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Tous les autras exempiaires originaux sont filmAs en commenpant par la pramiAre page qui comporte une empreinte d'impression ou d'illustration et en terminant par la derniAre page qui comporte une telle empreinte. Un des symboles suivants apparaftra sur la derniAre image de cheque microfiche, selon le cas: le symbols — »> signifie "A SUIVRE", le symbols V signifie "FIN ". Les cartes, planches, tableaux, etc., peuvent Atre film«s A des taux de reduction diff«rents. Lorsque le document est trop grand pour Atre reproduit en un seul clich«, il est film* A partir de Tangle supArieur gauche, de gauche A droit*, et de haut en bas, en prenant le nombre d'images nAcessaire. Les diagrammes suivants illustrent la mAthode. rrata to pelure. H 32X 1 2 3 1 1 2 3 4 5 e r - ■'■' > •-'■•'\ ,^ - 'I ■ ' m mr m - tBML BLANKS ■•^■- We 0«-«»iw *•» Wbr*' «rf Jtow Wee* We oury • ««»»pl«t« ^*"* **^ Pettilutd Cob Seah* LOWMAN a HANPORD . „._- SBATrtaVASH, ) 1" I f • LEEHEY'S 1 i J MINING CODB FOR THE USE OF ''i MINERS AND PROSPECTORS — IN — WASHINGTON AND ALASKA * WITH NOTES AND. ANNOTATIONS •AND- FORMS FOR GENERAL USE — BY — M. D. LEEHEY ATTOnNKY ANI> COlINNELOIl AT LAW 412 PioNKKK lUm.niNii. Skatti.e, IT. 8. A. Until recently of the Har of lUitte, Montana. Seattle, Wash.: Ix)wniRn & Haiiford Stationery and Printing Co. 1900 •rv' » ^ M '< V- f'oi'vitKiHTKi), ign<) KY M. I). MCKHKV ''h jf- SBMtOTS»WWM«WSJ5S INTRODUCTORY This iimmial is tcmlorcd to llu> juiblii- \\\ flie Itclief that it will be found iisofiil to tlie iniiHTS and prospector^ in Wa^liin^'ton and Alaska. It has bet-n designed primarily for tlieir Usse. nnd in its arrangement and ]»r('])nri)tion their wants have lieen given tir.-t,.^OMnKideration. In size, form anl contents it will be found convenient for actual daily use and con- snltation by the prospector on his trail and thojniner in his camp. The pnrpose has been to make this manual i?o concise and yet so complete aa to be a ready and intelligent guide to the law, and \(v trn?t i^ may find ii welcome place in the jn-ospector's pack and in tJie miyer's chbin. AVhih' the work has been designed primarily for the use of miners and-))rosj>ectorg, yet it is not a mere elementan- treatise. The funda- mental and essential principles of mining law are. all presented, thotigb often necesi^arily very briefly stated in an abridged discussion. Th^ book rortains all the mining laws of the United States now in' foixje, all the mining laws of the State of Washington, and all the mining laws relating to Alaska, including the very latest mining prorisions contained inHhe Carter Act to procidc a Jvil government for Alaska jusl pa fined hg Cungrem. The statement of the more important provisions of the.laW ha* been followed by a general discussion of the principles involved, An attempt has been made to explain briefly such cpiestions of law as most often arise in the location of mining claims. The author has also sought to make this manual useful to lawyers by giving a few citaitions to leading cases and authorities within the scope of the siibjects treated.. No attempt has been made to give more than a leading case upon each subject, but ' these citations will serve the further purpose of enabling the reader to^ ve)ify the statements made, if he choose to do so. l"!lie citations and notes at the foot of each pnge are indicated by consecutive numbers in brackets in the text. The forms are placed in the Appendix. The dif- ferent subjects, such as Oilizen^hip, Locatioii. Beach- Claims, etc., are treated in separate chapters and the laws relating to the' .particular sub- ject are all stated under that head,, thus making the manual a very ready reference book. One M-i.«hing to read the acts of .Congress, or the laws ■ of Washington or Alaska, section by .section as enacted, may do so by th^ ■ V f 149ijl4 •> /] • *• .» • i V- "/I m, .■ rK > 4 ^ iNTROpUCTION. .' * * . ■ aid of the index nl th« back of tlie book, and a special cfTort^huH been made to render. this iiRlox complete. Tlie Avriter acknowledges himself indebted to Hon, E. 0. Kreider, Reporter of tlie Supreme Court of Warrington, to Hoft. W. L. Jones, Congreasmn'h from this state, and especially to Hon. E. B. Howell, of Butte, autJior of Howell's Miners' Code for Montana, and «ldii'lu>, .niuny of ^ose lucid notes have lx)en lep^ated in this book as the most (?f>neise and satisfa6tory stateTnent possible, to bo f rained. ' M. D. L. '■Seattle, June Otih, 1900. « • - • •# . :• 1- • * -i*'.""-',- mftmftif^f* '' V ' ^'s r' ^v. ■? '' ■!!:: ' ort hiiH been 0. Ivreider, y. L. Jones, FIowoll, of •«lalu>, .riijuiy iiiO(*t cf>ncise M. D. L. . ■ -^ . . ■ • • • » • ■,•■• a . •• • . i *. • • ••■'■■ •. ■. ■'■■ ': • • • ' ' CONTENTS V • ^: , ■ •■ *■.. . *• . X ■ • -^- — . — ^ ^- .., •• Chapter. '•■':' Page ■* , . • • I. Mineral liaiids Subject to Jjocation. . \^ ....,*. .^ 7 . II. W'hV) May Ixxate Mining Claims, — Citi/A'a.-^hii), ......,..." . 3 • . III. Di«?oveiy of I/)de Claims 12 »."* IV. Ll XX. " Ijodes Within Placer Claims r . ;' .'! ,• G3 • . ** ■ XXr. Possessory Rights in Mining Claims T v •_ 66 x»*f P*-,^ XXII. Righto and Property in Mining Claims and Lease And' Sale -.^^^ *■' of the Same 67 Appendix A. Forms for Greneral Use 73 Appendix B. Miscellaneous Statutory Provisions *. .,.. 88 * •• - •, Appendix C: CrianinaL Statutes ..... 93 - "^^^, General Index ; . . , r. . .-. ..'... 97 iah.r/ ' ■ •. . ..-•;■■■ JL»r*' '."'-■ ^- „^ '\li ] »-K. i'\ I w J ' ABBREVIATIONS USED IN THIS WORK linl. Code. BnlliiigeiV Annotnted Codes and Statutes uf Washington. Bar. ii Adams. Barrinjrcr and Adams' Law of Mines and Mining in the United States. Cal. California Reports. Copp. Copp's ATiiorican Mininj: Code. Fed. Rep. or Fed. Federal Reporter. HomU. Howell's Miners' Code for Montana and Idaho. Jj. D. Land Decisions. Liudlcif. Lind.'oy on Mines. Mont. Montana Reports. Mor. M. N. ^lonison's Mining Reports. Mor. Mng. R'ujhiH. Morrison's Mining Rights. Nev. Nevada Rejxvrts. /'«(•. Rep. Pacific Reporter. Rev. Slots. Revised Statutes of the Fnited States (1878). Saw. Sawyer's Reports. Sup. Ct. Rep. 8n]ireme Court Reporter. V. S. United States or United States Supreme Court Re}torte. Wash. "\Vas(]iingion Reports. /* •■( 1 1 'iWtffT'm Hi ii en I r ii i ' .■ii">»'^»'i*-f»'' ■"'« »?«T«"« LEEHEY'S MINING CODE ^RK ishington. ining in the .HAPrER I. MINERAL LANDS 3i P.)ECT TO LOCATION. United States Law. Section 2.31 S. Ifevised Statutes. -"In all cases landa valuable for minerals shall i)e re>ii'rved from sale, except a^ otherwise expressly di- rected by law."' Sec. 231!). — ••All valuable mineral deposits in lands belonging to the United State.s, both Siiirveyed find unsurveyed, are hereby declared to be free and open to exploration and purchase, and the land.« in which they are found to occupation and purchase, * * * » tup: Pr'BLlC domain.— The mining laws of the [Tnited States have reference only to those mineral-bearing lands situated within the public domain. This, of course, includes Washington, and by Act of Congress, appnivod May 17, 1884, such mining laws were extended to Alaska (1). From the founding of the government until 1866 it was the policy of Congress to withliold from entry and sale all public lands containing "known mines." For this reason no laws for the acquisition of such lands were enacted, and the early prospectrtrs*, including the California gold miners of 1840, could not acquire title to their lands. This led to the formation of local mining districts and tlie adoption by the miners in each district of rules for the claiming and working of mines. These rules had no authority in law and depended for their enforcement upon the action -^f the miners in eacli district. Gradually, however, a comparative uniformity was obtained in the rules of the various districts, and the first general mining law, enacted by Congress in 1866, recognized to a certain extent these local rules and regulations of miners, and provided a method by which title to mining claims migiit be acquired. This was followed by the Placer Act' of 1870, and the Lode Claim Mining Law of May 10th, 1872, which, with slight modifica- tions, are atill in force and constitute the fundamental law upon the aub- (1) The United States Mining Laws were first extended to Alaska by that act (of May 17, 1884), but the Carter Act of the present Congress con- tains a similar provision. See Appendix B; also page 29 post. \ 'it* \ \ 1 ' '\} ri . :\ 8 LEEHEYS MINING CODE. ject. Each state may add to the federal law and impose additional requirements as to requisites of discovery, manner of location, designi- tion of claims, and record of same, wliile the miners of each district may organize and adopt rules and regulations for the acquisition and enjoy- ment of mining privileges in the district, which, however, must conform to both the federal law and state enactments. CHAPTER II. WHO MAY LCKATK MINING CLAIMS. CITIZENSHIP. United States Law. Section 2319, Revised Salutes. — "All valuable mineral deposits in lands belonging to the United States, both sxirveyed 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 citi- zens of the United States and those wh'o have declared their intention to become such, under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States." Sec. 2321. — "Proof of citizenship, under this chapter, may consist, in the case of an individual, of his own affidavit thereof; in the case of an association of persons unincorporated, oi the affidavit of their author- ized agent, made on his own knowledge, or upon information and belief; and in the case of a corporation organized under tlie laws of the United States, or of any State or Territory thereof, by the filing of a cei titled copy of their cliarter or certificate oi incorporation." Washington Law. Constitution, Art. IT., Sec. 33. — "The ownership of lands by aliens, other than those who in good faith have declared their intention to be- come citizens of the I'^nitod States, is prohibited in this .