1899, § 2539, subds. 1 and 3. This question discussed in text, §§ 346-360, especially § 352. § 6. Equivalent of discovery shaft.— (Mills' Ann. Stats., § 3154; Gen. Stats. 1883, p. Y23.) Any open cut or tunnel, which shall cut a lode at the depth of ten feet below the sur- \ \ STATE STATUTES ANNOTATED DI8C0VEEY SHAFT. 1297 face, sliall hold such lode, the same as if a discovery shaft Avere sunk thereon, or an adit of at least ten feet in along the lode, from the point where the lode may be in any man- ner discovered, shall be equivalent to a discover}'^ shaft. Arizona. — Any open cut, adit or tunnel which shall be made as above provided for, as a part of the location of a lode mining claim, and which shall be equal in amount of work to a shaft ten feet deep and four feet wide by six feet long, and which shall cut a lode or mineral in place at the depth of ten feet from the surface, shall be equivalent, as a discov- ery work, to a shaft sunk from the surface. R. S. 1901, § 3237. Idaho. — Any excavation which shall cut such vein ten feet from the lowest part of the rim of such shaft, and which shall measure one hun- dred and sixty cubic feet in extent shall be considered a compliance with this provision. Civ. Code 1901, § 3558. Montana. — A cut, cross-cut or tunnel which cuts the lode at the depth of ten feet below the surface or an open cut at least ten feet in length along the lode from the point where the lead may be in any man- ner discovered, is equivalent to a discovery shaft. . . . Rev. Pol. • Code 1895, § 3611, as amended. Act March 15, 1901, § 1. Nevada. — A cut or cross-cut, or tunnel, which cuts the lode at the depth of ten feet or an open cut along the ledge or lode equivalent in size to a shaft four feet by six feet by ten feet deep, is equivalent to a discovery shaft. . . . Act March 16, 1897, § 2 ; Comp. Laws 1 900, g 209, as amended, 1901, p. 97. New Mexico. — See New Mexico note, § 5, p. 1295, ante. North Dakota. — Any open cut, cross-cut or tunnel at a depth suffi- cient to disclose the mineral vein or lode, or an adit of at least ten feet in length alonp- the lode from the point where the lode may be in any manner discovered, etc. R. S. 1899, § 1433. Oregon. — A cut or cross-cut or tunnel which cuts the lode at a depth of ten feet or an open cut at least six feet deep, four feet wide and ten feet in length along the lode from the point. Same as Colorado begin- ning with " where." Laws 1898, p. 16, as amended by Laws 1901, p. 140, g 3. South Ualtola. — Any open cut, cross or tunnel, at a depth sufficient to disclose the mineral vein or lode, or an adit, then same as Colorado. Comp. Laws Dak. Ty. 1887, as amended by Laws S. D. 1899, p. 147. "Washington. — Any open cut or tunnel having a length of ten (10) feet, which shall cut a lode at the depth of ten (10) feet below the sur- face, shall hold such lode the same as if a discovery were sunk thereon, and shall be equivalent thereto. Act March 8, 1899; Laws 1899, p. 69, § 3. Limited application. — The provision herein relating to discovery shafts, shall not apply to any mining location west of the summit of the Cascade mountains. Id., § 9. Definition of lode. — The term " lode " as used in this act shall be construed to mean ledge, vein or deposit. Id., § 4, 83 1298 APPENDIX B MARKING BOUNDAKIES. Wyoming. — What equivalent to discovery shaft. — Any open cut which shall cut the vein ten feet in length and with face ten feet in height, or any cross-cut tunnel, or tunnel on the vein ten feet in length which shall cut the vein ten feet below the surface, measured from the bottom of such tunnel, shall hold such lode the same as if a discovery shaft were sunk thereon. E. S. 1899, § 3549. See text, §§ 346-860. Effect of loss of discovery, § 351. . § 7. Marking the boundaries — What acts necessary.— (Mills' Ann. Stats., § 3153; Gen. Stats. 1883, p. 723.) Such surface, boundaries shall be marked by six substantial posts, hewed or marked on the side or sides which are in toward the claim, and sunk in the ground, to wit : one at each cor- ner and one at the center of each side line. When it is practically impossible on account of bedrock to sink such posts, they may be placed in a pile of stones, and where, in marking the surface boundaries of a claim, any one or more of such posts shall fall by right upon precipitous ground, where the proper placing of it is impracticable or danger- ous to life or limb, it shall be legal and valid to place any such post at the nearest practicable point, suitably marked to designate the proper place. Arizona. — Such surface boundaries shall be marked by six substan- tial posts projecting at least four feet above the surface of the ground, or by substantial stone monuments at least three feet high, to wit: one at each corner of said claim and one at the center of each end line thereof. R S. 1901, § 3236. Idaho. — The locator, at the time of making the discovery of such vein or lode, must erect a monument at such place of discovery, upon which he must place his name, the name of the claim, the date of dis- covery and distance claimed along the vein each way from such mon- ument. Within ten days from the date of discovery, he must mark the boundaries of his claim by establishing at each corner thereof, and at any angle in the side lines, a monument, marked with the claim and the corner or angle it represents; also at the time of so marking his boundaries, he must post at his discovery monument his notice of lo- cation in which must be stated: First. The name of the locator; Second. The name of the claim ; Third. The date of discovery ; Fourth. The direction and distance claimed along the ledge from the discovery; STATE STATUTES ANNOTATED MONTANA, NEVADA. 1299 Fifth. The distance claimed on each side of the middle of the ledge; Sixth. The distance and direction from the discovery monument, to such natural object or permanent monument, if any such there be, as will fix and describe the notice itself, the location of the claim; and Seventh. The name of the mining district, county and state. When from any cause a monument cannot be safely planted at the true corner or angle, it may be placed as near thereto as practicable, and so marked as to indicate the place of such corner or angle. Monuments may be made of any such material or form as will read- ily give notice, and when of posts or trees, they must be hewn and marked upon the side facing towards the discovery, and must be at least four inches square or in diameter. Monuments must be at least four feet high above the ground, and trees must be so hewn as to readily at- tract attention. At the time the locator so marks the boundaries of his claim, he may do so in any direction that will not interfere with the rights or claims which existed prior to his discovery. Civ. Code 1901, sec. 2557. Montana. — The locator or locators must within thirty days after posting notice of location aforesaid define the boundaries of his or their claim, by marking a tree or rock in place, or by setting a post or stone at each corner or angle of the claim. When a post is used it must be at least four inches square by four feet six inches in length, and set one foot in the ground, with mound of earth or stone at least four feet in diameter by two feet in height around the post. When a stone is used, not a rock in place, it must be at least six inches square and eighteen inches in length, set two- thirds of its length in the ground, which trees, stakes or monuments, must be so marked as to designate the corners. Eev. Pol. Code, 1895, § 3611. as amended. Act March 15, 1901, § 1. Boundaries established by deputy mineral surveyor — Effect of. — When a locator or owner of a mining claim has the boundaries and cor- ners of his claim established by a United States deputy mineral surveyor, and his claim connected with a corner of the public or minor surveys, or an established initial point, and incorporates into the declaratory statement the field notes of such survey, and attaches to and files with such declaratory statement a certificate by the surveyor setting forth: First, that such survey was actually made by him, giving the date thereof; second, the name of the claim surveyed and the locators thereof ; third, that the description incorporated in the declaratory state- ment is sufficient to identify the claim, — such survey and certificate become a part of the declaratory statement and such declaratory state- ment is prima fade evidence of the facts therein contained. Rev. Pol. Code 1895, § 8616. Nevada. — How boundaries marked. — The locator must define • the boundaries of his claim by marking a tree or rock in place, or by set- ting a post or stone, one at each corner and one at the center of each 1300 APPENDIX B MABKING BOUNDAEIES — N.. MEX., WASH. side line. Then same as Montana, except that between words "around the post " and " when a stone is used," is inserted: "When it is prac- tically impossible on account of bedrock or precipitous ground to sink such posts, they may be placed in a pile of stones; or where the proper placing of such posts or monuments of stone is impracticable or dan- gerous to life and limb, it shall be lawful to place such post or monu- ment of stone at the nearest point, properly marked to designate its right place." Comp. Laws of 1900, g 209, as amended 1901, p. 97, § 1. Boundaries established by deputy mineral surveyor. — This provision is the same as Montana, except " owner of a mining claim " in place of "or his assigns," and after "deputy mineral surveyor" insert "or a licensed surveyor of this state," and instead of "declaratory state- ment " in last paragraph insert "record." Comp. Laws of 1900, § 215; Act March 16, 1897, § 8. New Mexico.— The surface bounderies (boundaries) of mining claims hereafter located shall be marked by four substantial posts or monu- ments, one at each corner of such claim, so as to distinctly mark the claim on the ground, so that its bounderies (boundaries) can be readily traced, and shall otherwise conform to section 2286 of the Compiled Laws of 1897. E. S. 1897, § 2299, as amended. Act March 16, 1899, § 1. North Dakota. — Such surface boundaries shall be marked by eight substantial posts hewed or blazed on the side facing the claim and plainly marked with the name of the lode and the corner, end or side of the claim that they respectively represent and sunk in the ground as follows: One at the corner and one at the center of each side line and one at each end of the lode. When it is impracticable on account of rock or precipitous ground to sink such posts, they may be placed in k monument of stone. E. S. 1899, § 1431. Oregon. — Such boundaries shall be marked within thirty days after posting such notice by six substantial posts, projecting not less than three feet above the surface of the ground, and not less than four inches square or in diameter, or by substantial mounds of stone, or earth and stone, at least two feet in height, to wit: One such post or mound of rock at each corner and at the center ends of such claim. Laws of 1898, § 1, p. 16, as amended 1901, p. 140, § 1. South Dakota. — Same as North Dakota, except "to wit'" instead of "as follows." Comp. Laws Dak. Ty. 1887, as adopted by state legisla- ture, § 2002. Utah. — Mining claims and mill sites must be distinctly marked on the ground so that the boundaries thereof can be readily traced. Act March 3, 1899. § 3, Laws 1899, p. 26. Washington. — Before filing such notice for record, the discoverer shall locate his claim by first sinking a discovery shaft upon the lode, to the depth of ten (10) feet from the lowest part of the rim of such shaft at the surface, and shall post at the discovery at the time of discovery STATE STATUTES ANNOTATED AMENDED CEETIFICATE. 1301 a notice containing the name of the lode, the name of the locator or lo- cators, the date of discovery, and shall mark the surface boundaries of the claim by placing substantial posts or stone monuments hearing the name of the lode and date of location; one post or monument must ap- pear at each corner of such claim; such posts or monuments must be not less than three (3) feet high; if posts are used they shall not be less than four (4) inches in diameter and shall be set in the ground in a sub- stantial manner. If such claim be located on ground that is covered wholly or in part with brush or trees, such brush shall be cut and trees marked or blazed in the lines of such claim to indicate the location of such lines. Act March 8, 1899, § 3, Laws 1899, p. 69. Wyoniiiig. — Same as Colorado, except language partially trans- posed, then add at end, "provided, that no right to such lode claim, or its possession or enjoyment, shall be given to any person or persons, un- less such person or persons shall discover in said claim mineral-bearing rock in place." E. S. 1899, § 2548, subd. 3. See discussion of this subject, text, g§ 381-400. § 8. Time within which discovery shaft must be sunk. (Mills' Ann. Stats., § 3155; Gen. Stats. 1883, p. Y23.) The discoverer shall have sixty days from the time of uncovering or disclosing a lode to sink a discovery shaft thereon. Arizona. — Within ninety days. R. S. 1901, g 3259. See Ariz, note, ante, § 5, p. 1294. Idaho.— Within sixty days. Civ. Code 1901, § 2558. Slontana. — Montana note, ante, § 5, p. 1295. Nevada. — Id, New Mexico.— Id. North Dakota.— Same as Colorado. E, S. 1899, § 1433. Oregon. — See Oregon note. § 3. p. 1S96, ante. South Dakota. — Same as Colorado. Comp. Laws Dak. Ty, 1887, adopted by state legislature, § 2004. Washington. — See Washington note, § 7, p. 1300, ante. Wyoming. — Same as Colorado, except after "mineral lode," insert " or vein in this state." E. S. 1899, § 2550. §9. Amended location certificate — Change of bound- aries.— (Mills' Ann. Stats., § 3160; Gen. Stats. 1883, p. 724.) If at any time the locator of any mining claim heretofore or hereafter located, or his assigns, shall apprehend that his original certificate was defective, erroneous, or that the requirements of the law had not been complied with before filing, or shall be desirous of changing his surface bound- aries, or of taking in any part of an overlapping claim which 1302 APPENDIX B — AMENDED LOCATION CEETIFICATES. has been abandoned ; or in case the original certificate was made prior to the passage of this law, and he shall be de- sirous of securing the benefits of this act, such locator or his assigns may file an additional certificate, subject to the provisions of this act; provided, that such relocation does not interfere with the existing rights of others at the time of such relocation, and no such relocation or other record thereof shall preclude the claimant or claimants from prov- ing any such title or titles as he or they may have held under previous'locations. Arizona. — Location notices may be amended at any time and the monuments changed to correspond with the amended location: Pro- vided, that no change shall be made that will interfere with the rights of others. R S. 1901, § 3238. Idaho. — Same as Colorado to " conditions of this act," then " and to contain all that this act required an original certificate to contain: Provided that such amended location does not interfere with the exist- ing rights of others at the time when such amendment is made." Civ. Code 1901, § 2566. Nevada. — Same as Colorado. Comp. Laws 1900, § 213; Act March 16, 1897, § 6. New Mexico. — Same as Colorado, except " owner " instead of " locar tor," and instead of " certificate " insert " location notice; " after " may file," before " additional," insert " in the ofiice where notices of location are by law required to be filed, an amendment or; " in the proviso instead of '• relocation " insert " additional or amended notice of location," and instead of "relocation" the second time Insert "filing such notice;" instead of "or claimants" insert "his assigns." Comp. Laws 1897, § 2301. North Dakota. — Same as Colorado, except word " chapter " is used instead of " act." R S. 1899, g 1437. South Dakota.— Same as Colorado. Comp. Laws Dak. Ty. 1887, as adopted by state legislature, § 2008. Washington. — Same as Colorado, except "additional ground which IS subject to location," instead of " overlapping claim which has been abandoned ; '' after words "may file " add " an amended certificate of location, subject to the provisions of this act regarding the making of new locations." Act March 8, 1899, § 5, Laws 1899, p. 69. Wyoming. — Same as Colorado, except " changing the surface bound- aries of his or their original claim or location," instead of " changing his surface boundaries," and " March 6, 1888," instead of " this law," in- serted. R S. 1899, § 2538. The question of amended location certificates and the right of the locator to file them is discused in the text, § 425 ei seq., also §§ 394, 395. STATE STATUTES ANNOTATED — ABANDONED CLAIMS. 1303 § 10. Relocation of abandoned claims. — (Mills' Ann. Stats., § 3162; Gen. Stats. 1883, p. T25.) The relocation of abandoned lode claims shall be by sinking a new discovery- shaft and fixing nevr boundaries in the same manner as if it were the location of a new claim; or the relocator may sink the original discovery shaft ten feet deeper than it was at the time of abandonment, and erect new or adopt the old 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 be taken, the location certificate may state that the whole or any part of the new location is located as abandoned property. Arizona. — The relocation of forfeited or abandoned lode claims shall only be made by sinking a new discovery shaft and fixing the bounda- ries in the same manner and to the same extent as is required in making an original location; or the relocator may sink the original discovery shaft ten feet deeper than it was at the date of the commencement of such location, and shall erect new, or make the old monuments the same as originally required. In either case a new location monument shall be erected, and the location notice shall state if the whole or any part of the new location is located as abandoned property, else it shall be void. R. S. 1901, sec. 3241. Idaho. — The location of abandoned claims shall be done in the same manner as if the location were of a new claim; but the locator may, in- stead of sinking a new discovery shaft, sink the original discovery shaft ten feet deeper than it was at the time of his location, or he may drive the open cut, or tunnel ten feet further along the course of the lead, lode or vein, and must erect new posts or monuments. Civ. Code 1901, sec. 2560. Montana. — Same as Colorado to " ten feet deeper," then "in which case the declaratory statement must give the depth and dimensions of the original discovery shaft at the date of such relocation. In any case, whether the whole or a part of an abandoned claim is taken, the de- claratory statement may state that the whole or any part of the new location is located as ahandoned property. If it is not known to the locator that his location is on an abandoned claim, then the provisions of this section does not apply." Rev. Pol. Code 1895, sec. 3615. Nevada. — Same as Colorado to "time of abandonment," then add: "in which case the record must give the depth and dimensions of the original discovery shaft at the date of such relocation," then same as Colorado to end; then add: "If it is not known to locator," etc., same as 1304 APPENDIX B BUT ONE CLAIM IN NOTICE. Montana. Comp. Laws 1900, sec. 314, Act March 16, 1897, sec. 7. See last paragraph Nevada note to § 18, p. 1313, post. New Mexico. — The relocation of any mining ground -which is subject to relocation, shall be made in the same way as an original location is required by law to be made, except the relocator may sink a new shaft upon the ground relocated to the depth of at least ten feet from the lowest part of the rim of such shaft at the surface, exposing mineral in place, or drive a new tunnel, adit, or open cut upon such ground, at least ten feet below the surface exposing mineral in place, or the relocator may sink the original discovery shaft ten feet deeper than it was at the time of relocation, or drive the original tunnel, adit, or open cut upon such claim, ten feet further. Comp. Laws 1897, sec. 2300. North Dakota. — Same as Colorado, except after " original shaft " and before " and erect new," insert. " out, or adit to a sufficient depth to comply with sections 1430 and 1434" R S. 1899, sec. 1439. Oregon. — Abandoned claims shall be deemed unappropriated mineral lands, and titles thereto shall be obtained as in this act specified with- out reference to any work previously done thereon. Laws 1898, p. 16. South Dakota. — Same as North Dakota, except "sections 2001 and 2003," instead of " sections 1430 and 1434." Comp. Laws Dak. Ty. 1887. as adopted by state legislature, sec. 3010. Washington. — Same as Colorado to ''ten feet deeper," then: "than it was at the date of the commencement of such location, and shall make new, or mark the old monuments the same as originally required." and (then same as Colorado beginning with " in either case "). Act Mai-ch 8, 1899, sec. 8, Laws 1899, p. 69. Wyoming. — Any abandoned lode, vein or strata claim may be relo- cated, and such relocation shall be perfected by sinking a new discov- ery shaft and by fixing new boundaries in the same manner as pro- vided for the location of a new claim. Then same as Colorado beginning with "or the relocator," except the last word is "claim " instead of "property." R. S. 1899, § 2552. Location of abandoned property is treated in the text, § 359. For New Mexico provision on abandonment, see post, § 63, p. 1338, New Mexico note. Only unoccupied lands locatable, § 154. Overlapping claims, §§ 509, 513, 540. § 11. Location certificate must describe but one claim — One claim for each locator.— (Mills' Ann. Stats., §3163; Gen. Stats. 1883, p. 726.) ISTo location certificate shall claim more than one location, whether the location be made by one or several locators. And if it purport to claim more than one location it shall be absolutely void, except as to the first location therein described, and if they are described «TATE STATUTES AmSTOTATED EXTEA-LATEEAL EIGHTS. 1305 together, or so that it cannot be told which location is first described, the certificate shall be void as to all. Idaho. — Same as Colorado to "absolutely void." Civ. Code 1901, ^ 2561. Nevada. — Same as Colorado. Comp. Laws 1900, § 219 ; Act March 16, 1897, § 12. North Dakota.— Same as Colorado. R. S. 1899, § 1440. Oregon. — But one claim for each locator. — Any person may hold one claim by location, as hereinbefore provided, upon each lead or vein, and as many by purchase as the local laws of the miners in the district where such claims are located may allow ; and the discoverer of any lead •or vein not previously located upon shall be allowed one additional claim for the discovery thereof. Nothing in this section shall be so ■construed as to allow any person, not the discoverer, to locate more than one claim upon any lead or vein. Hill's Ann. Laws, 1892. § 3829. South Dakota.^ Same as Colorado. Comp. Laws Dak. Ty. 1887, adopted by state legislature, § 2011. Wyoming. — Same as Colorado, except "more" instead of "several," Tsefore " locators;" then, "andany location certificate that contains upon its face more than one location claim shall be absolutely void;" then same as Colorado, beginning with " except as " to end, except an " en- tirety " instead of "as to all." R. S. 1899, g 2539. This kind of legislation is criticised in the text, § 114. See also ^§ 112 and 113, 397, 398. § 12. Extra-lateral and intra-limital rights. — (Mills' Ann. Stats., § 3156 ; Gen. Stats. 1883, p. 723.) The location or location certificate of any lode claim shall be construed to include all surface ground within the surface lines thereof, and all lodes and ledges throughout their entire depth, the top or apex of which lies inside of such lines extended down- ward, vertically, with such parts of all lodes or ledges as continue by dip beyond the side lines of the claim, but shall not include any portion of such lodes or ledges beyond the end lines of the claim or the end lines continued, whether by dip or otherwise, or beyond the side lines in any other manner than by the dip of the lode. Nevada. — Same as Colorado, except " record of any vein or," instead ■of " location certificate " at beginning, and " veins " instead of " ledges " after " lodes or " and before " beyond the end lines." Comp. Laws 1900, ^ 211; Act March 16, 1897, § 4. North Dakota.— Same as Colorado. R. S. 18?9, i; 1434. 1306 APPENDIX B INTEA-LIMITAL CROSS-LODES. South Dakota. — Same as Colorado. Comp. Laws Dak. Ty. 1887, as adopted by state legislature, § 2005. Wyoming. — The locators of all mining locations heretofore made, or which shall hereafter be made, on any mineral vein, lode or ledge, situ- ated on the public domain, their heirs and assigns, shall have the ex- clusive right of possession and enjoyment of all the surface included within tlie lines of their location, and all veins, lodes and ledges through- out their entire depth, the top or apex of which lies inside the surface lines extended downward vertically, although such veins, lodes or ledges may so far depart from the perpendicular in their course down- ward as to extend outside the vertical lines of such surface location. But their right of possession to such outside parts of such veins or ledges shall be confined to such portions thereof as lie between vertical planes drawn downward as above described, through the end lines of their loca- tion, so continued in their own direction that such planes will intersect such exterior parts of such veins or ledges. And nothing in this section shall authorize a locator or possessor of a vein or lode which extends in its downward course beyond the vertical lines of his claim to enter upon the surface of a claim owned or possessed by another. R. S. 1899, § 2551. § 13. Same — Extent of rights extra-laterally. — (Mills' Ann. Stats., § 3156; Gen. Stats. 1883, p. 724.) If the top or apex of a lode in its longitudinal course extends beyond the exterior lines of the claim at any point on the surface, or as extended vertically downward, such lode may not be fol- lowed in its longitudinal course beyond the point where it is intersected by the exterior lines. Nevada. — Same as Colorado, except " beyond the point " omitted be- tween " course "and " where." Comp. Laws of 1900, § 212; Act March 16, 1897, § 5. North Dakota.— Same as Colorado. R. S. 1899, § 1435. South Dakota. — Same as Colorado. Comp. Laws Dak. Ty. 1887, as adopted by state legislature, g 2006. The power of state legislatures to enact such provisions as this, the preceding and succeeding section, is questioned in the text. See espe- cially § 114; see also §§ 112, 113, 481. § 11. Cross and uniting lodes,— (Mills' Ann. Stats., §3142; Gen. Stats. 1883, p. 721.) When it shall appear that one lode crosses, runs into, or unites with any other lode, the priority of record shall determine the rights of claimants; ■provided^ that in no case where it appears that two lodes have crossed one another, shall the priority of record give STATE STATUTES ANNOTATED PEIOEITY ON SAME LODE. 1307 any person the pmilege of turning off from the crpvice or lode which continues in the same direction of the main lode upon which he or they may have recorded their claim or claims; but such person or persons shall, at all times, follow the crevice running nearest in the general direction of the main lode upon which he or they may have recorded their claim or claims. Colorado is the only state having this provision. § 15. Two lodes found to be the same — Bights of loca- tors.— (Mills' Ann. Stats., § 3143; Gen. Stats. 1883, p. T21.) Where two crevices are discovered at a distance from each other and known by different names, and it shall appear that the two are one and the same lode, the persons having recorded on the first discovered lode shall be the legal owners. This is another statutory gem for which Colorado is the sole agent. 3. Regulating the Location, Marking of Boundaries and Record OF Placer Claims. (Laws of Colorado.) § 16. Location of placers — Marking boundaries — Location certificate — Record. § 16. Location of placers — Marking boundaries — Lo- cation certificate — Record.— (Mills' Ann. Stats., § 3136; Gen. Stats. 1883, p. 718.) The discoverer of a placer claim shall, within thirty days from the date of discovery, record his claim in the office of the recorder of the county in which said claim is situated, by a location certificate, which shall contain: 1st. The name of the claim, designating it as a placer claim. 2d. The name of the locator. 3d. The date of location. 4th. The number of acres or feet claimed, and 5th. A description of the claim by such reference to nat- ural objects or permanent monuments as shall identify the claim. Before filing such location certificate, the dis- 1308 APPENDIX B — LOCATION OF PLAOEES AEIZONA. coverer shall locate his claim : First, by posting upon such claim a plain sign or notice, containing the name of the claim, the name of the locator, the date of discovery, and the number of acres or feet claimed. Second, by marking the surface boundaries with substantial posts, and sunk in the ground, to wit : one at each angle of the claim. The provisions of the Colorado statute relative to amended location certificates, number of claims included in one location certificate, and preliminary work apply equally to lode and placer claims. See ante, §§ 3 to 6, pp. 138a-1297, inclusive, also g§ 9 and 11, pp. 1301, 1304. Arizona. — Location of placers. — The locator of a placer mining claim shall locate his claim in the following manner: By posting a location notice thereon containing the name of the claim, the name of the lo- cator or locators, the date of location, and the number of acres claimed, a description of the claim with reference to some natural object or per- manent monument that will identify the claim by marking the bound- aries of his claim with a post or monument of stone at each angle of the claim located. When a post is used it must be at least four inches by four feet six inches in length, set one foot in the ground and surrounded by a mound of stone or earth. R. S. 1901, § 3242. Monuments, how placed. — When it is practically impossible on ac- count of a bed of rook or precipitous ground to sink such jwsts, they may be placed in a pile of stones. And if for any reason it is impossible to erect and maintain a post or monument of stone at any angle of such claim, a witness post or monument may be used, said witness monu- ment to be placed as near the true corner as the nature of the ground will permit. When a mound of stone is used, it must be at least three feet in height and four feet in diameter at the base. E. S. 1901, § 3243. Notice to be recorded. — The locator of any placer claim shall, within sixty days after the date of location of such claim, have a copy of the location notice (of the) claim recorded in the oflBce of the county re- corder of the county in which said placer claim is situated. Any record of the location of a placer mining claim which shall not contain all the requirements of this section shall be void. R S. 1901, § 3244 Recorders to procure books for records. — The county recorders of the several counties are authorized and required to procure suitable books in which the records of all mines and mineral deposits shall be kept, which said books shall be paid for out of the county treasury. E. S. 1901, § 3250. Previous location not affected. — Nothing in this act shall be so con- strued as to affect the claims to mines and mineral deposits heretofore located and duly recorded. R. S. 1901, § 3251. STATE STATUTES ANNOTATED PLACERS IDAHO, MONT. 130& Idaho. — Placer claims as mentioned in section 3339 of the Revised Statutes of the United States may be located for the purpose of mining deposits and precious stones after the discovery of such deposits. Civ. Code 1901, § 3563. How located. — The locator of any placer mining claim located for the purpose of mining placer deposits or precious stones, must at the time of making the location, place a substantial post or monument as is re- quired in the location of quartz claims at each corner of the location and must also post on one of the same a notice of location containing the date of location, the name of the locator, the name and dimensions of the claim, the mining district (if any) and county in which the same is situated; and must also give the distance and direction from said post or monument to such natural object or permanent monument, if any such there be, as will fix and describe, in the notice itself, the loca- tion of the claim. Within fifteen days after making the location, the locator must make an excavation upon the claim of not less than one hundred cubic feet, for the purpose of prospecting the same. Within thirty days after the location, the locator must file for record in the of- fice of the county recorder of the county or of the deputy recorder of the mining district in which the claim is situated, a substantial copy of his copy of notice of location, to which must be attached an affidavit such as is required in the case of quartz claims. Civ. Code 1901, § 3563. County recorders to appoint deputies at certain places. — For the convenience of prospectors and locators, the county recorders of the several counties must appoint a deputy at any place where he may deem it necessary, and at all places more than twenty miles distant from an existing office whenever ten or more mining locators interested, petition for the appointment of a deputy. Upon failure of any recorder to appoint a deputy for ten days after the petition in writing has been joresented to him, the resident miners in such district may appoint tem- porarily one of their number to act as the recorder for the district, whose record shall be as valid as if made by the deputy, and must be entered by the recorder as hereinafter required: Provided, that whenever at any time afterwards, the recorder has appointed a deputy for such dis- trict or place, the authority of the person elected by the resident miners ceases. Id., § 3567. Montana. — The provisions of the Montana statute relative to the lo- cation, marking boundaries and recording mining claims, apply alike to lodes and placers. See Montana note to §g 3 and 5, pp. 1385, 1395, ante. Placer locations and records thereof prior to 1895 validated. — All placer mining locations or locations of valuable mineral deposits, which have heretofore been recorded in the office of the county clerk or re- corder, have the same force and effect as though such records had been authorized by law, except in cases where the rights of third persons liad been acquired before the passage of this code; and such record is en- 1310 APPENDIX B LOCATION OF PLAOEES — NEV., WASH. titled to be admitted in evidence in any court. Rev. Pol. Code 1895. § 3613. Nevada. — How placer claims located. — The location of a placer claim shall be made in the following manner: By posting thereon, upon a tree, rock in place, stone, post, or monument, a notice of location, con- taining the name of the claim, name of locator or locators, date of loca- tion, and number of feet or acres claimed, and by marking the bound- aries and the location point in the same manner and by the same means as required by the laws of this state for marking the boundaries of lode claim locations; provided, that where the United States survey has been extended over the land embraced in the location, the claim may be taken by legal subdivisions, and, except the marking of the location point as hereinbefore prescribed, no other markings than those of said survey shall be required. As amended. Stats. 1899, p. 94; Comp. Laws 1900, § 320. See generally last paragraph of note to § 18, pp. 1313-13, post. For discovery work on placers see Nevada note, § 5, p. 1295, ante. Utah.— Note to § 3, p. 1289, ante. Washington. — The discoverer of placers or of other forms of deposit subject to location and appropriation under the law applicable to placers shall locate his claim in the following manner: First. He must immediately post in a conspicuous place at the point of discovery thereon a notice or certificate of location thereof, contain- ing, a, the name of the claim; b, the name of the locator or locators; c, the date of discovery and posting of the notice hereinbefore provided for, which shall be construed as the date of location; d, a description of the claim by reference to legal subdivisions of sections, if the location is made in conformity with the public surveys, otherwise, a description with reference to some natural object or permanent monument as will identify the claim; and whei-e such claim is located by legal subdivisions of the public survey, such location shall, notwithstanding the fact, be marked by the locator upon the ground the same as other locations. Second. Within thirty (30) days from the date of such discovery he must record such notice or certificate of location in the office of the auditor of the county in which such discovery is made, and so distinctly mark his location on the ground that its boundaries may be readily traced. Third. Within sixty (60) days from the date of discovery the dis- coverer shall perform labor upon such location or claim in developing the same to an amount which shall be equivalent in aggregate to at least ten (10) dollars' worth of such labor for each twenty (20) acres or fractional part thereeof contained in such location or claim; provided, however, that nothing in this subdivision shall be held to apply to lands located under the laws of the United States as placer claims for the purpose of developing of petroleum and natural gas and other natural oil products. STATE STATUTES ANNOTATED PLAOEES WYOMING. 1311 Fourth. Such locator shall, upon the performance of such labor, file with the auditor of the county an aflBdavit showing such performance, and generally the nature and kind of work so done. Act March 8, 1899, ^ 10, Laws 1899, p. 69. Wyoming. — Same as Colorado to "which shall contain," except " ninety " instead of " thirty " days; then — 1. The name of the claim, designating it as a placer claim. 2. The name or names of the locator or locators thereof. 3. The date of location. 4. The number of feet or acres thus claimed. 5. A description of the claim by such designation of natural or fixed objects as shall identify the claim beyond question. Before filing such location certificate, the discoverer shall locate his claim: First, by securely fixing upon such claim a notice in plain painted, printed or written letters, containing the name of the claim, the name of the locator or locators, the date of discovery, and the number of feet or acres claimed. Second, by designating the surface boundaries by sub- stantial posts or stone monumeats at each corner of the claim. R. S. 1899, § 2553, as amended Feb. 19, 1901, Laws 1901, p. 104 See text, g§ 307-315. 3. Legislation Relating to Tunnels. (Laws of Colorado.) g 17. Location and record of tunnel claims. 18. Length of tunnel claims. 19. Tunnel owner may continue through claim of another. 20. Right of owner of intersected vem or claim to inspect tunnel — Purposes for which tunnel may be driven. 21. Ownership of ore in intersected claim at point of intersection — Damages for unlawful removal. 22. Burden of proof as to ownership of vein in tunnels. § 17. Location and record of tunnel claims. — ^ (Mills' Ann. Stats., § 3140; Gen. Stats. 1883, p. 720.) 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. Nevada. — The locator of a tunnel right or location shall locate his tunnel right or location by posting a notice of location at the face or point of commencement of the tunnel which must contain: 1. The naine of the locator or locators. 2. The date of location. 3. The proposed course or direction of the tunneL 1312 APPENDIX B TUNNEL LOCATIONS. 4. The height and width thereof. 5. The position and character of the boundary monument. 6. A description of the tunnel by such reference to a natural object or permanent monument as will identify the claim or tunnel right. Comp. Laws 1900, § 336; Act March 16, 1897, § 19. See note to next sec- tion. See text, §§ 393-306. § 18. Length of tunnel claims. — (Mills' Ann. Stats.^ § 3141.)" Any person or persons engaged in working a tun- nel, within the provisions of this chapter, shall be entitled to two hundred and fifty feet each way from said tunnel, on each lode so discovered ; provided, they do not interfere with any vested rights. If it shall appear that claims have been staked off and recorded prior to the record of said tunnel, on the line thereof, so that the required number of feet cannot be taken near said tunnel, they may be taken on any part thereof where the same may be found vacant; and persons working said tunnel shall have the right of way through all lodes which may lie in its course. Nevada. — Boundary lines, how established. — The boundaiy lines of the tunnel shall be established by stakes or monuments placed along such lines at an interval of not more than three hundred feet from the face or point of commencement of the tunnel to the terminus of three thousand feet therefrom. The stakes or monuments shall be of the same size and character as those provided for lode or placer claims in this act. Comp. Laws 1900, g 337; Act March 16, 1887, § 30. Records of tunnel claims — Contents. — The locator of a tunnel right or location shall, within sixty days from the date of location, record his location with the mining district recorder and the county recorder of the county or district in which such location is situated, which must be similar in all respects to the one posted on the location. Any record of a tunnel right or location which shall not contain all the require- ments named in this section shall be void. Comp. Laws 1900, § 338; Act March 16, 1897, § 31. Ownership of blind lodes or veins. — All blind lodes, or veins or lodes not previously known to exist, discovered in a tunnel run for the development of a vein or lode, or for the discovery of mines, and within three thousand feet from the face of such tunnel, shall be located upon the surface and held in like manner as other lode-claims under the pro- visions of this act. Comp. Laws 1900, § 339; Act March 16, 1897, § 23. To what the provisions of this act applicable. — The provisions of this act shall be construed as equally applicable to all classes of loca- tions except where the requirements as to any one class are manifestly STATE STATUTES ANNOTATED TUNNEL LOCATIONS. 1313 inapplicable to any other class or classes. Comp. Laws 1900, § 230; Act March 16, 1897, § 23. §, 19. Tunnel owner may continue through claim of another.— (Colorado Tunnel Act of April 17, 1897, § 1.) Any person or company who has, or hereafter may have, a tunnel or cross cut, the mouth of which is located upon his own ground or upon ground in his lawful occupation, shall have the right to drive and continue the same through and across any located or patented claim in front of the mouth of such tunnel, but not to follow or drive upon any vein be- longing to the owner of such claim. Idaho. — Same as Colorado. Civ. Code 1901, sec. 2575. § 20". Bight of owner of intersected vein or claim to inspect tunnel — Purposes for which tunnel may he driven.— (Tunnel Act of April 17, 1897, § 2.) Such tunnel or cross cut may be driven and worked for the purpose of drainage and for the purpose of reaching and working min- ing ground of the tunnel owner beyond the intersected claim. The owner or owners of any vein or any claim or claims so intersected or his duly authorized agent shall have the right to enter such tunnel upon application to the owner or owners of said tunnel without resorting to any process of law for the purpose of making a survey and in- specting such vein or veins as may be crossed within the boundary lines of such intersected claim, and if the owner or owners of such tunnel shall, by bulk heading, damming back, or in any manner prevent the inspection or survey herein provided for, or if such owner or owners shall in any manner prevent the natural drainage of water from such intersected claim or claims without the consent of the owner or owners thereof, it shall work a forfeiture ot all rights granted under section 1 of this act. Idaho. — Same as Colorado, except between "owner or owners" and " of said tunnel " insert "or person in charge." Civ. Code 1901, sec. 3576. § 21. Ownership of ore in intersected claim at point of intersection — Damages for unlawful removal (Act of April 17, 1897, § 3.) If any ore, the property of the claim 83 1314 APPENDIX B MILL-SITE LOCATIONS. intersected or crossed, be extracted in driving such tunnel, it shall be the property of the owner of the vein from which it was taken and the owner of the tunnel shall be liable for all actual damages or injury done to the owner of the claim crossed by his tunnel. Idaho. — Same as Colorado. Civ. Code 1901, sec. 2577. § 22. Bui'den of proof as to ownership of vein in tun- nel. — (Act of April 17, 1897, § 4.) In all actions between the tunnel owner and others involving the right to any vein discovered in such tunnel, the burden of proving that the vein so discovered was not the property of the adverse claimant in such action shall be on the tunnel owner. Idaho. — Same as Colorado. Civ. Code 1901, sec. 2578. 