^tate, except whui acquired by inheritance, under mortgage or in good faith in the ordinary course of justice in the collection of debts; and all conveyances of lands hereafter made to any alien directly, or in trust for such alien, shall be void: Provided, That the provisions of this section shall not apply to lands containing valuable deposits of minerals, metals, iron, coal, or fire clay, and the necessary land for mills and machinery to be mttm oBsm LKRIIKY .S MININfi CODK. 9 cse additional tioD, designi- h district may on and enjoy- mnst conform HIP. il deposits in isurveyed, are purchase, and !hase, by citi- r intention to ording to the icts, so far as of the United may consist, n the case of their authov- in and belief; )f the United of a ceitified ids by aUens, ention to be- state, except faith in the [ conveyances »r such alien, ion shall not metals, iron, hinery to be used in the develojuiient thereof and the manufacture of the products therefrom. Every corporation, the majority of the capital stock of which is owned by aliens, shall be considered an alien for the purposes of tliie prohiliition."' Sees, lois, -ir)-i;), 4550. Bal. Code provide in substance that any alien who is not di-qualified to become a citizen of the United States, shall liave the right to acquire by purchase, devi.se or descent, and hold and convey in the usuiil manner, lands and any estate therein the same as if he were a citizen. Tlie right? so conferred extend to the building and ojierating of railways, tramAvays and bridgef. and to the ownership of huuls in conneetiui tiiercwith, and all estates in lands attempted ti be conveyed to aliens jirior to the adf)i)tion of the state constitution are confirmed. XOTK OX WA8HlX(iT0N LAW.— It will appear that the three sections of tlie code last cited, or at least the two first numbered, which were enacted prior to the adoption of the state constitution, are in a degree in conllict with the section of the constitution quoted above, and to that extent they will be held to be modified by the adoption of the constitution. 'I'lu' ext-'ut of this n)odification has never been judicially declared. Biu >ince uiuler the laws of the United States an alien cannot obtain a patent to a mining claim, that mucli is settled. When the claim has once l)efn ])atented, however, it Ix'comes real property, and subjec; to dispo-iition under the laws of the state, and a.s the constitu- tional inhibit 'on (h»es not apply to "lands containing valuable deposits of minei'als." it is safe to state that aliens can ac(piire and hold ami con- vey title to mine?i in Washington, thougli of coursie they cannot acquire directly by patent from the United States government. Alaska Law. (From Alt of Congress, Approved May 14, 1898.) ''Sec. i:i, — 'J bat native-born citizens of tlie Dominion of Canada shall be accorded in said district of Ala.ska the same mining rights and ])rivik'ges accortleil to citizens of the United States in British Columbia and tl)e .Vorl invest Territory by tlie laws of tlu- Dominion of Canada or the local laws, rules, and regulations; but no greater rights shall be thur ai'corded than citizens of the United States or pers(»ns who have declarwl their intention to becoim- such nwy enjoy in said district of Alaska; and the Secretary ol the inteiior shall from time to time promulgate and enforce rules and regulations to carry this provision into effect." (From Land Office Regulations Issued June 8, 1898.) " 5;f. Bv the laws of the Dominion of Canada citizens of the United 21. 10 LKEHKYS MININO CODK. on It, l)ut tiic laws iiioral lands ui lake any provi- citizoiis of tlu} authorize the sns of Canada of the United )y the laws of Dominion of citizens of tlie payment of a t accord to its n Alaska, and 1 be thus ac- of the United nie such may lie being this , and as this miners, the s will apply the govern- se who have citizens" are ps composed my state or citizen, and ratioiis, and cannot be e discharge L intention, during the d or father is the declaration of the widow and minor children, if residents of the Uniteame until his right to do so is attacked in a direct proceeding again?t him by the United States (a citizen cannot do so). An alien cannot obtain a patent, though should he become naturalized after having made the location his right be- comes complete and relates back to confirm the location and enables him to proceed to patent (8). In the .same way a location made by an alien may be transferred by him to a citizen who may ol)tain a patent (9). (3) Lee vs. Justice Mng. Co., 29 Pac. Rep. (Colo.) 1n22. (4) BUUngs vs. Aspen, 51 Fed. Rep. 338. (B) Manuel vs. Wulff. 152 U. S. 506; 14 Sup. Ct. Rep. 652. (6) Wilson vs. Triumph Co.", 56 Pac. Rep. (Utah) 300. (7) Gleason vs. Martin, 13 Nev. 455. (8) Lindley on Mines, Sec. 234; Manuel vs. Wulff, Supra. (9) Lindley, Sec. 233. I II • 5\ h ! i>-v^ > I /rf II .*'* 12 LEEHEY8 MINING CODE. CHAPTER III. DISCOVERY OF LODE CLAIMS. United States Law. Sec. 2320, Eeviticd S-tatiitcs. — "No location of a mining claim shall be made until the discovery of tlie vein or lode within the limits of the claim located." Washington Law. Sec. 3152, Bal. Code. — " * * * jj^j j^q location of a mining claim shall be made nntil the discovery of the vein or lode within tho limits of the claims located." Sec. 4, i\E MINERAL, AND HKXCE SUB- JECT TO LOCATION.— The following have \m'u held to l)e such by the Land Department: Asjdialtuin, petroleum and the mineral hydrocarbons, borax, nitrate and carlionate of soda, sulphur and alum, kaolin, or china clay, mica, umber, gypsum, limestone, marble, diamonds, clay, pliosphates, building stone and stone of special commercial value, coal, slate. SALT LANDS are classified as mineral, but while these lands are held to be reserved from railway grants and formerly were entered under the mineral land laws, the Land Department will no loiig(>r permit them to be so accpiircd. They can be taken only as salines, and there is now no provision for the entry or sale by the United States of saline lands in either Wa.-hingtoii or Alaska. DEFINITION OF TERM "MINERAL ' IN WASHINGTON.— While it lias long been the settled doctrine both in England and elsewhere in this country, that the term "mineral" should be underjtood in its widest signification, yet the Supreme Court of Washington in Wlieel.T vs. Smith (5 AVash. :04; 3^ Pac. Rep. 781) has sought to limit tlie meaning of the term to metallic substances or ore, and hence held tluit lands chiefly valuable for building stone could not be entered under the mineral land laws. As to this particular substance the ruling is now un- important, for building stone lands may now bo taken cither as placers under the Act of Congress of August 14, 189'^, or under the timber and stone act of June 3, 18T8. But the decision may be important -is an ex- jpression of the court upon the meaning that is to lie given the term "mineral." The decision is, however, in conflict with that of all state (5) Eureka Case, 4 Sawyer 302; Iroa Silver Mngr. Co. vs. Cbeesman, 116 U. S. 529; U. S. vs. Iron Sliver Mngr. Co., 128 U. S. 680. For a complete definition of the term "lodt" and discussion of Its requisites as to continuity, see B. & B. Mng. Co. vs. Socletp Anonyme Des Mines De Lexington, 23 Mont. ; 58 Pac. Rep 111. (6) Nevada Sierra Oil Co. vs. Home Oil Co., 9S Fed. Rep. 673. ;?;.. 14 LEKHEY8 MINING CODE. If \ 3 s^ vj ■ 4 courts Avliioli liavo passed xipon the subject, as well as contrary to the rule in tlie Land Department, and is not likely to be followed as a precedent even in this state. , SCHOOL SECTIONS.— Mining claims upon the grant to the state for educational purposes. By section 20 of the "Act to Establish the Territorial Government of Washington Territory," approved March 2, 1853, it was ]irovided "that when the lands in said territory shall be sur- veyed under the direction of the government of the United States pre- paratory to bringing the same into market or otherwise disposing thereof, sections numbered sixteen and thirty-six in each township in said terri- tory shall be, and the same are hereby, reserved for the purpose of being applied to the common schools in said territory." This was re-enacted in the enabling act. Xo mineral lands were to pass by this grant. But by ''mineral lands" was meant lands known to be such at the date of the grant. Upon the survey of the townships and designation of the sections therein the grant to the state is complete. It is made the duty, however, of the deputy surveyor in the field to note in the returns of the survey the character of the land, and if any such sections be returned as mineral the same do not pass to the state. Since the examination in the survey is necessarily very superficial it often follows that lands actually mineral are not so noted upon the returns to the survey and hence pass absolutely to the state, and its title will not thereafter be disturbed. But if any such lands be designated as mineral, they are thus reserved from such grant. The return is prima facie evidence of their mineral character and there- after the same are open to exploration and acquisition under the mining laMs (:). Alaska. There i? no special legislation concerning the subject of discovery in Alaska, and local mining districts are not empowered to regulate the same. The foregoing remarks of course apply to Alaska as well as to Washington. (7) HermocUla vs. HubbeU. 89 Cal. 5; 26 Pac. Rep. mineral lands :n "Washington, see Appendix B. Gil. As to lease of state 'imismiimemm^.->^ ttmm •ary to the rule as a precedent it to the state Estahlish the )ve(l March 2, y shall be sur- ed States pre- ssing thereof, » in said terrl- rpose of being vas re-enacted frant. But by le date of the >f the sections y, however, of he survey the is mineral the the survey id ually mineral »ass absolutely Ht if any such n such grant. ;er and there- !r the mining discovery in regulate the as well as lo lease of state LKEHEYS MINING ("ODE. 15 CHAPTER IV. LOCATION OK I.ODK ("LAIMS. United States Law. Sec. 232(1, lievified Statutes. — "Alining claims upon veins or lodes of quartz or other roik in place bearing gold, -iilver, cinnabar, lead, tin, copper, or other v-nluablo deposits, heretofore located, sliall be governed as to length along tlie vein or lode by the customs, regulations and laws in force at the date of their location. A mining claim located after the tenth day of May, oiglitcen hundred and seventy-two, whether located by one or more persons, may equal, but shall not exceed, one thousand Imo hundred feet in length along the vein or Imle; but no location of a mining claim shall ^'o made until the discovery of the vein or lode within tliC limits of t]\e claim located. No claim sJiall extend more than threo 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 thru twenty- five feet on each side of the middle of the vein at the surface, except where adverse riglits existing May 10, 18T2, render such limitation neces- sary. The end lines of each claim shall be parallel to each other." Sec. 2324. — ''The miners of each mining district may make regula- tions not in conflict with the laws of the United States, or with the lawd of the state or territory in which the district is situated, governing the location, manner of recording, amount of work necessary to hold pos- session of a mi. 'ng claim, subject to the following requirements: The location must be distinctly marked on the ground so that its boundaries can be readily traced,*' etc. Washington Law. Sec. 31ol. Bal. Code. — "All mining claims upon veins or lodes of quartz or other rock in place, bearing gold, silver, or other valuable mineral deposits heretofore located, shaJ) lie governed as to length along the vein or lode by the customs, regulations, and laws in force at the date of such location.'' Sec. 3152. — '"A mining claim located upon any vein or lode of quartz or other rock in place, bearing gold, silver or other valuable mineral de- ]iosits after the approval of this act by the governor, whether located by one or more persons, may equal, but shall not exceed, fifteen hundred feet in length along the vein or lode; but no location of a mining claim shall be jiiade until the discovery of the vein or lode within the limit«« of the claims located. No claims shall extend more Uian three hundred feet on each side of the middle of the vein at the surface, nor shall any le^ 1 n ■J -1 ,'1 '■t f-> ii t HiWiJiiWiiil ' . 16 I.KKIIKYS MINING CODIO. claiiT.s be liinitofl liy any iiiiniii<; rof,ni]ntion to less tlian fil'ty feet of sur- face; oil ciicli .side of tlir middle of siuli vein or lode, at the >urfaee, ex- ce))tinji wliere adveisc rights, e^•i^'ting at tlie date of the approval of this act, shall iiiakt' such limitation iiet-essary. The end lines of such claim shall he parallel to each other.'' Sec. "J, Act of !>numents must he not less than three (3) feet hiart with brush or trees, such brush siliall be cut and trees be markeil or blazed along the lines of such claim to indicate the location of such lines."'" Sec. .']. — "Any open cut or tuniu'l having a length of ten (10) feet, which shall cut a lode at the depth of ten (10) feet below the surface, shall hold such lode the Siime as if a discovery shaft were sunk thereon, and shall be equivalent thereto." See. !>. — '"Tlie jtrovision herein, relating to discovery shafts, .shall not apply to any mining location Avest of the summit of the Cascade mountains." F()1!MS. — l'"()r a form of Xotico of Location for })osting on the claim recommended for use in Washington, see Form Xo. 1, Appendix A, and for a form i'(tr record see Form Xo. 2, both of which meet fully the re- quirements of the law of the state, and if carefully followed by locators will lead to a better systiun of records of mining titles. LOCATIOX JXIT1ATF8 TITLE.— The act of location is the post- ing of notice. Therel)y the title of the locator is initiated and he serves notice upon all the world of his discovery and claim. He thereupon be- comes entitled to the statutory time (ninety days in Washington, and such time as local rules may provide in Alaska), in which to explore his vein, mark his boundaries and record his location. The federal and state legislation on this subject may be amplified in any district by local rules. LOCAToIiS. — The names, but not necessarilv the signatures of the fci't of siir- siirt'rtcc, ox- nival of this >iii-li claim for ropord, V shaft upon of tlie rim at tlio time name of tlic tlic siirfaoc tone moiiu- oiK' ])o.-t or ifli posts or osts arc uscil lio sot in tiie li on frround liriisli siliall icli claim to V'n (10) feet, tlio surface, uiik tlicrcon, .«li.'ifts. shall the Cascadi; '»n the claim ■ndix A, and fully the re- !. hy locators is the post- nd he serves ereupon be- ington, and explore hi.s federal and :'ict by local tures of the I.KKHEY S MIXIXG CODK. 17 locators are required to 1)0 stated in the ))osted notice. An agent may locate for his ])rincipal, and the latter may be either a person or a cor- porati(»n. The claim located by an a«jent, even if the location be made in his own name, will be the ])roperty of the principal (1). The same is true of a partnership (2). The agent or jiartner so locating takes and holds the title in trust. I'OWKIfS OV ATTOKNKY, and the location of claims by that means, arc ]»ermitted hy law. Xor is there any provisioi- in the recently I'Mactcd Carter Alaska Code to the contrary. JMAIKNSIOXS OF LOC'ATIOX.— The location may equal but shall not exceed fifteen hundred feet in length along the course of the vein, and, in the absence of miners' regulations limiting the width, may include surface grouiul three hundred feet wide on cither side of the middle of the vein. 'J'he ])osted notice should dcsign^ate the portions of the 1500 feet of length claimed on either side of the point of discovery, but in .1 case under a similar law where the notice failed to do this it was held that the claim.ant might hold ^."iO feet along the vein each way from point of discovery (3). NOTICES LIIJKKALLY COXSTUCKl).— While the i)rudent lo- cator will be Oiireful to have his lociition notice exactly right, yet it i? true that courts arc inclined to be liberal in their construction of the notices required by state law. Mistakes in directions and distances often occur, and more ground is often inchidtKl within the location that the law allows, but such mistakes do not invalidate the location. Positive exactness in such matters shonid not hi' expected or required (4). FLOATING OH SHIFTIXd OF THE CLAIM.— The i)osting of the notice holds the vein to the extent claimed for the period of ninety days. During this ninety day period, the locator may swing his claim in any direction required to include his vein, and all persons entering the terri- tory which may thus be located for the purpose of making explorations on their own account do so at their own ])eril. The law fully protects the rights of ihc first locator during the period allowed him for perfect- ing his location. The first locator must act in good faith, however, and he will not be justified in swinging his claim for the purpose of including the vahuible discovery of a neighlior. "When the corners are once estab- lished all swinging of the claim must cease lo). • (]) Raymond vs. Johnson, 17 Wash, 232. 49 Pac. Rep. 492; Book vs. Justice Mng. Co., 58 Fed Rep. lOG; Dunlap vs. Pattison, 42 Pac. Rep. 504. (2) HlPbour vs. Reading, 3 Mont. 15. (3) Erhardt vs. Boaro, 113 V. S. 527. (4) Richmond Mng. Co. vs. Rose, 114 U. S. 57(5; Book vs. Justice Co. Supra. (3) GU'ason vs. Martin White Mng. Co., 13 Nev. 46S; Sanders vs. Noble, 55 Pac. Rep. 1037. , f..'^ 18 LEKIIKYS MININ(i CODE. , \ EXrL()I{ATl(>X OK DKNKF.OPMKN'r WORK.— The object of .requiring (levolopiiient worlv of the locator at the time of the location is not only to prevent nuTcly speculative locations, and to insure the good faith of the locator, but also to compel the locator at the outset t^ disclose the lodo he claims and to reveal its course or strike. The work must be performed witliin ninety days after the notice of location is ])osted on the claim. If, however, a greater length of time than this is consumed in perforining the work, and adverse rights of third parties Iwne not intervened before its completion, the rights of the locator would not be forfeited because of the di?lay. MARKI^'G BOUNDARIES.