4. Statutoey Provisions Relating to Location, Eecoeding and Manner of Holding Mill Sites. (Laws of Nevada.) § 23. Who may locate. 24. Contents of notice. 25. Locator shall record — Contents of record. 26. When location is void. § 23. Who may locate.— (Comp. Laws 1900, § 222; Act March 16, 1897, § 15.) The proprietor of a vein or lode claim or mine, or the owper of a quartz mill or reduction works, may locate five acres of non-mineral lanJ as a mill site. § 24. Contents of notice.— (Comp. Laws 1900, § 223; Act March 16, 1897, § 16.) The locator of a mill-site location shall locate his claim by posting a notice of location thereon, which must contain: 1st. The name of the locator or locators ; 2d. The name of the vein or lode claim, or mine, of which he is the proprietor, or the name of the quartz mill or reduc- tion works of which he is the owner; 3d. The date of the location; 4th. The number of feet or acres claimed; 5th. A description of the claim by such reference to a natural object or permanent monument as shall identify the claim or mill site. And by marking the boundaries of his STATE STATUTES ANNOTATED — MILL-SITE LOCATIONS. 1315 claim in the same manner as provided in this act for the marking of the boundaries of a placer mining claim, so far as the same may be applicable thereto. Montana. — See subd. 5, first Montana note, § 3, p. 1286, ante. Utah. — Provisions relate alike to mining claims and mill sites. See subd. 5 of first Utah note to § 3, p. 1290, ante, and note to § 7, p. 1300, ante. Location of mill sites discussed in text, §§ 324^26. §25. Locator shall record — Contents of record. — (Comp. Laws 1900, § 224; Act March 16, 189Y, § 17.) The locator of a mill-site claim or location shall within thirt}"- days from the date of his location record his location with the mining district recorder and the county recorder of the district or county in which such location is situated, by a location certificate which must be similar in all re- spects to the one posted on the location. § 26. When location is void. — (Comp. Laws 1900, § 225; Act March 16, 1897, § 18.) Any record of a mill-site loca- tion which shall not contain the name of the locator or lo- cators, the name of the vein or lode claim or mine of which the locator is the proprietor, or the name of the quartz mill or reduction works of which the locator is the owner, the num- ber of feet or acres claimed, and such description as shall identify the claim with reasonable certainty, shall be void. For similar provisions as to lode claims, see ante, § 4, p. 1293. 5. Peotiding for the Location of Lands Containing Salt. (Laws of Nevada.) § 27. Location of saline lands. 28. Locator of salt lands must have same surveyed by county sur- veyor. 29. Locations made prior to passage of act validated — Condition. 30. Acts necessary to save claim from forfeiture. § 27. Location of saline lands. — (Act Feb. 24, 1865; Comp. Laws 1900, § 233.) Any person may locate, claim, and hold not exceeding one hundred and sixty acres of the public lands within this state containing salt or saline mat- ter. This section conflicts with both the late federal statute (Appendix A, IV, c, ante, p. 1353) and the general placer-mining law. It is therefore 1316 APPEiroiX B MILL-SITE LOCATIONS. void. It will also be noticed that it does not preclude aliens from locat- ing saline lands. See text, § 489. § 28. Locator of salt lands must have same snrveyed by county surveyor. — (Act Feb. 24, 1865 ; Comp. Laws 1900, § 234.) It shall be the duty of any person or persons locating salt lands to have the same surveyed by the county surveyor of the county in whdch said lands are located, within thirty days from the date of location ; and the sur- veyor shall, within thirty days from the completion of said survey, make and deliver to the party employing him to make the survey, a correct description and plat of the lands thus surveyed, and the same shall be recorded in the oflBce of the countj'^ recorder of said county within thirty days from the delivery thereof by the surveyor. See note to last section. § 29. Locations made prior to passage of act vali- dated— Condition.— (Act Feb. 24, 1866; Comp. Laws 1900, § 235.) All locations made prior to the passage of this act upon saline lands are hereby ratified and confirmed to the locators thereof, their heirs and assigns; provided, the par- ties now holding and occupying said lands shall, within sixty days from the passage of this act, have the same sur- veyed and recorded as provided in section 2 of this act. See note to S 27, ante. % 30. Acts necessary to save claim from forfeiture. — (Act Feb. 24, 1865; Comp. Laws 1900, § 236.) All persons claiming and holding saline lands under the provisions of this act shall keep and hold actual possession of said lands by occupying the same, and whenever said lands are aban- doned for a period longer than sixty days, the same shall be subject to relocation. 6. Provisions Relating to Hydraulic Mining. (Laws of California.) § 31. Where and when hydraulic mining may be carried on. 32. Definition. The act of March 24, 1893, adds two new sections to the Civil Code of California, as follows : STATE STATUTES ANNOTATED — MINEEALS IN STATE LANDS. 1317 § 31. Where and when hydraulic mining may be car- ried on. — (1421) The business of hydraulic mining may be carried on within the state of California wherever and whenever the same can be carried on without material in- jury to navigable streams or lands adjacent thereto. , § 32. Definition. — (1425) Hydraulic mining, within the meaning of this title, is raining by means of application of water under pressure, through a nozzle, against a natural banlc. 7. Statutoky Provisions Relating to Minerals Found in State Lands. (Laws of California.) § 33. Surveyor-general not to approve application for certain lands whioh contain mineral. 34 Mineral in sixteenth and thirty-sixth sections open to explora- tion. § 33. Surveyor-general not to approve application fo?' certain lands which contain mineral. — (Stats. 1897, p. 438, § 2, repealing all prior laws.) When it shall be showh by aiBdavits or otherwise, to the satisfaction of the sur- veyor-general that any portion of a sixteenth or thirty- sixth section belonging to the state is valuable for its min- eral deposits, the surveyor-general shall not approve any application to purchase the same, nor shall the register of the state land office issue a certificate of purchase therefor until the question of the character of the land has been re- ferred, for determination, to a court of competent jurisdic- tion, in the manner provided by section thirty-four hundred and fourteen of the Political Code, and adjudged not to be valuable as mining land. Nevada. — Prospectors may enter upon mineral lands belonging to the state — Conditions. — The several grants made by the United States to the state of Nevada reserved the mineral lands. Sales of such lands made by the state were made subject to such reservation. Any citizen of the United States, or a person having declared his intention to become such, may enter upon any mineral lands in this state, notwithstanding the state's selection, and explore for gold, silver, copper, lead, cinnabar, or other valuable mineral, and upon the discovery of such valuable mineral may work and mine the same in pursuance of the local rules and regulations of the miners and the laws of the United States; pro- vided, that after a person who has purchased land from the state has 1318 APPENDIX B MINEEALS IN STATE LANDS. made valuable improvements thereon, such improvements shall not be taken or injured without full compensation. But such improvement may be condemned for the uses and purposes of mining in like manner as private property is by law condemned and taken for public use. Min- ing for gold, silver, copper, lead, cinnabar, and other valuable mineral, is the paramount interest of this state, and is hereby declared to be a public use. Comp. Laws 1900, § 281; Act March 3, 1887, § 1. See text, §§ 162, 163, where this legislation is criticised. For provisions relative to leasing state lands containing minerals, see post, §§ 76, 77, pp. 1847, 1348. Property in minerals in state lands, see post, this Appendix, VII, 11. § 34:. Mineral in sixteenth and thirty-sixth sections open to exploration.— (Stats. 1897, p. 438, § 2.) The six- teenth and thirty-sixth sections belonging to the state, in which there may be found valuable mineral deposits, are hereby declared to be free and open to exploration, occupa- tion, and purchase of the United States, under the laws, rules, and regulations passed and prescribed by the United States for the sale of mineral lands. Nevada. — State disclaims interest in mineral lands. — Every contract, patent or deed hereafter made by this state or the authorized agents thereof, shall contain a provision expressly reserving all mines of gold, silver, copper, lead, cinnabar and other valuable minerals that may exist in such land, and the state, for itself and its grantees, hereby dis- claims any interest in mineral lands heretofore or hereafter selected by the state on account of any grant from the United States. All persons desiring titles to mines upon lands which have been selected by the state must obtain such title from the United States under the laws of congress, notwithstanding such selection. Comp. Laws 1900, g 282; Act March 3, 1887, p. 36, § 2. See also note, § 83, ante. II. State Statutoet Peovisions, Supplemental to the Eedeeal Statutes, Kblating to the Woeking and Opeeation op Mining Peopeety, Including Annual Laboe and Peoob Theeeof, Ueainage of Mines, Mining Paetneeship and Geub-stake Conteacts. 1. Annual Labor and the Manner op Making Proof Thereof. (Laws of Arizona.) § 35. Amount of assessment work — By whom done. 36. Affidavit of assessment work. STATE STATU TBS ANNOTATED ANNUAL LABOE, ETC. 1319 § 37. Forfeiture of interest of co-owner, 38. Record of forfeiture notice as evidence, 39. Acknowledgment of contribution by delinquent co-owner. 40. Penalty for failure to acknowledge contribution — Affidavits by third persons. § 35. Amount of assessment work — ^By whom done. — (E. S. 1901, § 3239.) The amount of assessment or repre- sentation work or improvements to be done or made during each yekr, after the completion of the location as heretofore provided, and the time for doing the same, shall be as pro- vided by the laws of the United States. California.— See California note, § 36, p. 132S, post. Colorado. — Work on placer claims. — On each placer claim of one hundred and sixty acres or more, heretofore or hereafter located, and until a patent has been issued therefor, not less than one hundred dol- lars' worth of labor shall be performed or improvements made by the first day of August, 1879, and by the first day of August of each year thereafter. On all placer claims containing less than one hundred and sixty acres, the expenditure during each year shall be such pro- portion of one hundred dollars, as the number of acres bears to one hundred and sixty. On all placer claims containing less than twenty acres, the expenditures during each year shall not be less than twelve dollars; but when two or more claims lie contiguous, and are owned by the same person, the expenditure hereby required for each claim may be made on any one claim; and upon a failure to comply with these conditions, the claim or claims upon which such failure occurred shall be open to relocation, in the same manner as if no location of the same had ever been made; provided, that the original locators, their heirs, assigns, or legal representatives, have not resumed work upon the claim after failure and before such location; provided, the aforesaid expenditures may be made in building or repairing ditches to conduct water upon such ground or in making other mining improvements neces- sary for the working of such claim. . . . (Mills' Ann. Stats,, § 3137; Gen, Stats. 1883, p, 719.) This statute, it will be noticed, provides that in some cases less than one hundred dollars" worth of work per year is sufficient to hold a placer claim from forfeiture. This is contrary to the provision of the United States law (R, S. U, S,, § 2324; ante, pp. 1239, 1240), and therefore of no effect. See text, § 489, also t;§ 475-488, Nevada.— The amount of work done or improvements made during each year to hold possession of a mining claim shall be that prescribed by the laws of the United States, to wit: one hundred dollars annually. In estimating the worth of labor required to be performed upon any mining claim, to hold the same under the laws of the United States, the 1320 APPENDIX B — ANNUAL LABOE AND PEOOF. value of a day's labor is hereby fixed at the sum of four dollars; pro- vided, however, that in the sense of this statute eight hours of labor actually performed upon the mining claim shall constitute a day's labor. Comp. Laws 1900, § 216; Act March 16, 1897, § 9. When mortgagee may do assessment work. — This act shall not be so construed as to interfere or conflict with the lawful mining rules, regulations, or customs in regard to the locating, holding, or forfeiture of claims, but, in all oases of mortgages of mining interests under this act, the mortgagee shall have the right to perform the same acts that the mortgagor might have performed for the purpose of preventing a forfeiture of the same under the said rules, regulations, or customs of mines [miners] and shall be allowed such compensation therefor as shall be deemed just and equitable by the court ordering the sale upon a foreclosure; provided, that such compensation shall, in no case, exceed the amount realized from the claim by a foreclosure and sale. Comp. Laws 1900, § 3716; Act Nov. 5, 1861, § 77. New Mexico. — Same as Nevada, beginning with "in estimating." ex- cept after " United States," and before " the " insert " in the regulation of mines." Comp. Laws 1897, § 2388. When assessment work may be performed by mortgagee or lien holder. When theowner or owners of any mining claim or claims now located or which may hereafter be located, upon which there shall exist any mort- gage, miner's or mechanic's lien, or other incumbrance of any ^ind which may be hereafter made or incurred, shall refuse, neglect or fail, up to the first day of December of any year to perform thereon the annual ' labor or make thereon the annual expenditure required by law to be made in order to prevent the same from becoming open, in such case the holder or owner of such mortgage, lien or incumbrance, may, upon the first day of December of such year or any time thereafter, before any such mining claim or claims shall have been relocated, enter with his or their workmen and employees upon the same and perform, or cause to be performed, the one hundred dollars' worth of labor or make the one hundred dollars' worth of improvements upon such claim or claims as by law required to be done or made each year in order to prevent such claim or claims from becoming open to relocation ; that such work shall be done and improvements made in a workmanlike manner; that for the purpose of performing or causing to be per- formed such labor and improvements, the holder or holders of such mortgage, miner's or mechanic's lien, or other incumbrance, shall be considered the agent or the agents of the owner or the owners of such mining claim or claims; that the owner or owners or (of) such mining claim or claims, or any other person or persons, shall not in any manner invent [prevent], obstruct, hinder or delay the performance of any labor or the making of such improvements and may be restrained from so doing by injunction; that upon the completion of the one hundred STATE STATUTES ANNOTATED — -ANNUAL LABOE, ETC. 1321 dollars' worth of labor or improvements by the holder or holders of any mortgage, miner's or mechanic's lien or other incumbrance as afore- said upon any mining claim, as herein provided, all sum or sums of money expended by him or them shall be and become a lien upon the said mining claim or claims and from the date of the completion of the same draw the same rate of interest as the principal sum of such mort- gage, miner's or mechanic's lien or other incumbrance, and may be foreclosed according to law. Comp. Laws 1897, § 2304. Same — Penalty for preventmg. — Any person or persons who shall prevent, obstruct, hinder or delay the performance of the labor or the making of the improvements mentioned in the last preceding section of this act, shall be deemed guilty of a misdemeanor, and upon convic- tion shall be punished by a fine of not less than pne hundred dollars or over five hundred dollars, or by imprisonment in the county jail for a period not less than six months, nor more than one year, or by both fine and imprisonment. Comp. Laws 1897, § 8305; Act Feb. 5, 1889, t? 8. North Dakota. — Same as Nevada to " United States." then : " Provided, that the period within which the work required to be done annually on all unpatented claims so located shall commence on the first day of January succeeding the location of such claim.'' R. S. 1899, § 1488. South Dakota. — Same as Nevada to "annually," then same as North Dakota beginning with " Provided." Comp. Laws Dak. Ty. 1887, § 2009, as adopted by the state legislature. Utah.— See Utah note to § 36, p. 1336, post. Washington. — Miners may make road building applicable as assess- m,ent work, when. — Any raining district shall have the power to make road building to mining claims within such district applicable as as- sessment work, or improvements upon such claims: Provided, that rules pertaining to such road building shall be made only at a public meeting of the miners of such district regularly called by the mining recorder of such district: Provided further, that such meeting shall be attended by at least twelve (13) property holders of such district, and that no such rule can be made without the assent of the majority of the property holders of such district who are present at such meeting. Such meeting to designate where, when and how such work shall be done, and shall designate some one of their number who shall superin- tend such road building or construction, and who shall receipt for such labor to the performer thereof, such receipts to be filed with the county auditor of the county in which such work is performed, by the holder or holders of such receipts and shall be received as prima facie evi- dence of annual labor performed as annual assessment work upon such claim or claims as may be designated by an afiidavit or oath of labor as provided for in section six (6) of this act: Provided, that nothing in this act can be construed as being mandatory upon any owner or holder of mining property to perform such labor upon any such road. Act March 8, 1899, § 14; Laws 1899, p. 69 et seq. 1322 Appendix b — annual laboe and peoof. Wyoming:. — Assessment work on placers.^ For every placer claim, assessment work as hereinafter provided shall be done during each and every calendar year after the first day of January following the date of location. Such assessment work shall consist in manual labor, per- manent improvements made on the claim in buildings, roads or ditches made for the benefit of working such claim, or after any manner, so long as the work done accrues to the improvement of the claim, or shows good faith and intention on the part of the owner or owners, and their intentions to hold possession of said claim. R. S. 1899, § 2554. Amount of assessment work. — On all placer claims heretofore or here- after located in this state not less than one hundred dollars' worth of assessment work shall be performed during each calendar year from the first day of January after the date of location. Id., § 2555, as amended February 19, 1901, Laws 1901, p. 105. Work on contiguous claims. — When two or more placer mining claims, lie contiguously and are owned by the same person, persons, company or corporation, the yearly expenditure of labor and improvements re- quired on each of said claims may be made upon any one of such con- tiguous claims if the owner or owners shall thus prefer. R. S. 1899, § 2556. Effect of failure. — Upon failure of the owners to do or have done the assessment work required Vithin the time above stated, such claim or claims upon which such work has not been completed shall there- after be open to relocation on or after the first day of January of any year after such labor or improvements should have been done, in the same manner and on the same terms as if no location thereof had ever been made; provided, that the original locators, their heirs, assigns or legal representatives had not resumed work upon such claim or claims after failure, and before any subsequent location has been made. Id., § 2558. These sections, as also the one of Colorado above copied, copy largely from the federal statutes (§ 2324), and to the extent that they are exact copies they may be of some value. See text, § 114. § 36. Affidavit of assessment work. — (K. S. Ariz. 1901, § 3240.) Within three months after the expiration of the period of time fixed for the performance of annual labor or the making of improvements upon any mining claim, the per- son on whose behalf such work or improvement was made, or some person for him knowing the facts, may make and re- cord in the office of the county recorder of the county wherein such claim is situated, an affidavit, in substance as follows : (Venue.) , being duly sworn, deposes and says that he is a citizen of the United States and more than twenty-one STATE STATUTES ANNOTATED — ANNUAL LABOB, CAL., COLO. 1323 years of a^e, resides at , in county, Arizona Terri- tory, and IS personally acquainted with the rainiuj^ claim known as mining claim, situated in mining dis- trict, Arizona Territory, the location notice of which is re- corded in the office of the county recorder of said county, book of records of mines, at page . That between the day of , A. D. , and the day of , A. D. , at least dollars' worth of work and improve- ment were done and performed upon said claim, not includ- ing the location work of said claim. Such work and im- provements were made by and at the expense of , owners of said claim, for the purpose of complying with the laws of the United States pertaining to assessments of annual work, and (here name the miners or men who worked upon the claim in doing the work) were the men employed by said owner and who labored upon said claim, did said work and improvements, the same being as follows: (Here describe the work done.) (Jurat.) One objection to the foregoing is that it seems to require proof by a citizen only. California. — Whenever any mine owner, company, or corporation shall have performed the labor and made the improvements required by law for the location and ownership of mining claims or lodes, such owner, company, or corporation shall file or cause to be filed, within thirty days after the time limited for performing such labor or making such improvements, with the county recorder of deeds of the county in which the mine or claim is situated, particularly describing the labor performed and improvements made, and the value thereof, which affi- davit shall be prima facie evidence of the facts therein stated. Upon the failure of any claimant or mine owner to comply with the condi- tions of this act in the performance of labor, or making of improve- ments on any claim, mine or mining ground, the claim or mine upon which such failure occurred shall be opened to relocation in the same manner as if no location of the same had ever been made. But if, pre- vious to relocation, the original locators, their heirs, assigns, or legal representatives, resume work upon such claim, and continue the same with reasonable diligence until the required amount of labor has been performed or improvements made, and the required statement of ac- counts and affidavits filed with the county recorder, then the claim shall not be subject to relocation because of previous failure to file ac- counts. Laws 1891, § 1, p. 219. Colorado. — Within six months after any set time, or annual period allowed for the performance of labor, or making improvements upon any lode claim or placer claim, the person on whose behalf sucli outlay 1324 APPENDIX B PEOOF OF ANNUAL LABOR, IDAHO, MONT. was made, or some person for him, may make and record in the office of tiie recorder of the county wherein such claim is situate an affida- vit, in substance as follows: (Venua) Before me, the subscriber, personally appeared , who being first duly sworn, said that at least dollars' worth of work or improve- ments were performed or made upon (here describe claim or part of claim) situate in mining district, county of , state of Colorado, between the day of , A. D. 1 , and the day of , A. D. 1 . Such expenditure was made by or at the expense of , owners of said claim, for the purpose of complying with the law and holding said claim. (Jurat.) (Signatura) And such affidavit when so recorded shall be prima /acie evidence of the performance of such laborer the making of such improvements; provided, that all affidavits of labor or improvements upon placer claims heretofore filed and recorded within the period prescribed in this section, or within the period prescribed in section 2410 of the general statutes, which shall contain in substance the requirements of the affi- davit prescribed by this section or said section 2410. shall be prima facie evidence of the performance of such labor or the making of such improvements; and the original thereof, or a certified copy of the record of the same, shall be received as evidence accordingly by the courts of this state, and this class of evidence shall be receivable where relevant or material, in all cases, whether now pending or hereafter brought. Mills' Ann. Stats., § 3161, as amended 1899, pp. 261, 262. Idaho. — Same as Colorado to form, except "sixty days" instead of " six months," and words between " record " and " affidavit " omitted. Form same as Colorado, except omit "between the," etc., to "such;" after " holding said claim " add, "and all stakes, monuments or trees marking boundaries of said claim are in proper place and positions." Signature. (Jurat.) The fee for administering the oath and recording the foregoing affi- davit, when taken before the county recorder or deputy mining recorder shall be fifty cents; the fee for recording the same when the oath is taken before any other officer authorized to administer oaths shall be fifty cents. Such affidavit, or a certified copy thereof in case the origi- nal is lost, shall be prima fade evidence of the performance of such labor. The failure to file such affidavit shall be considered prima /acie evidence that such labor has not been done. Civ. Code 1901, .sea 2565. Montana. — The owner of a lode or placer-claim who performs or causes to be performed the annual work or makes the improvements required by the laws of the United States in order to prevent the for- feiture of the claim, may, within twenty days after the annual work, file in the office of the county clerk of the county in which such claim is situated, an affidavit of his own, or an affidavit of the person who performed such work or made the improvements, showing: 1st. The name of the mining claim and where situated. STATE STATUTES ANNOTATED — ANNUAL LABOE, NEV., N. MEX. 1325 2d. The number of days' work done, and the character and value of the improvements placed thereon. 3d. The date of performing such work and of making the improve- ments. 4th. At whose instance the work was done or the improvements made. 5th. The actual amount paid for work and improvements, by whom paid, when the same was not done by the owner. Such affidavits, or a certified copy thereof, are prima fade evidence of the facts therein stated. Rev. Pol. Code 1895, § 3614. Nevada. — Within sixty days after the performance of labor or mak- ing of improvements required by law to be annually performed or made upou any mining claim, the person in whose behalf such labor was performed, or improvements made, or some one in his behalf, shall make and have recorded by the mining district recorder or the county recorder in books kept for that purpose in the mining district or county iu which such mining claim is situate, an affidavit setting forth the amount of money expended, or value of labor or improvements made, or both, the character of expenditures or labor or improvements, a de- scription of the claim or part of the claim affected by such expendi- tui-es, or labor or improvements, for what year, and the name of the owner or claimant of said claim at whose expense the same was made or performed. Such affidavit, or a copy thereof, duly certified by the county recorder, shall be prima facie evidence of the performance of such labor or the making of such improvements, or both. Comp. Laws 1900, § 317; Act March 16, 1897, § 10. The following seems to destroy the force of the above: Certificates need not he sworn to. — Certificates of location and of labor and improvements necessary to hold claims need not be sworn to, and are not required to be in any specified form, nor to state facts in any specified order; but must truly state the required facta Corap. Laws 1900, § 231; Laws 1899. § 24, p. 95. JJew Mexico. — The owner or owners of any unpatented mining claim^ in this territory, located under the laws of the United States and of this territory, shall within sixty days from and after the' time within which the assessment work required by law to be done upon such claim should have been done and performed, cause to be filed with the recorder of the county in which such mining claim is situated, an affi- davit setting forth the time when such work was done, and the amount, character and actual cost thereof, together with the name or names of the person or persons who performed such work: and such affidavit, when made and filed as herein provided, shall be prima facie evidence of the facts therein stated. The failure to make and file such affidavit as herein provided shall, in any contest, suit or proceeding touching the title to such claim, throw the burden of proof upon the owner or owners of such claim to show that such work has been done according to law. Comp. Laws 1897, § 3815; Act March 18, 1897, § 7. 1326 APPENDIX B — PEOOF OF ANNUAL LABOE, FOEFEITUEE. Utah. — Notice of assessment work being done on one for group. — Every person or company owning a group of claims and doing the de- velopment or assessment work for said group at one point, shall post a notice upon each claim at the discovery monument stating where such work is being done, and also post a notice at the entrance of the work- ings, where said work is done, stating the names of the claims for which the work is done. Act March 3, 1899, § 5; Laws 1899, p. 37. Affidavit of work. — Same as Montana, except "recorder" instead of "clerk," "must, within thirty days," instead of "may, within twenty days," and at end of third subdivision add, "and number of cubic feet of earth or rock removed." Id., g 6, p. 27. Washington. — Same as Arizona to " an affidavit," except "thirty (30) days " instead of " three months," and instead of the form of the affida- vit add: "or oath of labor performed on such claim. Such affidavit shall state the exact amount and kind of labor, including the number of feet of shaft, tunnel or open cut made on such claim, or any other kind of improvements allowed by law or by rules of mining districts made thereon." Act March 8, 1899, g 6; Laws 1899, p. 69. Wyoming. — Upon completion of the required assessment work for any mining claim, the owner or owners, or agent of such owner or owners, shall cause to be made by some person cognizant of the facts, an affidavit setting forth that the required amount of work was done, which affidavit shall, within sixty days after the completion of the work, be liled for record, and shall thereafter be recorded in the office of the county clerk and ex officio register of deeds of the county in which the claim is located. E. S. 1899, g 3559, as amended by Laws of 1901, p. 105. The question of annual labor and the manner of making proof thereof is treated in the text, §§ 475-498, especially § 496. § 37. Forfeiture of interest of co-owner. — (E. S. Ariz. 1901, § 3245.) Whenever a co-owner or co-owners shejl give to a delinquent co-owner or co-owners the notice in writing or notice by publication provided for in section twenty-three hundred and twenty-four (2324) of the Revised Statutes of the United States, an affidavit of the person giving such notice, stating the time, place, manner of service, and by whom and upon whom such service. was made, shall be attached l^o a true copy of such notice, and such notice and affidavit must be recorded in the office of the county recorder of the county in which the mining claim is situate within ninety (90) days after giving the notice ; or, if such notice is given by publi- cation in a newspaper, there shall be attached to a printed copy of such notice an affidavit of the editor, publisher or STATE STATUTES ANNOTATED — FOEFEITUKE OF INTEREST. 1327 foreman of such paper, stating the date of the first, last and each insertion of such notice therein, and when and where the newspaper was published during that time and the name of such newspaper. Such affidavit and notice shall be re- corded as aforesaid within one hundred and eighty days after the first publication thereof. California. — Upon the failure of any one of the several co-owners to contribute his portion of the expenditures required hereby (see California note to § 36, p. 1323, ante), the co-owners who have performed the labor or made the improvements may, at the expiration of the year, give such delinquent co-owner personal notice in writing, or by publication in the newspaper published nearest the claim,. for at least once a week for ninety days; and if, at the expiration of ninety days after such notice in writing or publication, such delinquent shall fail or refuse to con- tribute his portion of the expenditures required by this section, his interest in the claim shall become the property of his co-owners who made the required expenditures. A copy of such notice, together with an affidavit showing personal service or publication, as the case may be, of such notice, when filed or recorded with the recorder of deeds of the county in which such raining claim is situated, shall be evidence of the acquisition of title of such co-owners. Where a person or company has or may run a tunnel or cuts, and in good faith, for the purpose of de- veloping a lode, lodes, or claims owned by said person, or company, or corporation, the money so expended in running said tunnel shall be taken and considered as expended on said lodes or claims; provided further, that said lode, claim, or claims shall be distinctly marked on the surface as provided by law. Act March 31, 1891, § 1; Laws 1891, p. 220. Colorado. — Same as California to "require expenditures," except be- tween '■ of the year " and " gives such delinq uent " insert, " to wit : The first of August, 1879, for the locations heretofore made, and one year from the date of locations hereafter made; " and between "or" and "by publica- tion " insert, " if he be a non-resident of the state, a notice ; " and between "ninety days" and "and if at the expiration" insert, "and mailing him a copy of such newspaper if his address be known." Mills' Ann. Stats., § 3187; Gen. Stats. 1883, p. 719. Nevada. — Same as Arizona except " after must be recorded," instead of " in the office of the county recorder of the county in which the min- ing claim is situate," insert "by the mining district recorder or the county recorder, in books kept for that purpose, in the mining district or county in which the mining claim is situate; " and instead of " editor, publisher " insert " printer." Comp. Laws 1900, part of § 218; Act March 16, 1897, part of g 11. This question is treated in the text, § 520 et seq. 1328 APPENDIX B — FOEFEITTJEB OF INTEEEST. § 38. Record of forfeiture notice as evidence.— (K. S. Ariz. 1901, § 3246.) The original of such notice and affidavits, or the records thereof, shall be evidence that the delinquent mentioned in section 232i has failed or refused to contribute his proportion of the expenditure required by that section, and of the services (service) or publication of said notice : Provided, the writing or affidavit hereinafter provided for is not of record. Nevada.— Same as Arizona. Comp. Laws 1900, part of g 218 ; Act March 16, 1897, part of § 11. § 39. Aclinowledginent of contribution by delinquent co-owner.— (E. S. 1901, § 3247.) If such delinquent shall, within the ninety days required by section 2324 aforesaid, contribute to his co-owner or co-owners his proportioti of such expenditures, such co-owner or co-owners shall sign and deliver to the delinquen t or delinquents a writing, stating that the delinquent or delinquents, by name, has, within the time required by section 2324 of the Eevised Statutes of the United States, contributed his share for the year upon the mine, and further stating therein district, county and territory wherein the same is situate, and the book and page where the location notice is recorded. Such writing shall be recorded in the office of the county recorder of said county. Nevada. — Same as Arizona. Comp. Laws 1900, part of § 218; Act March 16, 1897, part of § 11. § 40. Penalty for failure to acknowledge contribution — Affidavits by third persons. — (E. S. 1901, § 3248.) If such co-owner or co-owners shall fail to sign and deliver such writing to the delinquent or delinquents within twenty days after such contribution, the co-owner or co-owners, so failing as aforesaid, shall be liable to a penalty of one hun- dred dollars, to be recovered by any person for the use of the 'delinquent or delinquents in any court of competent ju- risdiction. If such co-owner or co-owners fail to deliver such writing within said twenty days then the delinquent, with two disinterested persons having personal knowledge of said contribution, may make an affidavit, setting forth in STATE STATUTES ANNOTATED — SECUEITT TO SUEFAOE OWNEE. 1329' what manner, the amount of, to whom and upon what mine such contribution was made. Such affidavit, or a record thereof, in the office of the county recorder of the county in which said mine is situate, shall he prima facie evidence of such contribution. Nevada. — Same as Arizona. Comp. Laws 1900, part of § 218 ; Act March 16, 1897, part of § 11. 3. Provisions Requiring Mine Owner to Give Security for Pro- tection OF THE Surface where Estates Have Been Severed. (Laws of Colorado.) § 43. Right of surface owner to demand security. 44. Miner not to operate under building of another without giving security. § 43. Right of surface owner to demand security. — (Mills' Ann. Stats., § 3159.) When the right to mine is in any case separate from the ownership or right of occupancy to the surface, the owner or rightful occupant of the sur- face may demand satisfactory security from the miner, and if it be refused, may enjoin such miner from working until such security is given. The order for injunction shall fix the amount of the bond. Idaho. — Same as Colorado, except insert " ground " after " surface," after " refused " insert " or not given," and after " working " and before " until,"insert "such ground; " instead of last sentence insert: "The court granting the writ of injunction shall fix the amount and nature of the security." Civ. Code 1901. sec. 2571. Missouri. — Indemnity bond required to mine in certain cities, etc — Violation a misdemeanoi Penalty. — No person, company or corpora- tion shall hereafter sink a shaft, mine, tunnel, excavate or drift for coal, or take out any coal of any kind within the corporate limits or desig- nated boundaries of any city, town or village in this state containing^ one thousand inhabitants or more, without having first applied and filed, and have approved, an indemnity bond as hereafter provided for; and any person or persons violating the provisions of this section, and any member or stockholder or officer of any company or corporation who shall violate the provisions of this section, shall be deemed guilty of a misdemeanor, and on conviction thereof shall be punished by fine of not less than five hundred dollars, or imprisonment in the county jail for not less than sir months, or by both such fine and imprison- ment. R. S. 1899, § 8777. 84 1330 APPENDIX B SECUEITT TO SUEFACE OWNER. Notice of intention to mine — Publication required. — Every person, company or corporation desiring to carry on any of the mining opera- tions provided for in the preceding section shall give at least thirty days' notice of such intention by notice printed and published in some newspaper printed in such town, city or village wherein such mining operations are proposed to be carried on, or if no newspaper be printed in such city, town or village, then in some newspaper printed in said county, or if no newspaper be printed in such county, then by written ■or printed hand-bills posted up in six public places in the city, town or village wherein such mining operations are proposed to be carried on. Such notice shall contain an accurate description of the locality where such mining operations are to be carried on, giving the number of lot and block, and shall also state the nature of such mining operations, and name some day of the term of the next circuit court in said county, thereafter to be hotden, when such person, company or corporation will offer lor filing and approval the indemnity bond hereinafter provided for. Id., g 8778. The next three sections provide for hearing, by the circuit court of the county, of the petition of the applicants to mine, pursuant to no- tice as provided in the last two sections; for testimony before the court upon all matters relating to the application, and for the court to fix the amount of the bond in case he is satisfied that the proposers own the land or mining privileges under the land described in their petition, the bond in no case to be less than one thousand dollars. Upon the giving of the bond the court shall enter an order permitting such min- ing operations. The conditions of the bond, which is to be signed by the applicant and at least two sureties, are also provided for. Id., §§ 8779- 8781. North Dakota. — Same as Colorado, except " injunctional order " in- stead of "order for injunction." R S. 1899, § 1436. South Dakota.' — Same as Colorado, except insert "ground" after "surface," and after " refused " and before " may "insert "or not given." Comp. Laws Dak. Ter. 1887, § 2007. Wyoming. — Where a mining right exists in any case and is separate from the ownership or right of occupancy to the surface, such owner or rightful occupant of such surface may demand satisfactory security from the miner or miners, and if such security is refused, such owner or occupant of the surface may enjoin the miner or miners from work- ing such mine until such security is given. Last' sentence same as Colorado. R. S. 1899, § 2537. This class of legislation is criticised in the text, § 1018. § 44. Miner not to operate under building of another without giving security.— (Mills' Ann. Stats., § 3139.) No person shall have the right to mine under any building or STATE STATUTES ANNOTATED — SEOUEITT, ETC., DRAINAGE. 1331 other improvements unless he shall first secure the parties owning the same against all damages, except by priority of right. Missouri. — Written permission of property owner — Violation, mis- demeanor, penalty, fines, etc. — Anyperson or persons who shall in person or by their servant, agent or employee, dig, excavate, mine, tunnel or drift upon or under the lands or lots of another, within the incorporate limits or designated boundaries of any city, town or village in this state, and every officer and stockholder that shall either authorize or permit its servants, agents or employees to dig, excavate, mine, tunnel or drift upon or under the lands or lots of another within such limits or bound- aries of such city, town or village, without the written permission of the owner or owners of such land or lots, shall be deemed guilty of a misdemeanor, and shall be punished, on conviction, for every such offense, by fine of not less than five hundred dollars, witli costs, which fine and costs, if not paid within five days after conviction, may be sued for and recovered against the parties and sureties on the mining 'bond of such persons, company or corporation liable for such acts, in a suit upon such bond, in the name of the state of Missouri, to the use of the county in which such offense is committed; such fine, when col- lected, shall be paid, one-half to the owner of the property injured by such offense and the other half into the school fund of such county; but no such conviction shall be a bar to the owner of such property prosecuting a suit on said bond to his own use for the damages sustained by any such offense. Every such conviction, whether appealed from or not, shall work a forfeiture of the authority to mine granted such per- son, company or corporation liable, and they shall not proceed further with the op'erations, except by making application and giving a new bond as in the first instance. R. S. 1899, § 8782. 3. Provisions Relating to Drainage. (Laws of Arizona.) § 43. Owners to provide drainage, when. 46. Owners failing to provide drainage may be sued. 47. Incorporation for drainage. 48. One owner may drain and recover cost — Iowa lead mine statute. 