— The only requirement of the law of the United States in regard to the manner of locating a mining claim i.s that "the location must be distinctly marked on the ground so that its boundaries can be readily traced." The location is never complete until the boundaries are so marked, but if the work be done within the ninety days' allotted time, it will relate back to the date of the location, and thereafter will be deemed to have been done as of that date. The ]a\v of Wa.shington as Just quoted (Sees. 2-3, Act of 1899) is very explicit in its requirements and should be carefully followed (fi). '"'Posts from five to seven inches in diameter, firmly planted in the ground at the corners and ends of a mining claim, and standing not less than five feet above ground, are permanent monuments, within the meaning of the Revised Statutes of the United States, section 2324, requiring all records of such claims to contain a description of the claim by reference to some natural object or permanent monument as will identify the claim, and a recorded notice, which, in addition to a reference to such posts, also gives the general direction and distance of the claim from a lake and a river," has been recently held a sufficient compliance with the law (7). Note carefully that tlie law of Washington requires that the "name of the lode and date of location" shall api)ear on the post or monument at each corner of the claim, and such requirements are held to be mandatory (6), CORNER M0NUMP:NTS on ground already APPROPRI- ATED. — There is no provision of law forbidding corner monuments to be established on ground already appropriated and belonging to third parties. In locating contiguious claims this often occurs, and the val- idity of such monuments is in no way impaired thceby (8). EFFECT^ OF THE DESTRUCTION OF MONUMENTS.— The locator, having once established the monuments required by law, is n/>t (6) Purdum vs. Laddin, 59 Pac. Rep. (Mont.) 153. (7) Credo Mng. Co. vs. Highland M. & M. Co., 95 Fed Rep. 911. (8) Del Monte M. Co. vs. Last Chance Co., 171 U. S. 55. LKKIIEY S MININii CODK. 19 -The object of of the location I to insure the at the outset tr> ike. The work of location is me than this is of third parties locator would t of the law of mining claim is 'Unci so tliat its comi)]ete until thin the ninety e location, and late. The la\r very explicit in Posts from five at the corners five feet above of the Revised records of such some natural and a recorded also gives the d a river/' has w (7). J^ote me of the lode iment at each nandatory (6). APPROPRT- nonuments to ging to third , and the val- )• ENTS.— The y law, is not charged with the duty of protecting thorn from destruction. His right cannot be divested by the obliteration or removal of the corner posts without his fault (9). PARALLEL END LINES.— The end line?, that is, those lines which are crossed by the vein, should be parallel. If not parallel, the location is not thereby void, but the effect is the loss to the owner of ijlie right to follow the vein on its dip beyond the .^ide lines (10). Hence a claim located in the form of a triangle has no cxtralateral rights (11). But M'hen the claim is surveyed for patent the end lines can be so laid off as to be pamllel, and this should then bo done, even if necessary to relin- quish a portion of the ground covered originally. LOCATION INSUFFICIENTLY MARKED may be cured by new markings, if before adverse rights have intervened. (See Re-Location and Amended Location, page 54.) WEST OF SUMMIT OF CASCADE MOUNTAINS IN WASH- lN(rTON no discovery shaft is required by the express exception con- tained in Sec. 9 of the Act of 1809. The preliminary exploration work required in the act is by this section limited to Eastern Washington. The validity of this exception will perhaps be questioned. It can be safely stated, however, that as the law is gene""i in its operation and only the exception is special, the objection can oe raised only to that section. Should the court ultimately hold that the legislature cannot s(! legislate, the act itself will not be affected, but only that section and the exception thereby attempted will be dec^'ared void. In other words, the effect will be to require a full compliance with the entire act throughout the state. While we know of no serious objection to the power of the legislature to make the exception, yet Ave believe that the locator of a valuable mine will avoid litigation at least by ^inking the discovery ehaft or cut as required by the act. Alaska Law. There is no s})ecial requirement as to the manner of location of min- ing claims in Alaska, and therefore such of the foregoing remarks as apply to the statutory provisions of Washington will have no application ij) that district. The United States law, however, states the maximum size of claims and requires discovery, appropriation, marking of corners, parallel end lines, and states generally what the record of mining loca- (9) Montana Co. vs. Clark, 42 Fed. Rep. 626. (10) L.ii>dley on Mines, Sec. 365. (11) Montana Co. vs. Clark, Supra; Doe vs. Waterloo Mng. Co., B4 Fed. Rep. 935. 1 l^' .. i; 7, ^'^'l « ^" *i !l 20 I.KKHKY 8 MINlNd <(H)I':. lions iiMist sli(»\v. 'I'lifsf t()ii(liti(»iis iiiiist lie ciirt't'iilly foUtiwt'd, and \w- yoiid this tlio matter is left I'nr such fnrtlicr n'<|\iir('inonts as niny he im- jioHcil \>\ tlic ndcN and rciridatinns adopted in the various inininji; districts. Jn tins connection we (|not<' IVoni l-imd Ollicc liojfuhitions of June -.Mtli. ISiMi: •••I. Uy the i'orejfoiniT it will l»e ](orceivpd tiuit no lode claim located after the Itith day of .May. ]H','l, can e\ce(»d a parallelogram tifteen hun- tlred feet in len liy one or more piTsoiis, nor can surface rights he limited to Ic.-s tlmin lifty feet in widtii unless adverse claims, existing on the JtMh day of May, 1H72, render such lateral limitation r.ecessary. " i». Locators cannot exercise too nnieh care in defining their lowi- tion-at tlu'ofitset, inasmuch as the law recpiires that ali records of min- ing i(/cations made suhseijuent to ^lay Id, iH'i'i, shall contain the name or ]iames of the locators, the date of the location, and such a descrii)tion of the claim or claims located, hy reference to some natural ohject or pern'anciU monument, as will identify the claim. '•10. >>o lode claim shall be located until after the discovery of a veiji or Jodc within the limits of the claim, the object of which ])rovision is evidently to })revent tlie approjuiation of ))resumed mineral ground for s|)cculative purposes, to the exclusion of bona fide prospectors, before eiiflicic'.it work has been done to determine whether a vein or lod(; really exists. "'Ii. 'J'he claimant should, therefore, jirior to locating liis claim, unless till vein can be traced upon the surface, sink a shaft or run a tiniiicl or drift to a siinicicnt depth therein to discover and develop a mineral-bearing vein, lode, or crevice; should determine, if possible, the geneial course of such vein in either direction from the point of discov- ery, by which direction he will be governed in marking the boundaries of his claim on the surface. His location notice should give the courso and dir-tance as nearly a.s practicable from the discovery shaft on \,he claim to some permanent, well-known points or objects, such, for in- Btance, as stone monuments, blazed trees, the confluence of streams, point of intersection of well-known gulches, ravines or roads, prominent buttes, hills, etc., which may be in the immediate vicinity, and which will serve to perpetuate and fix the locus of the claim and render it susceptible of Ilowcd. and bo- as may Iw irii- i'aiious miiiiiiii; Kogulation.s of 3 claim Idc-ated m fiftivMi liun- lit'tlicr surface ivf^ulatious or ■icts; and that iniit a vein or nur.so thereof, )r can surface dvcrsc ( laims. ral limitation ng thoir loai- cords of min- ain the name a description iral object or iscovcry of a ich provision iieral ground -H'tors. hefore n- lode really g his claim, Eift or run a id develop a possible, the it of discov- ; boundaries B the courso haft on the ich, for in- [•eams, point nent buttes, h will serve sceptible of LKKHKY's MININ(i CODK. 21 identification from the description thereof given in the record of locations in the district, and should be duly recorded. "lui. In addition to the foregoing data, the claimant should state .lie Jiames of adjoining claims, or, if none adjoin, the relative positions a( the nearest claims; should drive a ])ost or erect a nionument of stones at each corner of his surface ground, and at the point of discovery or discovery .-.haft should fix a post, stake or board, upon which should be designated the name of the lode, the name or names of the locators, the number of feet claimed, and in which directif»ii from the point of dis- cr.ve.ry; it being essential that the location notice filed for record, in addition to the foregoing description, shr.uld state whether the entire claim of fifteen hundred feet is taken on one side of the point of dis- covery, or whether it is partly upon one and partly upon the other side thereof, and in the latter case, how many feet are claimed upon each side of such discovery point. " J.i. The location notice must be filed for record in all respects as required by the state or territorial laws and local rules and regulatifnis, if there be any.'' h\nm FOR LODE LOCATION NOTICE IX ALASKA is sid)- mitted in Form No. 3, Appendix A. Some matters are tilijea-ein stated whic^h are not expressly retjuired by law, but tlu- i)rudent locator will oin:l to !