49. Court may order inspection — Requisites of order — Rights of in- spectors — Court may order removal of obstructions. 50. Act applies when. § 45. Owners to provide drainage, wlien. — (K. S. Ariz. 1901, § 3252.) Whenever adjacent or contiguous mines, oc- cupied and worked upon the same or upon separate lodes have a common ingress of water or by reason of subterranean 1332 APPENDIX B DEAINAGE, INCOEPOEATIONS. communication of water have a common drainage, it shall be the duty of the owners, lessees or occupants of said mine so related, to provide for their proportionate share of such drainage, or to prevent the water in such mine from flowing in or upon neighboring mines, thereby imposing upon them an unjust burden. Colorado.— Same as Arizona to "drainage,"' remainder omitted. Mills" Ann. Stats.. § 3172. Wyoming'.— See note to post, § 50, p. 1334 § 46. Owners failing to provide drainage may be sued,— (E. S. Ariz. 1901, § 3253.) If any owners, lessees or occu- pants of any such mine shall fail or neglect to provide for the drainage thereof, and by reasou of such failure or neg- lect, the owners, lessees or occupants of any adjacent or contiguous mine are compelled to pump or drain or other- wise provide for the water flowing in from such first men- tioned mine, then, and in such event the owners, lessees or occupants of the mine so in default, shall pay, respectively, to those performing the work of drainage, their proportion of the actual and necessary cost and expense of pumping, draining or otherwise providing for said water, and if they fail or refuse to make such payment, the same maj'^ be re- covered by an action in any court of competent jurisdiction. Colorado. — Same as Arizona. Mills' Ann. Stats., § 3173. TVyoming'. — See note to post, § 50, p. 1334 § 47. Incorporation for drainage. — (K. S. Ariz. 1901, § 3254.) It shall be lawful for all mining corporations or companies and all individuals engaged in mining having thus a common interest in draining such mines, to unite for the purpose of effecting the same under such common name and upon such terms and conditions as may be agreed upon ; and every such association having filed a certificate of in- corporation, as provided by law, shall be deemed a corpora- tion, with all the rights, incidents and liabilities of a body corporate so far as the same may be applicable. Colorado. — Same as Arizona. Mills' Ann. Stats., § 3174 Wyoming'. — See note to post, § 50, p. 1334 STATE STATUTES ANNOTATED DRAINAGE OF MINES. 1333 §48. One owner may drain and recover cost — Iowa lead mines statute.— (R S. Ariz. 1901, § 3255.) Tailing mutually to agree as indicated ia the preceding section for drainage jointly, one or more of said parties may un- <:lertake the work of drainage after giving reasonable notice to the other parties interested as aforesaid, and should the remaining parties then fail, neglect or refuse to unite in equitable arrangements for doing or sharing the expense thereof, they shall be subject to an action therefor as already specified, to be enforced in any court of competent jurisdic- tion. Colorado. — Same as Arizona. Mills' Ann. Stats., § 3175. Iowa. — Compensation for draining lead mines. — Any person or cor- poration who by machinery, such as engines or pumps, or by making drains or adit levels, or in any other way, shall rid any lead-bearing mineral lands or lead mines of water, thereby enabling the miners and the owners of mineral interest in said lands to make them productive and available for mining purposes, shall receive one-tenth of all the lead mineral taken from said lands as compensation for said drainage. Comp. Laws 1873, § 1229, Ann. Code 1897, § 1968. Wyoming. — See note to post, § 50, p. 1334. § 49. Court may order inspection — Requisites oforder — Eights of inspectors — Court may order removal of ob- structions. — (R. S. Ariz. 1901, § 3256.) "When an action is commenced, as provided herein, to recover the costs and expenses for draining a lode or mine, it shall be lawful for the plaintiff to apply to the court, or to the judge thereof in vacation, for an order to inspect and examine the lodes or mines claimed to have been drained by the plaintiff, and upon affidavit that such inspection or examination is neces- sary for a proper preparation of the case for trial, the court or judge shall grant an order for the underground inspection and examination of the lode or mine described in the peti- tion. Such order shall designate the number of persons, not exceeding three, besides the plaintiff or his representa- tive, who may examine and inspect such lode and mines, and take measurements for the purpose of showing the amount of water taken from the lode or mine, or the number 1334 APPENDIX B — DRAINAGE OF MINES. of fathoms of ground mined and worked out of the lode or mines claimed to have been drained, the cost of such exami- nation and inspection to be borne by the party applying therefor. The court or judge shall have power to cause the removal of any rock, debris or any other obstacle in any lode or vein when such removal is shown to be necessary to. a just determination of the question involved: Provided, that no such order for fnspection and examination shall be made except upon notice of at least three days, nor unless it appears that the plaintiff has been refused the privilege of making the examination by the defendant, his or their agent. Colorado. — Same as Arizona. Mills' Ann. Stats., § 3176. Wyoming'. — See note to post, % 50. § 50. Act applies when.— (R. S. Ariz. 1901, § 3257.) The provisions hereof shall not apply to unopened or undeveloped mines but shall apply to all opened and developed mines which derive a benefit from being drained. Colorado.— Same as Arizona. Mills' Ann. Stats., § 3179. Wyoming. — Disposition of water. — Whenever any person, per.sons or corporation, shall be engaged in mining or milling in this state, and in the prosecution of such business shall hoist or bring water from mines or natural water courses, such person, persons or corporation shall have the right to use such water in such manner, and direct it into such nat- ural course or gulch as their business interests may require; provided, that such diversion does not infringe on vested rights. The provisions of this section shall not be construed to apply to new or undeveloped mines, but to those only which shall have been opened and require drain- age or other direction of water. R. S. 1899, § 2535. 4. Pkoyisions Relating to Mining PARTNEEsm?. ' (Laws of California.) § 51. Definition. 52. No agreement necessary to constitute. 53. Division of profits. 54. Lien against partnership property for certain purposes. 55. What is partnership property. 56. Conveyance of interest does not dissolve. 57. Purchaser takes subject to certain liens. 58. Same. 59. One member cannot bind others. 60. Decision of majority in interest controls. STATE STATUTES ANNOTATED MINING PAETNEESHIP. 1335 § 51. Definition.— (Civil Code, § 2511.) A mining part- nership exists when two or more persons who own or ac- quire a mining claim for the purpose of working it and extracting mineral therefrom, actually engage in working the same. Idaho.— Same. Civ. Code, 1901, sec. 3774 Montana.— Same. Rev. Civ. Code, 1895, § 3350. The question of mining partnerships generally, is discussed in the text. § 1500 et seq. § 52. No agreement necessary to constitute. — (Civil Code, § 2512.) An express agreement to become partners or to share the profits and losses of mining is not necessary to the formation or existence of a mining partnership. The relation arises from the ownership of shares or interest in the mine, and working the same for the purpose of extract- ing mineral therefrom. Idaho.— Same. Civ. Code 1901, sec. 2775. Montana.— Same. Eev. Pol. Code 1895, § 3351, Text, § 1500 et seq. § 53. Division of profits. — (Civ. Code, § 2513.) A mem- ber of a mining partnership shares in the profits and losses thereof in the proportion which the interest or share he owns in the mine bears to the whole partnership capital or the whole number of shares. Idaho.- Same. Civ. Code 1901, sec. 2776. Montana.— Same. Bev. PoL Code 1895, § 3352. Text, § 1500 et seq. § 54. Lien against partnership property for certain purposes. — (Civ. Code, § 2514.) Each member of a mining partnership has a lien upon the partnership property for the debts due the creditors thereof, and for money advanced by him for its use. This lien exists notwithstanding there is an agreement among the partners that it must not. Idaho. — Same, except in place of " This lien exists " insert "A lien exists in favor of the creditors." Civ. Code 1901, sec. 2777. Montana. — Same as California. Eev. Pol. Code 1895, § 3353. § 55. What is partnership property. — (Civil Code, § 2515.) The mining ground owned and worked by part- 1336 APPENDIX B MINING PAETNEESHIP. ners in mining, whether purchased with partnership funds or not, is partnership property. Idaho.— Sama Civ. Code 1901, sec. 2778. Montana.— Same. Rev. PoL Code 1895, § 3354. § 56. Conveyance of interest does not dissolve. — (Civil Code, § 2516.) One of the partners in a mining partner- ship may convey his interest in a mine and business with- out dissolving the partnership. The purchaser, from the date of his purchase, becomes a member of the partnership. Idaho.— Same. Civ. Code 1901, sec. 3779. Montana. — Same. Rev. PoL Code, § 3355, § 57. Purchaser takes subject to certain liens. — (Civil Code, § 2517.) The purchaser of an interest in the mining ground of a mining partnership takes it subject to the liens existing in favor of the partners for debts due all creditors thereof, or advances made for the benefit of the partner- ship, unless he purchased in good faith, for a valuable con- sideration, without notice of such lien. Idaho.— Same. Civ. Code 1901, sec. 2780. Montana.— Same. Rev. Pol. Code, § 3356. § 58. Same.— (Civil Code, § 2518.) A purchaser of the interest of a partner in a mine when the partnership is en- gaged in working it, takes with notice of all liens resulting from the relation of the partners to each other and to the creditors of the partnership. Idaho.— Same. Civ. Code 1901, sec. 2781. Montana. — Same. Rev. Pol. Code, § 3357. § 59. One member cannot bind others. — (Civil Code, § 2519.) No member of a mining partnership, or other agent or manager thereof, can, by a contract in writing, bind the partnership, except by express authority derived from the members thereof. Idaho.— Same. Civ. Code 1901, sec. 2783. Montana.— Same. Rev. Pol. Code, S 3358. § 60. Decision of majority in interest controls.— (Civil Code, § 2520.) The decision of the members owning a ma- STATE STATUTES ANNOTATED — TEANSFEES OF CLAIMS. 1337 jority of the shares or interest in a mining partnership, binds it in the conduct of its business. Idaho.— Same. Civ. Code 1901, sec. 3783. Montana.— Same. Rev. Pol. Code, § 3359. ■ See text, § 1526. 5. Peotisions Relating to Prospecting oe Geub-stakb Contracts. (Laws of Oregon.) § 61. Grub-stake contracts must be recorded. § 61. Grub-stake contracts must be recorded.— (Sess. Laws 1898, p. 16.) That all contracts of mining copartner- ship commonly known as grub staking, shall be in writing and filed for record with the recorder of conveyances of the county where the locations thereunder are made. Such contracts must contain, first, the names of the parties thereto, and second, the duration thereof. Otherwise such -contracts shall be null and void. Idaho. — Written contracts relating to prospecting or mining, or to =the formation of copartnership for that purpose, when signed by the parties thereto and indorsed by at least one witness, may be recorded in the office of the county recorder of the county wherein it is pro- posed to prosecute the business of said copartnership, or where the property affected by such contract is situated. Such record shall be constructive notice to all persons of the matters •contained in such contract or copartnership agreement. Civ. Code 1901, sec. 3784. See text, § 1590 et seq. III. Peovisions Defining the Nature op Estates in Mines and DiEECTING THE MaNNER IN WHICH THE SaME May BE Teansfeeeed oe Abandoned. (Laws of Oregon.) :§ 62. Mining claims classed as real estate. 63. Ditches and ilumes connected with mining claims classed as real estate — Abandonment. 64 Transfers of mining claims — Description — Who may transfer. § 62. Mining claims classed as real estate (Laws 1898, p. 16, § 5.) All mining claims, whether quartz or placer, shall be real estate, and the owner of the possessory 1338 APPENDIX B TEANSFEES OF CLAIMS. right thereto shall have a legal estate therein within the meaning of section 316 of Hill's Code. As amended, Laws- 1899, p. 62. Colorado. — The terms "land" and " real estate," as used in this chapter, shall be construed as co-extensive in mining with the terms^ "lands, tenements, and hereditaments," and as embracing all mining claims and other claims, and chattels real. The term " deed " includes- mortgageS, leases, releases and every conveyance and incumbrance under seal. § 63. Ditches and flumes connected with mining claims classed as real estate — Abandonment. — (Laws 1898, p. 16^ § 9.) Ditches and mining flumes, permanentlj' fixed to thfr soil, are hereby declared to be real estate: provided, that whenever any person, company or corporation, being the- owner of any such ditch, flume or water right, for a period of five years, and every person, company or corporation who shall remove from this state with the intent to change his or its residence, and shall remain absent one year with- out exercising ownership over such ditch, flume or water right, shall be deemed to have lost all title, claim and in- terest therein. New Mexico. — How Tuining claims may be abandoned. — In addition to the provision of law now in force in respect to the abandonment of mining claims, they may be abandoned in the following manner: The- owner or owners of any mining claim, wishing to abandon the same, may sign and acknowledge in the same manner provided by law for the acknowledgment of deeds, and file for record in the office of the county recorder, a certificate describing the same, stating when and by whom, located, the name of the claim, the book and page where the notice of location of such claim is recorded ; that he or they give up and abandon such claim, and that the same is open and subject to relocation. Upon the filing of such certificate, the mining claim therein described shall be considered abandoned and open to relocation as if the same had never been located, and the owner or owners thereof forever estopped from claiming any right or interest therein under the location mentioned in said certificate: Provided, that this provision for abandonment shall not apply to any claim or location upon which any mortgage, lien or other incumbrance exists. Comp. Laws 1897, § 2303. For statutory provisions on location of abandoned claims see anter § 10, p. 1303. See also text, § 570 et seq. STATE STATUTES ANNOTATED TEANSFERS OF CLAIMS. 1339' § 64. Transfers of mining claims — Description — Wlio may transfer. — (Laws 1898, p. 16, § 7.) All conveyances of mining claims, or of interests therein, either quartz or placer, shall be' subject to the provisions governing transfers and mortgages of other realty as to execution and recorda- tion, foreclosure, execution sale, and redemption thereunder, but such redemption by the judgment debtor must take place within sixty days from the date of confirmation, or such right is lost. Arizona. — Description. — In all actions, judgments, grants or con- veyances it shall be a sufficient description of a mining claim if it can be intelligently learned therefrom the name of the claim, the district, county and territory where it is situate, and the book and page where the location notice thereof is recorded. . R S. 1901, § 3249. Illinois. — Any mining right, or the right to dig for or obtain iron, lead, copper, coal or other mineral from land, may be conveyed by deed or lease, which may be acknowledged and recorded in the same man- ner and with like effect as deeds and leases of real estate. Act March 24, 1874, § 6; Starr & Curtis' Ann. Stats. 1885, p. 1627. Nevada.^ — CouTeyance of mining claims shall hereafter require the same formalities and be subject to the same rules of construction as the transfers and conveyances of other real estate. Act December 12, 1863, § 1; Comp. Laws 1900, § 2720. Previous conveyances validated. — Conveyances of mining claims pre- vious to the passage of the foregoing are validated. Id., § 2721. Conveyances by minors. — All minors in the state over the age of eighteen years are hereby authorized and empowered to sell and con- vey by deed such interests as they may have acquired, or may hereafter acquire, in mining claims or mining locations within this state, by vir- tue of locating the same, or being located therein, and such deed shall, - if otherwise sufficient in law, be held valid and sufficient to convey such interest fully and completely, and without the right of subsequent revocation, notwithstanding the minority of the grantor, subject, how- ever, to the same provisions and limitations contained in the first sec- tion of this act. Act February 27, 1869, § 2; Comp. Laws 1900, § 2724. Section 1 of the above act (2723) validates conveyances by minors over eighteen years of age prior to the passage of the act. Mining conveyances discussed in the text, § 1090 et seq. Locations by minors, see text, § 375. 1340 APPENDIX B. IV. State Statutoet Provisions, Annotated, Relating to Min- ing Leases of Peivate and Public Lands. 1. In Pkivate Lands. (Laws of Missouri.) § 68. Rights of miners and owners of mineral lands — Condition of per- mits. 69. Persons other than servants of owner operating mines with own- er's consent have right to continue — Forfeiture — How accom- plished. 70. Miner has ores, except royalty, until tender of payment by owner. 71. Notice to owner or lessee. 72. Owner or lessee shall drain mine, etc. 73. Scrapping for ore prohibited, eta — Penalty. § 68. Rights of miners and owners of mineral lands — ■Condition of permits.— (E. S. 1899, § 8766.) When any person owning real estate in this state, or any person hav- ing a leasehold interest in such real estate for mining pur- poses by lease from the owner thereof, duly acknowledged and recorded in the county wherein the land lies, shall per- mit any person or persons other than their servants, agents or employees, to enter and dig or mine thereon for lead ore or other minerals, with the consent of such owner or own- ers or lessee, he or they shall keep a printed statement of the terms, conditions and requirements upon which such lands may be mined or prospected, and the time during which the right to mine or prospect thereunder shall con- tinue, posted or hung up in a conspicuous place, in plain, legible characters, in the principal office or place of busi- ness of such person or company in the county in which said lands are situated, or in a county contiguous thereto, and shall deliver to any person mining or prospecting, or about to mine or prospect on said lands, and requesting it, a printed copy of such statement; all persons digging or min- ing on said lands, after the posting up of such statement, shall be deemed to have agreed to and accepted the terms thereof, and shall, together with such owner or lessee, be STATE STATUTES ANNOTATED MINING LEASES. 1341 bound thereby, and upon failure or refusal to comply with the terms, conditions and requirements of such statement, he or they shall forfeit all right thereunder, and the owner or lessee, as aforesaid, of such lands, may re-enter thereon and take possession of the same, nor shall the receipt of any ore or mineral by any such owner or lessee, after any such forfeiture has been incurred, be deemed or taken as a waiver of such forfeiture. See New Mexico and Wisconsin notes to § 69, post. § 69. Persons other than servants of owner operat- ing mines with owner's consent have right to continue — Forfeiture — How accomplished.— (R. S. 1899, § 8767.). "Whenever any such owner or lessee of real estate shall per- mit any person or persons, other than their servants, agents or employees, to enter and dig for lead ore or other minerals on such real estate, with his consent, but without such owner or lessee complying with the provisions of section 8766, and such person or persons having so entered upon said lands by the permission or consent of such owner or lessee as afore- said, and having in good faith dug or opened any shaft, mine, quarry, prospect or deposit of mineral, or extended or opened from any shaft or mine any room, drift, entry or other ex- cavation, he or they shall have the exclusive right as against such owner or lessee giving such permit or consent, and against any person claiming by, through or under such owner or lessee, to continue to work, mine and dig such shaft, mine, prospect or deposit of mineral so dug or opened by him or them as aforesaid, in said real estate, with a right of way over such lands for the purpose of such mining, for the term of three years from the date of the giving of such consent or permit: Provided, however, that if such person or per- sons, in each case so mining as aforesaid, shall fail or neglect, to work or cause to be worked such shaft, mine, quarry, prospect or deposit of mineral for ten days, not including Sundays, in any one calendar month, after commencing said work, he or they shall forfeit all rights to work, mine or hold the same as against such owner or lessee, unless such 1342 APPENDIX B — MINING LEASES. failure or neglect was caused by unavoidable circumstances, or by the act of such owner or lessee or his agent, or unless such owner or lessee consent thereto:^ J'rovided, further, that such person or persons, so mining as aforesaid, shall pay to the owner or lessee of said lands giving such permit or consent the royalty for mining thereon, at least once every month, if demanded by such owner or lessee, by delivering the same to him at or near the mouth or opening of such mine, shaft or quarry, or at the nearest usual place of busi- ness of such owner or lessee, or at any other place that may be agreed upon by such miner and owner or lessee; which said royalty, unless otherwise agreed upon by them, shall be the same and kind in proportionate amount as is paid by others mining the same kind of ore or mineral on said lands to such owner or lessee, or the value of such royalty in cash; and if there be no other person mining on said lands on terras prescribed by such owner or lessee, then he or they shall pay to such owner or lessee the same rate and kind of royalty on lead ore or minerals taken out by him or them as is paid by miners on lands nearest thereto belonging to other persons, or the value of such royalty in cash. Such owner or lessee of any real estate shall have a lien on all minerals taken or dug therefrom for the royalty due thereon until the same is paid ; and if any such person or persons so mining shall refuse or fail to pay such royalty to such owner or lessee, or his agent, when demanded as aforesaid, he or they shall thereby forfeit the right to work such mine, shaft, quarry, prospect or deposit of mineral, and the said owner or lessee may thereupon enter and take possession of the same. New Mexico. — When lease shall be terminated. — Hereafter any lease upon any mine, or portion of a mine, not given in writing, for a specified time, shall not be terminated until after notice of the date of such ter- mination, given by the lessor or lessee, not less than thirty days prior to such date of termination. Comp. Laws 1897, § 2358. When lessor is liable in damages to lessee. — The lessor and the mine upon which any lease is terminated without thirty days' notice, as pro- -vided in section two thousand three hundred and fifty-eight, shall be STATE STATUTES ANNOTATED — MINING LEASES. 1343 liable to the lessee for all damages resulting from such termination: Piovided, that nothing in this act shall prevent the forfeiture and ter- mination of any such lease without such notice, when the lessee is working the leased ground in such manner as to damage the property. Id., § 2359. Mining leases generally, see text, § 1141 et seq. Mining licenses, text, § 1390. Wisconsin. — Rules governing mining rights. — Where there is no contract between the parties, or terms established by the landlord to the contrary, the following rules and regulations shall be applied to mining contracts and leases for the digging of ores and minerals, viz: 1. No license or lease, verbal or written, made to a miner shall be revocable by the maker thereof after a valuable discovery or prospect has been struck, unle.ss the miner shall forfeit his right by negligence, such as establishes a forfeiture by mining usages. 3. The discovery of a crevice or range containing ores or minerals shall entitle the discoverer to the ores or minerals appertaining thereto, subject to the rent due his landlord, before as well as after the ores, or minerals were separated from the freehold; but such miner shall not be entitled to recover any ores or minerals, or the value thereof, from the person digging on his range in good faith and known to be mining thereon, until he shall have given notice of his claim; and he shall be entitled to the ores or minerals dug after such notice. 3. Usages and customs among miners may be proved in explanation of mining contracts to the same extent as usage may be proved in other branches of business. E. S. 1898, § 1647. Lessee's fraud — Failure to work mine. — Any miner who shall con- ceal or dispose of any ores or minerals on mines or diggings for the purpose of defrauding his lessor of his rent, or who shall neglect to pay royalty on ores or minerals raised by him for three days after the notice thereof and claim of such rent, shall forfeit his rights to his min^s, dig- gings or range; and his landlord after such concealment, or after three days have expired from the time of demanding rent, may proceed against him to recover possession of mines or diggings, before a justice of the peace as in the case of a tenant holding over after the termination of his lease as provided by these statutes; and in case a miner shall neglect to work his mine or diggings according to the usages of the miners, without reasonable excuse, he shall likewise forfeit his mines or diggings, and his landlord may proceed against him to recover possession of the same. E. S. 1898, § 1649. § 70. Miner has ores, except royalty, until tender of payment by owner. — (E. S. 1899, § 8768.) Any such per- sons who, by the permission or consent of the owner or lessee of any real estate, and having the right to mine 1344 APPENDIX B — MIXING LEASES. thereon, and having entered and dug or mined thereon any lead ore or other mineral, shall have the right to the ex- clusive possession of such ore or mineral, except the royalty thereon, which shall be paid as hereinbefore provided, until he or they shall be paid or tendered by such owner or lessee of such real estate the then highest market price in cash paid by such owner or lessee' for the same kind of ore or mineral dug or mined on said lands, and if no other such ores or minerals are at the time being dug or mined on said lands and sold to such owner or lessee, then the highest price paid for such ore or mineral dug on lands nearest thereto shall be paid or tendered by such owner or lessee in such case, and upon such payment or tender, the absolute right to the possession of such lead ore or other mineral so dug out and mined under the provisions of the next pre- ceding section, and for which such payment or tender shall have been made, shall vest in such owner or lessee. See Wisconsin note, § 69, ante; New Mexico note, id. § 71. Notice to owner or lessee.— (E. S. 1899, §. 8769.) If any person or persons having dug or mined lead ore or other mineral, and having the same in his or their pQssession, and having offered to deliver such mineral according to con- tract, or paid or tendered the royalty, if any, due thereon, or the value of such royalty in cash, to such owner or lessee of said real estate, or to his agent, shall serve or cause to be served a notice in writing upon such owner or lessee or his agent, by delivering to him a copy thereof, or by leaving a copy thereof at the usual place of abode of such owner, lessee or agent, with some member of the family over the .age of fifteen years, stating in such notice the amount of lead ore or other mineral he or they have ready for delivery, and requiring such owner, lessee or agent, to receive and pay for the same, the said owner or lessee shall, within five days after the service of such notice, receive and pay for such lead ore or other mineral which the said person or per- sons digging or mining the same may deliver to him, not exceeding the amount named in the notice; and in such case STATE STATUTES ANNOTATED — MINING LEASES. 1345 if such owner or lessee fail or refuse within the time afore- said to pay for such lead ore or mineral delivered or ofifered to be delivered to him as aforesaid at the said price, then in that event the said person or persons who dug and mined the same shall thereupon acquire an absolute title to such lead ore or mineral, and may thereupon dispose of the same to any person or in any manner he or they may choose. § 72. Owner or lessee shall drain mine, etc. — (R. S, 1899, § 8775.) When any person owning any real estate in this state, or any person or persons having a leasehold therein for the purpose of mining for lead or zinc ore thereon by lease from such owner, shall open such real estate for mining purposes, and shall permit any person or persons other than their agents, servants or emplo3'ees to enter and dig or mine for lead or zinc ores thereon, and shall make any rule or contract whereby any pump- rent or royalty is reserved unto said land-owner or les- see for the drainage of the land so mined, and shall fail or refuse to drain any such land or mining lot to the full depth to which the laborers are working or seeking to work, but prevented by water, then and in such event, such owner or lessee thereof shall not be entitled to collect or retain any pump-rent or royalty so reserved as aforesaid for any ores taken from said mine or lot, below the depth of the water level in said mine or lot, so long as said owner or lessee shall fail or refuse to drain said mine, nor shall such land-owner or lessee be entitled to forfeit any right to hold and mine said lot so long as work is prevented therein by reason of water accumulated therein, on account of any failure to drain said mine by such land-owner or lessee, any rule, contract or agreement to the contrary notwith- standing. For drainage statutes generally, see ante, %% 47-50, this Appendix. § 73. Scrapping for ore prohibited, etc. — Penalty. — (R. S. 1899, § 8776.) It shall be unlawful for any person to take or in any manner receive or obtain any lead or zinc ore by means of gleaning or culling, commonly called 85 1346 APPENDIX B MINING LEASES. " scrapping," without first having obtained the written con- sent of the person having possession and control of the mine from which said ores are to be taken; and it shall be unlawful for any person or company of persons to purchase, or in any manner to receive any lead or zinc ore which may have been stolen or taken by means of culling or gleaning, ■commonly called " scrapping," without such written con- sent as aforesaid, knowing that said ores have been so stolen or taken, without written consent, as herein provided. Any person violating the provisions of this section, on con- viction, shall be punished by a fine of not more than one hundred dollars, or by imprisonment in the county jail not more than one year, or by both such fine and imprison- ment, and the inadequacy of the price paid for such ore, the quantity purchased or received, and the fact that the person from whom such ores may have been purchased or received is not regularly engaged in running or operating mines for such ores, may be shown, and shall be received as -prima facie evidence of guilty knowledge of the person so purchasing or receiving such ores: Provided, however, that nothing herein contained shall be so construed as to prevent any person from gleaning, culling or scrapping for ores about his own mine, nor to prevent any person from purchasing such ores when the same have been obtained in such manner by the owner or operator of any such mine. Neyada. — Damages for unskilful mining. — Any person or persons, company or corporation, being the owner or owners of, or in possession under any lease or contract for the working of any mine or mines within the state of Nevada, shall have the right to institute and maintain an action, as provided by law, for the recovery of any damages that may accrue by reason of the manner in which any mine or mines have been or are being worked and managed by any person or persons, company or corporation, who may be the owner or owners, or in possession of and working such mine or mines under a lease or contract, and to prevent the continuance of working and managing such mine or mines in such manner as to hinder, injure, or by reason of tunnels, shafts, drifts or ex- cavations, the mode of using, or the character and size of the timbers used, or in any wise endangering the safety of any mine or mines ad- jacent or adjoining thereto. Any such owner of, or in the possession of STATE STATUTES ANNOTATED — LEASING MINERAL LANDS. 1347 any mine or mining claim, who shall enter upon or into, in any manner, any mine or mining claim, the property of another, and mine, extract, •excavate or carry away any valuable mineral therefrom, shall be liable to the owner or owners of any such mine or mines trespassed upon in twice the amount of the gross value of all such mineral mined, extracted, excavated or carried away, to be ascertained by an average assay of the excavated material or the ledge from which it is taken. Act approved December 17, 1862; Comp. Laws 1900, § 850. Judgment for damages lien. — Any judgment obtained for damages under the provisions of this act shall become a lien upon all the prop- ■erty of the judgment debtor or debtors, not exempt from execution, in the territory of Nevada, owned by him, her, or them, or which may after- wards be acquired, as is now provided for by law, which lien shall con- tinue two years, unless the judgment is sooner satisfied. Id., § 251. Note. — The foregoing sections from the Nevada statutes, especially the first section, are incorporated here, not because the author claims to understand just what the legislators meant, but because this seems the most appropriate place for them, if they are entitled to any place at &\\ in this Appendix. 3. In State Lands. (Laws of Utah.) § 76. State mineral lands may be leased. 77. Rules regarding leasing. § 76. State mineral lands may be leased. — (K. S. 1898, § 2370.) Any state lands upon which stone, coal, coal oil, gas, or any mineral may be found, whether such land has theretofore been leased for a term of years or not, may be leased for the purpose of obtaining therefrom such stone, ■coal, coal oil, gas, or any mineral, for such length of time and conditioned upon the payment to the state board of land commissioners of such royalty upon the product as the state board of land commissioners may determine. Colorado. — The state board of land commissioners may lease any portion of the lands of the state. ... If stone, coal, coal oil, gas or other mineral not herein mentioned, be found upon the said land, such land — then same as Utah, beginning with " may be leased." Mills' Ann. Stats. 1888, § 3634. Michigan. — That the commissioner of the state land ofiice be and he is hereby authorized to lease, as hereinafter provided, any of the min- eral land reserved from sale by the provisions of section number three of act number seventy -eight, approved April twenty-eight (twenty-five) 1846. Comp. Laws 1897, § 1411. Bee post, this Appendix, §80, note. 1348 APPENDIX B — ETJLES EOE LEASING STATE LANDS. TTashingrton. — The commissioner of public lands of the state of "Washington is hereby authorized to execute leases and contracts for the mining of gold, silver, copper, lead, cinnabar or other valuable minerals except coal, from any land now belonging to the state or from any lands to which the state may hereafter acquire title, subject to the conditions hereinafter provided. Laws 1897, cli. 102, § 1. Any citizen of the United States finding precious minerals upon any lands belonging to the state of Washington may apply to the commis- sioner of public lands for a lease of any amount of land not to exceed the amount of land allowed by the United States mining laws for lo- cating and recording mining claims, and same dimensions. Id., § 2. The rnanner of locating a mineral claim upon state land shall be similar to the state law regulating locating mineral claims on govern- ment land: Provided, that any citizens that have found minerals on state lands previous to the passage of this act and have posted up no- tice setting forth the dimensions according to the mining law of the United States and the state of Washington, shall have prior right to lease the same, and shall have ninety (90) days after the passage of this act to make application to the commissioner of public lands for a lease. Id., § a § 77. Rules regarding leasing.— (E. S. 1898, § 2371.) The state board of land commissioners is hereby authorized to make all necessary rules and regulations to carry the foregoing section into effect. Colorado. — For provisions upon this subject, including the terms upon which lessee may obtain a renewal of his lease, see Mills' Ann. Stats., g§ 3635, 3636. Michigan.— Comp. Laws 1897, §§ 1413-1421. Washington.— Act March 17, 1897, Laws 1897, oh. 103, and amend- ment thereto. Laws 1899, p. 827. See Washington note, § 76, ante, this page. V. The Statutes of JSTew Yoee; and Michigan. (N. Y. l^aws 1894, ch. 817, as amended; 1901, ch. 416, §§ 80-85; and R. S. 1889, p. 618, § 5.) § 80. State mines — Sovereign right of people in gold and silver. 81. Working of mines in state lands — Eeport to secretary of state. 83. Private pi-operty in certain mines. 83. Notice of discovery — Bounty to discoverer. 84. Permission for entry upon lands to work mines. 85. Entry by corporations to work mines — Condemnation for. 86. Reservation of minerals in patents. STATUTES OF NEW YOKK AND MICHIGAN. 1349 § 80. State mines — Sovereign right of people in gold and silver. — The following mines are the property of the people of this state in their right of sovereignty: 1. All mines of gold and silver discovered, or hereafter to be discovered, within this state. 2. All mines of other metals 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 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 those metals. 4. All mines and all minerals and fossils discovered, or hereafter to be discovered, upon any lands belonging to the people of this state. Michigan. — Sovereign right of people in minerals. — That the prop- erty in the following mines is fully vested in the people of the state of Michigan in their right of sovereignty : 1. All mines of gold and silver, or either of them, now discovered or hereafter to be discovered within the territorial limits of the state; 2. All mines of other metals, discovered or to be discovered, which are connected with, or shall be known to contain gold or silver in any proportion. Comp. Laws 1857, § 2554; 1871, § 4020; How. Stats., § 5475; Comp. Laws 1897, § 1526. Note. — New York,' being one of the original thirteen states, and the owner of all the public lands within its territorial limits, undoubtedly has power to enact such a law as the above. Michigan, being what is commonly called one of the " public land " states, has no control over any lands within its borders, except such as are expressly granted to it by congress, and, therefore, has no power to pass any legislative enact- ment concerning them. This is discussed in the text, § 24. This applies also to the following Michigan statute: Same — Against whom enforced. — The sovereign right of the people of Michigan to the mines and minerals therein, as speciiied in the pre- ceding section, shall never be enforced against any citizen of the state in whom the fee of the soil containing any such mines and minerals now is. or may hereafter become fully vested in his own right by a bona fide purchase from, through or under the general or state government; bnt such mines and minerals shall remain the property of the citizens owning such lands, subject to the specific tax hereinafter provided; provided, that this act shall not be construed to affect any right already 1350 APPENDIX B. acquired or held by individuals, from or under the permits or leases of the United States, wherever such leases shall prove to be upon lands- now owned or hereafter to become the property of the state. R. S. 1897, § 1537. See also Michigan note to g 86, post, pp. 1353-53. § 81. Working of mines in state lands — Report to sec- retary of state. — Any citizen of this state discovering a valuable mine or mineral upon lands belonging to the state and filing the notice of discovery required by this article, may work such mine; and he and his heirs or assigns shall have the sole benefit of all products therefrom on the pay- ment into the state treasury of a royalty of two per centum of the market value of all such products. Such valuation shall be made when such products shall be first in a market- able form. A statement of the amounts sold or removed from the premises covered by such notice of claim, and of all the trees cut or destroyed upon such lands, shall be made semi-annually under oath to the secretary of state, and pay- ments of such royalty shall be made semi-annually to the state treasurer, under oath as to the amount thereof, on the basis of such semi-annual statement to the secretary of state. Any wilful falsehood in the contents of such statement to the secretary of state or state treasurer in regard to such royalty shall work a forfeiture to the state of the value of the whole amount mined during the period covered by such statements. § 82. Private property in certain mines. — All mines of whatever description, other than mines of gold and silver, discovered, or hereafter to be discovered, upon any land owned by a citizen of any 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 those metals, shall belong to the owner of such land. § 83. Notice of discovery — Bounty to discoverer. — 'So person discovering a mine of gold or silver within this state shall work the same until he give written notice thereof to the secretary of state, which shall be registered in a book to be kept by such secretary, describing particularly the STATUTES OF NEW TOEK AND MICHIGAN. 1351 nature and situation of the mine. Such person and his ex- ecutors, administrators and assigns, shall be exempted from paying to the people of the state any part of the ore, prod- uce or profit of such mine for the term of twenty-one years, to be computed from the time of giving notice of such dis- covery; and after the expiration of such term, the discov- erer, his heirs or assigns, shall have the sole benefit of all products therefrom on the payment into the state treasury of a roj'^alty of one per centum of the market value of all such products. A statement of the amounts sold or removed from the premises covered by such notice of claim, together with the market values thereof, shall be made semi-annually, under oath, to the secretary of state, and payments of such royalty shall be made semi-annually to the state treasurer, under oath as to the amount thereof, on the basis of such semi-annually [serai-annual] statement to the secretary of state. Any wilful falsehood in the contents of such state- ment to the secretary of state or state treasurer in regard to such royalty, shall work a forfeiture to the state of the value of the whole amount mined during the period covered by such statements. From time to time the legislature may provide for a different rate of compensation to be paid to the state. As amended by Act April 18, 1901, § 1. § 84. Permission for entry upon lands to work mines. Kothing contained in this article shall affect any grant heretofore made by the legislature to persons having dis- covered mines ; nor be construed to give any person a right to enter upon or break up the lands of any other person, or of the state, or to work any mine in such lands, unless the written consent of the owner thereof, or of the commis- sioners of the land oQice, when the lands belong to the state, shall be previously obtained. Permission to erect buildings for working mines upon state lands within the forest preserve may be given by the forest commission, and elsewhere, by the commissioners of the land olfice, when such lands are entirely denuded of timber or when such commis- sion or commissioners are satisfied that the erection or oc- 1352 APPENDIX B. cupation of such buildings will not be detrimental to the inter- ests of the state. ]S"othing in this article shall authorize any person working a mine upon state lands to cut or de- stroy any timber whatever, except such trees as it may be actually necessary to remove in order to uncover or make a road to such mine. For each tree measuring four inches or more in diameter at a height of one foot from the ground, which shall be so cut, the party operating the mine shall pay into the state treasury the sum of one dollar. §85. Entry by corporation to work mines — Condem- nation for. — Corporations formed for the purpose of work- ing and having lawful authority to work mines found within this state may acquire the right and easement to enter upon and break up lands necessary for the operation of such mines, and if the written consent of the person in or upon whose land such mine or mines are found shall be refused or cannot be obtained by agreement, or by reason of the infancy or absence of such person from the state, or other legal disability of the owners of such lands, every such cor- poration may acquire such right and easement by condem- nation, which right and easement when so acquired shall be deemed to have been so granted for a public use and for the public purpose of obtaining minerals reserved to the state. Before instituting any proceeding for such condem- nation the corporation shall file with the commissioners of the land office, a full description of the location of such lands and obtain a grant of the right to acquire such right and easement from such commissioners who are authorized to make the same and fix the terms thereof. Note. — For a summary of the different state statutes upon the sub- ject of eminent domain, see post, this Appendix, VII, 1, p. 1365. § 86. Reservation of minerals in patents.— (R. S. 1889, p. 618, § 5.) All letters patent hereafter to be granted, shall be in such form as the commissioners shall direct, and shall contain an exception and reservation to the people of this state of all gold and silver mined. Michigan. — All lands known to contain mines or mineral which are, or which may hereafter become the property of this state, shall be re- STATUTE OF TEXAS. 1353 served from sale by the authorities thereof, until directed to be sold by and under such regulations as the legislature shall hereafter prescribe. ■Corap. Laws 1897, 5^ 1528. California and Nevada, — Compare § 34, ante, and note; also § 33, pp. 1317, 1318, and not& VI. The Statute of Texas. An Act to better and more fully promote the development of the min- ing resources of Texas, and to repeal all laws in conflict with the provisions of this act. 1. Location, Acquisition and Development op Lode Claims. § 88. (1) Mineral lands reserved from sale — Open to location by citizens and those who have declared intention. 89. (2) Duty of certain state oflScersto designate mineral lands. 90. (8) Commissioner of general land office to create mining districts — Surveyor for. 91. (4) What may be located as mineral — Size of claim — Boundary lines drawn vertically. 93. (5) Acts of location — Description in notice. 93. (6) Work to be done within three months — Application for survey — Contents — Duty of surveyor. 94. (7) Annual labor — Proof of — Duty of co-owners with reference to. 85. (8) Rights of parties running tunnel for development of vein. 96. (9) Application for patent within five years — Fees. 97. (10) Procedure to obtain patent for lands containing miner- als other than the precious metals — Purchase price — Right to prospect certain lands. 98. (11) Protest against issuance of patent — Contents — Suit within thirty days. 99. (12) Forfeiture for failure to apply for patent within five years or to perform assessment work — Not to be re- located by original owners. 100. (13) No relocation for thirty days after forfeiture — Com- missioner may grant relief against, when. 101. (14) Non-mineral affidavit where title sought to be acquired other than as mineral land. S. Location and Acquisition or Placers. § 102. (15) Proceedings to obtain patent to placers similar to lode. 3. Mill Sites. § 103. (16) Size — Procedure to obtain. 1354 appendix b. 4. Miscellaneous Provisions. a. Timber may be felled for mining purposes. b. Provisions of act not applicable to claims before its passage. ^ c. Application of proceeds from sale. d. Surveyors may administer oaths, etc. Note. — The section numbers here are arbitrarily arranged to con- form to the section numbering of this appendix. The numbers in paren- theses ( ) denote the correct numbers of the sections of the act. 1. Location, Acquisition akd Development oe Lode Claims. §88. (1) [Mineral lands reserved from sale — Open ta location by citizens and those who have declared inten- tion.] — That all public school, university, asylum and pub- lic lands specially included under the operation of this act, all the lands owned by the state, situated within the reser- vation known as the " Pacific Eeservation," which were taken off the market and reserved from sale by an act ap- proved January 22, 1883, containing valuable mineral de- posits, 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 : Provided, that all who have located and recorded valid claims under pre- vious valid laws and have not abandoned same, but are en- gaged in developing same, shall have a prior preference right for ninety days after the passage of this act in which to relocate same under this act. § 89. (2) [Duty of certain state officers to designate mineral lands.] — It shall be the duty of the commissioner of the general land office immediately upon the passage of this act 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 geo- logical and mineralogical survey to examine all such lands as soon as practicable thereafter, and to designate such tracts as are apparently mineral bearing as mineral lands for the purposes of this act. If mineral lands are after- STATUTE OF TEXAS. 1355 "Wards claimed to exist at other locations than are so desig- nated they shall also be examined and classified accord- ingly. § 90. (3) [Commissioner of general land office to create mining districts — Surveyor for.] — 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 regular ap- pointed deputy and an officer qualified to administer oaths. §91. (4) [What may be located as mineral — Size of claim — Boundary lines drawn vertically.] — 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, natural cement, clay, onyx, mica, precious stones, or any other non-metallic mineral, and stone valuable for ornamental or building pur- poses or other valuable 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 act shall be entitled to the use of all the superficial area between the inclosing lines of the claim, and to all the minerals thereon and be- tween the side and end lines, extending downwards verti- cally, until the rights secured by the posting are forfeited as provided; and in all conflicts priority of location shall decide. §92. (5) [Acts of location — Description in notice.] — The locators of any mining claim shall post up at the cen- ter of one of the end lines of the same a written notice, stating the name of the location and of the claim and date 1356 APPENDIX B. ■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 otherwise describe the corners so that they can be readily found. The notice shall be placed in a con- spicuous place so it can bei readily seen. § 93. (6) [Work to be done within three months — Ap- plication for survey — Contents — Duty of surveyor.] — The locator shall, within three months after the date of the posting of the required notice, sink a shaft at least ten feet in depth by four feet square, or a tunnel of the same dimen- sions 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 surveyor or the district surveyor of the county, as the case may be, an application in writing for the survey of the claim, which application shall be accompanied 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 notice on the claim by the applicants, and further, that the notice has not been postdated or changed in its date. Upon receiving said application and fee the surve^'or shall record.the appli- cation, 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 applicants to see that the field-notes are so returned. The fee of twenty dollars shall cover all the services provided for in this section. In all STATUTE OF TEXAS. 135 T other cases enumerated in this act the fee shall be the same allowed county clerks for similar services. § 94. (7) [Annual labor — Proof of— Dutj of co-owners ■with reference to.] — Annually after the filing of the ap- plication for a survey as hereinbefore provided, the claim- ant shall, until the application is made for a patent, as here- inafter 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 re- turning from the mine shall not be included in the 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 contribute his proportion of the expenditures required in this act within the necessary time, the co-owners who have performed the labor or made the improvements or paid the fees or other expenditures re- quired in this act, 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 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 writ- ing or by publication such delinquent shall fail or refuse to contribute his proportion of the expenditure required by this act, his interest in th§ 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 oifice of the proper surveyor, be sufficient evidence of such delinquency. §95. (8) [Kights of parties running tunnel for develop- ment of vein.] — When a tunnel is run for the develop- ment of a vein or lode or for the discovery of mines, the 1358 APPENDIX B. owner of the 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, dis- covered 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 invalid; 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. § 96. (9) [Application for patent within five years — Fees.J — 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 pat- ent 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 section 11. § 97. (10) [Procedure to obtain patent for lands con- taining minerals other than the precious metals — Pur- chase price — Bight to prospect certain lands.] — Within twelve months after the filing of the aflBdavit hereinafter provided for, any person or association of persons qualified as required by section 1 of this act, shall have the right to purchase and obtain patent by compliance with this act, or (for) any of the lands of the state which are specified or in- cluded in section 1 of this act, containing valuable deposits of kaolin, baryta, salt, marble, fire clay, iron ore, coal, oil, natural gas, gypsum, nitrates, mineral paints, asbestos, marl, natural cement, clay, onyx, mica, precious stones, or any other non-metallic mineral and stones valuable for orna- mental or building purposes or other valuable building ma- terial, in legal subdivisions, in quantity not exceeding one section : Provided, that where any such parties shall have STATUTE OF TEXAS. 1359 heretofore expended, or shall hereafter expend, five thou- sand 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 obli- gations, 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 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 on or before the expiration of the twelve months aforesaid; and the purchaser shall file the treas- urer'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 instalments, 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 act; and where application is made to buy any of the lands herein named except under this act, the purchaser shall swear that there are none of the minerals named in this act 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 act 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 act to buy, shall have a prior preference right of doing so for thirty days after this act goes into effect: Provided, further, this section of this act shall not authorize the sale of lands containing valuable deposits of gold, silver, lead, cinnabar, copper or other valu- able metal: Provided, further, that any person desiring to acquire any lands under the provisions of this section shall have the right to prospect said land for a period of twelve months before making any payment thereon, upon condi- i#gS!*S?S«^^« 1360 APPENDIX B. tion 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 section, and in said aflS- davit give a reasonable description of said land. After the filing of said affidavit the said surveyor shall immedi- ately 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 affi- davit with the surveyor. § 98, (11) [Protest against issuance of patent — Con- tents — Suit within thirty days.] — Any person desiring to contest the issuance of patent may do so by filing with the commissioner of the general land office a protest setting 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 in- jure or delay the applicants or any of them, and the same shall be verified by affidavit. "Whereupon it shall be the dutj' of the commissioner to withhold patent until the con- troversy 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 further 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 coun- ties 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 entitled to precedence of trial on the docket. § 99. (12) [Forfeiture for failure to apply for patent within five years or to perform assessment work — Not to be relocated by original owners.] — All claims upon which patent has not been applied for within five years STATUTE OF TSXAS. 1361 next after the application for survey, or which have not been surveyed, and the field-notes returned to the general land office within the time prescribed therefor as herein- before provided, or upon which the assessment work has not been done, an affidavit therefor filed as provided by this act, shall be and are declared forfeited without judicial ac- tion of any kind, and subject to location as originally, but not by any one interested in the claim at the time of for- feiture, and any location for or on behalf of any such party shall be wholly void. Whenever any such claim shall be relocated, the locators and each of them shall make affida- vit that the location is made without any contract or agree- ment of any kind that any of the parties owning an interest in the location before the relocation has or is to have any interest in the same. In all other cases where affidavit is required by this act it may be made by one or more of the parties cognizant of the facts. § 100. (13) [No relocation for thirty days after forfeit- ure — Commissioner may grant relief against, when.] No claim which has been forfeited for any cause shall be subject to relocation for a period of thirty days next there- after, and the party owning the same may apply to the land commissioner within that time for relief, and if it ap- pear to him from the proof submitted that the forfeiture was not occasioned by the negligence of the owner, but by circumstances which he could not reasonably control, the commissioner may within that time, in his discretion, grant relief against the forfeiture, and if he be granted such re- lief he shall at once forward his order to that effect to the surveyor, who shall file the same for record in his office. § 101. (14) [Non-mineral afHdarit where title sought to be acquired other than as mineral land.] — Whenever any application shall be made to buy or obtain title to any of the lands embraced in section 1 of this act, except where the application is made under this act, the applicant shall make oath that there is not, to the best of his knowledge 1362 APPENDIX B. and belief, any of the minerals embraced in this act 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 disposition of said lands shall be understood to be, with the reservation of the minerals thereon, to be sub- ject to location as herein provided. 2. Location and Acquisition of Placees. , § 102. (15) [Proceedings to obtain patent to placers similar to lode.J • — That claims usually called placers, in- cluding 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 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 feach indi- vidual- 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. 3. Mill Sites. §103. (16) [Size — Procedure to obtain.] — Where non- mineral land not contiguous to the vein or lode is issued (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 application for a patent for such vein or lode, and the same may be patented therewith, subject to the same preliminary requirements as to survey and notice as are applicable to veins or lodes ; but no loca- tion of such non-adjacent lands shall exceed ten acres, and payment for the same must be made at the same rate as fixed by this act for the superficies of the lode. The owner STATUTE OF TEXAS. 1363 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 section. 4. Miscellaneous Peoyisions. a. (17) [Timber may be felled for mining purposes.] — Any owner or worker of (a) mining claim under this act is authorized to fell and remove for building and mining pur- poses any timber or any tree growing or being upon unoc- cupied lands as described in section 1, said lands being min- eral and subject to entry only as mineral lands, under such rules and regulations as may be prescribed for the protec- tion of timber and undergrowth upon such lands, and for other purposes. b. (18) [Provisions of act not applicable to claims be- fore its passage.] — Nothing in this act shall ever be so con- strued 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 act, of any pre-emptor, purchaser, claimant, actual settler, locator or other person whatsoever. c. (19) [Application of proceeds from sale.] — The net proceeds of all sales of mining lands under the provisions of this act shall inure to the benefit of the state and the re- spective funds for which the lands mentioned in section 1 of this act are now set apart under the constitution and the laws of the state, and it shall be the duty of the 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. d. (20) [Surveyors may administer oaths, etc.] — For the purpose of effectually carrying out the provisions of this act all county and 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 act, or any part thereof, are hereby especially repealed. 1364 APPENDIX B. VII. , Refeeence to [Miscellaneous Legislation in the Diitee- ENT States on Mattees Relating to Mining, Anno- tated. 1. Eminent domain. Act granting right of way over mining claims for certain pur- poses. 2. Miners' and mechanics' liens. 3. Taxation of mining claims. 4 Prescribing certain rules governing the trial of actions involving the title to mining claims and mines. a. Miners' rules as evidence. b. Permitting judge to order survey, upon application, in certain cases of conflicting claims. 0. Providing for a continuance of the trial until further develop- ments. d. Defining nature of plaintiflE's possession. e. Permitting judge to issue peremptory order for possession. f. Special verdict-. g. Limitation of action for trespass or waste, or adverse posses- sion. h. Jurisdiction in adverse suits. 5. Trespassing upon mining property. 6. Summary disposal of mining property. 7. Authorizing leasing of mining property. 8. Provisions relating to coal mining. a. Inspection — Prohibiting vpomen and children in. b. Weighing coal at mina 9. Other police regulations — Safety appliances — Protection for min- ers and the public against injuries from unused mine open- ings. a. Hours of employment. b. Regulating the payment of wages of miners. c. Safety apparatus. d. Regulating the storage of explosives. e. Requiring miners to be brought to the surface for meala f. Relating to damages to shafts by live stock. g. Protection against injury from unused shafts and openings, h. Providing for uniform system of bell signals. i. Medical attendance for smelter employees, j. Providing against gases in smelters, k. Fire protection in mines. 10. Relating to mining corporations. MISCELLANEOUS LEGISLATION — EMINENT DOMAIN. 1365 11. Kelating to minerals, including oil and gas, in state lands. 12. Relating to the establishment of state bureau of mines. 13. Relating to mining property not capable of partition. 14. Relating to the disposition of tailings. 15. Undertaking to define the rights of aliens. 16. Assuming to grant certain privileges to Indians. 17. Exempting soldiers' claims from forfeiture. 18. Mining claims not affected by town-site patents. 19. Defining fixtures. 20. Relating to co-tenants. 21. Requiring smelters to keep correct books. 23. Making it the duty of certain officers to furnish legislature with statistics. 23. Relating to the formation of mining districts. "^ 24. Penal provisions. a. Penalty for destroying or tearing down location notices or boundary marks. b. Penalty for "salting." c. Penalty for false bookkeeping by smelters and reduction works- d. Counterfeit gold dust — False scales for weighing gold dust. e. Conspiracy and force to gain possession of mining property. f. Penalty for failure to deliver product of custom mill to proper owner. g. Penalty for attempt to rob quartz mills. h. Penalty for robbing mines. i. Penalty for blackmailing mining property. j. General provisions relating to the operation of coal mines, and prescribing a penalty for violation of certain rules and regu- lations in connection therewith. 25. New Mexico provision permitting owner of patented lands to make rules. 1. Eminent domain. — The right of eminent domain for mining purposes is expressly recognized by statute in many of the states. The law of California is a typical one, and we will therefor copy it, following it with a reference to the place where this subject is treated in the statutes of other states. Subject to the provisions of this title, the right of eminent domain may be exercised in behalf of the following public uses: . . . 5. Eoads, tunnels, ditches, flumes, pipes, and dumping places for working mines; also channels, natural 1366 APPENDIX B EMINENT DOMAIN. or otherwise, for the flow, deposit, or conducting of tailings or refuse matter from mines; also an occupancy in common by the owners or possessors of different mines of any place for the flow, deposit or conduct of tailings, or refuse matter from mines. Deering's Ann. Code, § 1238, as amended by Laws 1895, p. 89, in effect July 1, 1895. Act granting right of way oher mining claims for certain purposes. — All mining locations and mining claims shall be subject to the reservation of the right of way through or over any mining claim, ditches, roads, canals, cuts, tunnels, and other easements for the purposes of working other mines ; frovided, that any damage occasioned thereby shall be as- sessed and paid for in the manner provided by law for land taken for public use under the right of eminent domain. Laws 1891, p. 220, in effect March 31, 1891. Colorado.— See, generally, Mills' Ann. Stats., g 3138. For hauling ores, Id., g 8145. For connecting spur to railroad, Laws 1901, p. 237, Idaho.— Civ. Code 1901, gg 2573, 2573. Illinois.— Starr & Curtis' Ann. Stats. 1885, p. 1626, § 1. lOTTa. — For railway to mines, Ann. Code 1897, g 2031. I'or drainage. Id., § 1967. Kentucky. — For the purpose of safety shaft in coal mines where owner of mine has not sufficient land for that purpose. E. S. 1894, g 3730. Maryland. — To mining companies for construction of railroads, etc., Pub. Laws 1888, vol. 1, pp. 381-384. Michigan. — Right to water for mining. Act May 14 1877, § 14, Comp. Laws 1897, g;? 7109, 7110. Montana.— Rev. PoL Code 1895, g§ 3680, 3641. Nevada.— Comp. Laws 1900, § 383 et seq. New Mexico. — For tramways, etc., Comp. Laws 1897, § 3328. Gener- ally, Id., §§ 3329-2336. New York.— See ante, § 85, p. 1353. North Carolina.— For mining generally. Code 1883, §g 3298-3300. Oregon. — Locations upon natural streams near placer mines are sub ject to the right of mines in operation before such location to discharge tailings thereon in the same manner which it had previously been done. Laws 1901, p. 133. Tennessee.— To mining corporations generally. R. S. 1884, g 1854. Utah.— R. S. 1898, g 3588, subd. 6, as amended by Laws 1901, p. 19. Washington.— For canals, ditches and flumes. Laws 1899, p. 361. For mining, milling and reduction works companies, Laws 1897, p. 95. MISCELLANEOUS LEGISLATION MINEEs' LIENS. 136Y Wisconsin. — For conducting water to mines, R S. 1898, pp. 1193, 1194, §§ 1650-1655. Generally, Id., p. 1037, § 1379, subd. 1-10. Wyoming. — For tramways, water ditches, flumes, paol£ trails, etc., R. S. 1899, § 2536. This subject is discussed in the text, § 1070 et seq. 2. Miners' and mechanics' liens. — Many of the statutes have provisions to the effect that any person doing vrork or furnishing materials or fixtures for any mining claim or mill, is entitled to a lien iipon the mine, if operated by the owner thereof, and upon the leasehold interest of the lessee in many states, notice of which must be given by the person against whom it is claimed by filing a verified notice of lien with the county recorder or register of deeds of the county wherein the property is situate, within a given time, gener- ally sixty days from the last item. These statutes are found in the following states: Arizona. — Must file notice with county recorder within ninety days. R. S. 1901, §g 2889, 2904 Colorado. — File with county recorder within one month for common laborers, two months for subcontractors, and three months for contract- ors. Laws 1899, pp. 261, 266, 270, §§ 4, 9. Idaho. — Must file notice with the county recorder within sixty days after the last item. Code Civ. Proc. 1901, sec. 3340. Requires any person operating mining property, before employing miners or laborers, to post up in the principal office of such operator, and file with the county and district recorder, if there is one, a sworn statement of the terms upon which the work is being performed. Failure is a misde- meanor. Penal Code 1901, sees. 638, 639. Indiana. — For wages of coal miners. File with county recorder within sixty days, suit within one year. R. S. 1881, § 5471. Michigan.— Comp. Laws 1897, § 10755. Missouri. — R. S. 1899, § 8792. Enforced same as other liens. Montana. — File notice with county clerk within ninety days. Rev. Code Civ. Proc, g§ 2130-41. Nevada. — Record with county recorder within sixty days. Comp. Laws 1900, §§ 3881-3885. Party furnishing ore to custom mill or reduc- tion works has lien on bullion. Id., g 3901, Act February 24, 1877. North Dakota. — File with county clerk within sixty days. R. S. 1899, §§ 480.5-4809, 4813. Ohio.— R. S., t; 3184a, passed March 27, 1889. Oregon. — Record with county recorder within sixty days, suit within six months. Act February 20, 1891, Laws 1891, p. 76, as amended by Laws 1899, p. 180. 1368 APPENDIX B EULES GOVERNING TEIAL, ETC. South Dakota.— File with clerk of district court within sixty days. Comp. Laws Dak. Ty. 1887, S§ 2936, 2940, 2943, as adopted by state legis- lature. Post in a conspicuous place correct copy of all mortgages or liens against the property. Act March 23, 1899. Utah. — File with county recorder within sixty days. R. S. 1898, §§ 1381, 1382. Virginia.— File in ofBce of clerk of court of city or county within six months. Code 1887, §§ 2485, 2486, Manner of enforcing. Id., S 3491. Washington.— File with county auditor within ninety days. Hill's Ann. Code and Stats., vol. 1, §§ 1663-1667. Wisconsin. — File notice with county recorder within sixty days. R S. 1898, § 3242, p. 2369. This subject is discussed in the text, § 1680 et sea. 3. Taxation of mining claims. Colorado. — Taxes all mines of gold, silver, copper and lead, with a gross output of more than one thousand dollars per year, upon assessed valuation of one-fourth such gross output. Claims containing other minerals are assessed the same as other real estata Laws 1901, pp. 241, 279-81, repealing all former laws on the subject. Michigan. — Tax of four per cent, levied upon all ores taken from mines in the state, in lieu of all other taxes. Comp. Laws 1897, § 1329. Montana. — Patented claims taxed at price paid government, except where surface used for other purposes, then at full value. Rev. Pol. Code 1893, § 3672. Nevada. — Taxes net proceeds of mines. Act March 23, 1891, § 75; Comp. Laws 1900, § 1147. New Mexico. — No tax on unpatented mining claims, and none on patented claims until one year after issuance of patent Act March 16, 1899, § 1. Utah. — Taxes net proceeds, surface improvements, and patented claims at value paid government. R. S. 1898, § 2504; Id., §§2566-2573, as amended 1899, pp. 103-105. Washington. — Taxes mining claims at such valuation as they, in- cluding minerals, would bring at voluntary cash sala Laws 1897, g 42, p. 155, ch. 71. Taxes coal mines four mills on each ton of coal sold or used, proceeds to be applied in payment of salary of state coal mine in- spector. Hill's Ann. Stats., §§ 2217-2344; Laws 1897, pp. 57-62. 4. Prescribing certain rules governing the trial of ac- tions involving the title to raining claims and mines. a. Miners' rules as evidence. — In actions respecting min- ing claims, proof must be admitted of the customs, usages, or regulations established and in force at the bar or diggings embracing such claim, and such customs, usages or regula- TUISOELLANEOtrS LEGISLATION SUEVET POSSESSION. 1369 tions when not in conflict with the laws of this state, shall govern the decision of the action. Oal. Code 0. P., § 748. Idaho.— Code Civ. Proo. 1901, sec. 3388. Montana.— Rev. Code Civ. Proo. 1895, § 1321. North Dakota.— B. S. 1899, § 5918. Utah.— R S. 1898, § 3521. Wisconsin. — See Wisconsin note, p 69, ante, subd. 3, p. 1348. This subject is discussed in the text, g§ 68, 69, 441. h. Permitting judge to order survey, ■wpor\, apjplication, in ■certain cases of conflicting claims. Colorado. — Of the underground workings or surface. Mills' Ann. Stata, § 3164. Idaho.— Code Civ. Proc. 1901, sees. 2283, 3384. Illinois.— Starr & Curtis's Ann. Stats.. 1885, §§ 1627, subd. 2, 3, 4 Missouri.— R S. 1899, § 8772. Montana.— Rev. Code Civ. Proc. 1895, § 1314 Nevada.— Comp. Laws 1900, § 252. New Mexico. — Comp. Laws 1897, g 2293. The mode of procedure to obtain this order is elaborately provided for. Id., §§ C393-S296. North Dakota.— R S. 1899, § 1442. Utah.— R S. 1898, § 3515. See text, §g 1637-1639. c. Providing for a continuance of the trial until further developments, where the judge is satisfied that the same is necessary and that substantial justice will thereby be done. Nevada.— Comp. Laws 1900, § 3255. Utah.— RS. 1898, §3134. Wisconsin.— R S. 1898, § 1648. d. Defining nature of plaintiffs possession. Colorado. — In trials for wrongfully taking ore, where plaintiff shows himself entitled to recover, he is deemed to be in possession of all parts of the mine, whether accessible from his own works or not. Laws 1893, p. 349. e. Permitting judge to issue peremptory order for posses- sion. North Dakota. — Where party was dispossessed on Sunday, a legal holiday, or while temporarily absent. R S. 1899, § 1442. f. Special verdict. New Mexico. — Court may require a special verdict or make a special finding, in an adverse suit, showing the exact part of the claim to which each party is entitled. Comp. Laws 1897, § 2291. 1370 APPENDIX B — TEESPAS8 — 8UMMAET DISPOSAL. Special finding that neither party entitled, see subsequent enactment as note to sec. 2326, R. S. U. S., Appendix A, ante, p. 1244 g. Zimitation of action for trespass or waste, or adverse possession. NeTada, — Plaintiff must have been in possession in person or by grantors within two years. Comp. Laws 1900, § 3706; Act November 21, 1861, as amended by Laws 1867, p. 85. Utah. — Suits for trespass or waste must be commenced within three years after discovery of trespass. E. S. 1898, § 3877, subd. 2. h. Jv/risdiction in admerse suits. Nevada. — In suits based upon adverse claims it is only necessary, to- confer jurisdiction upon the court, that it appear that an application for patent has been made, and that the parties are claiming the right to some portion of the vein or Jode. Act February 10, 1878; Comp. Laws 1900, § 3985. 5. Trespassing upon mining property. Illinois. — Penalty for wilful trespass upon mining property, five hundred dollars in addition to damages, to be recovered in an action for debt in any court by the owner. Starr & Curtis's Ann. Stats. 1885, § 5^ p. 1627. Nevada. — See Nevada note, ante, % 73, p. 1346. New Mexico. — Court has power to issue injunction restraining inter- ference with possession of person lawfully and peaceably in possession of mining property. Comp. Laws 1897, § 2313. Utah. — Person wrongfully taking oie from the premises of another is liable to the owner for three times its value. R S. 1898, § 1536. See a discussion of this in the text, § 1637 et seq. See also ante, this subhead, 4, b, c, p. 1369; post, this subhead, 24, a, g,h, pp. 1279, 1300. 6. Summary disposal of mining property belonging to minors or estates of deceased persons. Arizona. — Authorizes the court, upon the petition of the guardian or administrator, to order a summary disposal of property which the inventory shows to consist of mining property. R S. 1901, g§ 1772-76. Idaho. — Has special provision for disposing of mining property of" deceased person and permits foreign administrator to take charge of property within the state for that purpase. Code Civ. Proc. 190U sees. 4166-4170. Montana.— Same. Rev. Civ. Code 1895, g§ 2660-64. 7. Authorizing leasing of mining property belonging to minor or estate of deceased person. Arlzono.— R. S. 1901, g§ 2013-17. MISCELLANEOUS LEGISLATION COAL MINE INSPECTION. 1371 8. Provisions relating to coal mining. a. Insjpection — Prohibiting women and children in. — In nearly all the states where coal is mined to any extent, statutory provisions have been enacted governing the work- ing and operation of mines, providing for inspection, etc. These statutes, while not so elaborate in detail in the other states, are all taken largely from the law of Pennsylvania. They provide generally for the appointment of one or more mine inspectors, whose duty is to examine all mines in his- district, make any suggestions which he may deem advis- able concerning the operation thereof, and make regular re- ports to the governor or some other state officer. They also require that the owner or proprietor of coal mines shall cause to be prepared and furnished to the inspector an ac- curate map of all the underground workings, which must be carefully revised as often as once in six months. Also for the establishment of at least two openings or escape,^ ment ways, and for means of ventilation sufficient to pro- vide at least fifty cubic feet of pure air per minute for each man employed in the mine. Also prohibiting the employ- ment of women, or children under the age of fourteen years, and, in some of the states, any intoxicated person, in any coal mine. These statutes have no direct bearing upon the law of mining rights, being rather police regulations for the pro- tection of miners. A complete copy of them would there- fore not be advisable here. They are found in the follow- ing states : Alabama. — Bivided into three inspection districts under the super- vision of one chief inspector and two associate inspectors appointed bi- ennially by the governor; report biennially to the governor. R S. 1896, vo'. 1, fc;§ 2899-2933. Arkansas,' — One coal mine inspector appointed by the governor. Sandels & Hill's Stats. 1894, g§ 5045-5062. Colorado. — One inspector appointed by the governor. Prohibits children under twelve, under sixteen unless able to read and write, and women from working in mines. Mills' Ann. Stats., §§ 3181-3204. Idabo. — One inspector elected every two years; report to governor in December of each year. Pol. Code 1901, g§ 139-152. 13Y2 APPENDIX B COAL MINIS INSPECTION. Illinois. — Diyided into five inspection districts, each under super- vision of an inspector appointed by governor upon recommendation of board of examiners. Starr & Curtis's Ann. Stats. 1885, pp. 1616-1623. Indiana. — One mine inspector. Prohibits employment of vpomen and children. E. S. 1881, §§ 5473-5480. Iowa. — Three inspectors appointed by the governor; report to gov- ernor. Ann. Code 1897, §§ 5478-5496. Kentucky, — One ins'seotor and assistant appointed by governor. Prohibits employment of wom*en and children. E. S. 1894, §§ 2732, 2739. Michi&ran. — One inspector in each county of Upper Peninsula to be appointed by the board of county commissioners; report to county com- missioners. Comp. Laws 1897, g§ 5492-5499. Missonri.^ — Bureau of mines, two inspectors, one for coal and one for zinc mines, appointed by governor; report to governor in April of each year. E. S. 1899, §g 8797, 8826; §§ 8818 and 8828, amended March 27, 1901, and March 12, 1901. Montana.— One inspector appointed by governor. E, Pol. Code, 1895, f:g 580-590. Eelating to maps, etc. Id., g§ 3350-3365. Prohibiting the employment of women and children. Id., § 474. New Mexico. — Has usual provisions for ventilation, etc., but does not provide for the appointment of an inspector. This statute has some very rigid penal provisions, and the legislators evidently thought that with these a mining inspector would be entirely unnecessary. Comp. Laws 1897, g§ 2339-2349. New Jersey.— Duty of factory and worli-shop inspector to inspect mine; has discretion of closing mine down if law not complied with. Laws of 1894, p. 66, §§ 1-4; E. S. 1895. g§ 37-40. Ohio. — One chief inspector appointed by governor who has power to appoint seven district inspectors with the approval of the governor; dis- trict inspectors report to chief inspector, who compiles their reports and makes report to the governor. E. 8., g§ 290-306a. Pennsylvania. — Divided into eight districts for anthracite coal, each under the supervision of an inspector appointed by a board of examiners selected by the judges of the court of certain counties; forbids employ- ment of women and children; inspectors shall make annual report to the secretary of internal affairs. Act June 2, 1891, as amended April 20, 1899. For bituminous coal mines the state is divided into such mining dis- tricts as may be fixed by the examining board, no district to contain less than sixty nor more than eighty mines; a board of inspectors for bituminous mines is appointed by the governor in January of each year, such board to consist of two mining engineers of good repute and three other persons who shall have passed successful examinations, qualifying them to act as mine inspectors: vacancies occurring on this board are filled by the governor from a list on file in his ofiBce of per- MISCELLANEOUS LEGISLATION — HEALTH, SAFETY STATUTES. 1373 sons having passed satisfactory examinations. Women and children are also prohibited from working in bituminous mines. Act May 15, 1893, as amended April 28, 1899. Utah. — One mine inspector appointed by the governor; report to the governor once each year. Sess. Laves 1901, pp. 83-91. Children under fourteen and vyomen prohibited from virorking in coal mines. R. S. 1898, § 1338. Washington. — Divided into two districts, each under supervision of an inspector appointed by the governor, under the advice of a board appointed by him, consisting of three practical coal miners, three com- petent coal mine operators and one mining engineer. Women and children are prohibited from working in coal mines. Hill's Ann. Stats., vol 1, §§ 3217-2244. West Virginia.^ Divided into five districts, each under the super- vision of a district inspector appointed by the governor, who shall also appoint one chief mine inspector; each district inspector shall report monthly to the chief inspector, who shall copy the same in a book kept for that purpose open to inspection by any citizen of the state. Acta 1901, oh. 106, in effect May 15, 1901. The employment of women and children is prohibited. Acts 1891, ch. 15. Wisconsin. — Prohibits women and children from working in mines, except pursuant to order of court, or where children work for parents outside of school hours. R. S. 1898, g 1728, p. 248. Wyoming. — One mine inspector appointed by the governor. R. S. 1899, §§ 2563-3585. 5. Weighing coal at mine. — Prohibiting screening before weighing; providing for check- weighman ; penalty for false scales. Alabama.— R. S. 1896, §§ 2907, 3909. Colorado.— Laws 1901, p. 235. Missouri.— R. S. 1899, §§ 8786-90. Inspector to test scales, § 8790. New Mexico.— Comp. Laws 1897, §g 2350-54 Ohio.— R. a, §§ 395a, 6, c. Act April 21, in force September 1,1898. Utah.— R. S. 1898, §g 1529-34. West Virginia.— Act May 23, 1901; Acts 1901, ch. 20. Wyoming.— R S. 1899, § 2584. Noticed in text, § 1640 et seq. 9. Other police regulations — Safety appliances — Pro- tection for miners and the public against injuries from unused mine openings. a. Hov/rs of errvployment. Michigan.'— Ten hours. Comp. Laws 1897, § 5453. 1374 APPENDIX B HEALTH AND SAFETY STATUTES. Missouri. — Eight hours in all mines. R, S. 1899, § 8793, as amended by Act March 23, 1901. Montana. — Eight hours for hoisting engineers. Laws 1899, p. 70. Utah. — Eight hours in all underground mines and smelters. R. S. 1898, § 1337. Wisconsin. — Eight hours where no contract to the contrary. R S. 1898, § 1739, p. 1347. Wyoming.— Eight hours in all mines. E. S. 1899, g§ 3586, 2587. h. Hegulating the payment of wages of miners. Missouri. — Miners to be paid as often as once every two weeks; coal- mining companies may contract for payment once each month. E. S. 1899, § 8791. New Mexico. — Unlawful to pay in scrip or store pay. Comp. Laws 1897, § 2355. Ohio. — Pay at least twice each month, in cash. Act March 37, 1887, Laws 1887, p. 314 Unlawful to pay in scrip or store pay. R. S., §g 7015, 7016. West Virginia. — Pay every two weeks in cash. Unlawful to attempt to compel miners to take pay in goods from any store. Acts 1899, ch. 76; Warthe's Code, 1899, p. 1058. See text, § 1640 et seq. Wyoming. — Miners must be paid at least twice each month. Un- lawful to offset any account against wages, unless pursuant to previous .contract. R. S. 1899, § 3590 et seq. c. Safety apparatus. Eequiring iron bonneted safety cages in mines having a vertical shaft of a certain depth. Montana. — In all shafts one hundred and fifty feet deep. Rev. PoL Code 1895, §§ 3650-54. Nevada. — In all shafts four hundred and fifty feet deep. Act July 1, 1879; Comp. Laws 1900, §§ 377-79. South Dakota. — In all shafts two hundred feet deep. Laws 1897> J). 347. Utah. — In all shafts two hundred feet deep. Laws 1901, p. 151. Washington. — In all shafts one hundred and fifty feet deep. Hill's Ann. Codes and Stats., vol. 1, § 3269. See generally, statutes cited ante, this subd. 8, p. 1371. d. Regulating the storage of explosives. Missouri. — Requires all explosives, except those necessary for imme- diate use, to be kept in a strong box under look. Shots to be fired by an electric battery from the surface. R. S. 1899, §§ 8826, 8826a, as amended by Act March 27, 1901. Montana, — Not more than three thousand pounds of any kind to be stored in a mine at one time. Rev. Pol. Code 1895, § 708. MISCELLANEOUS LEGISLATION — HEALTH, ETC.— r BELLS. 1375 Pennsylvania. — Anthracite mines. — Storage of powder or other ex- plosives in mines forbidden; persons having gunpovs^der or other ex- plosives in a mine shall keep the same in a strong metallic box; no steel- pointed needle to be used in charging holes. Act June 2, 1891. §§ 26-36. Bituminous mines. — Powder or explosives of any kind not to be taken into any mine in quantities greater than necessary for use on one shift; not more than twenty-five pounds to be stored in any tipple or weigh- ing house where workmen have business to visit. Act March 15, 1893, §§ 45, 50. e. Requiring miners to he hrought to the surface for meals. Missouri.— R S. 1899, § 8795. f. Relating to damages to shafts Tyy live stock. New Mexico. — Owners of live stock doing damage to shafts only liable for actual damages. Comp. Laws 1897, § 2314. g. Protection against injury from, unused shafts and operv- ings. Montana. — Shafts within one mile of the corporate limits of a city, or within three hundred feet of a public road or street, must be fenced; failure is a piisdemeanor. Laws 1899, p. 149, amending § 704, Penal Code 1895. Nevada, — All shafts and holes must be securely fenced or covered, under penalty of fine not exceeding one hundred dollars. Comp. Laws 1900, §g 371-75. North Daliota. — Shafts and holes not in use must be filled with rock and dirt or covered with two-inch plank. Laws 1899, p. 55. Ohio. — All wells driven for oil or gas through a coal seam of another must be tightly plugged with wooden plugs covered with cement, under penalty of one hundred dollars fine. Act April 23, 1898, g§ 4-6. Pennsylvania.— (Anthracite.) Act June 2, 1891, art. IV, §§ 6-8. (Bituminous.) Act May 15, 1893, art. XX, § 1, rule 56. Utah.— Fence at least four feet high. E. S. 1898, g 1538. Washington. — All shafts must be fenced; failure renders owner lia- ble for all injuries by reason thereof. Hill's Ann. Code and Stats., vol. 1, :§§ 2263-71. West Virginia. — All unused workings must be carefully protected. Acts 1901, ch. 106, § 10. Wyoming. — Shafts must be protected; failure same as Washington. R. S. 1899, § 2543. h. Providing for a wniform, system, of hell signals. California.— Act March 8, 1893, Laws 1893, p. 83. Colorado.— See Laws 1893, p. 347. Missouri.— E. S. 1899, g 8811, as amended by Act March 27, 1901. 1376 APPENDIX B MINING COEPOEATION STATUTES. Oregon. — Laws 1901, p. 151. Pennsylvania. — (Anthracite.) Act June 3, 1891, arfe V, § 7. West Virginia.— Acts 1901, oh. 106, § 11. i. Medical attendance for smelter employees. New Mexico. — Requires operators of smeltors to provide employees who become sick by reason of lead poisoning contracted while in the employ of such operator with the necessary medical attendance during such disability. Comp. Laws 1897, §§ 2337, 3338. j. Providing against gases in smelters. Soutii Dakota.