*tate nothing that is therein suggested. CHAPTER V. KECORD OF LODE LOCATIONS. United States Law. Sec. 2324, Revised Statutes. — * * * .. ^^jj reconls of mining claims hereafter made shall contain the name or names of the locators, the date of the location, and such a description of the claim or claims locatei' hy reference to some natural object or permanent monument as will identify the claim." Washington Law. Sec. 1, Ant of 1899, Page 69. — "The discoverer of a lode shall within ninc\v (!)0) days from the date of discovery, record in the office of the puditor of the county in which such lode is found, a notice containing th? Uiimc or names of the locators, the date of the location, the number of feet in length claimed on each side of the discovery, the general course 22 lekhey's mining code. 1 ll . 1 r of the lode and riicli a doscrii)ti()n of the claim or (■laiiiis located by ref- erence to some natural object or permanent moninnent a? will identify the claim." F(>RM NO. 2 in Appendix A meets the i-eqnirements of the fore- going law and is submitted as the proper form of notice of location for record in Washington. FORMER WASHIXGTOX LAW.— Sees. 3155-7 of Ballinger's Annotated Code.= and Statutes of Washington, in force prior to 1899, empowered mining districts to elect a Recorder, cnnumerated his duties, and provided for the record of mining locations and transfers with such oflicer, and at the same time provided for the record of such instru- ments in the office of the County Auditor withi7\ thirty days after the execution of the same. The sections are doul)tlcss repealed 1)y the Act of 1899, and mining districts in Washington are therefore unaffected by any st^ate legislation. Indeed the state legislation has left no neces- eiiy for their organization. Alaska Law. (From the Carter Act Recently Passed by Congress.) Sec. 15, Title L, provides that the Clerk of the District Court of Alaska for each division, Avho shall be ex-officio Recorder, shall record: * * * . " Seventh — Notices and declaration of water right's; " Ninth — Atlidavits of annual work done on mining claims; " Tenth — Notices of mining location and declaratory statements; "Eleventh — Such other writings as are required or permitted by law to be recorded, including the liens of mechaniics, laborers, and others: Provided, Notices of location of mining claims shall be filed for record within ninety days from the date of the discovery of the claim described in tlie notice, ami all instnunents shall be recorded in the recording district in which the jiroperty or subject matter affected 1)y the instru- ment js situated, aiul wiiere the property or subject matter is not situated in any established rcMrdiug district the instrument affecting the same shall be recorded in the othce of the clerk of the division of the court having .supervision over the recording division in which siich property or sul)ject matter is situated." Sec. 2G of the same act extends the General Mining Laws of tlie United States to Alaska That section is copied in full in Chapter VIL, page 29 post. FORM l-'OR LODl-: LOCATION NOTICE for record in Alaska is the same as thai n'(iuin'(l to he posted on the claim, and Form No. .3, " LEKHKYS MINING CODE. 2a l<»r'ated by ref- as will identify its of the fore- of location for of Bal linger 's prior to 1899, ated his duties, fers with such 3f such instru- days after the led l)y the Act ore unaffected left no neces- ress.) trict Court of ecorder, ghall iius: atenients; initted by law ?, and others: led for record aim described tlie recordino- >y the instru- s not situated ing the same of the court ueli property Laws of the 'liapter VIL, in Alaska is Form No. 3. I Appendix A, is submitted as containing all the neces.*ary requirements. Care mnst always be taken, however, to ascertain and o1)serve the local rules, if in an organized mining district in Alaska. THE PURPOSE OF THE RECORDED LOCATIOX XOTICE is to establish a permanent record of the location. It should conform to the statute and should show the fulfillment of every requirement of the law. When properly maa^. and recorded it. furnishes constructive notice to. the world of the facts which it recites. One of the most important requisites of such a statement is that it shall contain such a description of the claim, located by reference to some natural object or permanent monument as will identify the claim. If the situation of the claim is so indefinitely or inaccurately described that the claim cannot be found by means of it, then the record affords no notice to any one, and any person not having actual knowledge of the claim oan relocate the ground and hold the same 1iy a good title. If such relocator, however, has actual knowledge of the prior location he cannot take advantage of the defective record. He has such knowledge if the claim be in the actual possession of the prior locator (1) NATURAL OBJECTS AND PERMANENT MONUMENTS.— The natural object may consisi; of any fixed natural object in the immediate viciniry, such as a prominent boulder of unusual size or shape, the confluence of streams, the point of intersection of well known gulches, ravines, or roads, proriiinent buttes, hills, etc. The permanent monu- ment may be a conspicuous stone jiionumeut constructed for the pur- pose, a prominent post or stake firmly planted in the ground, well known shafts or tunnels on neighboring claims, an adjoining claim whose loca- tian is generally known, or, what is best of all, a corner of the United States land survey. It is no objection to a permanent monument that it is on the claim itself. In each case the question wlietliei' the object chosen is such a natural object or permanent monument as serves to identify the claim is a question of fact for the jury. The distances from the discovery shaft or other initial point on ilie claim to two or more such natural objects or permanent monuments should be given with as great accuracy as possible. Such objects or monuments as lie in directions nearly at a right angle to each other from the starting. jjoint should be chosen. This is callel "tieing tii(> claim." DESCRIPTION OF DEVELOPMENT WORK.— There is nothing in the h.\v of Washington which expressly requires the locator to stale in his recorded notice of location the dimensions or location of the dis- ci) Lebanon Co. vs. Con. Rep. Co., 6 Colo. 379. C&ff«»H •'t \ li' ^^v , m i>y \^ ^^i! ►». 24 LKKIIEYS MIXIN(i CODK. covery shaft or out. lint tliis wojk i.s roroceedin^s, as are provided for vein or lode claims; but where the lands have been previously surveyed by the United States, the entry in it.^ ''xtcrior limits .shall conform to tlie legal subdivisions of the puiijie lands." Act of August -1, 1892. — ■* Any jierson authorized to enter lands (2) LincUey on Mines, Sec. 392. (3) Purdiim vs. Laddln, 59 Pac. Rep. (Mont.) 153. (4) Sees. 4709-11, 4790, 4S96, Bal. Code. ^ m LEEHKY S MINING CODE. 25 done and the cord," and the n his record '-^d tJiose of other n be verified, tely necessary, or tlie record labor or tlie ig claim," and all be received the recorded 1 work and its erly made and t must contain c law is man- ieli any act i? I by excluding iday, and then day following, and 22, May Thanksgiving rs,' including 'oek in place, ices and con- vein or lode eyed by the 1 to tlie legal enter lands under the mining laws of the United States may enter lands that are chiefly valuable for building stone under the provisions of the law in relation to placer mineral claims: Provided, That lands reserved for Ihe benefit of the public schools or donated to any state shall not be aibject to entry under this act." (27 Stats. L. 348.) Sec. 2330. — "• Legal subdivisions of forty acres may be subdivided into ten-acre tracts; and two or more persons, or associations of persons, having contiguous claims of any size, although sucn claims may be less than ten acres each, may make Joint entry thereof; but no location of a placer claim, made after the ninth day of July, eighteen hundred and seventy, shall exceed one hundred and sixty acres for any one person or association of persons, vhich locfition shall conform to the United States surveys; and nothing in this section contained shall defeat or impair any bona fide pre-emption or homestead claim upon agricultural lands, or aiithorize the sale of the improvements of any bona fide settler to any purchaser. Sec. 2331. — " \A'hfcre placer claims are upon surveyed lands, and con- form to legal subdivisions, no further survey or plat shall be required, and all placer mining claims located after the tenth day of May, eighteen hundred and soventy-two shall conform as near as practicable with the United States system of public land surveys, and the rectangular sub- divisions of such surveys, and no such location shall include more than twenty acres for each individual claimant; but where placer claims can not be conformed to legal subdivisions, survey and plat shall be made as on unsurveyed lands. * * * » Washington Law. Sec, 10, Act of 1899, p. 71. — " The discoverer of placers or other forms of deposit subject to location and appropriation under mining laws applicable to placers shall locate his claim in the following man- ner: " First. — He must immediately post in a conspicuous place at the point of discovery thereon, a notice or certificate of location thereof, containing (a) the name of the claim; (b) the name of the locator or locators; (c) the date of the discovery and posting of the notice herein- before provided for, which shall be considered as the date of the loca- tion; (d) a description of the claim by reference to legal subdivisions of sections, if the location is made in conformity with the public sur- veys, otherwise, a description with reference to some natural objtx;t or permanent monument as will identify the claim; and where such claim is located by legal subdivisions of the public surveys, such location shall, 81, 26 IJCKHKYS MINING ('ODK. -.<*• \ 4^^ i;i I %'. I i ' i !,. nntwitlisitandiiiji' that fact. In- iiiarkod hy the locator upon the ground the mnw a?f otlier hications. ".Sooond. — Witiiiu thirty CM)) days from the date of such discovery, he niu^t record .Hich notice or certificate of location in the otfice of the auditor of the county in which «uch discovery is made, and so distinctly mark his location on the jxround that its honndaries may ho readily traced. " Tiiird. — Within .^ixty (<»()) days from the date of the discovery, the discoverer :«hall perform lahor upon such location or claim in developintr the ■■anie to an amount which shall he eijuivalent in the aggre,uate tn at least ten (10) dollars' worth of such labor for each twenty acres, or fractional ]>art thereof contained in such locUion or claim. " Fourth. — Such locatiir shall ui>on the performance of such labor, file with the auditor of tlie county an affidavit showing such perform- ance and generally tlie nature and kind of work so done.'' Sec. 11. — '■ The allidavit ])rovided for in the last section, and the aforesaid placer riotice or certificate of location when filed for record, shall be lu'ima facie evidence of the facts therein recited. A copy of such certificate, notice or atlidavit certified by the county auditor shall be admitted in evidence in all actions or proceeding with the same effect as the original and the provisions of .sections si.\ and seven of this act shall apply to placer claims as well as lode claims." ■ Alaska Law. The discussion of the law as to placers upon the beach and tide lands in the Xome region of Alaska is reserved for the next chapter. The following section relates to records of mining claims generally and is from the (^'arter act to jn'ovide a civil government for Alaska, just pas.sed by Congri'ss. Sec. 1-"). Title I.. ])r"\i(lt'< that the Clerk of the District Court of Alaska for c;uh divisimi shall be ex-otlicio lieeorder and shall record: * * "' '■ .Seventh— Xotices and declaration of water rights; '* Ninth — AfiidavMs of annual work done on mining claims: " Tenth — Notices of mining location and declaratory statemcnta; "Eleventh — Such other writings as are required or ])ern;itted by law to be recorded, incliidiiig the liens of mechatiics, laborers, and others: Provi'ded, Notices of hxation of mining claims shall be filed for rexiord within ninety days from the date of the discovery of the claim described in the notice, and all instruments siliall lx» recorded in the recordinsr ) r s sjiM ' Ul..t-JWiW— LEEHEY S MINING CODE. 27 nil the grounil such discoveiy, le oifice of the k1 so distinctly lay 1)0 readily the discovery, 1 or claim in ivalent in the txbor for each h locitiou or of such labor, such perform- tion. and the ?d for record, A copy of auditor shall le same effect LMi of this act ind tide lands lext chapter. aoncrally and Alaska, just istrict Court -'!• and shall ims; atoments; iitted by law and others: d for record ini described le recording district in which the property or subject matter affected by the instru- ment is situated, and where the property or subject matter is not situated in any established recording district the instrument affecting the same shall be recorded in the office of the clerk of the division of the court having supervision over the recording division in which such property or subject matter is situated." Sec. 26 of the same act e.vtends the General Mining Laws, of the United States to Alaska. That section is copied in full in the next chapter, page 29 post. The mining laws of the United States were first extended to Alaska by the Act of May 14, 1884. See Appendix B, FOIJMS. — A form of Xotice of Location of Placers for both posting on the claim and record, recommended for use both in Washington and Alaska, is submitted in Fonn No. 4, Appendix A. WHAT MAi' BE LOCATED AS A PLACER MINING CLAIM.— Alluvial and other deposits, not rock in place, bearing gold, copper and other valuable metals or ])recious stones, and also deposits of kaolin, borax, soda, etc., may l)e located as placer claims. BUILDING STONE may be located under the Placer Mining Lawi by special authority of the Act of August 4, 1892. CONFORMIXG TO PUBLIC SURVEY.—While .section -i^-ld of the Revised Statutes prescribes that "where the lands have been pre- viously surveyed by the United States, the entry in its exterior limits shall conform to the legal subdivisions of the public lands," yet it can hardly be the intention of this provision to compel the claimant to in- clude non-mineral land in his location. It is the practice of the land department to allow the patent of placer claims that do not conform to the legal sutxJivisions of the public lands, where it is shown that such claims include all portions valuable for mining purpo.ses. TrXl)l{.\ CLADFS may be located as placers. And such claims may 1)0 extended downward on the beach to the line of oixlinary high tide. See next chapter. CREEKS AND THE BOTTOMS OF NON-NAVIGABLE STREAMS may be located as placers. Such claims may be made to conform to the couree of the stream. The manner of making such loca- tions in Ala.ska at least is governed almost entirely by the local rules of each district, aaid the prospector, if in an organized mining district, should fully inform himself as to all local rules before making a location. IN ALASKA the almost universal custom is to require location of placer claims in the form of a rectangle, 660 by 1320 feet nuiximum size. POWERS OF ATTORNEY, and the location of churns bv the same, \ > A, si' ■ 28 LEEHEY S MINING CODE. are not prohibited by the recently pas,«ed Carter Act, or otherwise, unless by local rules. MANNER OF LOCATING.— There should be a discovery upon each twenty-acre claim. It is true that tlie Supreme Court of Montana has held that where an association of persons jointly locate a tract of 160 acres as a placer claim, one discovery is suflicient, but the Land Depart- ment has ruled that a separate discovery is necessary upon each twenty- acre tract. While this ruling holds it is necessary it should be complied with in order to secure a patent. When not located by legal subdivisions, the location notice upon a placer claim should state the dimensions of the surface claim, and the number of feet claimed in each direction from discovery. In the case of a placer claim the notice of location should give the area in acres or superficial feet. It should describe the location upon the claim of the discovery shaft or other improvement, and give its dimensions. This can be done by giving the distance and direction from the discovery to one of the corners of the claim. If the claim is upon surveyed land, the legal subdivisions covered by the location should be given. If upon unsurveyed land, the notice should so state. CHAPTER VII. MINING RIGHTS UPON THE BEACH AND TIDE LANDS IN PORTIONS OF ALASKA, INCLUDING CAPE NOME. THE UNITED STATES LAW is silent upon the subject of mini'>«T rights on lands bordering the navigable waters. These lands have been variously designated us tide lands, beach lands and shore lands. More accurately defined, the beach in the Nome or Bering Sea region of Alaska is all the ground that lies between the tundra and the line of Ioav tide, while of course tide lands are only such portions of the beach as are alternately covered and exposed by the tide. By common use the tenn beach land has been extended to inclade all the ocean bottom out to the three mile limit. As a general doctrine of law it may be stated that tide lands (lands below ordinary high tide) belong to all the people, and are not subject to locajtion or acquisition under the mining laws. Indeed the Secretary of the Interior has so held in the Logan case in an opinion otherwise, unless discovery upon 'ourt of Montana ate a tract of 160 he Land Depart- pon each twenty- ould be complied )n notice upon a ie claim, and the should give the he location upon ;nt, and give its ce and direction If the claim is le location should so state. IN PORTIONS OF ubject of mini'!"' lands have been ire lands. More g Sea region of d the line of low the beach as are ion use the term )ttom out to the I stated that tide 1 people, and are J laws. Indeed se in an opinion LEEHEY S MINING CODE. 29 dated January 3, 1900 (1). This doctrine renders it impossible to acquire title, or even possessory rights for