— Laws 1897, pp. 347, 348. h. Fire protection in mines. Utah.— Act March 35, 1901, Laws 1901, p. 150. 10. Relating to mining corporations. California. — General provisions relating to property of mining cor- porations and the rights of stockholders in connection therewith. Laws 1901, pp. 332, 377-379, adding new sections to Civil Code numbered 584 to 590. Colorado. — Requiring all mining corporations to file annual state- ments showing the number and location of their mining claims, the nature of their title and the improvements thereon. Laws 1901, pp. 116, 131, 133-134 Michigan. — Special chapter similar in all respects to general law of corporations. Comp. Laws 1897, §§ 6991-7036. Montana. — Relating to the disposition, by sale, lease or mortgage, of corporate property by directors, upon petition of stockholders. Laws 1899, p. 113. Nevada. — Empowering corporations and associations for mining to sue individual members who are delinquent in paying assessments. Act December 19, 1862; Comp. Laws 1900, g§ 355-359. Enabling mining corporations to consolidate, and defining the man- ner of consolidation. Act February 26, 1883; Comp. Laws 1900, §§ 260- 862. Permitting certain corporations to purchase and hold mining prop- erty. Act March 3, 1866; Comp. Laws 1900, §g 253, 254. Permitting certain co-owners to sue others for portion of expenses incurred in operating joint property. Act March 7, 1865; Comp. Laws 1900, §§ 363-370. Note. — This last provision has never, so far as we are able to learn, received construction by the Nevada courts, for the reason, doubtless, that no one ever had the hardihood to rely on it. New Mexico. — Permitting stockholders in mining corporations to have access to the books and property of the corporation for the pur- pose of making an examination. Comp. Laws 1897, §§ 3306-2308. MISCELLANEOUS LEGISLATION — MINERALS IN STATE LANDS. 1377 Tennessee. — General provisions relative to mining corporatlonsr R. S. 1884, §§ 1851-1874. West Tirginia. — Limiting the amount of land which may be held by a mining corporation. R. S. 1899, p. 555. 11. Relating to minerals^ including oil and gas^ln state lands. (See also ante, this Appendix, §§ 76, 77, pp. 1347, 1348.) Washington. — Duty of county commissioners, upon receiving peti- tion of twenty taxpayers, each paying taxes on at least fifteen hundred dollars' worth of property, to cause wells to be sunk on lands owned by the county, to develop salt, coal, oil and gas. Hills' Ann. Codes and Stats., §§ 2246-2263. Wisconsin. — Provides that any citizen may enter into a contract with the state for the purchase of state lands, and such person may enter into possession before the purchase price is paid, but that until the full payment of the purchase price, and the issuance of patent, all minerals in such lands remain the property of the state, and may not be removed, except with the express consent of the state board of land commissioners. R. S. 1898, § 220, p. 278. Then follows this provision: Any person, his heirs or assigns who shall receive a patent pursuant to law for any public lands shall thereby acquire the right to all . . . mineral and other materials . . dug, taken or removed therefrom before the issuance of such patent unless the same shall have been . . . dug or taken by the assent of said commissioners or sold by the state, and may maintain any proper action for the recovery thereof, or for any injury done to or trespass committed upon said lands before said patent shall have been issued, in the same manner and with the same effect, and he shall be entitled to like damages as if such injury or trespass has been committed after the patent had issued. Id., § 223, p. 279. See also post, this subd., 24, h, p. 1380. 12. Relating to the establishment of State Bureau of Mines. California.— Act April 16, 1880, Laws 1880, p. 115, as amended by Act March 21, 1885, Laws 1885, p. 217; Deering's Ann. Code, voL V, pp. 686, 638. Colorado.— Laws 1899, pp. 277-394. Missonri.— R. S. 1899, §§ 8817, 8818, as amended by Act March 37, 1901. New Mexico. — Memorial to congress for appropriation. Joint Memo- rial IX, 33d Legislative Assembly, approved March 16, 1899. Ohio.— Providing for the establishment of a school of mines by the board of trustees of the state univesrity. Bates' Ann. Stats. 1902, §§ 4105-26-28. 87 1378 APPENDIX B ALIENS, INDIANS, TOWN-SITE PATENTS. 13. Belating to mining property not capable of parti- tion. Colorado.— Mills' Ann. Stats., § 3346, as amended by Laws 1893, p. 358. Neyada.— Comp. Laws 1900, § 3407. 14c. Relating to the disposition of tailings, and requir- ing every person to keep the same upon his own property. Colorado.— Mills' Ann. Stats., § 3144. 15. Undertaking to deline the rights of aliens. Colorado. — Permits non-resident aliens, corporations or syndicates to acquire title to, and possess and work any of the mines in the state, to the same extent as citizens or residents of the United States, or this state. Mills' Ann. Stats., § 103. Idaho. — Permits any person, natural or artificial, citizen or alien, ex- cept Mongolians born out of the United States, to own, hold and dispose of ttiining property. Civ. Code 1901, sec. 3565. Unlawful for any person, or public or private corporation, to give employment to any alien, who, prior to the date of such employment, has failed, neglected or refused to become a citizen or declare his inten- tion. Penal Code 1901, g 4857. Note. — Whatever other merit these Idaho provisions may possess, they can certainly claim nothing for consistency. 16. Assuming to grant certain privileges to Indians. Washington. — Permits any Indian to whom any kind of real estate has been allotted by the government to sell or in any manner dispose of the same with the consent of congress. Laws 1899, p. 155. Note. — Except that this statute manifests a willingness on the part of its framers to permit congress and the Indians to manage their own affairs, it is of very little if any value, and the purpose of its enactment is not quite clear. 17. Exempting soldiers' claims from forfeiture. Colorado. — Provides that mining claims taken up and recorded by persons who have since enlisted in the regular army, or the volunteer forces of the state, shall not be liable to forfeiture for non-performance of assessment work for two years thereafter. Mills' Ann. Stats., § 3146. NOTK — This is a matter concerning which congress has exclusive authority, and, therefore, any enactment upon the subject by a state legislature would be void for want of power. See text, §§ 113, 113. 18. Mining claims not affected by town-site patents. Montana. — Mining claims properly located are not affected by town- site patents \intil the abandonment of the mining claim. Rev. PoL Code 1895, § 5113. MISCELLANEOUS LEGISLATION — COKEEOT BOOKS, STATISTICS. 1379 19. Defining fixtures. Montana. — All tools, machinery and surface improvements placed upon the surface of mining claims are deemed fixtures. Eev. Civ. Code 1895, § 1077. 20. Relating to co-tenants. Montana. — Permits one or more co-tenants to sue other co-tenants for damages to ndining property in the same manner as if no co-tenancy «xisted. Laws 1899, p. 134, amending Code Civ. Proo. 1895, § 592. See text, § 1460. 21. Requiring smelters to keep correct books. (See also ^05^, this subd. 24, c, p. 1380.) Colorado. — Requires all smelters and handlers of ore to keep a cor- rect system of books showing correct accounts of all ores received and treated for people other than the owners of such smelter or reduction -works. Mills' Ann. Stats. §§ 3337-3234 New Mexico.— Comp. Laws 1897, g§ 3318-2a Wisconsin.— R S. 1898, §§ 1656-57. 22. Making it the duty of certain officers to furnish legislature with statistics relating to the output of mines, and the general system of operating them. It is the duty •of all mine owners to furnish the commissioner of agricul- ture and labor the necessary information for this purpose upon demand, accompanied by necessary blanks. North Dakota.— B. S. 1899, §§ 134-35. 23. Relating to the formation of mining districts. Wyoming.— E. S. 1899, g 3533. See also Utah note, ante, § 3, pp. 1289- 1293. 24. Penal provisions. a. Penalty for destroying or tearing down, location noUoea or hov/nda/ry marks. Arizona.— R. S. 1901, § 548. Colorado.— Mill's Ann. Stats., § 3171. Idaho.— Penal Code 1901, sec. 5096. Montana.— Rev. Penal Code 1895, § 1063. New Mexico.— Comp. Laws 1897, § 2303. See also § 3311. Fraudu- lently relocating mining claim is a misdemeanor. Id., § 2313, Oregon.— Laws 1901, p. 175. Fennsylrania. — Misdemeanor to wilfully deface or tear down any notice board, danger signal, special rules or laws, or to tamper with 1380 APPENDIX B — MISCELLANEOUS PENAL STATUTES. any electric or signal wires. Act May 15, 1893 (bituminous law). Art. XIX, § 1, rules 48, 51. Misdemeanor to remove or render useless any fencing, signaling ap- paratus or similar instruments, or to tear down any rules which have- been posted up by employers. Act June 2, 1891 (anthracite law). Art. XII, rules 35, 54. Utah— RS. 1898, §1535. Washington.— Laws 1897, p. asf. Wyoming.— R. S. 1899, § 3541. h. Penalty for "salting." Colorado. — Placing false specimens in mines, or falsely representing that samples were taken therefrom which were not, is a felony. Mills' Ann. Stats., § 1891. Utah.— R S. 1898, §§ 4899-4401. Washington. — Act February 27, 1890, Hill's Ann. Codes and Stats., voL II, g 238. Wyoming.— R S. 1899, § 3543. c. Penalty for false ioolcJeeeping hy smelters and reduction works. Colorado.— Mills' Ann. Stats., §§ 3327-8234 New Mexico.— Comp. Laws 1897, §§ 2331-2835b Wisconsin.— E. S. 1898, § 1657. d. Counterfeit gold dust — False scales for wei^hi/ng gold dust. Colorado.— Mills' Ann. Stats., §§ 1363, 1380. e. Conspiracy and force to gain possession of mining prop- erty. North Dakota.— R S. 1899, §§ 7662, 7083. Wyoming.— R S. 1899, § 2540. f. Penalty for failure to deliver vroduct of custom mill to proper owner. Colorado.— Mills' Ann. Stats., § 1331. g. Penalty for attempt to roh quartz mills, Jl/umes or sluice Washington.— Hill's Ann. Codes and Stats., vol. II, § 238, Penal Code. h. Penalty for robbing mines, attempting to steal ore, or purchasing ore known to have been stolen, ew Mexico.— Comp. Laws 1897, §§ 2316, 2317. MISCELLANEOUS LEGISLATION — PENAL PEOTISIONS. 1381 ■Wisconsin.— R. S. 1898, § 4441, p. 3703. Commissioner of public lands has power to seize or cause to be seized, without process, any minerals taken from the public lands. Id., § 240. i. Penalty for hlackmailing mining property. New Mexico.— Comp. Laws 1897, § 3336. j. General provisions relating' to the operation of coal rrnnes, and prescribing a penalty for violation of certain rules and regulations in connection therewith. (See also this subd, 9, a, b; also 8, &, ante, p. 1380.) Missouri. — For failure to provide escapement shafts. E. S. 1899, § 8800. See also §§ 8806, 8808, 8831, 8834. Ohio.— See generally, R. S,, §S 4377, 6871. PennsylTania. — Act May 15, 1893, art. XX (bituminous act); Act June 2, 1891, art. XII {anthracite act). West Virginia.— Acts 1887, oh. 50, § 6; Acts 1890, ch. 9, § 14. § 25. New Mexico provision permitting owner of pat- ented lands to make rules. — The owner or owners of lands within this territory, the title to which has been vested by letters patent from, the United States government, may make and file in the office of the county clerk of the county in which such lands are situated, such rules and regulations, not inconsistent with the laws of the United States and this territory as they may see fit, governing the location and acquisition of mining claims thereon, which rules and reg- ulations when so filed, shall be binding upon all parties, and a copy thereof duly certified by the county recorder shall be received and admitted as evidence in any suit or pro- ceedings relating to such mining claims; such rules and regulations may be changed and supplemented from time to time by other rules and regulations filed in like man- ner, providing that such change does not affect rights ac- quired thereto. Comp. Laws 1897, § 2314. Miners' rules as evidence generally, see ante, this subd. 4, a, pp. 1368, 1369. Note. — This statute undoubtedly has reference to mineral lands em- braced within what are commonly designated as " Mexican grants " or "Spanish grants." The object of it, however, is not quite clear. After the title to property has passed to the patentee he would ordinarily be entitled to handle and dispose of it in any lawful manner, and this privilege is the most that this statute gives him, if, indeed, it does that, APPENDIX C. FORMS IN PATENT PROCEEDINGS, L Lode and Placer Appucations. a. Land ofi&ce papers. 1. Application to United States surveyor-general for survey of mining claim. 2. Notice of application for a United States patent. 3. Proof of posting notice on the claim. 4. Application for patent. a. AfiBdavit that placer contains no known lode. b. AfBdavit showing why placer claim does not conform to public survey. 5. Affidavit of citizenship. 6. Agreement of publisher. 7. Notice for publication. 8. Proof of publication. 9. Proof that plat and notice remained posted on claim dur- ing time of publication. 10. Notice by register that adverse claim has been filed. 11. Protest and adverse claim. 12. Statement of fees and charges. 13. Application to purchase. 14. Receiver's receipt. 15. Register's final certificate of entry. b. Papers in court, 1. Complaint. 2. Answer. 3. Stipulation. 4. Findings. 5. Decree. IL Coal Land Forms. a. Declaratory statement, and accompanying papers, under pref- erence right. 1. Declaration of intention to purchase coal land. 2. Special power of attorney. 3. Non-mineral affidavit — By attorney. 4. Non-mineral affidavit — By two witnesses, 5. Final application to purchase. FORMS IN PATENT PKOCBEDINGS. 1383 n CoAii Land Forms — con. b. Cash or private entry. 1. Application to purchase. 2. Non-mineral affidavit. 3. Final application to purchase. Author's Note. — The forms under the first head of this Appendix are taken from the papers actually used in an ap- plication for patent in the Salt Lake Land Office, in which an adverse claim was filed within the statutory time, fol- lowed by a suit in the state court within thirty days there- after. This suit was compromised in favor of the defendant, the original applicant, and findings and decree entered ac- cordingly, after which the applicant proceeded to patent his claim. Because the pleadings in adverse suits differ in many respects from those used in any other action, we have deemed advisable to incorporate those used in this suit, which are the usual forms, in this Appendix. It has not been our intention to include here any papers except those the attorney is obliged to prepare, or which come directly to him from the land office. A complete list of the other papers necessary for use in an application for patent is given in the text.^ The coal land forms are those adopted and approved by the general land office. I See ante, text, §g 655, 663. I. Lode and Plaoee Application. a. Land Office Papers. (1) Application to United States Surveyor-Gmeral for Sur- vey of Mining Claim. Salt Lake City, Utah, January 17, 1900. IT. S. Swrveyor Gerieral, Salt Lake City, Utah. Sir: — Thomas Pells, claimant, hereby makes application for an official survey, under the provisions of Chapter six. Title thirty-two, of the Revised Statutes of the United States, and regulations and instructions thereunder, of the 1384: APPENDIX C. mining claim known as the "Eoagh Wrestler," situate in West Mountain Mining District, Salt Lake County, State of Utah, in Sections 35 and 2, Townships Nos. 3 and 4 S., Kange No. 3 W. of Salt Lake Meridian. Said claim is based upon a valid location made on January 2nd, 1886, and duly recorded on January 3rd, 1886, and is fully de- scribed in the duly certified copy of the record of the loca- tion notice, filed herewith. Said location notice contains the names of the locators, the date of location, and such a definite description of the claim by reference to natural ob- jects or permanent monuments as will identify the claim, and said location has been distinctly marked by monuments on the ground, so that its boundaries can be readily traced. I request that you will send me an estimate of the amount required to defray the expenses of platting and other work in your office, required under the regulations, that I may make proper deposit therefor, and that thereupon you will cause the survey to be made by F. M. Lyman, U. S. Dep- uty Mineral Surveyor, and proper action to be taken thereon by your office, as required by the U. S. mining laws and regulations thereunder. Thomas Pells, Westeevelt & Sntdee, Claimant. Attorneys for Claimant, P, O. Address, Atlas Block, Salt Lake City, Utah. (2) Notice of Applicatio7i for a United States Patent. In the United States Land Office, Salt Lake City, Utah. ' ^ ^^• 3!fotice is hereby given that in pursuance of the Act of Congress, approved May 10, 1872, " To promote the devel- opment of the mining resources of the United States," Thomas Pells, claiming one thousand and fifty-four 1-10 (1054.1) linear feet of the "Eough Wrestler" vein, lode or mineral deposit, bearing gold, silver, lead, copper and other valuable minerals, with surface ground 218^ (average) feet in width, lying, being and situate in West Mountain Min- ing District, County of Salt Lake and State of Utah, has made application to the United States for a patent fpr the said mining claim, which is more fully described as to metes and bounds by the official plat herewith posted, and by the field-notes of survey thereof, now filed in the office of the Eegister of the District, of lands subject to sale at Salt FOEMS IN PATENT PEOCEEDINGS. 1385 Lake City, Utah, which field-notes of survey describe the boundaries and extent of said claim on the surface, with magnetic variation at 16 degrees, 30 minutes East, as fol- lows, to wit: Commencing at post No. 1, a corner of the claim, and running thence south 65 deg. 19 min. east 230 feet to post 2, thence north 33 deg. 37 min. east 1050.6 feet to post 3, thence north 65 deg. 19 min. west 207 feet to post 4, thence south 34r deg. 51 min. west 1054.4 feet to post 1, place of be- gmning; from post No. 1 of said claim southwest corner of section 35, township 3 south, range 3 west of Salt Lake meridian, bears north 54 deg. 58 min. west 1139.2 feet; ex- cluding, however, from said described area, the following area in conflict with the Black Hawk lode (U. S. lot 57), to wit: Beginning at a point on the east side line of the Eough Wrestler north 59 deg. east 59.7 feet from corner 2 •of Black Hawk, thence north 33 deg. 37 min. west 460.9 feet along east side line of Eough Wrestler to post 3 thereof, thence north 65 deg. 19 min. west 3 feet along end line of Black Hawk, thence south 59 degrees west 474.5 feet along side line of Black Hawk to post 3 thereof, thence south 31 •deg. west 200 feet along end line of Black Hawk to corner 2 thereof, thence north 59 deg. east along side line of Black Hawk 59.7 feet to beginning, containing 1.242 acres; also •excluding the following area in conflict with the Spanish lode (U. S. lot 58), to wit: Beginning at a point on north end line of Rough Wrestler north 65 deg. 19 min. west from post 3 thereof 21.4 feet, thence north 65 deg. 19 min. west along north end line of Eough Wrestler 75.4 feet, thence south 31 deg. east along end line of Spanish 62.3 feet, thence north 59 deg. east along side line of Spanish 42.6 feet to beginning, containing 0.03 acres; also excluding the follow- ing area in conflict with the Buckeye lode (U. S. lot 88), to wit: Beginning at post 4 of Eough Wrestler, thence south 34 deg. 51 min. west 75.4 feet along west side line of Eough Wrestler, thence north 37 deg. 30 min. east 88.3 feet along side line of Buckeye, thence north 65 deg. 19 min. west 34.6 feet along north end line of Eough Wrestler to begin- ning, containing 0.029 acres. The total net area of the Eough Wrestler for which pat- ent is applied, exclusive of said areas in conflict, is 3.905 acres. The said mining claim being of record in the ofiice of the Eecorder of said West Mountain Mining District, in Book O, Page 39, at Bingham, in the County and State aforesaid, 1386 APPENDIX 0. the presumed general course of the said Eough Wrestler vein, lode or mineral deposit being shown upon the plat posted herewith, as near as can be determined from present developments, this claim being for 1054.1 linear feet thereof^ together with the surface ground shown upon the official plat posted herewith. The nearest known locations being the Black Hawk lode, U. S. lot 57; Spanish lode, U. S. lol 58; Buckeye lode, U. S. lot 88; Sanders, U. S. lot 3Y5; northeasterly half of Beebe, U. S. lot 147, and Bully Boy,. U. 8. lot 84. The said Eough Wrestler claim being desig- nated as lot 3934 in the official plat posted herewith. Any and all persons claiming adversely the mining^ ground, vein, lode, premises, or any portion thereof so de- scribed, surveyed, platted and applied for, are hereby noti- fied that unless their adverse claims are duly filed as accord- ing to law, and-the regulations thereunder, within sixty days from date hereof, with the Register of the D. S. Land Office at Salt Lake City, in the County of Salt Lake, State- of Utah, they will be barred, in virtue of the provisions of said statute. ■ Thomas Pells. Dated on the Ground, this 21st day of March, A. D. 1900. Witness : Ja8. R. Tanish. Geoege Wells. (3) Proof of Posting Notice and Diagram on the Claim. State op Utah, County of Salt Lake, Jas. R. Tanish and George Wells, 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 17th day of March, A. D. 1900, when a plat repre- senting the Eough Wrestler, and certified to as correct by the U. S. Surveyor General of Utah, together with a notice of the intention of Thomas Pells 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 a pine post 4 feet high, 4 inches in diameter, at the point of the discovery of said Eough Wrestler, 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; (Copy of notice as posted, followed by signatures of af- fiants, and same jurat as that at the end of [4:), post, p. 13S9.) ! ss. FORMS IN PATENT PEOOEEDINGS. lt58T (4) Application for Patent. State of Utah, \ County of Salt Lake, j ^^' Application fob United States Patent fob the Eough Wrestleb- Lode Mining Claim. To the Register and Receiver of the United States Land Office^ Salt Lake City, Utah : Thomas Pells 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 that in virtue of a compliance with the mining laws of the United States and State of Utah, and the rules, regulations and customs of the West Mountain Mining District, by the said Thomas Pells,, he has become the owner of and is in the actual, quiet and undisturbed possession of the said Eough Wrestler vein, lode or deposit, bearing gold, silver, lead and other valuable min- erals, being 1054.1 linear feet in length, together with sur- face ground, as shown upon the official plat filed herewith; lying, being and situate in West Mountain Mining District, Salt Lake County, Utah, and designated by the surveyor of Utah as U. S. M. S. No. 3934 of the ofScial surveys of and within said district, and being more particularly set forth and described in the official field notes of the survey thereof, filed herewith and made a part hereof; and marked " Ex- hibit A," approved the 17th day of March, 1900, and in the official plat of said survey now posted conspicuously upon said claim, a copy of which is filed herewith and made a part hereof and marked " Exhibit B." Deponent further states that the facts relative to the right of possession of the applicant hereinbefore named, to said mining claim and premises, so surveyed and platted, are substantially as follows, to wit: That on the 2nd day of January, A. D. 1886, the premises- known as the Eough Wrestler Lode Location or Mining Claim, and which is more fully described in the plat and field notes thereof, filed herewith, were a portion of the vacant and unoccupied mineral lands of the public domain, and were not held, occupied or claimed by any person or persons as mining ground or otherwise. That the locators thereof, citizens of the United States (or who had declared their intention to become such), entered upon and explored said premises and discovered therein a vein of ore bearing gold, silver, lead and other valuable minerals, and there 1388 APPENDIX 0. and then located the same as a mining claim, and called the same the Eough "Wrestler Lode. A certified copy of the notice of location thereof is filed herewith and made a part hereof and marked " Exhibit 0." And on the same day the same locators placed thereon a copy of said notice on a monument erected at or near the discovery point thereof, and after doing and performing all the acts required by the local laws, rules and regulations of the said mining district, caused the said notice to be duly filed and recorded in the Recorder's office of said mining district as appears by the copy of said location notice filed herewith. Affiant furthei says that after the date of location of the said lode location or mining claim, to wit: On and after the date aforesaid of said location, the locators thereof and their subsequent grantees, remained continuously in posses- sion of the same, working, mining and extracting ore there- from, all work having been performed within the time re- quired by the local laws of the said mining district and the laws of the United States relating to mines. That the said location or mining claim was and is now duly marked and ■defined upon the ground, as fully described in the plat and field notes thereof, filed herewith and hereinbefore re- ferred to. The right of title, as shown by the abstract of title filed herewith and made a part hereof, and marked "Exhibit D," is now in Thomas Pells, for the confirmation of which a pat- ent is hereby applied for from the United States. Said claim is particularly described with magnetic varia- tion at 16 degrees 30 minutes east, as follows, to wit: (Same description as in notice of application for patent, (2), p. 1385, ■ante^ Claimant has done and placed for and on his said location, one hundred dollars' worth of labor and improvements dur- ing the year 1899. The nearest known locations are the Black Hawk lode, U. S. lot 57; Spanish lode, U. S. lot 58; Buckeye lode, U. S. lot 88; Sanders, U. S. lot 375; northeast- erly half of Beebe, U. S. lot 147, and Bully Boy, U. S. lot 84. A duly certified copy of the By-Laws of said mining dis- trict is on file virith the application for patent for the Rough Wrestler Lode Mining Claim, M. E. No. 3083. The value of the labor done and improvements made upon said claim by claimant and bis grantors, being equal to the sum of five hundred dollars in gold coin of the United States. In con- sideration of which facts, and in conformity with the pro- visions of the Act of Congress, approved May 10, 1872, FOEMS IN PATENT PEOCEEDINGS. 1389' entitled " An Act to promote the development of the raining^ resources of the United States," application is hereby made for and in behalf of said Thomas Pells, for a patent from the government of the United States for the said Kough Wrestler Mining Claim, the vein, lode, deposit and the sur- face ground so officially surveyed and platted. Thomas Pells. Subscribed and sworn to before me this 29th day of May, A. D. 1900, and I hereby certify that I consider the above deponent a credible and reliable person, and that the fore- going affidavit to which was attached the field notes of survey of the Rough Wrestler Mining Claim, was read and examined by him before his signature was affixed thereta and the oath made by him. Geoege Westeevblt, Notary Public Salt Lake County, Utah. Westeevelt & Snydee, Attorneys for Applicant, Salt Lake City, Utah. Where the application is for a placer claim, the applica- tion for patent should be supplemented by a corroborative affidavit substantially in the form of (a), infra. And where the location does not conform to the public survey, an affi- davit substantially in the form of (b) should also accompany the application. If the application is for saline lands, under the act of congress permitting entry thereof as placer, insert before the last paragraph the following: " Applicant further says that he has never, either as an individual or as a member of an association, located or entered any other lands under the provisions of the laws of the United States relating to the location, and entry of saline lands." (a) Affidavit that Placer Contains No Knovm Lode, (Venue.) S. M. Levy and M. D. Murphy, each for himself and not one for the other, being first duly sworn, says that he is a citizen of the United States, over the age of twenty-one years; that he is familiar with the land embraced within the surface boundaries of the Mascotte JSTo. 1 and Mascotte 'No. 2 placer mining claims, situated in West Mountain Mining District, Salt Lake County, Utah, and has been 1390 ' APPENDIX O. fartnilar with said land for upwards of three years last past; that there is no lode known to exist, so far as affiant's knowledge and information serves, within the limits of «aid claims, or either of them ; and that, to affiant's best knowledge, mformation and belief, no lode exists within the limits thereof. (Jurat.) S. M. Levy. M. D. MUEPHT. (b) Affidavit Showing why Placer Claim Does Not Conform to Public Survey. (Yenue.) S. M. Levy and M. B. Murphy, each for himself, being first duly sworn, says, that he is familiar with the land-em- braced within the limits of the Mascotte l^o. 1 and Mascotte No. 2 placer mining claims in "West Mountain Mining Dis- trict, Salt Lake County, Utah ; that it was proper to locate said claims in the manner they were located in order to cover the alluvial drift therein, for the following reasons: That at the westerly end of said claims the canyon in which they are located becomes narrow, and the alluvial de- posits therein, which said claims were located to cover, be- come narrow at the westerly end of said claims and widen out toward the easterly end thereof ; that if said claims had been located according to legal subdivisions, a large quantity of land would have been embraced within the limits thereof, which would be entirely unfit for placer mining purposes. That in order to cover the alluvial deposits sought to be lo- cated, it would have been impracticable to locate said claims in any other manner than that in which they were located. (Jurat.) S. M. Levy. M. D. MUBPHT. (5) Affidavit of Citizenship. State of Utah, ) County of Salt Lake, j ®^- Thomas Pells being first duly sworn according to law, de- poses and says, that he is the applicant for patent for " Eough Wrestler" Mining Claim, situated in West Mountain Mining District, County of Salt Lake, that he is a naturalized citi- zen of the tTnited States, born in Litchfield, County of Staf- ford, England, in the year 1839, and is now a resident of Bingham, Salt Lake County, State of Utah; that he was ad- mitted to citizenship of the United States by the Third Dis- trict Court of the Territory of Utah, on September 16th, 1885. (Jurat.) Thomas Pellb. FORMS IN PATENT PKOCEEDINGS. 1391 (6) Agreement of Publisher. The undersigned, publisher and proprietor of the Bing- ham Bulletin, a weekly newspaper published at Bingham, ■County of Salt Lake and State of Utah, does hereby agree to publish a notice, dated United States Land Office, No. 3083, Salt Lake City, Utah, June 2, 1900, required by Chap- ter Six of Title Thirty-two, Revised Statutes of the United ■States, of the intention of Thomas Pells to apply for a pat- ent for his claim on- the Eough Wrestler lode, situated in "West Mountain Minin;^ District, County of Salt Lake and State of Utah, and hold the said Thomas Pells alone respon- sible for the amount due 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 3rd day of June, A. D. 1900. Gr. B. Graham. (7) Notice for Pullication. Notice No. 3083. Application foe Patent. United States Land Office, Salt Lake City, Utah, June 2, 1900. Notice is hereby given that Thomas Pells has made appli- cation for a United States patent for the Eough Wrestler mining claim, situate in West Mountain mining district, Salt Lake county, Utah, consisting of one thousand and ilfty-four 1-10 (1054.1) linear feet of the vein, lode or deposit, bearing gold, silver, lead and other valuable minerals, and surface ground 218-j- (average) feet wide, being lot No. 3934, and described in the field notes and plat of the official sur- vey on file in this office, with magnetic variation at 16 deg. 30 min. east, as follows: (Description of the Eough Wrest- ler, excluding conflict areas, as described in papers (2), (3) and (4).) I direct that this notice be published in the Bingham Bulletin, at Bingham, Salt Lake county, Utah, the news- paper published nearest the said mining claim, for the period of sixty days. Feank D. Hobbs, Eegister. Wssteevelt & Sntdee, Claimant's Attorneys. First publication June 8; last, Aug. 3, 1900. 1392 APPENDIX C. (8) Froof of Piiblication. State of Utah, County of Salt Lake. ss. & Sf-i o "^ I, G. B. Graham, being first duly sworn, depose o and say that I am the editor and proprietor of the 'S Bingham Bulletin, a weekly newspaper of general M circulation published every Friday at Bingham, Salt &■ Lake County, Utah ; that the notice (attached hereto) _S of the intention of Thomas Pells to apply for a pat- '■g ent for the Rough Wrestler lode, was published in ^ said newspaper for nine consecutive weeks, the first '© publication having been made on the 8th day of June, c 1900, and the last on the 3rd day of August, 1900; that said notice was published in the regular and en- tire issue of every number of the paper during the ^ period and times of publication, and the same was o" published in the newspaper proper and not in a sup- O plement. (Jurat.) G. B. Geaham. (9) Froof tliat Flat, and Notice Remained Fosted on Claim During Time of FvMication. State op Utah, ) County of Salt Lake, f ^^■ Thomas Pells, being first duly sworn according to law, deposes and says that he is claimant in theEough Wrestler Mining Claim in West Mountain Mining District, Salt Lake County, State of Utah, the official plat of which premises, together with the notice of intention to apply for a patent therefor, was posted thereon, on the 21st day of March, A. D. 1900, as fully set forth and described in the aifidavit of Jas. E. Tanish and George Wells, dated the 23rd day of March, A. D. 1900, which affidavit was duly filed in the of- fice of the Eegister, at Salt Lake City, Utah, in this case; and that the plat and notice so mentioned and described, remained continuously and conspicuously posted upon said Mining Claim from the 21st day of March, A. D. 1900, until and including the 3rd day of December, A. D. 1900, includ- ing the sixty days' period which notice of said application for patent was published in the newspaper. Thomas Pells. ¥OEMS IN PATENT PKOCEBDINGS. 1393 Subscribed and sworn to before me, this 5th day of De- cember, A. D. 1900, and I hereby certify that the foregoing affidavit was read to the said Thomas Pells previous to his name being subscribed thereto; and that deponent is a re- spectable person, to whose affidavit full faith and credit should be given. Geokge Westekvelt, (Seal.) Notary Public. (10) Notice ty Register that Adverse Claim lias leen Filed. Depaetment of the Interior, United States Land Office, Salt Lake City, July 31, 1900. - Westervelt <& Snyder, Attorneys for Thomas Pells, Salt Lake City: SiEs: — Tou are advised that on July 31, 1900, there was filed in this ofHce, during the statutory period provided therefor, the adverse claim of U. 8. Mining Company, for Alice claim, against the issuing of patent to Thomas Pells, for Rough Wrestler mining claim. Now, therefore, under section 2326, Eevised Statutes of the United States, and paragraph 85 of the regulations thereunder, approved June 24, 1899, " the party who filed the adverse claim will be required within thirty days from the date of such filing to commence proceedings in a court of competent jurisdiction to determine the question of right of possession, and to prosecute the same with reasonable diligence to final judgment, and that, should such adverse claimant fail to do so, his adverse claim will be considered waived, and the application for patent be allowed to pro- ceed upon its merits." Very respectfully, Frank D. Hobbs, Eegister. (Same notice was given that adverse had been filed for Sanders No. 2.) 8S 1394 APPENDIX 0. (11) Protest and Adverse Olmm. United States Land Office, State of Utah, ) Salt Lake City. j ®^- In the matter of application of Thomas Pells for a United State patent for the Eough Wrestler lode or mining claim, and the land and premises appertaining to said mine, situated in the West Mountain Mining District, in Salt Lake County, State of Utah. To the Register and Receiver of the United States Land Office at Salt Lake City, and to the Above^amed Applicant for Patent for the Rough Wrestler Lode: Tou are hereby notified that United States Mining Com- pany, a corporation duly organized and existing under and by virtue of the laws of the State of Maine, by its duly ap- pointed and authorized agent and attorney, W. M. Bradley, the lawful owner, and entitled to the possession of one thousand and fifty (1050) feet of the said Eough Wrestler lode or mine described in said application, as shown by the diagram posted on said claim, and the copy thereof filed in the land office with said application, and as such owner, this contestant, the said United States Mining Company, does protest against the issuance of a patent thereon to said ap- plicant, and does dispute and contest the right of said appli- cant therefor. And this contestant does present the nature of its adverse claim, and does fully set forth the same in the affidavit hereto attached, marked " Exhibit A," and the further ex- hibits thereto attached, and made part of said affidavit. The said United States Mining Company, by its said agent and attorney, W. M. Bradley, therefore respectfully asks the said Eegister and Eeceiver that all further proceedings, in the matter be stayed until a final settlement and adjudi- cation of the rights of this contestant can be had in a court of competent jurisdiction. July 30th, 1900. United States Mining Company, By W. M. Beadlet, its agent and attorney in fact. Exhibit A. State op Utah, County of Salt Lake, f ®^ W. M. Bradley, being first duly sworn, deposes and says, that he is a citizen of the United States, now residing in Salt Lake City, Utah; that he is the duly authorized agent rOEMS IN PATENT PEOCEEDINGS. 1395 and attorney of the contestant and protestant named in, and who subscribed the notice and protest hereto annexed. Af- fiant further says that the said contestant is the owper by purchase and in possession of the Alice lode or vein of quartz and other rock in place, bearing gold, silver, lead and other metals. That the said lode is situated in the West Mountain mining district, Salt Lake county, State of Utah. This aflHant further says, that on the day of location, the premises hereinafter described were mineral lands of the public domain, and entirely vacant and unoccupied, and were not owned, held or claimed by any person or persons as mining ground or otherwise, and that while the same were so vacant and unoccupied and unclaimed, to wit: on the 14th day of May, 1888, A. F. Holden, being a citi- zen of the United States, entered upon and explored the premises, discovered and located the said Alice lode and oc- cupied the same as mining claims. That the said premise? so located and appropriated consist of fifteen hundred (1500) feet in a northeasterly direction, and three hundred (300) feet in a southerly direction, as will fully appear by refer- ence to the notice of location-, a duly certified copy whereof is hereunto annexed, marked " Exhibit B," and hereby made a part of this affidavit. That the locator of said lode caused said notice to be filed and recorded in the proper books of record in the Eecord- er's office in said district on the 15th day of May, 1888. And affiant further says, that said locator, in all respects, complied with every custom, rule, regulation and require- ment of the mining laws, and every rule and custom estab- lished and in force in said West Mountain mining district, and thereby became and was the owner (except as against the paramount title of the United States) and the rightful possessor of said raining claim and premises. And that said locator and his grantees, including this contestant, have con- tinuously been, and that this contestant now is in possession of said premises, working and developing the same. That, by chain of a mesne conveyances, the record title in and to said mining premises is now in this contestant, as will appear by reference to the abstract of title and paper hereto attached, marked "Exhibit D," and made a part of this af- fidavit. And this contestant is now in the actual, quiet and peaceable possession of all of said mining premises. Affiant further says, the said liough Wrestler lode, as ^hown by the notice and diagram posted on said claim, and the copy thereof filed in the United States Land Office at 1396 APPENDIX C. said Salt Lake City, with said application for a patent, crosses and overlies said Alice lode, and embraces about 1050 feet in length by about 160 feet in width of the said Alice lode, the property of this contestant, as fully appears by reference to the diagram or map duly certified by J. Fewson Smith, Jr., United States Deputy Surveyor, hereto attached, marked " Exhibit C," and which diagram presents a correct description of the relative location of the said Alice lode, and of the pretended Kough "Wrestler lode. AiEant further says, that he is informed and believes that said applicant for patent well knew that this contest- ant was the owner in possession and entitled to the pos- session of so much of said mining ground embraced within the survey and diagram of said application, as he herein- before stated, and this contestant is entitled to all the ores and minerals in said Alice lode, and all that may be con- tained within a space of one hundred and fifty (150) feet on each side of said Alice lode. And aflEiant further says, that this protest is rnade in en- tire good faith, and with the sole object of protecting the legal rights and property of the contestant in the said Alice lode and premises. W. M. Beadlbt. Subscribed and sworn to before me this 30th day of July, A. D. 1900. Wm. Pischel, ;^Seal.) Notary Public. The same adverse claim, with Exhibit " A " attached, ex- cept as to description of conflict area, was filed for the Sanders No. 2 by the same adverse claimant. Within thirty days from the filing of these adverse claims, suit was commenced upon each of them in the state court. The pleadings, findings and decree in one of these suits are given in fall, j)ost, this subhead, h, p. 1399. (12) Statement of Fees and Charges. State of Utah, County of Salt Lake, ^ ^^ Thomas Pells being first duly sworn according to law, deposes and says, that he is the applicant for patent for the " Kough Wrestler " lode in West Mountain Mining District, FOEMS IN PATENT PEOCEEDINGS. 1397 County of Salt Lake, State of TJtah, under the provisions of Chapter six of Title thirty-two of the Revised Statutes of the United States, and that in the prosecution of said applica- tion he has paid out the following amounts, viz. : To the credit of the Surveyor-General's Office, Fifty Dollars; for surveying. Fifty Dollars ; for filing in the local Land Office, Ten Dollars; for publication of notice. Twenty-five Dollars; and for the land embraced in claim, Twenty Dollars. (Jurat.) Thomas Pells. (13) Application to Purchase. To the Register and Receiver, United States Zand Office at Salt Lake City, Utah: The undersigned, claimant under the provisions of the Eevised Statutes of the United States, Chapter Six, Title Thirty-two, and legislation supplemental thereto, hereby applies to purchase that Mining Claim known as the Rough Wrestler, on Sections 35 and 2, ia Township Nos. 3 and 4 South of Eange JSTo. 3 West of Salt Lake meridian, desig- nated as Mineral Survey No. 3934, said Mineral Survey ex- tending 1054.1 linear feet in length along said Rough Wrest- ler vein or lode, but expressly excepting and excluding from this application all that portion of the ground embraced in mining claims or surveys designated as Lots Nos. 57, 58 and 88, and also all that portion of any vein or lode the top or apex of which lies inside of said excluded ground ; said lode raining claim embracing 3.905 acres in West Mountain Min- ing District, in the County of Salt Lake and State of Utah, as shown by the survey thereof, and hereby agrees to pay therefor Twenty Dollars, being the legal price thereof. Dated April 7, 1901. Thomas Pells. I, Frank D. Hobbs, Register of the Land Office at Salt Lake City, Utah, do hereby certify that the aforesaid Min- ing Claim or Mineral Survey No. 3934 as applied for above, is subject to entry by the above-named applicant; the area of said lode mining claim being 3.905 acres, and the legal price thereof Twenty Dollars. April 7, 1901. Feank D. Hobbs, Register. 