mining puqjoses on such tide lands, and leaves the matter subject to regulation by local rules in each district. We now quote the s}>ecial provision to regulate this sub- ject incorporated into the Carter Act to provide a civil government for Alaska, just passed by Congress: Alaska Law. Sec. 26, Title I. " The laws of the United States relating to mining claims, mineral locations, and rights incident thereto are hereby extended to the I)i:-trict of Alaska: Provided, That subject only to such general limitations as may }ie necessary to exempt navigation from artificial ob- structions, all land and sihoal water between low and mean high tide on the shores, bays and inlets of Bering Soa, within the jurisdiction of the Statos. shall be su])ject to exploration and mining for gold and other precious metals by ciitizens of the United States, or persons who have legally declared their intenti(m to become such, under such reasonable rules and regulations as the miners in organized mining districts may have heretofore made or may hereafter make governing the temporary possession thereof for exploration and mining purposes until otherwise provided by law: Provided further, That the rules and regulations estab- lished by the miners shall not be in conflict with the mining laws of the United States; and no exclusive pennit shall be granted by the Secretary of War authorizing any person or persons, corporation or company to excavate or mine under any of said waters below low tide, and if such exclusive permit has been granted it is hereby revoked and declared null and void ; but citizens of the United States or persons who have legally declared their intention, to become such shall have the right to dredge and mine for gold and other precious met^ils in said water below low tide, subject to such general rules and regulations as the Secretary of War may prescribe for the preservation of order and the protection of the interests of commerce. Such rules and regulations shall not, however, deprive miners on the beach of the right hereby given to dump tailings into or pump from the sea opposite their claims, except where such dumping would actually obstruct navigation; and the reservation of a roadway sixty feet wide, under the tenth section of the Act of May 14th, 1898, entitled 'An Act extending the homestead laws and providing for right- of-way for railroads in the District of Alaska, and for other pur^wses,' shall not apply to mineral lands or town-sites." THE SIXTY-FOOT ROADWAY, to which reference is made in the (t) Spe 29 L. D. 395, citing Shively vs. Bowlby, 152 U. S. 1-58. 30 LEKHEYS MINING CODE. ) ■ ■ 14', 1 ^ M( Iff < '' sectmii just quoted, is a strip sixty feet in vidtli along the shore line of navigable water.* in Alaska reserved by the Act of Congriss of May 14, 18i)S. for the use of the public as a highway. It was providtKl by that act tlvat this strip should not be conveyed to any i>ei"son. and that no rights whatever could be acquired thereon, but the section jitst quoted provides that this reservation shall be held to have no application to mineral lands. TIDE LANDS, accurately defined, are lands alternately coverehore line of ■t*5^.< of May 14, •oviflwl by that 1- and that no 'Ji just quoted ii I 'plication to y foverwl and lie designation in the section Ji'se means the 1 tide is fixed ''■inp' .«uch line re tlie laws of lower line of hiw.s and the (^ lands under T this section heaeh beltw p?.* had) the act. As the ' beach as arc any manner ■ of tlie rule?? t^s Avill doubt- ' methods by 'V the line of rhts shall be ir portion of od by which ition by the T make such tion quoted, 'leces under 1? the Secre- hat permits short, local ' tide lands de. Above the liiu' (it liijili tide tlie local rules will govern, subject tK) the General Milling Law* of the I'liited States and Alaska, while below low tide, local rules may also regulate mining rights, but subject however to such per- mits and regulation- as may bo issued by the Secreiary of Wa '. I'OWlvKS ()!•' ATTORNEY, and the use of the same in locating iiiining claims, are not jwohibited by the ( "aWer Act or by any laws of the riiite regulatnl^ by local rules, subject however to such jierniits and regulations as may be issued by the Secre- tary of War. wliicli ])ermit-. however, shall in no case be exclusive. CHAPTER VIII. MINING DI8TKICT8 AND LOCAL RULES. United States Law. Sec. 231!>. livx. Stats. — " All valuable mineral deposits in lands be- longing to the United States, both surveyed and unsurveyed, are hereby declared to lie free and open to exploration and purchase, * * ♦ by law, and accortling to the local customs or rules of miners in the several mining districts, so far as the same are applicable and not incon- sistent with the laws of the United States.'"' Sec. 232-1. — " The miners of each mining district may make regu- lations not in conllict with the laws of the United States, or with tihe laM's of the state or territory in which the district is situated, governing . the location, manner of recording, amount of work necessary to hold ])os.session of a mining claim, subject to the following requirements: The location inust be distinctly marked on the ground so that its boundaries can be readily traced. All records of mining claims here- • • .32 I.KKHEYS MININfi CODE. l'\ ' i'. aftiT iiiiidt' filiiill fdiilain tlit> iiaiiio or names of the locators, the date of the location, and such a ilt'^cription of the claim or claims located by refcrcnit' to some natural olijeot or permanent monument as will iden- tify tlif ( hiim." etc. * Washington Law. Sec. ;}1.j5 of iiiil. Cnilr ]irovides that th( miners of each mining di.s- trict may oloet a reconlci'. atid ciuimeratos his duties with reference to the keeping!- of records. Sec. A]bG ])rovides thai sucl) I'ccorder shall hold oflice for one year; shall lih- an oath of ollice with the county auditor; shall be a certifyinj,^ officer iiiid may make certilied copies of records in his possession; shall receive the same fees as the county auditor for similar work, and should his oflice become vacant, this section provides for the transmission of all records to the county auditor. Sec. ;31."); provides that "all location notices, bonds, assignments and transfers of minin,!>- claims shall be recorded in the oflfice of the county auditor of the county where the same is situated, within thirty days after the execution thereof." Wc now quote from the Act of 1899, pp. 72-73: Sec.r?. — "AH locations of quartz or placer formations or deposits hereafter made shall conform to the requirements of this act in so far as the same are resj)ectively applicable tliereto." Sec. i;.{. — "Any mining district organized in the state of Washing- ton in accordance with the laws of the United States, shall have power to make rules and regidations for such mining district, provid- ing such rules and regulations do not conflict Avith the laws of the state of Washington or of the United States. Sec. l-t. — "Any mining district shall have the power to make road building to mining claims within such district applicable as assessment work, or improvement u})ou such claims: Provided, That rules per- taining 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 sucli district; Provided further, That such meeting shall be attended by at least twelve (12) ju-operty 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 road work shall be done, and shall designate some one of their number who shall superintend such road building or construction, and who shall receipt for such labor to the performer there of, such receipts to be filed Mith the county auditor itors, the dato of laiins located Iiy out us will idt'ii- ^arli mining dis- iih reference to CO for one year; I be a certifying possession; shall lork. and should iiismission of all assignments ids, he office of the d, within thirty ions or deposits lis act in so far ate of Washing- ites, shall have district, provid- aws of the staty !r to make road 10 as assessment riiat rules per- iblic meeting of ing recorder of lall be attended ?t. and that no of the property Such meeting 11 be done, and peri n tend sucli r such labor to county auditor 1 LKKirKYS MINING CODE. 33 of tilt' county in which such work is performed by the holder or holders i»f sill li receipts, and s^hall 1k^ received an prima facie evidence of lal)or ])erforiiH'il as annual assessment work upon such claim or claims, as may be designated by an afTidavit or oath of labor as provided for in section six (Ti) of tiiis act: J'n)vid(Ml, That nothing in this act can be con- strued as being maiulatory upon any owner or holder of mining property to perform labor upon any such road." C():\L^^•:^T on WASIUN'JTOX L'AW.