1398 APPENDIX 0. (In Duplicate.) (14) Eeceiver's Beceipt. (Duplicate to be given the purchaser.) Mineral Entry No. 3083. ) United States Land Office, V at Salt Lake City, Utah, Mineral Survey No. 3934. ) April 9, 1901. Eeceived from Thomas Pells the sum of Twenty and no-100 ($20.00) dollars, the same being payment in full for the area embraced in that Mining Claim known as the Eough Wrestler, Sections 35 and 2, in Townships Nos. 3 and 4 S. of Eange No. 3 W. of Salt Lake meridian, desig- nated as M. S. No. 3934, said M. S. No. 3934 extending one thousand and fifty-four 1-10 (1054.1) feet in length along said Rough Wrestler vein or lode, expressly excepting and excluding from this sale and entry all that portion of the ground embraced in mining claims or surveys designated as Lots Nos. 57, 58 and 88, known respectively as the Black Hawk, Spanish and Buckeye lode minmg claims, patented, and also all that portion of any vein or lode the top or apex of which lies inside of said excluded ground ; said lode claim as entered embracing 3.905 acres, in the West Mount- ain Mining District, in the County of Salt Lake and State of Utah, as shown by the survey thereof. $20.00. Geo. A. Smith, Eeceiver. (15) Begister^s Final Certificate of Entry. Mineral Entry No. 3083. ) United States Land Office, >■ at Salt Lake City, Utah, Mineral Survey No. 3964. ) April 9, 1901. It is hereby certified that in pursuance of the provision of the Eevised Statutes of the United States, Chapter Six, Title Thirty-two, and legislation supplemental thereto, Thomas Pells, whose P. O. Address is Bingham, Salt Lake County, Utah, on this day purchased that mining claim known as the Eough Wrestler lode mining claim, in sec- tions 35 and 2, Townships Nos. 3 and 4 S. of Eange No. 3 W. of Salt Lake meridian, designated as Mineral Survey No. 3934, said M. S. No. 3934 extending 1054.1 feet in length along said Eough Wrestler vein or lode, expressly excepting and excluding from said purchase all that portion of the ground embraced in mining claims or surveys desig- FORMS IN PATENT PEOOEEDINGS. 1399 nated as Lot !N"o. 5Y, Lot No. 58 and Lot No. 88 known re- spectively as the Black Hawk, Spanish and Buckeye lode claims, and also all that portion of any vein or lode the top or apex of which lies inside of said, excluded ground ; said lode claim, as entered, embracing 3.905 acres in the "West Mountain Mining District, County of Salt Lake and State of Utah, as shown by the plat and field-notes of survey thereof, for which the said party first above named has this day made payment to the Receiver in full, amounting to the sum of twenty dollars. 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 Thomas Fells if all be found regular. Geoege A. Smith, Eeceiver. h Papers m Couet. (1) Complaint. In the District Court for the Third Judicial District of the State of Utah, in and for Salt Lake County. Adveesb Suit. Alice vs. Eough "Wrestler, Complaint. United States Mining Company, a corporation. Plaintiff, vs. Thomas Pells, Defendant. The plaintiff above named complains of the above de- fendant and alleges and shows to the court: 1. That the plaintiff is a corporation duly organized and ex- isting under and by virtue of the laws of the State of Maine. 2. That on the 14th day of May, 1888, the plaintiff's prede- cessors in interest were and the plaintiff and its grantors ever since have been the owners, and the plaintiff now is the owner (subject only to the paramount title of the United States) and in the possession and entitled to the possession, by virtue of the discovery of mineral thereon and location thereof made on said 14th day of May, 1888, of that certain mine and mining claim, containing a lode of rock in place bearing gold, silver, lead and other precious metals, situate in "West Mountain Mining District, Salt Lake County and State of Utah, called the Alice Lode Mining Claim, and more particularly described as follows: 1400 APPENDIX 0. Commencing at corner No. 1 of said Alice claim, and running thence north 28 deg. 00' east 1500 feet to corner l^o. 2; thence south 62 deg. 00' east 300 feet to corner iN'o. 3; thence south 28 deg. 00' west 1500 feet to corner No. 4; thence north 62 deg. 00' west 300 feet to corner Iso. 1, the place of beginning. From said corner No. 3, corner No. 4 of the Eough "Wrest- ler claim bears south 52 deg, 53' west 88.5 feet. 3. That since the location as aforesaid of said Alice^Mining Claim, the plaintiff, with its predecessors and grantors, has done and performed not less than one hundred dollars' worth of labor and improvements in and upon said mining claim during each and every year for the development of said claim, and performed each and every act required by law for the purpose of holding said claim. 4. That the defendant, claiming to be the owner of an al- leged adjacent mining claim, called the Eough Wrestler lijining Claim, on or about the 9th day of August, 1899, wrongfully caused said alleged Rough Wrestler Mining Claim to be so surveyed as to cross over and overlap the Alice Mining claim and lode, and include a portion thereof described as follows: Commencing at corner No. 1 of said alleged Eough Wrestler claim, and running thence south 65 deg. 19 min. east 163.3 feet to the intersection of the southerly end line of said alleged Eough Wrestler claim with the easterly side line of said Alice claim; thence north 28 deg. 00 min. east 1039.6 feet to the intersection of the easterly side line of said Alice claim with the northerly end line of said alleged Eough Wrestler claim; thence north 65 deg. 19 min. west 37.3 feet to corner No. 4 of said alleged Eough Wrestler claim; and thence south along the westerly side line of said alleged Eough Wrestler claim 34 deg. 51 min. west 1054.4 feet to said corner No. 1 of said Eough Wrestler claim, the place of beginning, containing 2.39 acres. 5. That on or about the 2nd day of June, 1900, the de- fendant filed the field notes and a diagram of said survey of the alleged Eough Wrestler mining claim, and also an application for a United States patent for said mming claim, in the United States Land OflBce, at Salt Lake City, Utah, and caused the Eegister of said Land Office to give notice of said application for patent, by publication, as required by law. 6. That in and by said application for patent, the defend- ant wrongfully set up and alleged that he was the owner and in the possession of the whole of the alleged Eough FORMS TN PATENT PEOCEEDINGS. 1401 Wrestler mining claim, inclusive of the premises last above described, and the lode therein, part of the Alice raining claim and lode, and the property, and in possession of the plaintiff. 7. That the plaintiff, on or about the 31st day of July, 1900, and during the sixty days' period of publication of ithe notice of application for patent for said alleged Rough Wrestler mining claim, filed in said Land Office under oath, a protest and adverse claim to said application, and for said last described premises and the lode therein, in due form, and showing the nature, extent and boundaries of the ad- verse claim of the plaintiff, and thereupon proceedings on said application, in said Land Office, were and are stayed to await the determination, by a court of competent juris- diction, of the right of possession to said last described premises, and the rights of the respective parties therein and thereto, and to that end the plaintiff brings this suit, the period of thirty days not having elapsed since the filing •of said protest and adverse claim. 8. That the defendant maintains and prosecutes said ap- plication for patent for the alleged Eough Wrestler mining claim, and thereby the title and possession of plaintiff in and to the last above-described premises, being the area thus brought in conflict between the Alice mining claim, and the •alleged Hough Wrestler mining claim, are wrongfully im- peached, clouded and incumbered, and the value of plaint- iff's estate and property therein greatly depreciated. 9. And the plaintiff, on information and belief, alleges that if said alleged Rough Wrestler claim ever had any valid ■or legal existence the claimants thereof failed to do or per- form or cause to be done or performed thereupon during or for the year 1887 the annual labor or assessment work or improvements required by law in order to avoid a forfeiture thereof, and thereby and because of such failure have for- feited the same and did not resume possession of or work upon the same prior to May 14th, 1888, when said last Alice lode mining claim was located. The plaintiff therefore prays judgment and relief against ■the defendant: That the plaintiff is the owner and lawfully in and en- titled to the possession of the last above-described premises, the area in conflict between the Alice mining claim and the alleged Eough Wrestler mining claim, and the lode therein ; and quieting and confirming plaintiff's (title thereto and pos- session thereof. 1402 APPENDIX 0. That the defendant has no title to or right of possession of said conflict area or the lode therein, or any part thereof. That the defendant be restrained, pending the action, and upon trial perpetually, from entering in or on said conflict area or the lode therein, or any part thereof, or mining in, or extracting any ores or minerals therefrom, and from in any way interfering with the possession thereof. Also that plaintiff have all other and further proper relief, with costs of suit. W. M. Eeadlet, Plaintiff's Attorney. (Duly verified.) (2) Answer. [Title of Court and Cause.) Isow comes the defendant in the above entitled action,, and answering the complaint of plaintiff filed herein. Admits the corporate character of plaintiff. Admits that on or about the 9th day of August, 1899, the defendant caused the "Rough Wrestler" mining claim to be surveyed as alleged in the complaint, but denies that said survey was wrongful; Admits that he filed the field notes and diagram of said survey and application for patent for said mining claim, and caused notice thereof to be published as alleged in the com- plaint; Admits that he maintains and prosecutes said application for patent for said "Eough Wrestler" mining claim; and said defendant Denies each and every allegation of said complaint not herein specifically admitted or qualified. Further answering said complaint, this defendant alleges: 1. That he is and at all times herein mentioned was, a. citizen of the United States. 2. That on and since the 2nd day of January, 1886, the defendant, with his predecessors and grantors, was, ever since has been and now is the owner (subject only to the paramount title of the United States) in the possession and entitled to the possession, by virtue of a discovery of mineral thereon, and valid location thereof according to law made on January 2nd, 1886, of that certain mining claim contain- ing a lode or vein of rock in place bearing gold, silver and other valuable minerals, known as the " Kough Wrestler," situated in West Mountain Mining District, Salt Lake County, Utah, particularly described as follows, to wit: Beginning at rost 1, a corner of the claim, and running FOEMS IN PATENT PEOCKEDINGS. 1403 thence S. 65 D. 19' E. 230 feet to Post 2; thence E". 33 D. 37' E. 1050.6 feet to Post 3; thence JST. 65 D. 19' W. 207 feet to Post 4; thence S. 34 D. 51' W. 1054.4 feet to Post 1, place of bef^inning. From Post 1 of said claim the S. W. Cor. of Sec. 35, T. 3 S., P. 3 W.,Salt Lake Meridian, bears N. 54 D. 38' W. 1139.2 feet. Excluding, however, from said described area, the follow- ing areas in conflict, to wit: With Black Hawk Lode, U. S. Lot 57, beginning on E. side line of Kough "Wrestler N. 59 D. E. 59.7 feet from Cor. 2 of Black Hawk, thence N. 33 D. 37' E. 460.9 feet to Post 3 of Eough Wrestler; thence S. 59 D. W. 474.5 feet to Cor. 3 of Black Hawk; thence S. 31 D. W. 200 feet to Cor. 2 of Black Hawk; thence JS!". 59 D. E. 59.7 feet to beginning. With Spanish Lode, U. S. Lot 58, beginning on the N. end line of Eoagh Wrestler JST. 65 D. 19' W. 21.4 feet from^ Post 3 of Eough Wrestler, thence K 65 D. 19' W. 75.4 feet; thence S. 31 D. E. 62.3 feet; thence K 59 D. E. 42.6 feet to beginning. With Buckeye Lode, U. S. Lot 88, beginning at Post 4 of Eough Wrestler, thence S. 34 D. 51' W. 75.4 feet; thence N. 37 D. 30' E. 88.3 feet; thence N. 65 D. 19' W. 34.6 feet to beginning. 3. That since the location of said "Eough Wrestler," a& aforesaid, the defendant and his predecessors and grantors have done and performed not less than one hundred dol- lars' worth of labor and improvements on said mining claim during each and every year to the present time. Wherefore, defendant prays judgment of this court: First, That he be decreed to be the owner, and in posses- sion and entitled to the possession of the whole of said "Eough Wrestler" mining claim, excepting the conflicts hereinbefore described, as against said plaintiff and all other persons. Second, For such relief as may be just and equitable and for his costs. Westeevelt & Sntdee, (Duly verified.) Attorneys for Defendant. (3) 8twulation. {Title of Court and Cause.) It is hereby stipulated by the parties hereto, by their re- spective attorneys, that Findings of Fact, Conclusions of Law and Decree may be entered in this action in favor of said defendant and against said plaintiff for the whole of the 1404 APPENDIX C. area in conflict as described in the pleadings herein. And that plaintiff may have a decree for the remainder of its olaim not in conflict with the claim of defendant. Dated November 10th, 1900. W. M. Beadlet, Attorney for Plaintiff. Westeevelt & Sntdee, Attorneys for Defendant. (4) Findings. iTifle of Court arid Cause.) Findings of Fact and Conclusions of Law. This cause coming on regularly for trial this 30th day of November, 1900, in open court, W. M. Bradley, Esq., appear- ing for said plaintiff and Westervelt & Snyder appearing on behalf of said defendant, a stipulation of the parties, by their respective attorneys, having been' duly and regularly filed whereby it is agreed that defendant may have judgment for the area in conflict herein, and that plaintiff have judgment for the remainder of its claim, the court having heard the proofs offered in support of the respective parties, and being fully advised in the premises, now makes and files the fol- lowing Findings. 1st. That defendant is and at all times herein mentioned was a citizen of the United States. 2d. That on and since the second day of January, 1886, the said defendant, with his predecessors and grantors, was, ever since has been and now is, the owner (subject only to the paramount title of the United States) and in possession and entitled to the possessioa, by virtue of a discovery of mineral thereon, and a valid location thereof according to law, made on said January 2d, 1886, and of performing dur- ing each and every year since said time not less than one hundred dollars' worth of labor and improvements on said mining claim, of that certain mining claim, containing a lode or vein of rock in place, bearing gold, silver and other valuable minerals, known as the " Kough Wrestler," situated in A\'^est Mountain Mining District, Salt Lake County, Utah, particularly described as follows, to wit: (Description of the Rough Wrestler, excluding conflict areas as described in answer.) FOEMS IN PATENT PEOOEEDINGS. 1405- 3rd. That the plaintiff is a corporation organized and ex- isting under and by virtue of the laws of the State of Maine. 4th. That on the 14th day of May, 1888, the plaintiffs- predecessors in interest were, and the plaintiff and its grant- ors have ever since been the owners, and the plaintiff now is the owner (subject only to the paramount title of the- United States) and in possession and entitled to the posses- sion of that certain mine and mining claim containing a lode or vein of rock in place bearing silver and other pre- cious metals, situate in West Mountain Mining District, Salt Lake County, Utah, called the " Alice " lode raining claim, and more particularly described as follows: (Description of Alice claim, excluding conflict area with Eough Wrestler as described in complaint.) Conclusions of Law. As conclusions of law from the foregoing facts the court finds — ■ First. That the defendant is, and plaintiff is not, entitled to the area in conflict in this action. Second. That defendant is entitled to a patent to the said Hough Wrestler mining claim, as described in these find- ings. Third. That plaintiff is entitled to a patent to the said Alice raining claim as described in these findings, except the area in conflict with said Eough Wrestler as therein described. Let the decree be drawn accordingly. Done in Open Court this 30th day of November, 1900. Ogden Hiles, Judge. (5) Decree. (Title of Court ana Cause.) This cause having come on regularly for trial this 30th day of November, 1900, in open Court, pursuant to the- stipulation of the parties, and the evidence offered in sup- port of the allegations in the pleadings, and the Court hav- ing made and filed its Findings of Fact and Conclusions of Law herein, and the sarae being sufficient in law to entitle the defendant to recover in this action as to the conflict area, and for plaintiff to recover as to remainder of its claim, now, on motion of Westervelt & Snyder, attorneys. for defendant, it is 1406 APPENDIX C. Ordered, adjudged and decreed, that the defendant, Thomas Pells, is the owner (subject only to the paramount title of the United States) and in possession and entitled to the possession of that certain mining claim in West Moun- tain Mining District, Salt Lake County, Utah, to wit: (De- scription of the Eough Wrestler, excluding conflict area as described in answer.) And defendant is entitled to a patent to said described tract of land from the United States, and his title to the same is hereby quieted and confirmed; and it is further Ordered, adjudged and decreed, that plaintiff is the owner (subject only to the paramount title of the United States), lawfully in possession, and entitled to the possession of that portion of the Alice lode mining claim in said West Moun- tain Mining District, Salt Lake County, Utah, not in con- flict with said Kough Wrestler, the same, together with said conflict, being particularly described as follows: (Descrip- tion of Alice claim, excluding conflict area with Rough Wrestler as described in complaint.) And that plaintiff's title to said described tract of land is hereby quieted and confirmed. Done in Open Court this 30th day of November, 1900. Ogden Hiles, Attest: District Judge. David C. Dctnbae, Clerk, By F. W. Little, Deputy. The same pleadings, stipulation, findings and decree, ex- cept as to description, were entered in the suit based on the adverse claim filed on behalf of the Sanders No. 2. II. Coal Land i?"oems. a. Declaratoet Statement, and AccoMPAjfTiNG Papers, Undeb Peeference Right. (1) Declaration of Intention to Purchase Coal Lands. I, M. H., of Salt Lake City and County, State of Utah, do solemnly swear that I am over twenty-one years of age and a citizen of the United States; that I have never, either as an individual or as a member of an association, held or pur- chased any coal lands under the provisions of the Revised Statutes of the United States relating to the sale of coal lands of the Ignited States, and I do hereby declare my in- tention to purchase under the provisions aforesaid, the COAL LAND FOEMS. 1407 Northeast quarter of Section twenty-four (24), Township 37 South, Range 11 West of the Salt Lake Meridian, of lands subject to sale at the district land office at Salt Lake City, Utah, and that I came into possession of the said tract on the 10th day of September, A. D. 1901, and have ever since remained in actual possession continuously; that I have located and opened a valuable coal mine thereon, and have expended in labor and improvements on said mine the sum of Fifty Dollars, said laborand improvements consisting of a tunnel 4x7x12 feet long, run in a southerly direction, with its mouth on the southeast quarter of said piece of land ; and I do solemnly swear that * I am not well acquainted with the character of said described land, and with each and every legal subdivision thereof, but that my duly con- stituted attorney, B. S., is well acquainted with the charac- ter of said described land, and with each and every legal subdivision thereof, having frequently passed over the same; and that his knowledge of said land is such as to enable him to testify understandingly with regard thereto. So help me God. (Jurat.) M. H. * "When the application is made by the applicant in per- son, papers (2) and (3) and the remainder of this declaratory statement should be omitted and the following substituted : " I am well acquainted with the character of said de- scribed land, and with each and every subdivision thereof, having frequently passed over the same; that my knowledge of said land is such as to enable me to testify understand- ingly with regard thereto; that there is not, to my knowl- edge, within the limits thereof any vein or lode of quartz or other rock in place bearing gold, silver or copper, and there is not, within the limits of said land, to my knowledge, any valuable deposit of gold, silver or copper. So help me God." (2) Special Power of Attorney. Know all men by these presents: That I, M. H., of Salt Lake City and County, State of Utah, have made, consti- tuted and appointed, and by these presents do make, con- stitute and appoint B. S., of Salt Lake City and Count}', State of Utah, my true and lawful attorney, for me and in my name, place and stead, to file with the Register of the United States Land Office at Salt Lake City, Utah, a declar- atory statement and affidavit for purchase and to make 1408 APPENDIX C. entry and payment for coal lands of the United States, sub- ject to entry under the Revised Statutes of the United States, Title XXXH, Chapter Six, and to take any and all steps that may be usual and necessary to protect and conserve my rights and to procure patent to the JSTortheast quarter of Section Twenty-four (24) in Township 37 South of Range 11 West of the Salt Lake Meridian. Giving and granting unto my said Attorney full power and authority to do and perform all and every act and thing whatsoever requisite and necessary to be done in and about the premises, as fully to all intents and purposes as I might or could do if personally present, hereby ratifying and con- fii'ming all that my said Attorney shall do or cause to be done by virtue of these presents. In witness whereof, I have hereunto set my hand this 15th day of September, A. D. 1901, Signed in presence of G. W. M. H. (Acknowledgment.) (3) NoTMnineral Affidavit — By Attorney. State of Utah, ) County of Salt Lake, j ^^• I, B. S., being the duly authorized attorney of M. H., do hereby solemnly swear that I am well acquainted with the character of the land embraced in the Northeast quarter of Section Twenty-four (24), Township 37 South of Range 11 West of the Salt Lake Meridian, and with each and every subdivision thereof, having frequently passed over the same; that my knowledge of said land is such as to enable me to testify understandingly with regard thereto ; that said land is chiefly valuable for coal; that there is not, to my knowl- edge, within the limits thereof, any vein or lode of quartz or other rock in place bearing gold, silver or copper ; and that there is not within the limits of said land, to my knowl- edge, any valuable deposit of gold, silver or copper. So help me God. (Jurat.) B. S. (4) Non-mineral Affidavit — By Two Witnesses. State of Utah, ) County of Salt Lake, j ^^• We, E. D. B. and J. S. S., do solemnly swear that we are well acquainted with the character of the land covered by COAL LAND FOEMS. 1409 the northeast quarter of Section Twenty-four (24), Town- ship 37 South, Range 11 "West of the Salt Lake Meridian, and with each and every legal subdivision thereof, having frequently passed over the same; that our knowledge of said land is such as to enable us to testify understandingly with regard thereto ; that said land is chiefly valuable for coal ; that there is not, within the limits of said land, to our knowledge, any valuable deposit of gold, silver or copper. So help us God. (Jurat.) E. D. B. J. S. S. (5) Final Application to Purchase. I, M. H., claiming under the provisions of the Eevised Statutes of the United States relating to the sale of coal lands of the United States, the right of purchase to the Northeast quarter of section twenty-four (24), in township 37 South of Eange 11 West of the Salt Lake Meridian, sub- ject to sale at the district land office at Salt Lake City, Utah, do solemnly swear that I have never had the right of purchase under the aforesaid provisions of law either as an individual or as a member of an association, and that I have never held any other lands under its provisions; I fur- ther swear that I have expended in developing coal mines on said tract in labor and improvements the sum of five hun- dred dollars, the nature of such improvements being as fol- lows: A tunnel 4x7 feet by 70 feet long, run in a southerly direction, with its mouth on the southeast quarter of said tract of land ; that I am now in the actual possession of said mines, and make the entry for my own use and benefit, and not directly or indirectly for the use and benefit of any other party; and I do furthermore swear that I am well acquainted with the character of said described land, and with each and every subdivision thereof, having frequently passed over the same; that my knowledge of said land is such as to enable me to testify understandingly with regard thereto; that the same is chiefly valuable for coal; that there is not, to my knowledge, within the limits thereof, any vein or lode of quartz or other rock in place bearing gold, silver, or copper, and that there is not within the limits of said land, to my knowledge, any valuable deposit of gold, silver, or copper. So help me God. (Jurat.) M. H. 1410 APPENDIX C. b. Cash or Private Entry. (1) Application to Purchase. I, M. H., hereby apply, under the provisions of the Eevised Statutes of the United States relating to the sale of coal lands of the United States, to purchase the N". E. quarter ot section 24, in Township 37 South of Eange 11 West of Salt Lake meridian, in the district of lands subject to sale at the land office at Salt Lake City, Utah, and containing 160 acres; and I solemnly swear that no portion of said tract is in the possession of any other party; that I am twenty-one years of age, and have declared my intention to become a citizen of the United States, and have never held nor purchased lands under said act, either as an individual or as a member of an association; and I do further swear that * I am well acquainted with the character of said described land, and with each and every legal subdivision thereof, having fre- quently passed over the same; that my knowledge of said land is such as to enable me to testify understandingly with regard thereto; that said land contains large deposits of coal anc! is chiefly valuable therefor; that there is not to ray knowledge within the limits thereof any vein or lode of quartz or other rock in place bearing gold, silver, or copper, and that there is not within the limits of said land, to ray knowledge, any valuable deposit of gold, silver or copper. So help rae God. (Jurat.) M. H. * Where applicant is not farailiar with character of land, leave out remainder of this application and substitute mat- ter in paper (1), ante, this subd. a, p. 1407, followed by paper (2), Id. (2) Non-mineral Affidavit. Same as (4), ante, this sub-head, subd. 'a, p. 1408. (3) Final Application to Purchase. Same as (5), ante, this sub-head, subd. a, p. 1409. SPECIAL KnDEX to MAPS AND DIAGRAMS. References are to pages. Fig. No. 1. From Mt. Diablo Mining Co. v. Callison (5 Sawy. 439, 17 Fed. Cas. 918), 445. 2. From Harrington v. Chambers (3 Utah, 94), 447. 3. From Royston v. Miller (76 Fed. Rep. 50), 450. 4 Assumed to illustrate Hall v. Kearney (18 Colo. 531, 33 Pac. Rep. 373), 451. 5. From Flag Staff S. M. Co. v. Tarbet (98 U. S. 463, 35 L. ed. 253), 454. 6. From Del Monte M. Co. v. Last Chance M. Co. (171 U. S. 55, 43 L. ed. 72), 663. 7. From Eureka M. Co. v. Richmond M. Co. (4 Sawy. 302, 8 Fed. Cas. 819, 830), 671. 8. From Le Conte (Elements of Geology, 331), p. 631. 9. From Id. 233, 681. 10. From St. Louis M. Co. v. Montana M. Co. (104 Fed. Rep, 664), 695. 11. From Bunker Hill & S. M. Co. v. Empire State Idaho M. & D. Co. (106 Fed. Rep. 471), 698. 12. Assumed. 699. 13. From Del Monte M. & M. Co. v. Last Chance M. Co. (171 U. S. 55, 43 L. ed. 73) with lineg extended, 703. 14. Assumed, 704. 15. Claims involved in Flag Staff S. M. Co. v. Tarbet, taken from U. S. Surveyor's office, 716. 16. From King v. Amy & Silversmith Con. M. Co. (152 U. S. 330, 38 L. ed. 151, 153), 718. 17. From Tyler M. Co. v. Last Chance M. Co. (71 Fed. Rep. 848), 724. 18. From Barringer & Adams on Mines, p. civ, 737. ' 19. Assumed, 737. 30. From Del Monte M. Co. v. New York & Last Chance M. Co. (66 Fed. Rep. 213), 729. 21. From Fitzgerald v. Clark (17 Mont. 103, 43 Pac. Rep. 273), 732 22. From Walrath v. Champion M. Co. (68 Fed. Rep. 554), 739. 33. From St. Louis M. & M. Co. v. Montana M. Co. (104 Fed. Rep. 664), 743. 24. From Carson City G. & S. M. Co. v. North Star M. Co. (73 Fed. Rep. 597). 748. 25. From Doe v. Sanger (83 Cal. 203, 33 Pac. Rep. 365), 751. 2fi. Ontario Group from Crown Point v. Ontario, unreported, 754. 27. Assumed, 757. 28. From Catron v. Old (33 Colo, .433, 48 Pac. Rep. 688), 760. 29. From St. Louis M. Co. v. Montana M. Co. (104 Fed. Rep. 664), 763. 1412 SPECIAL INDEX TO MAPS AND DIAGRAMS. References are to pages. Fig. No. 30. From Roxanna M. Co. v. Cone (100 Fed. Rep. 168), 768. 31. From Tyler M. Co. v. Sweeney (79 Fed. Rep. 279), 771. 82. From Lindley & Emmons (Lindley, Mines. 713), 773. 33. From Bunker Hill & Sullivan M. Co v. Empire State Idaho M. & D. Co. (109 Fed. Rep. 538), 774 84. From Iron Silver M. Co. v^Elgin M. Co. (" Horseshoe Case '') (118 U. S. 196, 30 L. ed. 66), 776. 35. From Lindley on Mines, 395-97, p. 779. 36. Same as Fig. No. 20, p. 790. INDEX. References are to sections. ABANDONMENT (see Annual Labor; Forfeiture and Abandon- ment) — what is, full, 488-509. New Mexico statute as to, Appendix B, p. 1338. when intent the test. 507-511, 540-543. early views of courts as to, 510, 513, 514. failure to work is equivalent to, 510, 513, 514. when question of law or fact, 511. must be proved, burden, 511, 726. act and intent as to, 512. evidence of, 512. of portion of claim by amendment to application for patent, 518. must be claimed, 513, 514, 517, 525, 528, 542, 560. by one co-tenant to another, 514. to the United States, full, 540-547. effect of voluntary, on resumption, 545. deed to alien not, or forfeiture, 545, 1096. when sale not, 517. of tunnel rights, 555. special definition of, 540, 541. of grant, 925. of severed estates terminates severance, 1087. of lease, lessee's right to, 1159, 1222, 1224, 1238, 1357. ABSTRACT OF TITLE — must be filed with application for patent, 655. ACTS OF LOCATION (see Location; Location Notice; Record; Marking Boundaries). ADVERSE CLAIMS (see Adverse Suits; Adverse Possession; Ad- verse User; Protest) — distinction between, and protest, 675. who must file, proceedings in land office on, full, 675-685. nature and requirements of, contents, 676-678. character of land not proper question for, except, 677. substance, not form, important, 678. must state facts, sufficient, if true, to entitle claimant to conflict area, 678. must be sworn to, 678. plat showing conflict area as part of, 678. time for filing limited, 679. how time computed, 679. owner of conflicting surface must file, 676, 680, 681. who must file, surface claimants, 680. certain claimants need not file, 682, 693. tunnel claimants need not file, 683. effect where conflict area excluded by amendment, 685. 1414 INDEX. References are to sections. ABVERSE CLAIMS (continued) — effect of filing, 684 proceedings in court on, see Adversb Suets. diligent prosecution of, question for court, 729. conflicting surface owner must file, 681. mine claimant against town site, known lode against placer, co- owners need not file, 682. ADVERSE POSSESSION — laches of lessee, 1155. does not run under license, 1392. possession by co-tenant not, until actual ouster, 1431-1433. ADVERSE SUITS (see Advebse Claims; Judgments)— subject in full, 710-785. no federal question involved in, 708-710. jurisdiction as to, generally, 708, 710. court of general, has, 710. where suit properly commenced, state or federal court, but primarily in state court, 711. time for filing, essential and jurisdictional, 712. when deemed commenced, 713. form, nature and purpose of. 714, 715. pleading and practice in, full, 717-723. contents of complaint, answer, etc., 717-722. See Forms, Appendix C, pp. 1399-1406. Teplj not necessary. 718. citizenship of parties to be pleaded in, 719, 720. corporation under any of the states is citizen, 720. title may be strengthened after filing of, 731, 723. as many adverse claims as exist against one application may be joined in one, 723. trial, burden of proof, findings and judgment in, full, 724^729. each party must prove his title, 724. better title generally prevails in, 721. 725. must prove title good against government, 727. whether diligently prosecuted question for courts, 729. who may and who may not intervene in, 723. findings and judgment, contents, 727, 738. See Appendix C, pp. 1404- 1406. what verdict insufficient, 727. judgment of dismissal in, 729. ADVERSE USER— severance by, 970-977. AGENCY (see Co-tenants; Mining Partnership; Mininq Superin- tendent) — for purpose of location, when presumed, 272-274. AGRICULTURE PATENT (see Reservations; Patents)— reservations in, 56. ALABAMA (see Federal Statute, Appendix A, p. 1257) — mineral lands in, sold as agricultural, 153. ALASKA (see Federal Statute, Appendix A, pp. 1262-1367) — regulations regarding lands of, treated, 152. land office regulations concerning. Appendix A, p. 1267. ALCALDE — provision for, in early district rules, 77. INDEX. 1415 References are to sections. ALIEN'S (see Citizen; Citizenship; Office Found) — early legislation against Chinese, 259. location by, and citizen, effect, 260. ownership by, 82, 260. parents, children of, 244. location by, 260, 261. not an abandonment, 260-262. deed to, not an abandonment, 1096. ALLODIAL TITLE (see Rbgalian Right) — in United States, 2.i. in Mexico, 26. in Russia, 5. AMENDMENTS AND ADDENDA (see Location; Location Notice). full, 425-432. preliminary, whence the rule, 425. relates to first step, when, 425, 436, 430. relation of, generally, 435-430. when relates to date of amendment only, 436, 428, 439. reasons for permitting amendment, 436-438. when permitted after title questioned, 427, 731. when as of course, 431. to include overlapping claims, 491. filed by agents, 374. relocation by, 575-577, 898. to exclude conflict, area in adverse claim, 685. ANNUAL LABOR OR ASSESSMENT WORK (for state statutory provisions as to, see Appendix B, p. 1319 et seq.) — full, 475-498. by whom performed, 494. equitable owners or trustees, 458, 495. statutory requirements for, 475, 479, 487, 546. district rule requiring, 122, n., 476, 477. definition, 475. customs of miners as to, 476. state statutes requiring, see Appendix B. was required by Mexican law, 477. time in which to perform, each year an entirety, 478. when may be done outside of claim, 479. statute liberally construed, 479. whether tends to develop, the test, 479-486. on patented or unpatented ground, 479. claims held in common, 480-482, 486. whether tends to develop, a question of fact, 480, 488, 485. partitioned claim, 484. what sufficient as, 485, 486, 530. roads, houses, etc., 485, 486. compliance with federal statute sufficient, 489, 530, 533. work done by trespasser, when applied as, 489. excused by statute, special, 490. failure to do is question for courts, not land department except year previous to application for patent, 491. overlapping claim, 491. value of, 492, 530. not essential that it be paid for, 492. by equitable owner, 495. by receiver, 495. how proved, 496. 14:16 INDEX. References are to sections. ANNUAL LABOR OR ASSESSMENT WORK (continued) — failure to file proof not ground for relocation, 575. duty of each co-owner to do, 525, 537. forfeiture of interest only remedy between co-owners for non-per- formance of, 526. no assignment of, 528. only necessary until receiver's receipt, 493. APEX (see Veins; Extra-lateral Rights) — necessary to establish extra-lateral rights, 786-788. definition, use and meaning of term. 796-799, 801. when outcrop or highest point not, 797, 802. the rule of, as applied to broad vein, 800, 801, 804. priority as affecting ownership, 802-805. controlling value of, 806. value of, ignored, 843. cases, classified, 821, 860. crossing side lines, 821, 826-828. wholly within claim, 847, 860. crossing same line twice, 859. of blanket veins, 802. APEX RULE — common-law presumption of ownership. 766. theory of statute, 770. judicial apex, 807. APPLICANT FOR PATENT (see Application for Patent; Citizen- ship; Patent)— must be citizen, 254-256, 661. must be owner as shown by abstract of title, 664. APPLICATION FOR PATENT (see Citizenship; Patent; Notice 07 Application for Patent) — question of citizenship raised in. 269. must be received in order filed, 650. fees to be paid on, 651. papers to be filed on, list of, 655. See also Appendix C, pp. 1383 et seq. contents and form of, 656. See also Appendix C, pp. 1382 et seq. by whom made and sworn to, 657-659. trustees, 658, 659. by executor or administrator, 659. final entry on, 663, 733. for placer, 666. lode known to exist in placer. 666. what sufficient knowledge of lode, 667. all unknown lodes go to placer applicant, 666. burden of proving lode, 666. effect of, segregates land, 673. under statute of limitations, 672. whence the law relating to, 674. locator's estate good without, so long as annual labor performed, 466. when proof additional to judgment in adverse suit required on, 734. final entry, papers necessary, 663. See also Appendix C, pp. 1395- 1399. ' by whom, late land office rule criticised, 663. when and to whom receiver's receipt will issue, 664. for excessive claim not void, 641. INDEX. 14:17 References are to sections. ARIZONA (see State Statutes, Appendix B, pp. 1283-1339) — supreme court's criticism of statute of 1866, 103. reference to statute of, 111. copper mines in, 138. statutory provisions as to location, etc., Appendix B. contents and record of location notice, pp. 1283, 1293. discovery shaft and preliminary notice, p. 1294. equivalent of discovery sliaft, p. 1397; time for sinking, p. 1301. marking boundaries, p. 1298. amended location notice, p. 1302. as to relocation, p. 1303. location of placer, p. 1308. proof of assessment vpork, pp. 1319-1323. forfeiture of co-owner's interest, p. 1836. record of forfeiture notice as evidence, p. 1328. acknowledgment of contribution by co-owner, p. 1328. as to drainage, pp. 1331-1334. as to transfers of mining claims, p. 1339. see, generally, index to miscellaneous references, pp. 1364, 1365. ASPHALTUM — loca table as placer, 811. ASSESSMENT WORK (see Annual Labor or Assessment Work). ASSIGNMENT (see Leases). ATTACHMENT (see Fixtures). ATHENIANS' LAW — traces of, 8. ATTORNEY-GENERAL'S OPINION — on military reservation and mines and minerals in, 192. BARRIERS (see Drainage). BELGIAN MINING LAWS, 45, 46. BILLS OF SALE — as mode of transferring mining claims, 1132. BOUNDARIES (see Marking Boundaries) — excessive not void, 114. not necessary to maintain, 399. importance of correctly placing, 448, 449, 781, 783. controlling as to side veins, 885-888. effect of placing upon appropriated ground, 895, 898. BROAD VEIN — defined, 286. BUILDING STONE — a mineral, and looatable as placer, 314. BURDEN OF PROOF (see Evidence) — as to forfeiture for non-performance of annual labor, 736. as to forfeiture under lease, 1340. as to waste, 947. as to lode in placer, 666. as to authority of one mining partner to bind others, 1539, 1532, 1555. as to extra-lateral rights, 783. BUTTE CITY PATENT CASES — discussed, 311. 1418 INDEX. Beferences are to eectioDS. CALIFORNIA (see Appendix B, pp. 1283-1C39) — early statutes of, 63-67. statutory provisions as to location, etc., Appendix B. defining hydraulic mining, p. 1317. as to mining partnership, pp. 1335-1387. see, generally, index to miscellaneous references, pp. 1364, 1365. CANCELLATION OF ENTRY — does not restore land to public domain, 547. CANADA — how mineral lands acquired in, 169. size of claims in, 381, n., 315, n. definition of claim under laws of, 343. definition of mine in, 343. marking boundaries in. 383. development work, 497, n. CARDIGAN CASE, 1004. CERTAINTY (see Patent)— as to calls in reicord, 406-413. cerium est quod, cerium reddi potest, applied, 413. CHARACTER OF LAND — value as present fact the controlling factor, 701. how ascertained, 157. conclusive only as to present hearing, 157. test as to mineral, 158. to what time applies, 157, 226. not involved in adverse claim, 677. settled by patent, 742. CHINA CLAY — a mineral, 964. CHINESE MINERS — California legislation against, 66, 67. other legislation against, 359. CHOCTAW NATION — minerals in, 354, n. CITIZEN (see Alien; Citizenship; Application for Patent; Adverse Suit; Office Found) — who is, 241, 246. different kinds of, 342, 345, 346. native or naturalized, 243, 246. certain Indians not, 245. certain Indians are, 244^246. of Choctaw nation protected in discovery of mine, 256. only, can acquire mines by location and patent, 249. congressional law as to corporations, 259. corporations are, when, 253, 255, 720. not necessary to prove that members of corporations are, 255, 256. CITIZENSHIP (see Aliens; Adverse Suits; Application for Pate.nt: Citizens) — definition of, 341. discussed, 260-262. necessary for applicant to acquire patent, 249, 359, 360, 742. retroactive effect of, 262, 263. defective, how cured, 263. presumption of, when, 255. INDEX. 1^19 References are to sections. CITIZENSHIP (continued) — how proved, 255, 256, 658. of corporations, how proved, 254, 255, presumed by acts of, 256. who may question, and how, 266, 267. only involved in patent proceedings, 257, 262, 263. must be pleaded m adverse suits, but not in other actions, 269. pleadings and proof in adverse suits, 719, 720. See also Appendix B, pp. 1399 et seq. CLAIMS HELD IN COMMON (see Annual Labor or Assessment Work) — what are, 480. work on one for all, 479-481. what work on one will satisfy for all, 480. community of interest in, 480. CLASSIFICATION OF APEX CASES — full, 821-860. COAL (see Coal Lands) — early mining of, 139. COAL LANDS (see Federal Statutes, Appendix A, pp. 1259-1262) — are mineral lands, 335. application for, full, 700-706. mode of procedure to obtain, in person and by agent, 700. character of land involved, 701. must be more valuable, as present fact, for coal than for any other purpose, 701. preference right to purchase, 702. same, how determined, disposition of improvements, 702. purchase price (see Price), 703. final entry, cash entry, 703. who may enter, quantity, 704. entry must be by real party in interest, 705. right to enter may be exercised but once, 705. generally, discussed and considered, 335. COLORADO (see State Statutes, Appendix B, pp. 1283-1339) — has enacted statute supplemental to federal. 111. statutory provisions as to location, etc., Appendix B. as to size of lode claims, pp. 1281, 1283. contents and record of location certificate, pp. 1283, 1293. discovery shaft and preliminary notice, p. 1294. equivalent of discovery shaft, p. 1297. marking boundaries, p. 1298. as to amended location, p. 1301. as to relocation, p. 1303. attempting to define extra-lateral rights of locator, pp. 1306, 1307. as to location of placers, p. 1307. as to tunnel location, p. 1312. proof of assessment work, p. 1819. protection to surface-owner from miner, pp. 1329, 1330. as to drainage of mines, pp. 1303-1304. see, generally, index to miscellaneous references, pp. 1364. 1365. COMMISSIONER OP GENERAL LAND OFFICE (see Secretary of THE Interior) — duties and powers of, full, 610-614. under supervision of secretary of interior, 610. Ii20 INDEX. References are to sections. COMMLSSIONER OF GENERAL LAND OFFICE (continued) — may formulate certain rules. 611. decisions of, judicial in character, 613. has power to decide whether either party to adverse proceedings is entitled to patent, 613. COMMON LAW — rule of the. as to mines, full, 725-737, 766. difference between, and statute, 785. 786. 793. right opposed to statutory right, criticised, 793. presumption of ownership of vein, 766. surface owner owns all beneath, 766. COMMON, CLAIMS HELD IN (see Claims Held in Common). COMPROMISE LINES (see Deeds). CONDITIONAL ESTATES — located claim is, till patent, 458, 531, 526. one owner may perform condition for all, 534. See Co-ownee; An- nual Labor or Assessment Work. CONDITIONAL CONVEYANCE OF MINERALS, 935. CONFLICT OF LAWS, 757. CONGRESS (see Decisions of Courts) — power of, over public lands, 112, 262. CONSTITUTIONAL CONSTRUCTION, 246. CONSTITUTIONALITY — of forfeiture to co-owner, 580-523. statutory requirements of barriers, 1062. CONTIGUOUS CLAIMS (see Claims Held in Common; Annual Labor or Assessment Work). CONTINENTAL SYSTEMS — formation of American and European mining law from, 4. CONTRACTS (see Prospecting Contract; Conveyances; Executory Contracts). CONTRIBUTORY NEGLIGENCE — as affected by statute for protection of miners, 1664. the Pennsj'lvania rule, 1665, CONVEYANCES (see Deeds; Leases; Licenses: Executory Con-, tracts) — generally necessary to be written, 467. CO-OWNER (see Co-tenant; Annual Labor or Assessment Work)- one not bound to adverse other's application for patent, 683. forfeiture to, full, 530-535. proceeding in rem, 531. constitutionality of forfeiture to, 533-534. duties not contractual, 535. , when relocation by one, inures to others, 587. who did work, only, can forfeit interest of, 538, 539. COPPER — early mining of, 138. COPYHOLD LANDS — rights in, 18, 20 tenant's right to minerals in, 953. similarity of located claim to, 460. INDEX. 1421 References are to sections. CORPORATIONS (see Citizen; Citizenship; Location; Application FOR Patent) — may make locations, 353, 254. but to do so must be organized in the United States, 254. proof that members are citizens not necessary, 255, 256. conveyance by, 1096 et seq. how property conveyed to, about to be formed, 1096. requirements of valid conveyance to, 1098. ratifies lease by accepting benefits, 1151. COST-BOOK SYSTEM (see Mining Partnership; Prospecting Con- tracts). CO-TENANTS (see Co-owners; Conditional Estates; Leases; Deeds; Mining Partnership) — reservations in conveyance by, 981. » owners of severed estates not, 1002. in general, 1430-1490. tenants in common, definition, 1430, 1431. possession by one not adverse until ouster, 1431-1433. distinction between and mining partnership, 1433, 1500, 1545-1550. mutual rights and duties of, 1434, 1458. right of one to work property, 1435, 1436. not waste for one to work mine, 1437, 1438. owners of severed estates not, 1439, 1441. when one may bind all, 1439, 1441. right of occupation by each of several, 1440. not exclusive, 1443. possession of one, possession of all, exception, 1443. one in possession must account to others; measure of account, 1444, 1445. on basis of rent, 1446-1448. royalty the better basis, 1446-1449. surplus over operating co-tenant's portion, 1449. net value of product, 1450. value of ore in place, 1451. how this is estimated, 1451. in possession, entitled to compensation for work, etc, 1452-1454, 1458. in absence of express agreement, 1454. what included, 1455. as to agreement to offset, 1 454. what acts of individual inure to all, 1455-1457. purchases by and from, 1456, 1457. when purchase by one does not inure to others, 1457. right of operating, to fixtures, 1459. injunctions as between, 1460. 1461. other remedies in equity, 1462. when liable for trespass, 1463. rights and duties between, and third parties, 1470-1477. license of one. 1471. contesting licensees as, 1472. contest between one and licensee of another, 1473. joinder in suits by and against, 1475. action by one, 1474. when one holds as trustee, 1476. proportionate interests of, presumption, 1477. partition between, full, 1485-1489. when practicable, 1480. how accomplished, statutes, 1486. 1422 INDEX. Eeferences are to sections. CO-TENANTS (continued) — not applicable to settlement of illegal contracts, 1487. covenant not to, effect; Grubb's estate in Pennsylvania, 1488. conveyances by and betveeen, 1489, 1547. summary of law as applied to mining, 1490. COUNTRY ROCK — defined, 816. COVENANTS (see Deeds; Leases). CREVICES (see Veins; Lodes; Ledges) — or ranges, same as veins, 385. discovery of, required, 347, 356. See State Statutes, Appendix B. CROSS- VEINS (see Vehsts; Lodes; Extba-lateral Rights) — doctrine as to surface, 441. and surface location, 444, 885-887. contradictions as to, settled, 445. surface ovrner owns all, together with all other veins, 444, early Colorado decisions as to, departed from, 444, 445. extra-lateral rights as to, full, 905-913. early and present position of Colorado court, 905, 910, 911. English cross-veins and cross-courses, 908. lines controlling located vein control, 909. question as to, finally settled, 911. CULM (see Leases). CUSTOMS (see Miners' Rules; District Rules) — of Cornwall and Devon, 19. as to tin bounding, 30-33. of Derbyshire. High Peak, 34, 35. admissible in evidence, 68, 69, and note 138. how proved, 138. trespass cannot be justified by, 131. does not authorize dumpage of tailings, 131. English, and miners' compared, 30, 31. as evidence, 68. 69. as affecting life tenants, 953. evidence of, showing adverse user, 973, 974 tunneling through another's ground pursuant to, 1013. as affecting right to surface support, 1043, 1043. interpretation of lease with reference to, 1368, 1369. to remove pillars under coal lease not available against co-tenant, 1397. as affecting removal of fixtures, 1317. applied to licenses, 1393. of Gloucester, 36. antiquity of, 37. in Wisconsin and Missouri, 69. DAMNUM ABSQUE INJURIA — diversion of percolating water by mining is, 331. when injury to lower estate by water from upper is, 1058. DEBRIS (see Easements; Eminent Domain; Tailings) — placer miner bound to care for, 135. act creating California commission, see Federal Statutes. California commission, 1078. DECEASED PERSON — forfeiture of interest of, in mining claim, 531-524. the reason for permitting, 534. INDEX. 1423 Eeterences are to sections. DECISIONS OF COURTS — congressional i-epeal of, 313, 245. DECLARATORY STATEMENTS (see Notice of Location) — when to be sworn to, 430, 421. statute requiring verification criticised, 431. decisions of courts as to, criticised, 420, 421. validity of, 423. DEEDS (see Leases; Licenses; Prospecting Contracts; Descrip- tion) — written necessary to convey claim, 467. articles of incorporation as. 1091, 1093. mining discussed, full, 1090-1136. to corporation not formed, 1096. by corporation, 1096. mining and other deeds distinguished, 1093, 1136. unopened mineral deposits the subject of conveyance by, 1090. quitclaim passes all present interest of grantor, 1093. restricted to intent of parties where ascertainable, 1097, 1115. of undivided interest, description, 1097. what estate passes by certain, 1100, 1103. interest shown by special covenants, 1108, 1113, 1115. recitals in, how far binding, and upon whom, llll. all means of enjoying rights conveyed, 1114. statutory, pass title to mineral estate, 1119-1122. fixtures conveyed, 1115. effect of compromise, by dividing line and by metes and bounds distinguished. 1124. 1125. what estate conveyed by, where claim has different names, 1126. of lode and other claims distinguished, 1127. when may be explained by parol evidence, 1127. to conflicting claims, 1126. consideration in, when question for jury, 1128. when implied by language, 1095. as means of interpreting deed, actual should be stated, 1113. not necessary to transfer title under early customs, 1131-1136. bills of sale as. 1133. rules applicable to other real estate govern mining, 1136. DEFINITION — of mines, 140. minerals and mineral lands, 143, 144. mining, 13.5. mine, in Canada, 843. quarry, 141. veins or lodes, deposit, 281-286, 840, 841. in place, 287. strike or course, 288, 289, 813. of placers, 307-315. streaming, 309. of location, 341. of mining claim, 342. of discovery, 344^348. of crevice, 346. of abandonment and forfeiture in mining, 508. of abandonment, 509. of abandonment to United States, special, 540. of forfeiture, 515. of extra-lateral rights, 782. 1424 INDEX. References are to sections. DEFINITION (continued) — of apex, 796-798. as applied to broad vein or zone, 799. of dip, 810-813. of hanging and foot wall, 815. of country rock, 816. of waste, 943. of severance, 957. of support, 1017. of lease, 1143, 1144 of net proceeds, 1313, 1257. expense of winning, 1368. of rents and royalties, 1351. of instroke, 1298. of " work " as applied to mining property, 1360. of raining license, 1390. of co-tenancy, 1430. of mining partnership, 1501. DEPARTMENT DECISIONS (see Land Department; Regulations Department of Interior) — conclusive as to what, 157, 613. of questions of fact, 599, 600, 606, 637. supervisory, 611. DEPARTMENT REGULATIONS (see Regulations Department op Interior). DEPUTY MINERAL SURYEYOR (see Application for Patent) — any regularly appointed, may be employed, 637. DERBYSHIRE — measuring meers in, 84. DESCRIPTION (see Deeds) — sufficiency of, in location notice, question of fact, 368-373, 416. pai-ol evidence to explain, 369. held insufficient as matter of law, extreme, 371. 411. variance between, in location notice and record, 370. of claim in record, must refer to natural object, 370. examples of, held sufficient. 373. reasonable certainty in, all that is required, 411, 413. fixing locus of claim in wrong county not void, when, 413. in notices and records, liberally construed, 415-417. DEVELOPMENT WORK (see Annual Labor or Assessment Work) — under Canadian law, 497. DILIGENCE (see Lease; Statutory Tunnel) — in prosecuting work in tunnel, 300, 303. DIP (see Extra-lateral Rights) — spurs and angles, 81. variations and angles, law of 1866, 101. rights, the policy of the law as to, 81, 770-773, 783, 783. definition, meaning and use, 810-813. discovery and location on, 836. in Manitoba, 381. right to follow vein on, when abridged or cut off, full, 865-874. DISCOVERER — code Napoleon, 45. INDEX. 14:25 References are to sections. DISCOVERY (see Location) — discussed in full, 340-860. required by local rules, 79. on Indian reservation, 177-179. should be followed by location, 335. statutory requirement of, 340, 344 definition of, 344, 345, 348. what miner would follow is, 348, 349. two locations on one, 356. good faith required, 350-355, 359. something more than mere guess required to constitute, 351. effect of loss of, 351, 353, 513. no loss if recovered, 353. elsewhere on the claim, 353. same after loss, effect, 513. after location, 353, 354. Importance of, 355-359. gives possession for location, 358, 359. but must proceed in good faith to make location, 359. on placer gi-ound, 360. on dip, 836. quality of ore, rich or poor, 345. in Choctaw nation, 354, n. DISCOVERY SHAFT (see State Statutes, Appendix B) — full, 346, 347, 351, 358, 365. relation of, to claim, 346-349. one for two claims, 351. must be on vacant ground, 347. DISCOVERY WORK (see State Statutes, Appendix B) — full, 365-377. under state statutes, 346, 347, 356. DISTRICT RULES (see Miners' Rules; Customs) — authorized by statute, 118, 119. common law of mining, 118. value of, 119-131, 441. necessity of observing, 131. if reasonable must be obeyed, 131-135. written, not necessary, 133. must be proved. 133, 135. existence, question of fact, 136, 188, 139. validity question of law, 138. how proved in land office, 136, 138. framed by early miners of California, 77, 133. required notice, 367. when need not be pleaded, 128. must be reasonable, 124 DOMINANT ESTATE (see Estates; Severance) — mineral estate is, generally, 1016. DOMINIUM UTILE — as applied to mining law, 461. DOWER — in mines, full, 931-935. diversity of opinion in England as to estates subject to, 933. best opinion is that widow entitled to one third, 933. widow endowable of all open mines in this country, 933. 90 1426 INDEX. References are to sections. DOWER (continued) — when dower tenant may bore new well, 933. when impeachable for waste, 935. as to right of widow in unopened mines, quarries, etc., 934 not allowed in unpatented claims, 470. DRAINAGE (see State Statutes, Appendix B, pp. 1331-1384) — of mines, full, 1050-1062. liability for flooding, 1050-1053. , servient duty of lower proprietor, 1051, 1053. duties of upper proprietor, 1053 et seq. negligence, how far an element, 1054 et seg. higher proprietor must use reasonable diligence, 1054, 1056. barriers not to be interfered with, 1055, 1060. law of natural flow, 1058, 1060. English doctrine, owner liable for all damages by water escaping from his premises, 1061. statutory barriers, const'tutionality, 1062. liability for flooding as between lessor and lessee, 1296. DUE PROCESS OF LAW (see Abandonment; Co-owneb; Forfeiture AND Abandonment). DUMPAGE (see Debris ; Easements; Eminent Domain; Abandon- ment; Tailings) — when conveyance of tunnel conveys right of, at mouth, 1102. EASEMENTS (see Easements and Servitudes; Eminent Domain; Sev- erance; Injunction) — right of way of surface owner through severed strata, 927, 1009. reciprocal rights of owner of surface and lower strata, 1009, 1011. tunneling through another's ground, 1012. to deposit tailings and for dumpage, 1070-1079. no inherent right of dumpage, 1073. injunction against dumping tailings, 1633. EASEMENTS AND SERVITUDES (see Easements) — certain, recognized, 452. drainage and right of way, 113, 462. may be locally limited, 464 right of apex owner as, 465. EJECTMENT (see Leases; Oil and Gas Leases). EMINENT DOMAIN (see Easements; Injunction; State Statutes, Appendix B, pp. 1364 et seq.) — right of, extended over mining claims on public domain, 463-464. under authority of congress, 1070. what is a public use, 1071. to secure right of way for pipe line, 1073. where raining a public use, right of dumpage may be acquired un- der, 1073. invasion of another's rights must be by, regardless of value of land, 1074 right of, how exercised, 1074-1078. a Judicial question, 1079. EMPTY SPACE (see Severance). END LINES (see Federal Statutes, State Statutes, Appendices A and B; Application for Patent; Extra-lateral Rights) — to be surveyed parallel, 639. regarding parallel, under law of 1866, 775, 776. parallelism required by law of 1872, 775, 784. 1427 References are to sections. END LINES (continued) — projected to give extra-lateral riglits, 803. converging, 781. but tvro for any claim, 806. for one vein, for all, 807, 843, 885-888. when new should be projected into dip, 840-844 and side line apex cases, 834-838. established by compromise deed, 1124. ENGLAND — mining in, 136. ENGLISH MINERS' CUSTOMS, 30-37. EQUITY — when will relieve against unreasonable mining contracts, 1891. ESSENTIALS OF A VALID LOCATION (see Location; Location Notice; Marking Boundaries; Record) — subject in full, 340-433. ESTATES (see Severance; Dominant Estate; Conditional Estates; Dower; Waste) — in mines, secured by location, full, 439-470. good until divested by exercise of higher right, 439. extent and nature of, 442. upon condition, 458, 1361-1363. in mines generally, full, 920 et seq. nature of, secured bv patent or conveyance, rriinerals pass in ab- sence of reservation, 931, 924, 927. in minerals, go with surface in absence of severance, 923, 927. in minerals, depend upon language of patent, 933. for life, what work by tenant is or is not waste, 941. as to opened and unopened mines, 944. tail, right of tenant in, to work, 942, 949. may not be destroyed by wanton working, 950. ESTOPPEL — of prospector to assert prior claim in himself, 587. when co-owner may not relocate to exclusion of others, 586, 587. by record as made, when, 429. examples as to, annual labor, 481, 527. EVIDENCE (see Customs; District Rules; Miners' Rules; Notice op Location) — parol, admissible to show that written rules have fallen into dis- u.'ie, 127. customs admitted as, 68. rules of district as, 179. of adverse possession constituting severance, 973. to explain deed, 1127. EXCESSIVE BOUNDARIES (see Boundaries; Marking Boundaries; Location) — not void, 114, 397, 398. tunnel claims, 304. void only for excess, 398. exclusive rights by location (see Estates), 451, 458. EXECUTORY CONTRACTS (See Conveyances; Option to Pur- chase) — for deeds. 1135. for lease, construction, 1370, 1371. right to specific performance of, 1370, 1372, 1377. 1428 INDEX. References are to sections. EXECUTORY CONTRACTS (continued) — option to purchase, how exercised, 1372, 1373. difference between option to purchase and contract of sale, 1378. how affected by statute of frauds; part performance, 1374 what is a breach of, 1375. time of the essence of, 1396-1398. not enforced unless party asking has complied with his part, 1377, 1878. must be mutually binding, 1380. when deed construed as, 1379. option to purchase and contract for sale distinguished, 1378, damages for breach of, 1380. diligence required under, 1381. EXTEA-LATERAL RIGHTS (see Apex; Dip; Strike or Course; Federal Statutes, Appendix A, pp. 1231 et seq.) — full, 766-898. comment on law allowing, 81. burden on person claiming, 783. incidental rights, 766. controlled by surface boundaries, 781, 783. policy of law as to, 767-769, 800, 858. justice of law granting, discussed, 767, 849. derivation of term. 767-769. origin of law of, 768, under law of 1866, 773, 774 High Peak customs, 769. meaning of term. 782. common-law right, as applied to, 792. additional right of, created by statute, 787, 788. not to prospect merely, 789. right to follow dip under, confined to identity, 790. statute remedial, 791. some attempt to deny, 800. should be granted if possible, 802. end lines by. court to give, 803. should be allowed to broad veins, 803, 804. vein partially in two parallel claims, 805. growth of thought denying, 858. vein crossing side lines, 826-828, 845. vein crossing same line twice, 859. beginning and ending wholly within claim, 860. end and side line, or lines not parallel, full, 834-853. as applied to imperfect locations. 718, 843. angle of crossing not material. 843. Del Monte and similar oases. 837-844. no advantage gained by postponing marking of boundaries, 846. general guiding rules, 847. to spurs and offshoots, 885-888. as applied to group claims, 849-851. same where grouped after patent, 852. original lines changed, 851. attempt to justify denial of, criticised, 858, 859. when abridged or cut off, full, 865-874. as applied to vein dipping into ground from which right not re- served. 865. uniting with older vein on dip, 767. converging end lines as affecting, 851, 871.- denied in certain cases, the " Horseshoe " case, 872, 873. as affecting severance, 957, 961. INDEX. 1429 References are to sections. FACE (see Tunnel; Statutory Tunnel) — of statutory tunnel. 301. FEDERAL QUESTION (see Adverse Suits). FEDERAL STATUTES (see Appendix A, pp. 1331 et seq.; Location; Marking Boundaries; Record) — early, reserving mines and minerals, 57. first was recognition of miners' rights, 440. mining statutes in Appendix A. the law of 1866, pp. 1S31-1235. the placer law of July 9, 1870, pp. 1235-1237. the law of 1872, and prior and subsequent enactments as em- braced in title XXXII, chapter 6, Revised Statutes, pp. 12^7- 1253. act to authorize the entry of lands chiefly valuable for building stone under placer mining laws, p. 1253. act to authorize entry and patenting of lands containing petro- leum under placer mining laws, p. 1353. act extending the mining laws to saline lands, p. 1353. act relating to town sites on mineral lands, p. 1354. act limiting amount of land which may be entered, p. 1254. act authorizing the citizens of Colorado, Nevada and the terri- tories to fell and remove timber on the public domain for mining and domestic purposes, p. 1256. act to exclude public lands in Alabama from operation of laws relating to mineral lands, p. 1357. same as to Missouri and Kansas, p. 1257. act to open forest reservations in the state of Colorado for tlie location of mining claims, p. 1258. providing for the restoration to the public domain of mineral lands in forest reservations, p. 1259. relative to coal lands, pp. 1259-1363. provisions relating to Alaska, see Alaska. act to create California Debris Commission, Appendix A, p. 1368. FEES — on application for patent, 651. FELLOW-SERVANTS — Pennsylvania statute as to protection of miners, exception, 1651. mine boss not, 1654. employers bound to hire competent, 1661. FENCING — of claim, not necessary, 390. FEUDAL TENURE — similarity to customs, 33, 33. FILLMORE, PRESIDENT— recommendations of, 61. observations of, 61. FINAL ENTRY (see Application for Patent; Appendix C, pp. 1396- 1399) — papers to be filed on, 663. who may make, 664. FIRST IN TIME, STRONGEST IN RIGHT — doctrine of, as applied to mining, 576, 802-805, 870. as applied to lands open to location, 156. FIVE HUNDRED DOLLARS IMPROVEMENTS (see Application FOB Patent) — prima facie proof of, how made. 643. 1430 INDEX. References are to sections. FIXTURES — full, as to mining, 1311-1320. right of lessee to remove, 1286. covenant to deliver property does not prevent taking removable, 1397. usually property of lessee in absence of express agreement, 1148, 1311, 1315. intent of parties, as shown by surrounding circumstances, governs, 1313, 13U, 1315. modification of common-law rule, 1313. personal property of lessee, 1314. disposition of, in case of forfeiture, 1316. lessee's attachable interest in, 1316. as affected by local customs, 1316, 1317. what are removable, 1318. right to product when severed, 1319. summary of law as to, 1320. ownership of, as between co-tenants, 1459. FOREIGN MINERS' TAX, 64, 65. FOREST OF DEAN, 36. FOREST PARK RESERVES (see Reservations and Reserved Lands) — how created, 193, 194 no longer public land, 194. federal statute relating to. Appendix A, p. 1358. r minerals in certain, open to entry under mining laws, pp. 1258, 1259. FORFEITURE (see Lease; Executory Contracts; License; For- feiture and Abandonment) — of leases under statute, 1230. of oil lease for failure to work, waiver, 1181, 1231, 1236. question of law or fact, 1205. 1339. non-payment of rent not ground for. 1392. of lease, re-entry, 1204 et seq., 1326, 1361-1363. of claim by local rules, 80. FORFEITURE AND ABANDONMENT (see Notice of Forfeiture; Abandonment; Forfeiture) — question in full, 507-517. definition, distinctions, 507, 508, 515. notice of, 514, 531, 533. not favored in law, 516, 543, 544. change of location not always, 517. to co-owners, full, 520-535. statutory right, 520-524. proceeding in rem, 521. reason for permitting forfeiture of infant's and decedent's interest, 524. applies only to delinquent's interest in claim, 536-528. each co-owner bound to see that work performed to prevent, 524, who may claim, 528, 529. question whether heirs of co-owner entitled to claim, 528. only co-owner who did work may give, 528, 529. only remedy between co-owners, in absence of express contract. 526. against infant, 524. INDEX. 1431 References are to sections. FORFEITURE AND ABANDONMENT (continued) — basic facts must be true, 531. what record should show to divest delinquent's interest, 534 summary of law, 535. to United States, full, 540-547. question for jury, when, 544. presumptions against, 545. of tunnel claims, special, 550, 553-555. must be proved, burden, 736. diligence in. 554 FOSSILS — a mineral, 1006. FRANCE, LAWS OF, 4 45, 46. FRANCHISE — equitable, recognized, 89-91. FREEING THE MEER, 85. FREE MINER — in Gloucestershire, 36. in Canada, 36, n., 37, 250. rights of, in Forest of Dean, 46. GADSDEN PURCHASE — lands acquired by, 153. GALES (see English Miners' Customs; Customs), 36. GAMBOA — quoted from, 865. GAS — a mineral, 1170. GOVERNMENTAL POLICY (see Policy of the United States) — as to mines, 93. GRANTS (see Grants and Reservations; Reservations; State Lands) — when state, take effect, 333. location is, in effect, full, 439-470. preliminary, when, 439. presumed, 89. include minerals, unless expressly reserved, 937. of minerals, effect of, 925. GRANTS AND RESERVATIONS (see Grants; Reservations; State Lands) — full, 171-208. GROUPS AND GROUP CLAIMS (see Annual Labor or Assess- ment Work; Application foe Patent; Claims Held in Com- mon) — extra-lateral rights of, 849-851. patented separately, 853, 953. obliterating lines and priority, 869. work on one for all, 479, 480. GRUB STAKE (see Paetneeship; Prospecting Contracts). GUADALUPE HIDALGO TREATY — land acquired by, 152. GUIDING RULES — as to marking boundaries (see Marking Boundaries; Location), 389. 1432 INDEX. References are to sections. HANGING WALL. AND FOOT WALL — defined, 815. HISTORY OF MINING LAW (see Customs; District Rules; Miners Rules), 132. of the passage of the federal statute, 98-100. how the title was changed, 100. this statute discussed and considered, 105. early California laws, 133, 134. in France and Belgium, 134. relating to hydraulic and placer mining, 135. in Spain and Mexico, 136. in England, 132, 137. different mining statutes summarized, 14. HIGH PEAK CUSTOMS, 34. HYDRAULIC MINING (see Federal Statutes; Debris) — what is, 132, 310. not unlawful nor a nuisance per se, 310, 1078. IDAHO — has enacted statutes supplemental to federal. 111. certain statutes of, criticised, 114. statutory provisions as to location, etc.. Appendix B. as to size of lode claim, p. 1282. location and recording of claims, p. 1284 discovery shaft and preliminary notice, p. 1295. equivalent of discovery shaft, p. 1297. marking boundaries, p. 1298. amended location notice, p. 1302. relocation, p. 1309. location of placers, p. 1309. requiring security from miner for injuries to surface, p. 1339. relating to mining partnership, pp. 1335-1337. see, generally, index to miscellaneous references, pp. 1364, 1365. ID CERTUM EST QUOD, CERTUM REDDI POTEST — applied to description in location notices, 412, 413. IDENTITY (see Extra-lateral Rights; Lode; Vein; Return of Sur- veyor) — proof of, 642. ILLEGAL MINING CONTRACTS — parties to, not aided by court of equity, 1487. ILLINOIS — statutory provisions of, as to conveyance of mining property. Ap- pendix B, p. 1839. IMPLIED LICENSE (see License) — of miners before statute, 86. IMPROVEMENTS (see Five Hundred Dollars Improvements; An- nual Labor or Assessment Work) — acquired by relooator, 582. on coal lands, disposition of, 703. INDIANS (see Aliens; Citizenship; Indian Reservations) — status of, 173. held not citizens, 345. rights of, recognized, 175. title to mining property extinguished, eflEect of, 178. character of land, 178. INDEX. 1433 Eeterences are to sections. INDIAN RESERVATIONS (see Indians; Reservations) — minerals in, reserved, 171. location cannot be made on, 154, 173, 176, 177. how made, 173, 174 how abolished, 174 locators on, are trespassers, 177. location on, is void, 176. when location on, gives locator imperfect title, 179. INJUNCTION (see Debris; Tailings; Co-tenants) — by tunnel claimant against patent proceedings by conflicting lode, 683. against use of pipe line, 1073. against dumping tailings, 1075, 1078. against dumping ore and waste, 1633. against sale of corporate property, 1098. against exhausting gas and oil from common reservoir by pump- ing, 1172. against interference with oil lessee, 1186. by one co-tenant against another, 1460, 1461. of the remedy generally, 1626 et seq. jurisdiction, 1687. where title is in dispute, 1628. what title necessary to maintain, 1628, 1630. to avoid multiplicity of suits, 1628. readily granted to prevent removal of ore, 1628. or irreparable injurjr, 1629. equitable title suflScient to maintain, 1630 temporary or preliminary, 1631, 1632. discretion of court in granting, 1632. reluctance of courts to enjoin operations by party in possession, 1632. not granted to prevent use of suction pumps in oil operations, 1632. absence of laches in applicant, 1634 as to tailings and debris, 1633, to protect tunnel, 305. "IN PLACE" — defined, 285-287, 345. INQUEST OF OFFICE — application for patent in nature of, 269. INSPECTION AND SURVEY (see State Statutes, Appendix B) — statutory provisions for, discussed, full, 1637-1640. power of court of equity to order, 1638. proper use, to obtain necessary evidence, 1639. INSTROKE — defined, 1298. when controlled by covenant, 1299. INTENTION OF PARTIES — in construction of mining leases and contracts, 1146, 1202, 1241, 1281, 1379. INTERIOR DEPARTMENT (see Land Department) — organization and functions of, 596, 597. INTRUDERS AND TRESPASSERS (see Annual Labor or Assess- ment Work; Location), 377. 1434 INDEX. Beferences are to sections. IOWA— statutory provisions as to drainage of lead mines, Appendix B, p. 1333. IRON LANDS — early working of, 139. how located, 336. JUDICIAL NOTICE — not taken of district rules, 88. 138, 135. of miners' rights, 88. of surroundings and systems, 88. JUDICIAL PROTECTION — of early rights, 86, 87. JUDGMENT (see Adverse Sotts) — in adverse suits, full, 735-785. must be within pleadings, 728. of dismissal, when entered, 729. conclusive as to what: character of land, priority of location, extra- lateral rights, etc., 730-733. effect of; that neither party entitled — not res adjudicata, 732. final entry in land oflSce on, 733. JURISDICTION (see Adverse Suits) — of courts in adverse suits, full, 710-716. generally where first commenced, 711. JURY TRIAL — when and where in adverse suits, 716. KANSAS — federal statutes excluding minerals in, from operation of mining laws, Appendix A, p. 1357. KNOWLEDGE AS TO LODE (see Lode) — what is, 667. to whom must come, 667-669. test of, 668. time to which applies, 670. KNOWN MINES AND MINERALS — early definitions, 204, 331. errors of courts as to, 304, 205. review of oases relating to, 212. in agricultural grants, 233. LAND DEPARTMENT (see Secretary of Interior; Commissioner OP General Land Office; Surveyor-General) — a bureau of the interior department, 596-599. formerly connected with treasury department, 596. by whom and how functions of exercised, 597. effect of regulations of, 598. presumptions in favor of regularity, 599. binding force of decisions of, 600. rulings of, conclusive as to facts, 157, 741. history, functions and jurisdiction of, full, 595-601. LAND GRANTS (see Grants; Grants and Reservations; Reserva- tions; State Grants) — different character of, 172. state and other, non-mineral, 300-333. INDEX. 1435 References are to sections. LAND OFFICE (see Land Department; Interior Department; Ap- plication FOR Patent) — proceedings in, on application for patent, full, 650-674. filing of papers In, and fees, 650, 651. LAW OF THE LAND — applied in relation to forfeiture of co-owner's interest, 522. LAWd RELATING TO MINING — certain, recommended, 97. new is predicated on old, 3. LEAD MINES — early working of, 139. reserved from land sales, 57. leasing of, by United States, 59. leasing of, by United States abandoned, 105. LEADVILLE — apex cases discussed, 802. LEASES (see Licenses; Liens; Deeds; Executory Contracts; Oil AND Gas Leases; Rents and Royalties; Working Con- tracts) — as to property in fixtures placed on land during term of, see Fixt- ures. when possession of lessee possession of lessor, p. 829, n. construed and defined, 1143, 1144, 1155, 1156, 1216. 1231, 1281. when interest in land; when only minerals conveyed by, 1146, 1164. distinguished from license, 1145, 1146, 1150-1152, 1326. intention of parties in aid of construction of, 1146, 1202, 1341. ejectment by one lessee, 1155, 1253. essentials of, 1148-1151. generally assignable, 1148. covenants of lessor and lessee in, 1148-1150. in parol, writing to satisfy statute of frauds, 1150, 1153, 1156. description of property in, 1154. laches of lessee, 1155. grant of exclusive right to mine construed to be, 1156. when right to work all veins included in, 1157, 1160. right of lessee to open new mines under, 1158. rent not due after mine exhausted, 1159. what included in reservations in, 1163. liability of lessees on surrender of, 1183, 1818, 1330, 1332-1224, 1238. 1270. covenants in, for work, construction of, 1148, 1159, 1173. 1187, 1208 1309, 1210, 1314, 1235, 1341, 1383, 1284, 1394, 1395. forfeiture of, full, 1226-1340. when question of law, when of fact, 1205, 1229, 1240. bearing covenants generally, 1336. provisions for mere payment of rent, redeemable, 1337, 1235. clauses not self -executing, 1338, 1339, 1235. under statute, 1230. burden of proving, 1340. non-payment of rent alone not sufficient grounds for, 1340. option of lessor as to, 1328, 1339, 1236. damages in case of, 1237. when will be decreed for assignment of lease, 1340. duration of tenancy, 1301, 1204, 1265. what amounts to covenant for perpetual renewal, 1234. 1436 INDEX. Eeferences are to sections. LEASES (continued) — diligence in prosecuting work required, 1180, 1181, 1310, 1311, 1331, 1333, 1384, 1287. constant work not necessary, 1210. when diligence in working question of law, 1211. meaning of net proceeds in, 1313. remedy for failure to begin work. 1217. lessee may not arbitrarily refuse to mine, 1220. right of lessee to abandon, 1222-1224, 1253. notice of abandonment, 1238, 1239. what amounts to abandonment, 1284. statutory provisions for recording, 1230. for forfeiture (see Forfeiture, supra), 1230. as to irrevocability, 1280. renewal, consideration for, 1153, 1233-1234. what terms of old, embraced in, 1233. of oil and gas (see Oil and Gas Leases), 1176. agreement for, construed as, 1208. terjnination of, re-entry, 1204^1207, 1343. by exhaustion of product, 1306. by cessation of work, 1218, 1343. rent after exhaustion, 1307. when lessee excused from further work, 1308, 1309. possession, eviction, lessee's rights, 1335. law opposed to forfeiture of, burden of proof, 1240. covenants of, construed against maker, 1341. relation of landlord and tenant, how shown, 1343. general statement of law regarding, 1243. covenants and conditions in, full, 1281-1302, 1343 et seq- conflicting, intent, 1281. special, construed, 1282 et seq. not set aside by abandonment, 1283. what construed as breach of, to work in miner-like manner, 1285, 1286, 1296. what not implied, 1287, 1390. lessee's incidental rights. 1388. for taxes, etc., 1289, 1300. implied, performance by opposite party, 1290. when equity will relieve against abuse of, 1291. mere non-payment of rent not always ground for forfeiture, 1393. rescission for breach of, 1293. to test and work, 1294 for good mining, 1295-1299. right to mine through adjoining premises in abuse of, 1298. when mining by instroke not violation of, 1299. implied as method of mining, 1299. for quiet enjoyment, breach, 1301. summary of law as to, 1303. rights of lessee under, full, 1336-1334. exclusiveness of tenant's rights, 1336, 1339. dependent upon nature of instrument, 1337, 1338. right to entire product, 1339, 1330. right of lessee to exclude lessor from premises, 1339, confined to particular vein or deposit, 1330, 1381. conflicting, 1382. part interest, rights of co-tenants under, 1333. summary as to lessee's rights, 1334 INDEX. 1437 References are to sections. LEASES (continued) — assignments of, 1340-1347. when assignable and when not, 1340, 1341. personal skill of lessee as element against, 1341. assignment by lessor, effect, 1348. liability of lessee after assignment, 1343-1346. liability of assignee, 1344^1346. See supra, Covenants est Leases. summary of law as to assignments, 1347. subject to miners' liens, 1700. LEASING OF PUBLIC MINERAL LANDS — system condemned as impracticable, 60, 61. LEDGE (see Lode oe Vein; Veins). LENGTH OF CLAIM (see Appendices A and B) — under law of 1866, 101. under law of 1873, 279. LICENSEES OF GOVERNMENT — early miners were, 90, 91. LICENSES (see Lease; Easements) — distinguished from lease, 1145, 1146, 1150, 1152, 1156, 1164, 1336, 1394. nature and character of, 1390. of precarious tenure, 1390, 1391. extent, limitations, when exclusive, 1393. distinguished from deed, 1393. carries no estate in land, 1394. how created, when by parol, 1395. how affected by statute of frauds, 1396. licensee, tenant at will, 1397. assignability of, full, 1405-1408. generally not assignable, 1405. generally not exclusive, 1406, 1407. dependent on contract, 1408. as to revocability of, 1415-1434. authorities conflicting on question, 1415. instances where held revocable, 1416, 1417. generally revocable, but parties will be placed in statu quo, 1416. contrary doctrine, 1418. distinguished from easement, 1419 governing principles, 1419-1431. LIENS (see State Statutes, Appendix B) — of miners, full, 1680-1708. subject of legislation in all mining states, 1681. in effect a legislative mortgage, 1683. priority as between, and mortgage, 1683. preferred claim in insolvency, 1684. California rule limiting application of, to ground located as " min- ing claim." 1685. soundness of this rule questioned, 1685, 1701. what services covered by, 1690. who entitled to, 1690. teamster and superintendent, when, 1690, 1691. for drifting in tunnel, 1691. statute allowing, liberally construed, 1692. but strictly as to remedy, 1693. assignability of, 1693, 1694. not void because claim of, is excessive, 1694. 1438 INDEX. Eeterences are to sections. LIENS (continued) — attaches to group, 1700. attaches to leases and working bonds, 1700, 1701, 1703. must be pursuant to contract, 1700. owner's interest not subject to, against lessee, 1700, 1701. statutory regulations governing, 1701. where mine held under option, 1702. Iowa rule as to lessee's interest, 1703. none in favor of mere prospector, 1704. agent or owner, who is, for purpose of, 1705. procedure on foreclosure of, 1706. California, strict construction of, 1707. summary of law as to, 1708. LIEU LANDS — what sufficient to justify selection of, 226. grants of, must be non-mineral, 208, 221. LIFE ESTATES (see Estates). LIMESTONE — held not mineral in Washington, 144 the reverse in Montana, 144. LIMITATIONS (see Estates; Grants; Grants and Reservations; State Grants; Statute of Limitations) — upon estates, 465. LINE OF TUNNEL (see Tunnel; Statutory Tunnel) — defined, 298, 299. LOCAL RULES AND CUSTOMS (see Customs; District Rules; Miners' Rules), 74-78. LOCATION (see MAEKEra Boundaries; Discovert; Record; Aliens; Citizens; Size op Claim: Tunnels) — upon land previously located, void, 156. of lode in placer, 319. rule applies to discovery point, 156. upon railway reservations, full, 178-179. mere posting of notice does not constitute, 377. upon military reservations, 191. must be good when made, to be valid, 233, 898. over naked possession, strength of title, 234. possession for purpose of, 235. by aliens, considered, 259-262. by aliens and citizens jointly, 260, 261. of mining claims, full, 340-433. definition of valid, 341. presumptions, when allowed to aid, 35'(. quality and extent of estate secured by, full, 439-470. compared with copyhold estates at common law, 460. with dominium utile of the civil law, 461. by agents and minors, full, 270-276. valid, constitutes grant, 439, 440, 451, 467. statute authorizing considered, 442. valid, is property in highest sense, 450-467. descends to heirs, 450. is estate upon condition, until patent, 458. similarity to copyhold and customary lands, 460. gives locator exclusive right of possession, 443, 443. estate secured by, may be sold on execution, 450, 468. INDEX. 1439 References are to sections. ^ LOCATION (continued) — is estate of inheritance and may be selected as a homestead, 468. may be partitioned, 467. estate of inheritance, 450, 467, 468. homestead, 468. redeemable from sheriff's sale, 468. no dower interest in, until patented, 470. priorities of, important. 576, 803. form and shape of, 821. only made on unoccupied mineral land, 154 LOCATORS (see Location) — need not be citizens, 256, 363. LODE — the principal thing under law of 1866, 446, 777. LODE CLAIM — size of, 380. in placer, 380, 318-321, 666, 667. in tunnel, 397-399. and placer distinguished, 837. and surface relatively considered, 449. in placer, patented without separate location, 319, 321. extent of, in tunnel, 399, 300. LODE OR VEIN (see Vein) — defined, 282-385. synonymous with vein, 383. same as range, 385. broad vein defined, 386. in tunnel, how located, 397. in placer claim, 666, 667, 788. patent for, 788. MACHINERY (see Fixtures). MARKING BOUNDARIES (see Location; Permanent Monuments; Record: State Statutes, Appendix B) — similar to bounding, 34. of tunnel not necessary, 395, 397. on surface of lode discovered in tunnel, 297, 306. of mining claims, full. 381-400. statute requires, 881, 888. general purposes of, 383, 885, 390. required in Canada, 888. mandatory in United States, 384, 390, 394. must furnish index to claim, 384-386, 390, 393. sufficiency of, question of fact, 386, 389, 393, 393. finding as to, conclusive, 386. when held insufficient, 387. rule as to, applies to placer, 388. what sufficient, 389-391, 396. fencing not necessary, 390. who may question failure of, 393, 438. reasonable time allowed for, 398. what is a reasonable time, 393. when marks and, may be changed, 894, 395. by trespasser, when inure to benefit of locator, 3&5. adopting marks and, 895. proof of, how made, 396. 1440 INDEX. Eeferences are to sections. MARKING BOUNDARIES (continued) — excessive boundaries, effect of, 397. not required to maintain boundaries, 399. importance of correctly placmg surface lines and, 448, 449. required on relocation, 581. no advantage as to extra-lateral rights by postponing, 846. MEERS — measuring in Derbyshire, 34. ^ MERGER (see Severance 01" Estates) — of severed estates terminates severance, 1085. METES AND BOUNDS — description by, in compromise deed, 1135. conveyance of co-tenant's interest by, void, 1489. MEXICAN GRANTS (see Mexico; Mexican Rules and Laws) — different kinds of, 181. minerals reserved in, 183, 963. right to ground embraced in, must be assei-ted, 184, when looatable, 185. MEXICAN RULES AND LAWS — full, 50-54. MEXICAN AND SPANISH ORDINANCES, 50-54. compared with United States laws, 53. MEXICO — mining in, 136. mineral lands in, 168. old rule as to conditions, 459. what representation work required under present law, 477. procedure to acquire title under old laws of, similar to application for patent, 707. MICHIGAN— mineral lands as agricultural, 153. See Michigan Statute, Appendix B, pp. 1349-1353. sovereign authority over minerals asserted by statute, 34. excepted from operation of mining laws, 153. grant of lands to, unconditional, 323. sovereign right of people in minerals, p. 1349. see, generally, index to miscellaneous references, pp. 1364, 1365. MILITARY RESERVATIONS (see Reservations; Grants and Res- ervations; Indian Reservations) — how made, 189, 190. manner of opening, 191. locations on, at time of opening, 191. opinion of attorney-general as to, 193. MILL SEATS — resei-vations of, 57. MILL SITES (see Application for Patent) — must be non-mineral, 334. acts necessary to hold, 335. must hold in connection with mine or mill, 336. conflicting with ranch, 336, n. application for, 671. MINE — definition of, 140. and quarry, 141. INDEX. 1441 Eeferences are to sections. MINE (continued) — opened and unopened, 143. leased to work classed as open, 944. may be partitioned, see Co-tenants. Canadian, definition of, 343. MINERAL LANDS (see Grants; Grants and Reservations; Reser- vations; Minerals; State Grants: Application for Pat- ent) — reserved prior to 1866, 56, 57. open to exploration and purchase, 151. power of congress over, 112, 113, 262, 280. character of, must be established, 178. in certain states, not locatable, 153, 159. tailings beds as, 159. extreme decisions as to what are, 159. reserved from grants, 202-205. what are, 10, 131, 132, 143. lands more valuable for mineral than agriculture are, 143,159. title to, acquired only as provided by statute, 11, 15, 16. to be locatable, must be unoccupied, 154 MINERALS fsee Mineral Lands) — enumeration of substances classed as, 143-146, 318. definition of, by land ofBce, 144. meaning of term in gi-ants, 926. decision of courts and land department, 144 included in grant unless expressly reserved, 927. what are, in Mexico, 168. belong to surface owner in absence of severance or express con- tract, 923, 925. certain conveyances of, as conditional grants, 935. MINERS (see Miners' Rules; State Statutes) — regulations for protection of. discussed, 1640-1650. general health and safety statutes, 1640. legislative power to enact, 1641. police regulations, 1642. 1643. the Pennsylvania statute, 1651. statutory provisions as to earnings, 1670 et seq. MINES AND MINERALS (see Mine; Minerals; Mineral Lands) — term broadly construed by courts, 964. MINERS' COURTS - in Colorado, 41. MINERS' LIENS (see Liens), 1680 et seq. MINERS' MEETINGS (see District Rules; Miners' Rules) — discussed full, 73-83. copied from Stannary parliament, 40, 73. MINERS' RIGHTS — early recognized, 441. and franchises, 88-90. judicial knowledge of, 88. recognized by government, 90, 91. by legislation, 93. generally, defined, 524 91 1442 INDEX. References are to sections. MINERS' RULES (see District Rules; Customs) — origin of, 477. as framed by early California miners, and recognized by courts, 77, 91, 133. in evidence, 74 judicial notice not taken of, 88, 133, 125. discovery required by, 79. work required by, 80. * recoRnized by supreme court, 91. provided for by statute, 83, 118. notice required by, 367. requirement of, that boundaries be marked, 367. manner of enacting, not questioned, 74, 133. importance of, 75, 421. MINING — defined, 134, n., 185. hydraulic, 135. in Spanish- America and Mexico, 136. MINING CLAIMS — definition, 342. Canadian definition, 342. transferable as other real estate, 1094, 1119-1131. MINING HISTORY (see History of Mining Law), 133, 441. in this country, 133-140. MINING PARTNERSHIP (see Partnership). MINING STATUTE — history of passage of (see History of Mining Law), 98-100, 133- 137. MINING SUPERINTENDENT (see Superintendent> MINNESOTA — excepted from operation of mining law, 153. see, generally, index to miscellaneous references, pp. 1364, 1365. MINOR — location by, valid, 375. MISSOURI — federal statute excepting lands in, from operation of mining law, Appendix A, p. 1257. see, generally, index to miscellaneous references, Appendix B, pp. 1364, 1365. state law requiring security from miners against injury to the sur- face. Appendix B, pp. 1329, 1331. MISTAKES — of ofiBcers not prejudicial to applicant, 419. MONGOLIANS — early California laws against, 66. MONTANA — has enacted statute supplemental to federal. 111. copper mining in, 138. statutory provisions as to location, etc.. Appendix B. as to location and recording of claims, p. 1285. discovery shaft and preliminary notice, p. 1395. equivalent of discovery shaft, p. 1297. marking boundaries, p. 1299. amended location, p. 1303. INDEX. 1443 Eeterences are to sections, MONTANA (continued) — tatutory provisions (continued) — relocation, p. 1303. location of placers, p. 1309, mining partnership, pp. 1335-1337. see, generally, index to miscellaneous references, pp, 1364, 1365. MORTGAGEE (see Lease) — right of, to mine on premises, 986-990. assessment work by, see Annual Labor or Assessment Work; also State Statutes, Appendix B, p. 1320 et seq. MORTGAGOR — rights of, in mining mortgaged property, 986-990. NAKED POSSESSION (see Location; Possession of Indian Land; Occupancy) — alone, not good against bona fide locator, 155. value of. for location, 233. NAPOLEON CODE, 45. theory of mines, 4, n., 42. NATIONAL DEBT (see Public Mineral Lands) — effort to make mines pay, 97. NATIVE-BORN CITIZENS (see Aliens; Citizens), 24i NATURAL GAS — a mineral, 313. NATURALIZATION OF ALIENS (see Aliens; Citizens) — full, 242-256. different modes of. 248. collectively and individually, 248. through naturalization of parents, 248, 256. NATURAL OBJECTS (see Permanent Monuments). NEGLIGENCE — statutory provisions as to. 1661 et seq. NEIGHBORING PROPRIETOR — who is. 1021. NET PROCEEDS — in mining leases, 1313. as measure of damage for breach of covenants in lease, 1257. NEVADA — has enacted statute supplemental to federal, 111. copper mining in, 138. statute of, permitting locations upon and patenting of mineral lands patented to state, criticised, 163. certain statutes criticised, 114. statutory provisions as to location, etc., Appendix B. as to location and recording of claims, pp. 1386, 1393. discovery shaft and preliminary notice, p. 1295. equivalent, p. 1397. marking boundaries, p. 1399. amended notice, p. 1303. relocation, p. 1303. location of placers, p. 1310. tunnel locations, pp. 1313 et seq. mill sites, p. 1315. location of saline lands, pp. 1315, 1316. 144:4: INDEX. References are to section NEVADA (continued) — statutory provisions (continued) — transfers of mining claims by minors, p. 1339. damages for unskilful mining, p. 1346. attempting to define extra-lateral rights, pp. 1306, 1307. provisions as to proof of assessment work, work by mortgagee, p. 1320. provisions for publishing out co-owner's interest and acknowl- edgment of contribution lor assessment work, p. 1388. see, generally, index to miscellaneous references, pp. 1364, 1365. NEW MEXICO — has enacted statute supplemental to federal, 111. copper mining in, 138. statutory provisions as to location, etc., Appendix B. as to location and recording of claims, p. 1387. discovery shaft and preliminary notice, p. 1395. equivalent, p. 1297. marking boundaries, p. 1300. amended notice, p. 1303. relocation, p. 1304. proof of assessment work, work by mortgagee, p. 1330. abandonment of mining claims, p. 1338. mining leases, p. 1342. see, generally, index to miscellaneous references, pp. 1364, 1365. NEW YORK — mining law of, full. Appendix B, pp. 1349-1333. see, generally, index to miscellaneous references, pp. 1364, 1365. NORTH DAKOTA— certain statutes of, criticised. 114. has enacted statute supplemental to federal. 111. statutory provisions as to location, etc.. Appendix B. as to size of lode claims, p. 1383. location and recording of claims, pp. 1288, 1294. discovery shaft and preliminary notice, p. 1396. aquivalent of discovery shaft, p. 1397. marking boundaries, p. 1300. amended location notice, p. 1303. relocation, p. 1304, requiring security from minor for injury to surface, p. 1330. attempting to define extra-lateral rights of locator, pp. 1306, 1307. see, generally, index to miscellaneous references, pp. 1364, 1365. NORTHERN PACIFIC RAILROAD GRANT (see Known Mines ajjd Minerals) — and its relation to minerals discussed, 203. no minerals passed by, 305. NOTICE OF APPLICATION FOR PATENT (see Application fob Patent) — posting and proof of, 653-654, 660. on claim and mill site where both applied for, '552, 653. must be in conspicuous place, what is. 633. publication of, where and how long, 660-662. full period in same paper, 662. defective posting of, how cured. 663. when to be given, 654. one sufficient for consolidated claims. 653. operates as a summons, 660. 1445 References are to sections. NOTICE OF FORFEITURE (see Co-owneks; Forfeiture and Aban- donment) — full, 528-535. when required, 514. manner of giving, 531. facts stated in, must be true, 531. NOTICE OF LOCATION (see Declaratory Statement; Location; Description) — preliminary, full, 365-377. general requirements of, 366-374. some kind of, essential from beginning, 366, 375. generallj' required by district rules, 367-373. sufficiency of, question of fact, 368-371. contrary views, 368-871. prima facie evidence only, 369. 370. must be liberally construed, 370-376. no iron-clad rule in construing, 376. not required by federal statute, 371, 374. certain, held to be sufficient. 372, 374, 390 what should be held sufficient, 376. parol evidence to explain, 369-372. or record not held invalid for insufficiency, in absence of adverse rights, 418. under state statutes, 373. importance of, 375. state statutes requiring verification, 420, 421. See State Statutes, Appendix B. OATHS (see Application for Patent) — who may administer, 657. OBITER DICTUM — office of, 262. OBSOLETE DOCTRINES — new law founded upon, 3. OCCUPANCY — value of naked, 155. under claim of right, 171. OFFICE FOUND (see Aliens; Citizenship; Location; Inquest oi Office) — alien may hold mining claim until, 267-369. sovereign right, 367, 268. OIL AND GAS — distinction from other minerals, 1170, 1171. distinction from water, 1171, 1174, 1175. ownership of severed, 1171, 1172, 1174. not synonymous terms, 1171, 1237. rights of neighboring owners in, 1171, 1173. whether adjoining proprietor may take by pumping, 1173. OIL AND G-AS LEASES (see Leases; Rents and Royalties) — full, 1170-1189. rights of life tenant under, 944-946, 951. rights under, exclusive, 1173. real or personal property under different state laws, 1173. boundaries, protection strip, effect of provisions for, 1176. when instrument construed as lease regardless of name given it, 1177. 1446 INDEX. Eeferences are to sections. OIL AND GAS LEASES (continued) — rights and duties of parties to, 1178. liability for rent, 1178, 1212, 1215. diligent work as a condition, 1179-1181, 1221. lessee not discharged by surrender of, 1182. ■when lessor waives performance of covenants, 1181. covenants for work to be literally followed, 1183-1187. construed more liberally than other leases, 1181. effect of failure of wife of lessor to execute, 1184. forfeiture of prior, 1185. possession, injunction, ejectment, 1186. 122SL general statement of law concerning, 1189. duration of tenancy, 1212-1216. rent, portion of net profits, 1213. modification of, by parol, 1219. OKLAHOMA — excepted from operation of mining laws, 153. OLD LAW — foundation for new, 2. OPEN AND NEW MINES (see Mine; Waste; Estates) — no distinction in Scotland, 948. i rights of tenants to, 944, 1131 et seq., 1158. OPTION TO PURCHASE (see Lease; Working Contracts) — in lease, 1165, 1355, 1358, 1359. distinction between, and contract of sale, 1378. how exercised, 1372, 1373. OREGON — has statute supplemental to federal. 111. statutory provisions as to location, etc.. Appendix B. as to location and recording of claims, pp. 1288, 1294 discovery shaft and preliminary notice, p. 1296. equivalent of discovery shaft, p. 1297. marking boundaries, p. 1300. as to relocation, p. 1304. classing mining claims and ditches and flumes used in connec- tion as real estate, pp. 1337-1339. as to transfers of mining claims, p. 13-39. see, generally, index to miscellaneous references, pp. 1364, 1365. ORIGINAL THIRTEEN STATES — distinction between, and public-land states as to mineral lands, 14. no United States public land in, 153, 164. OUTSTANDING TITLE (see Adverse Suits) — may be pleaded in adverse suits, 723. OVERLAPPING CLAIMS — and locations considered, 156, 469, 491. as to annual labor, 491. See Annual Labor or Assessment Work. by extending lines to make parallel end lines, 895--898. relocation for the purpose of including, 574. owners of, acquire no rights against older claim, 896. PAPER TITLE (see Record) — record is inception of, 407. PARALLELISM OF END LINES (see End Lines). PARTITION (see Co-tenants; Annual Labor or Assessment Work) — of unpatented claim, 467. INDEX. 144'i Eeferences ar» to sections. PARTNERSHIP MINING (see Prospecting Contracts; Co-tenants; State Statutes, Appendix B, pp. 1335 et seq.) — mining, full, 1500-1581. mining, defined, 1500-1503. distinguished from tenancy in common, 1433, 1500, 1513, 1545-1550. effect of death of one partner, 1503. what does and what does not constitute, 1504, 1505, 1513. early English doctrine, 1506. origin; the cost-book system, 1507 et seq. tests for determining existence of, 1513-1515. distinguished from trading partnership, 1514, 1536-1540. mining conducted under general, 1516. work essential to constitute, 1517, 1545, 1547. liability of members, 1515, 1518, 1531. distinctive peculiarities of, 1536 et seq. ' no mutual agency, nor dissolution by death, 1536, 1538, 1531. no delectus personcB, 1514, 1518, 1537, 1538. power of one partner to bind others must be expressly shown, 1539, 1535, 1536. power of one to borrow money on credit of others, 1538, 1539. instructions to one by others must be strictly followed, 1530. summary of liability, 1531. reason for distinction, 1533. distribution of profits and losses, 1583. majority in interest controls, 1534. authority delegated to manager, 1535, 1536, 1541, 1611-1615. limits of such authority, 1536, 1537. implied by acceptance of fruits; estoppel, 1538. authority to borrow money, by manager, for, 1538, 1539. when manager entitled to compensation, 1541. void corporation, when operators uader, classed as mining partners, 1546. interests of several co-tenants, 1547. owners of ditch property not partners, 1548. partners in extracting ore, 1549. law of, originated in old common law, 1550. creation and establishment of, 1555-1557. may be established verbally or in writing, 1555. or by acts of parties, 1556. test of existence as to third parties. 1557. mutual rights and duties of members, 1565-1568. mutual good faith required, 1565. rule where personal skill an element, 1566. general rule as to representation of deceased member's interest. 1567. relationship preserved where Dossible, 1568. dissolution of, full, 1575-1581. ' how accomplished, 1575. notice of withdrawal of member of, terminating liability, 1576. when equity will intervene, 1577. dissolution under the English rule, 1578. forfeiture as affecting dissolution, 1580. rights and liabilities of succeeding partners, 1579. the subject summarized, 1581. PATENT (see Application foe Patent; Aliens: Citizens; Estates- Reservations in Patents) — ' from United States to mining property, full, 735-781. locator not bound to secure, 467, 743. 1448 INDEX. References are to sections. PATENT (continued) — under law of 1866, 738, 774. construed as of its own date, 737. must conform to law, 737-739, 866. restricted to terms authorized by law, 666, 737. for placer, known lodes excluded from, 738. as muniment of title upon which possessor may securely rely, 740. for lodes in placer claim, what rights secured, 738. language of, conveying extra-lateral rights, 738, 785. conclusiveness of, 207, 737, 740, 744, 781. as to citizenship and all subjects of adverse claim, 740-743, 747. as to character of land, 743, 746. in reserved lands, 207. only proceedings where citizenship involved, 262, 742. presumption that all matters before issue were regular, 741. when issued relates to location, 743, 744. town site, conveys no minerals, 747. variance between calls in, and monuments on the ground, 745. free from collateral attack, generally, 737. 740, 741, 746. when subject to collateral attack, 746, 747. conflicting, 747, 896. how and for what reasons set aside, 748-753. mere irregularities not suflBoient to justify setting aside, 751. mode of procedure to set aside, 748, 749. confirms, but does not create rights, 781-783. confirmation of existing rights, 738, 739, 785. when patentee trustee, 753. effect of reservations in, 737. form of reservations and exceptions in, 785-787. conditions and reservations void unless authorized, 756. PENNSYLVANIA DOCTRINE OF SEVERED ESTATES (see Severed Estates), 1002. reference to miscellaneous statutes of, Appendix B, pp. 1364, 1365. PERCOLATING WATERS (see Watee Rights) — rights to, and ownership of, 331. PERMANENT MONUMENTS (see Location; Marking Boundaries; Record) — 'hat are, 370, 414, 415. record, not notice, must refer to, 370, 371, 414. presumption that those used are best in vicinity, 415. presumption that certain things are, 372. shaft is, when, 415. sufficiency of, question of fact, 416. PETROLEUM (see Location; Placer) — a mineral, and locatable as such, 145, 146, 313, 313, 951. held a mineral by the courts, 813, 951. locatable as placer, 313. PIPE LINE (see Eminent Domain; Injctnction) — right to construct on adjoining property, 1072. PLACER (see Location; Marking Boundaries: Record; Placer Mining; State Statutes, Appendix B, pp. 1307 et seq.) — what minerals included in term (oil, petroleum, asphalt, etc.), 307- dll. size of claim locatable as, 315. claim must be marked, 388. application for patent for, 666. INDEX. 14^9 References are to sections. PLACER — known lode in, 667. building stone is, and so locatable, 314. full, as to size and character of claim, 307-315. in river beds, 310. lode in (see Lode; Patent), 666. PLACER MINING (see Placer; Hydraulic Mining) — full, 135, 307-310. origin of term, 307. general definitions of, 308, 309. by hydraulic process, 310. PLEADINGS — in adverse suits, see Adverse Suits. not necessary to allege citizenship except in adverse suits, 269. POLICY OF UNITED STATES — as to mineral lands before statute of 1866, 55, 56, 86, 93. to reserve minerals from sale in every way but by location, 59, 153, 203. of reservation of minerals, 59. POSSESSIO PEDIS — mining ground held by, 155. POSSESSION (see Naked Possession; Location; Indian Reserva- tions) — of Indian land, 179. by mere occupancy limited to amount actually held, 155. general eflEect of, 233-236, 447, 454, 457, 467. must be' followed by valid location, 452. alone, valueless, 233, 454, 456. nor against persons seeking in good faith to make location, 235. not good against location, 234, 454. actual possessio pedis not necessary to constitute right of, 377. for purpose of making location recognized, 235, 358, 377, 454^457. may be in person or by agent, 453. saoredness of, 236, 453, 466, 467. for period of statute of limitations presumes location, 357, 455. exclusive right to, by location, 377, 450-457. definition, and proof of, 453, 457. one in, when may not be silent, 457. equal to patent, when, 466. POSSESSION AND POSSESSORY RIGHTS (see Possession), 92,447- 453. PRESCRIPTION (see Adverse Possession; Adverse User). PRE-EMPTION LAW — minerals reserved in, 58. PREROGATIVE — royal, defined and discussed, reason for, 8, 9. reference to copyhold lands, 19. restriction and abuse of, 19. PRESENT FACT (see Charactek op Land; Coal Lands). PRESIDENT POLK'S MESSAGE, 60. PRESUMPTION (see Patent; Permanent Monuments; Location) — from possession, 455. of sufficient evidence of possession, 453. office of, 89, 456. 1450 INDEX. Beferences axe to sections. PRESUMPTION (continued) — of duty done where forfeiture claimed, 545, as to copyhold lands, 18. that district rule has been obeyed, 134 of grant, when, 89. of valid location, 134 of validity of patent, 741. PRIORITY (see Location; Application for Patent; Patent; Fiest IN Time. Strongest in Right) — of discovery, under law of 1866, 102. of location, generally gives best right, 801, 870. limitations on this rule, 869, 870. PRIVATE ENTRY (see Coal Lands). PROOF (see Annual Labor or Assessment Work; Burden of Proof; Forfeiture and Abandonment; Notice of Applica- tion for Patent) — of annual labor, how made under statute, 496 (see State Statutes, Appendix B). of forfeiture, 534 (see State Statutes, Appendix B). of posting notice, 658. of damages for working beyond bounds, 1634 PROSPECTING CONTRACTS (see Partnership) — full, 1590-1605. similarity of, to cost-book system, 1590, 1600. relation of outfitter and prospector, 1590-1593. origin and history of, 1591. what constitutes, 1593. construction of, 1593-1595, 1597. implied, estoppel, 1594, 1595. abandonment or forfeiture of rights under, 1595, 1599, 1600, 1604 outfitter's implied rights under, 1596, 1598. outfitter's duties, 1599. not within statute of frauds, 1596. dissolution and settlement, 1603. when may be abandoned, 1602, 1603. mutual agency between outfitter and prospector, 1603. when notice of abandonment required, 1604 law of, and grub-stake contracts summarized, 1605. PROTEST (see Adverse Claim; Adverse Suit; Application for Patent) — distinction between, and adverse claim, 675. and protestant's rights, nature of proceeding, 691. who may, 693, 698. delinquent adverse claimant, disinterested person, 693. the right to appeal, 693. proceedings not res judicata, 694. PUBLICATION OF NOTICE (see Proof; Notice of Application for Patent) — what a 3u£3cient, 661. PUBLIC DOMAIN — states enumerated. 111. PUBLIC MINERAL LANDS (see State Grants; Reservations; In- dian Reservations) — reserved from sale except in manner directed, 59. early idea to pay national debt by sale of, 97, 98, 305. only, can be located as mining claims, 151, 153, 279. INDEX. 1451 References are to seotiODS. PUBLIC MINERAL LAND STATES — enumerated, 154. PUBLIC RECORD (see Record) — notice of location must be recorded in, 407, 410. necessity for, 408. PUBLIC RESERVES (see Public Mineral Lands) — mines in, 11, 111. PURCHASE PRICE OF MINING CLAIMS — lode and placer, 666. mill site, 671. coal lands, 703. QUALIFICATIONS (see Aliens; Citizenship: Citizens) — to acquire mineral lands, 243-248. ' in Canada and elsewhere, 250. QUALITY — of estate secured by location, see Location ; Estates. full, 439-470. QUARR^S — distinction between, and mine, 141. QUARTER CORD, 35. QUITCLAIM (see Deeds) — deed, when held mere license, 1393. RAILROAD GRANTS AND RESERVATIONS (see Grants; Indian Reservations; Mineral Lands; Reservations; Reservations and Patents) — mineral lands in, open, 171, 197-202. grants inprcesenti, 198. how grant attaches, 199. map of definite location, 199. right of way, 300. "RANGE"— same as lode, in Wisconsin, 285. RECEIVER — when will be appointed to do annual labor, 495. RECEIVER'S RECEIPT (see Application for Patent; Patent; An- nual Labor or Assessment Work) — when and to whom will issue, 664. value, effect and conclusiveness of, 665. assessment work not necessary after, 665. power of department to cancel, 665. RECEIVER'S RECEIPT (see Application for Patent; Patent; Annual Labor or Assessment Work), 664, 665. RECORD (see Location; Permanent Monuments) — of mining claims, full, 403-423. must refer to natural objects or permanent monuments, 370, 371, 403-409, 41^. • statute requiring, said to be directory, 403, 404 should always be made. 403, 407, 408. what to contain, 405, 409, 412, 413. substantial accuracy, 405-414. substance, rather than form, important, 405. requirement universal, 406-410. is inception of paper title, 407, 410. must be public, 407, 408. 1452 INDEX. References are to sections. RECORD (continued) — sufficiency of description in, 410, 413. when a question of fact as to description in, 411, 412, 416. rigid rule not enforced, 417, 418, 421. not void for insufficiency in absence of adverse rights, 418. time within which to be made, 418. failure to make does not invalidate location in absence of inter- vening rights, 421. RECORDER (see Record) — mistakes of, cannot injure mining claimant, 419. books of, as evidence. 419. REGALIAN RIGHT (see Allodial Title) — early traces of, in mining law, 3. none in United States, 15, 16. distinction between, and right to govern, 16. REGISTERS AND RECEIVERS (see Land Depaetment; Land Of- fice) — powers and duties, full, 626-628. appointment and salary, 626. under control of land department, 626. duties interdependent, but neither acts for the other, 626. jurisdiction, 636. decisions judicial, not controlled by court, 627. how objections to evidence before, may be made, 627. must do business at regular land oflSce, 628. REGISTRY AND DISCOVERY (see Location; Discovert)— this practice under the Mexican law, 534. REGULATIONS DEPARTMENT OF THE INTERIOR 'see t.and Of- fice; Land Department) — force and effect of, 598, 599. RELATION (see Location; Application fob Patent; Patent)— doctrine applied to amended location notices, 425, 427. to what date in mining patent, 743. RELOCATION (see Location; Forfeiture and Abandonment: An- nual Labor or Assessment Work; Resumption of Work; Amendments and Addenda) — of mining claims, full, 570-588. equivalent to denouncement under Mexican law, 570. the statute permitting, 571, 572. See State Statutes, Appendix B. pp. 1303 et sea. when mining claim open to, 571-573. of overlapping claims, 574. to cure defective title, 576, 577. in the form of amendment, 577. what a new discovery for purpose of, 578, 579. no new discovery necessary. 578. as to right of relocator to adopt original marks, 579, 581. as to necessity for sinking new discovery shaft, 579. when takes effect, 580. the doctrine of relation as a^jplied to, when made as amendment, 580. marking boundaries essential, 581. all requirements in case of original location must be complied with, 579, 581. improvements go to relocator, 582. who may make, former owner, 583-585. when by one co-owner inures to all, 586, 587. former rights must be extinguished before, 572. INDEX. 1453 References are to sections. EENTS AND ROYALTIES (see Leases) — in mining leases, full, 1251-1276. defined, 1251. on net product or proceeds, what expenses may be deducted, 1353, 1253, 1857, 1258, 1268. lessee's duties in regard to, 1253, 1354, 1361, 1370, 1273, on various classes of ore, 1254. fixed minimum, 1355, 1356, 1259, 1260-1363, 1373. where no product found, 1356, 1259, 1263. 1271. net proceeds as measure of damages, 1358. dead rent, provision for governed strictly by terms of lease, 1359- 1361. distinguished, 1259. as to right to apply previous overpayments on minimum, 1260, 1361, 1371. failure of consideration for, exhausted premises, 1363, 1363, 1371. when suspended by eviction, 1265. confined to marketable product, 1366. as to unmarketable product, 1266, 1367. customs as to screens, l'-i67, 1269. when due, and when term for paying begins, 1370. when payment of, excused, 1370, 1371. lessor's lien for, 1273. state's royalties, action on bond for, 1374. on separate leases between same parties distinct, 1275. the law of, summarized, 1376. RESERVATIONS (see Indian Reservations; Grants; Patents; Reservations in Patents: Mexican Grants) — and reserved lands, full, 56-60, 171-308. early policy of government as to minerals, full, 56-60. Indian, full, 173, 179. Mexican grants as, full, 181-185. military, full, 191, 192. in town sites (see Town Sites), 314 Forest Park Reserve, 193, 194. distinction between grant and, 950, 963. in railroad grants, full, 197-208. and grants also convey right to enjoy them, 1007. and reserved lands, rights in, 21, 339. from sale, 57-59. express and implied, 219. of mines, early statutes, 57. in state grants, general, educational, 217, 319. in other state grants, 221, 336. how made, generally, 193. of mmerals in grants, 958-965, 1001, 1011. void if large as grant, 981. and exceptions distinguished, 958, 963, 1004. what included in, 964. implied rights under, 1008. when may become void, 1109. in leases, 1163. statutory tunnel as, 337. RESERVATIONS IN PATENTS AND DEEDS (see Reservations)— of minerals. 140. must be valid to be enforced, 154, 737, 747, 755. void unless authorized by law, 756. liS-i INDEX. References are to sections. RESERVATIONS IN PATENTS AND DEEDS (continued) — in Mexican grants, 183. effect where large as grant, 183, 981. with right of entry reserved, 183, 184 early decisions as to, 205, 755, and note. in town-site patents, 210, 211, 314. in state grants, 318, 319. of easements, etc., 756-759. in lode patents, of veins discovered in tunnels, 759. of minerals in Texas and United States Dublic lands compared, 983. of dip rights, special, 937. not always rigid, 421. RESUMPTION OF WORK (see Annual Labor or Assessment Work; FOREEITXraE AND ABANDONMENT) — on mining claims, full, 560-564 saves claim from forfeiture, 561. honest intention of, sufficient, race with relocator not required, 563. what a sufficient, 563, 564 RIGHT OF ENTRY (see Application for Patent) — of reserved mines, 31. RIGHTS OF MINERS (see Location; Mineral Lands) — not to be ignored, 87. judicial knowledge of, 88. licensees of government, 90. recognized by court, 91. EIGHTS OF WAY (see Eminent Domain; Easements) — for railroads, mines in, 200= no valid discovery on, 201. lode dipping beneath, 301. for ditches, etc., reserved by statute, 113. through severed strata for boring and mining, 1009, 1011. for pipe line, 1073. deed of, what passes by, 1103. RIPARIAN RIGHTS (see Water Rights) — common-law doctrine of. modified in mining states, 1077. RIVER BEDS — and streets, mines under, 11. locatahle as placer, 310. ROCK IN PLACE (see In Place), 345-349. ROYAL MINES (see Sovereign Right) — disposition of lands containing, different from other lands, 924 origin of the right and its application to mining at the present day, 8-13. ROYALTIES (see Rents and Royalties) — the system of, in mining discussed, 98, 103, 105. RULES OP DISTRICT (see District Rules). RUSSIA — allodial title to mines prevails in, 5. SACREDNESS OF POSSESSION, 336, 453. SAFETY OF MINERS — regulation for protection of, see Miners. SALE OF PRODUCT (see Lease; Deed) — distinguished from lease, 1165. and disposition, includes lease, when, 1150. INDEX. References are to sections. 1455 SALINE LANDS (see Salt; State Grants) — included in grant of public lands to Utah, 218. SALT — a mineral, and locatable under placer laws, 147, 310. so held in Texas, 143. the Spanish law of regalian right in, 4. licks and mill seats reserved, 57. SEA SHORE (see Riteb Beds) — mines under, 12. SECRETARY OF INTERIOR (see Land Office; Land Department)— full, as to mining law, 604-607. functions and duties as to mines and minerals, 603. when acts of, deemed acts of president, 604. charged with supervision of mineral lands, 604. bound by rule stare decisis, 605. decisions of, are binding but controlled by rules, 606. discretion of, 607. SERVITUDES AND EASEMENTS (see Easements), 1070. SEVERANCE OF ESTATES (see Estates; Easements) — full, as to mining law of, 957-1033. defined, 957, 958. exceptions and reservations in town sites as, 962. how created, 957. by custom, 973, 974. by adverse user, what necessary to constitute, 970-973. how accomplished, 997. rights and duties incident to, 995, 996, 998, 1000, 1001, 1005, 1016. as many estates as strata, 998. some instances of, at common law, 1000. rights of the crown as to, at common law, 960. of subjacent strata, same as adjoining closes, when, 1004. 1005. must extend to mine as such, 972. not by prescription, 975. when effected by grant of extra-lateral rights, 957, 961. what acts sufficient to accomplish, 981. effect upon superjacent and subjacent estates, 1009. duration of, 1010, 1085. ownership of empty space after minerals removed, 1010. terminated by merger, 1085. by abandonment, 1087. by lease, 1200, 1332. when lease operates as, 1200. of oil estate from freehold, effect, 1175. coal estate from freehold, 1319. by state renunciation, 163. SIZE OF CLAIM (see Location; State Statutes, Appendix B, pp. 1381- 1283; Federal Statutes, Appendix A, pp. 1237, 1238) — of lode claim, 280, 281. lode in placer, 820. same where lode located before nlaoer, 321. in Canada, 315 n., 881, n. of lode in tunnel, 298-300. of placer claim, 315. 14:56 INDEX. References are to sections. SOUTH DAKOTA — has statute supplemental to federal, 111. certain statutes of, criticised, 114 statutory provisions as to location, etc.. Appendix B. as to location and recording of claims, pp. 1289, 1294 discovery shaft and preliminary notice, p. 1296. equivalent of discovery shaft, p. 1397. marking boundaries, p. 1300. as to amended location notice, p. 1303. as to relocation, p. 1304 attempting to define extra-lateral rights of locator, pp. 1306, 1307. requiring security from miner for injury to surface, p. 1330. see, generally, index to mis6ellaneous references, pp. 1364, 1365. SOVEREIGN RIGHT (see Mineral Lands) — to minerals, analogous to rule in this country, 15, 16. authority asserted, 24 inquest of office is, when, 267, 268. regalian ownership under, 4 SPAIN — wealth of, acquired by mining, 133. SPANISH LAW — foundation of our mining law, 50-53. completeness of, 50-52. STANNARY COURTS, 40-43, 46. STARE DECISIS — rule not adhered to in land office, 158. STATE GRANTS (see Grants; Grants and Reservations; State Lands; State Selections)— of certain sections to Michigan, unconditional, 233. minerals not conveyed by, 163, 171, 218, 223. saline lands included in, to Utah, 218. for school and similar purposes, 163, 317, 218. STATE LANDS (see State Grants) — no minerals conveyed by grant of. 823. minerals in, discovered after patent, 163. effect of attempt of state renunciation, 163. within original Thirteen States, 164. of Texas, 165. conflicts between, and public lands of United States, 757. STATEMENT OF FEES AND CHARGES — on application for patent, 663 (see Appendix C, p. 1346). STATE RENUNCIATION — of mineral lands, effect, 163, 163, 328. severance by, 163. STATE SELECTIONS (see State Grants) — effect of, 224 effect as patent after approval, 224 how set aside, 235. INDEX. Eeferences are to sectiona 1457 STATE STATUTES (see Appendix B, pp. 1281 etseq.; Statutes, also the various states and territories by name) — relating to location and acquisition of western mining lands. enumeration of states which have enacted, 111. authority for and limitations upon, 113-115, 380. criticised, 114. as to notice of location, 273. as to vyidth of claim, 379, 380. as to tunnels, 396. competent, 400, 417. should be complied vpith, 131, 417. not to be expanded. 417. as to annual labor superfluous, 533. proper as to proof of forfeiture, 534. distinction between old and new, 118, 119. certain, of doubtful validity. 113, 114, 163. conflicting with congressional law, void, 113, 130. permitting location on state mineral lands, 163. for protection of employees in coal mines (see State Statutes, Ap- pendix B). > subjects of such statute, 1640-1650. power of legislature to enact as police regulations, 1641-1643. outlets required in coal mines, 1653-1654. ventilation, provisions for, 1655. the English statute as to ventilation, 1656. as affecting liability for negligence, 1661. requiring employment of competent fellow-servants and tim- bering, 1661. construction of appliances, cages. 1663. power to frame rules, duties of employees thereunder, 1668. how as to contributory negligence, 1664. same, the Pennsylvania rule. 1665. protecting earnings of coal miners, 1670. weighing, credit for coal mined, 1670. same, within legislative power, 1671, 1673. contrary doctrine iu Illinois. 1672. constitutionality of such statute, 1674. rights of miners as to weighing product, 1675. requiring miner to furnish security for future damages to sur- face criticised, 1018. miscellaneous. as to miners' liens (see Liens), 1680 et seq. against interfering with percolating water (see Watee Rights), 331. relating to mining, generally, summarized, 114. STATUTE OF LIMITATIONS (see Location; Application for Pat- ent) — effect of, upon location, 357, 673. possession under, presupposes location, 357, 673. application for patent under, 673. possession for, is equivalent to location, 673. when begins to run against ousted co-tenant (see Co-tenants), 1433. STATUTES OF THE UNITED STATES (see State Statutes; Stat- ute OP Limitations; Federal Statutes) — sufficiently broad to cover all minerals, 379. of 1866, comments by Mr. Yale on weakness of, 108. criticised by Arizona court, 103. compared with that of 1873, 101. It '' 1458 INDEX. References are to sections. STATUTES OF THE UNITED STATES (continued) — of 1870, supplemental, 104. of 1866, general purposes of, 102, 106. difference between, 1866 and 1870, 107. requires marking of boundaries, 381, 384. of 1873, as to additional rights on located vein, 738. STATUTORY CONSTRUCTION — of federal statute, 183. legislative, al3, 345, 246. should be liberal, 430, 421. extreme rules of, 445, 803. contemporaneous, 601. as to extra-lateral rights, 791, 803. STATUTORY TUNNEL (see Tunnels; Reservations) — in full, 393-306. considered as a reservation, 337, 393. location in, 397. how lode discovered in, located, 397. pecujiar rights of owner, 303. marking on the surface, 397. remedy suggested of grant too broad, 303. STOCKWERCKE — a mineral, 283. STREAMING — defined, 809. similar to placer mining, 310. STREETS — mines under, 15. and river beds, mines under, 11, 15, STRIKE OR COURSE — defined, 388, 389, 813. judicial strike or dip, 814. claim should be laid on, 388. SUPERINTENDENT, MINING — definition, powers and duties, full, 1611-1615. agent of partnership or corporation, 1611, 1613. duties and scope of authority, 1613, 1614. how far may bind employer in dealings with third parties, 1614. power to borrow money, 1615. when entitled to lien for services (see Lien), 1690. SUPPORT (see Surface Rights) — duty of servient to dominant estate, 1016. vertical, full, 1017-1043. surface owner's right to, 1018 et seq. nature of the right, 1018. statutes retujiring miner to provide security for. criticised, 1018. right an absolute one, 1030, 1033, 1041. limitations on the right, 1030-1033. a natural right, 1031, 1033, 1024, 1037. only land without buildings entitled to, 1035-1038. negligence not an element, 1035. reciprocal rights between owners of different strata, 1009, 1011, 10 'fi. the English doctrine as to, entitled to have surface remain in n.it- ural state, 1026. the common-law presumption as to, 1038. INDEX. 1459 References are to sections. SUPPORT (continued) — cannot be defeated by custom, 1028, 1039, 1031, 1043. what constitutes sufBoient. is question of fact, when, 1089. controlled by contract when there is one, 1039, 1033. the right to, how affected by conveyances, 1080-1033, 1041. when miner entitled to compensation for furnishing, 1033. grantee only entitled to such minerals as can be taken without in- juring surface, 1030, 1031. may be conveyed away, but not so as to relieve from liability for negligence, 1033. right to adjacent or subjacent, 1040. lessor's liability for damages by lessee, 1290. covenants for, in lease, 1295, 1296. SURFACE (see Support) — lines, see Boundaries. owner's title to minerals, 923. injury to. in mining (see SUPPORT), 964, 1019, 1032 et seq. possession of another cannot be invaded, 156. lines, injportanceof, 448, 449. SURFACE RIGHTS (see Support)— English customs as to, 35. SURFACE SUPPORT (see Support). SURVEY (see Application for Patent) — full. 635-646. application for, 635. contents of application, 635. deposit in surveyor-general's office for, 636. disposition of money deposited, but not used. 636. applicant may select any deputy mineral surveyor, 637. rules governing, 638-647. must show parallel end lines, 638. to wliat tied, conflicts with other claims must be shown, 638. not void for excessive lines, 641. new, when will be ordered, 640. return of, what should contain — should show lines crossed by, and $500 improvements, 643, 643. plat must be approved by surveyor-general, 644. of placer, must show lode if one exists, 645. group claims, 646. approval of, 644. SURVEYOR (see Survey: Surveyor-General) — deputy mineral, employment of, by applicant, 637. mistakes of. cannot injure applicant, 639. SURVEYOR-GENERAL (see Survey; Surveyor) — return oC, prima facie correct, 156. how appointed, 620. under supervision of land department, 620. duties of, full, 620-633. how deputies appointed, 631. prohibited from being interested in sale of public lands, 633. application for survey to be addressed to, 635. fees of, how and to whom paid, 636. SWEDEN AND NORWAY — early mining law of, 4. 1460 INDEX. References are to sections. SYSTEMS — mining summarized, 14, 127. TAILINGS (see Easements; Eminent Domain). TAKING UP CLAIM (see Location), 366. TAX — foreign miners', 64, 65. covenants in leases for payment of, 1389, 1390. 1300. TEAMSTER — when entitled to miner's lien (see Lien), 1090, 1691. TENANCY (see Lease; License: Estates: Waste) — duration of, when question for jury, 1200. at will, when lease construed as, 1231, 1397. TENANT (see Tenancy; Co-tenants)- opening new mines, when waste, 935, 947-950. TENANTS IN COMMON (see Co-tenant; Lease; Tenancy) — confidential relation between, has no application to mining claims, when, 525. TENNESSEE (see reference to miscellaneous statutes of, "relating to mining. Appendix B, pp. 1364, 1365). TEXAS (see mining statute in full. Appendix B, pp. 1353-1363; refer- ence to various miscellaneous statutes. Appendix B, pp. 1364, 1365) — court holds salt a mineral, 143. no public land in, belonging to United States^ 165. no extra-lateral rights in, 165. rule as to reservation of minerals in grants of, 983. THIRTEEN STATES (see Original Thirteen States). THREATS (see Annual Labor or Assessment Work) — location prevented by, effect, 377. TIMBER (see Forest Park Reserves; Federal Statutes) — on government reserves, 194. TIMBERING — in mines, statutes regulating, 1661. TIME — within which to do assessment work, see Annual Labor or As- sessment Work. for record, not material in absence of intervening rights, 421. as to other acts of location. 438. TIN — bounding, 30-32. measuring meers, 34, 35. See Stannary Courts, 40-42.. TOWN SITES (see Grants; Grants and Reservations; Mineral Lands; Reservations in Patents and Deeds) — mineral lands in, open, 171, 206, 310, 311. entries of, may be made by incorporated cities or towns, but no minerals pass, 213. patents, minerals reserved in, 738, S59. patent, conveys no minerals, 206, 210, 211. effect of statute to absolutely reserve minerals from, 211-313, minerals in, may be patented separately, 213. review of cases upon question of, 313. TRANSFERS (see Deeds; Leases) — generally by deed in writing, 467. INDEX. 1461 References are to sections, TRESPASS — under ground, see Working Beyond Bounds. TRESPASSERS— ,^ ^ ^^„ annual labor by (see Annual Labor or Assessment Work), 489. marking boundaries by, 395. location prevented by, effect, 377. i TRUSTEES (see Patent; Application for Patent; Trust Estates) — rights and duties of, as to trust estates in mining property, 991. when patentee will be declared, 659, 753. TRUST ESTATES — who may work mines in, 986-991. trustees must not waste, 991. TUNNELS (see Statutory Tunnel) — statutory, considered, 393, 302. rights acquired by, 393, 294, 503. intention of statute as to, 294. manner of locating, 395. staking required by land office, 395. discovery and location in, 397-303. "line" of, defined, 298, 399. extent of claim discovered in, 300. "face "of defined, 801. owner only entitled to veins not previously known to exist, 303. claims, abandonment of, full, 550-556. work in, required, 550-553, 556. diligence in working, required, 554, 555. injunction to protect (see Injunction), 305. patented claim, how affected by, 758. state statutes as to (see Appendix B), 396, 758. summary of law of, 306. UNAPPROPRIATED MINERAL LANDS (see Location; Mineral Lands; Public Mineral Lands) ^ only, and unoccupied lands locatable as mining claim, 153, 154. what are, 155. possession of, under no claim of right, effect. 171. UNDERGROUND CURRENTS (see Water Rights) — and percolating waters distinguished, 333. '■UNDER JURISDICTION THEREOF " (see Citizen; Citizenship) — phrase interpreted, 346. UNITED STATES AS SOVEREIGN PROPRIETOR — of mineral lands, may attach conditions to acquisition, 201. UNOCCUPIED LANDS (see Unappropriated Mineral Lands). UTAH — has mining statute supplemental to federal, 111. saline lands passed to, by act of congress, 218. statutory provisions as to location, etc.. Appendix B. as to size of claim, lodes and placers, p. 1383. location and recording of claims, p. 1289. as to marking boundaries, p. 1300. as to proof of assessment work, p. 1336. as to leases of state mineral land in, pp. 1847-1853. see, generally, index to miscellaneous references, pp. 1364, 1365. VALAZQUEZ'S — definition of placer, 309. 1462 INDEX. Beferences are to sections. VALID LOCATION (see Location)— of mining claims, full, 340-423. gives right of possession, 377, 450-453. VALUE (see Mineral Lands). VEINS (see Lode ok Vein; Strike or Course) — defined, 283-286, 795. formation of, discussed, 770-795, 803. different kinds of discovery on, 349, 770, 840, 841. and lodes, general meaning of term, 79.5. all allowed by law of 1866. 107. all belong to locator, 443-446, 880-883, 911, 913. the rule as to cross, 444, 880, 883. miner owns as much of, through entire depth, as he has apex, 847- 853. intersecting, 867, 868. contact, 383. flat or bedded, 841. not regular, 105. courts' interpretation of law as to, 803. VENTILATION (see State Statutes) — in coal mines, 1655 et seq. required in coal mines under English statute, 1656. VERBAL TRANSFERS — of mining claims, 1131, 1133. VERIFICATION (see Declaratory Statement; Pleadings). WAIVER — of forfeiture clause in lease (see Leases), 1181-1185. failure to do work on claim amounts to, 537. WALLS (see Definitions) — hanging and foot, 815. WALRATH-CHAMPION CASE — noticed and criticised, 843. WASHINGTON — has state statute supplemental to federal. 111. court holds limestone not a mineral, 144. statutory provisions as to location, etc.. Appendix B. as to location and recording of claims, p. 1393. discovery shaft and preliminary notice, p. 1397. as to marking boundaries, p. 1300. as to amended location notice, p. 1303. as to relocation of claim, p. 1304. as to location of placers, p. 1310. proof of assessment work. p. 1336. see generally, index to miscellaneous references, pp. 1364, 1365. WASTE (see Co-tenants; Leases; Dower) — by tenant (see Tenancy; Lease), 935, 945, 950, 1158. defined, generally, 943. what is. by life tenant, 941, 948, 945, 946. by dower tenant, 933-935. by tenants in tail, 943. work" by co-tenant is not, 1438. former English rule that any work of unopened mine constituteii, 94:i INDEX. 1463 References are to sections, WASTE (continued) — later rule in this country not so rigid, 943. worl£ of opened mines is not, 944, 1895. presumption and burden of proof as to, 947. permissive, what is, 949. tenant may not destroy estate by, 950, WASTE LANDS — mines in, 13. tin bounding in, 33. WATER (see Water Eights; Drainage) — liability of owner of, for damages, 1075. fouling of, by mining, 1076. WATER-COURSE (see Water Rights)- defined, 332, WATER RIGHTS (see Drainage) — interest in ditch for mining, classed as real estate in Oregon, 330, relation of, to mining, full, 3^9-382. by appropriation, 829. first appropriator has best, 330, interruption of use as affecting, 330, beneficial use necessary to constitute, 330. vested, recognized, 463. percolating water and undei-ground currents, 331, 332. riparian doctrine of, modified, 1027, WEIGHING (see State Statotes) — statutes regulating weighing of coal, 1670 et seq. WISCONSIN — mineral lands in, sold as agricultural, 153. excepted from operation of mining law, 153. state statutory provisions in, as to mineral lands. Appendix B. as to leases of mineral lands, p. 1843, providing for contract with state for purchase of state lands, p. 1877. see, generally, index to miscellaneous references, pp. 1364, 1365. WORK (see Annual Labor oe Assessment Work; Waste; State Statutes) — required under English customs, 33-36. record under English customs, 36. WORKING BEYOND BOUNDS (see Injunctions) — extracting minerals by, full. 1620-1624. injunction to prevent (see Injunction), 1620. damages for, intent an element in determining, 1621, 1623. innocent taking, absence of negligence in, 1621, 1622. measure of damages for, 1621, 1628. proof of damages, 1624. WORKING CONTRACTS (see Leases; Prospecting Contracts) — a modified form of lease, 1355. payment of compen.sation out of proceeds, 1356, 1357, option to purchase in, 1358, 1359. construed according to terms, 1360. conditions limiting conveyance, estate upon condition, 1361, 1362. damages for breach of, 1362. conveyance in consideration of work done, clause for, construed 1362. 1363. interest in, subject to miners' liens (see Liens), 1700, 14:64 INDEX. References are to sections. WYOMING — has statute supplemental to federal, 111. criticism of statutes, 114 statutory provisions as to location, etc., Appendix B, as to size of claims, p. 1283. location and recording of claims, pp, 1389, 1S94. as to discovery shaft and preliminary notice, p. 1296. , equivalent of discoverj»«haf C, p. 1298. as to marking boundaries, p. 1801. as to amended notice, p. 1302. as to relocation of abandoned claim, p. 1304. as to location of- placers, p. 1311. as to proof of assessment work, p. 1326. attempting to define extra-lateral rights of locator, pp. 1307, 1308. requiring security from miner for injury to surface, p. 1330. provisions as to drainage of mines, pp. 1332-1334. ZINC — early mining of, 139. produced in Missouri and elsewhere, 139. 4