— Sections 3155-7 of Bal- linger's C'ode, cited above, have doubtless lieen repealed by the act of 1899. The Vnited States Mining Law has ln-en so supplemented by state legislation as to leave little necessity for rules of miners. In the states it seldom hap])ons that the miners of any district now organize, and where such organization has been effected and the rules once adopted allowed to fall into disregard, the .same there])y become void (1). Alaska Law. The Carter Alaska 7\et, just passed by Congress, provides three Di^i- tri'Ct Judges for Alaska, to reside at Juneau, Nome and Eagle City. Section 13 of Title 1. of the Act provides that these: Judges .sball divide the entire district of Alaska into three recording divisions. A clerk of the Court is provided for each division, Avbo shall be ex-ollico recorder for that division. This seortion of this rather lengthy section: Sec. 13. — "* * * At any regular or sipecial term an order may be made by the Court establishing one or iiKjre recording districts within the recording division under the supervision of such division of the Court, and defining the boundaries thereof by reference to natural objects and permanent landmarks or monuments, in such manner that the boundaries thereof can be readily determined. The order establishing a recording district shall designate a Com- missioner to be ex-oflficio recorder thereof, and shall alsio designate the place where the Commissioner shall keej) his recording oflfiee within the recording district: Provided, The Clerk of the Court shall be ex-officio recorder of all that portion of the recording division under the super- vision of his division of the Court not embraced within the limits of a recording district established, Iwunded and desicribed therein as author- ized by this act, and when any part of the divLsiqu for which a clerk has been recording shall be embraced in a recording district, such clerk shall (1) North Noonday M. Co. vs. Orient M. Co., 1 Fed. Rep. 522; Jupiter M. Co. vs. Brodle Con. M. Co., 11 Fed. Rep. 673. 84 LKKHKVS MININrataininji; to sno/li (ViHtrict iiiitl (Iclivor the sjuir' to tlio ('(timiiissidncr dcsijiriiitod as recorder thereof. " Wliciu'vcr it ii)>|M'iir!s to tlic siitisfactioii of tlu; Court that the public interests deiiiand. or that the convcnii'ncc of the people require, the Court may chan^'c or nvodify the boundaries or may discontinue a record- ing district or chanpe the location of the recording of!ice, or remove the Commissioner acting as ex-officio recorder, and apjwint another Commis- sioner to fill the ot!icc."' Sec. 1(1, Same i I tic. — "* * * Miners in any organized mining dis- trict may make rules and regulations- governing the recording of notices of location of mining claims, water rights, flumes and ditches, mill sites and affidavits of labor, not in conllict witli tliis Act or the general laws of the United States; and nothing in this Act shall be construed so as to prevent the miners in any regularly organized mining district not within any recording district establisJied by the Cnurt from electing their own min- ing recorder to act as such until a recorder therefor is appointed by the Court: Pi'orkh'd ftoihvr. All records heretofore regularly made by the United States Commissioner at Dyea, Skagway, and the recorder at Douglas City, not in conflict with any recoixls regularly made with the Ignited States Commissioner at Juneau, are hereby legalized, and all records heretofore made in any regularly organized mining district are hereby validated and made ])ublic records, and the same sihall be deliv- ered to the Recorder for li'? recording district including siicli mining district wiihin six month.- i'iv>m the passage of this act." THE POWf:KS CK V CTINC DTSTIMCTS are limited to reasonable regulations for the manner of acquiring and holding mining rights and privileges. No rule of the district can in any manner contravene or modify any law of the .United States or of the state or district. Addi- tional requirements can be imposed if the same be reasonable. It is within the power of a regularly organized mining district to limit the size of claims, and the number that may be held by any one person; to retjuire the expenditure of certain amounts during stated periods to hold the claim; to make special regulation^; concerning records, and generally to impose reasonable requirements of a similar character. DISTRICT RULES FOR ^illNING ON THE BEACH AND TIDE LANDS are discussed in Chapter Vli., p. :?0, ante. NEW DISTRICTS.— "Owing to the exceptional status of Alaska, having no territorial legislature and its mining sections so distant from points from which judicial protecton can be looked, the organzation of new districts in that territory, with a full set of rules, will doubtless frequently occur. In such case the minutes of the first meeting wKim lkehky'8 minino code. 35 ' d by a ma- jorily of the miners oil her personally or by n'[»resentation; should define boundaries, elect permanent Chairman and Keconler; restrict size of placer claims in crowded diggings, leave lode claims to the full size allowed by the Act of Congress, and make special provision for the keeping of jierm.uient and accessible records. A district record kept ii\ a pocket diary is no record'' (2). LAND OFFICE REGULATIONS.— With reference to the possible scope of rules which may be adopted by an organized mining district, we quote from the land office regulations: " V^. — It is provided by the Revised Statutes that the miners of each district may make rules and regulations not in conflict with the laws of the United States, or of the state or territory in which such districts axe respectively situated, governing the location, manner of recording, and ajriount of work necessary to hold possession of a claim. They like- wise require that the location shall be so distinctly marked on the ground that its boundaries may be readily traced. This is a vf ry important mat- ter, and locators cannot exercise too much care in dcfiiung their locations at the outset, inasmuch as the law requires that all records of mining locations made subsequent to May 10, 1872, shall contain the name or names of the locators, the date of the location, and such a description of the claim or claims located, by reference to some natural object or per- manent monument, as will identify the claim."' > reasonable rights and travene or ct. Addi- ble. It is ) limit the !>erson; to >ds to hold 1 generally ND TIDE 3f A]a.«ka, ttant from 'ganzation doubtless t meeting CHAPTER IX. TUNNEL RIGHTS. United States Law. Sec. 2323, Rev. Stats. — " Where a tunnel is run for the development of a vein or lode, or for the discovery of mines, the' owners of t ^oh tun- nel shall have the right of possession of all veins or lodes within three thousand feet from the face of such tunnel on the line thereof, not pre- viously known to exist, discovered in such tunnel, to the same extent as if discovered from the surface; and locations on the line of such tunnel of veins or lodes not appearing on the surface, made 'by other parties after the commencement of the tunnel, and while the same is being prosecuted with reasonable diligence, shall be invalid; but failure to (2) Morrison's Mng-. Rlg-Ms, p. 7, Fuller vs. Harris, 29 Fed. Rep. (District Court of Alaska) 814. 36 LEEHEY S MINING CODE. '^■'■'1 HI prosecute the work on the tunnel for six months shall be considered as an abandonment of the right to all undiscovered veins on the line of such tunnel. '"' AVhere a person oi- company has r>: ji,ay run a tunnel for the pur- poses of developing a lode or lodes r»v^ned by said person or company, the money so expended in said tunnel shall be taken and considered a.? expended on said lode or lodes, * * * gj^j^j g^gj^ person or company shall not be required to perform work ou the surface of said lode or lodes in order to hold the .Siime as required by said act." — Act of February 11, 1875. (From Land Office Regulations of June 24, 1899.) " 19. — The effect of section 2323, Revised Statutes, is simply to give the proprietors of a mining tunnel run in good faith the possessory riglit to fifteen hundred feet of any blind lodes cut, discovered, or intersected by such tunnel, which were not previosuly known to exist;, within three thousand xcet from Ihe face or point of commencement of such tunnel, and to prohibit other parties, after the commencement of the tunnel, from prospecting for and making locations of lodes on the line thereof and Mi thin said distance of three thousand feet, unless such lodes appear upon the surface or were ]ireviously known to exist. " 20. — The term '^faco,' as used in said section, is construed and held to mean the first working face formed in the tttnnel, and to signify tb.e point at which the tunnel acttially enters cover; it being from t\\k point that the three thousand feet are to be counted upon which pros- peotiiig is prohibited as afuresaid. " 21. — To avail themselves of the benefits of this provision of law, the ])roprietors of a mining tunnel will be required, at the time they enter cover as aforesaid, to give proper notice of their tunnel location l)y erecting a sulxstantial post, board or monument at the face or ]K)iut of commencement thereof, tipon which should be posted la good and suffi- cient notice, giving the names of the parties or c^muany claiming the tunnel riglit; the actual or proposed course or direction of the tunnel; the height and width thereof, and the course and distance from such face or poi]it of commencment to some permanent well-known obiects in the vicinity by which to fix and determine the locus in manner hereto- fore set forth ap])licable to locations of veins or lodes, and at the time of posting such notice they shall, in order that miners or prospector.** may be enabled to determine whether or not they are within the lines of the tunnel, establish the boundary lines thereof, by stakes or monu- ments placed a^ong such line'' at proper intervals, to the terminus of the three thousand feei. f'om the face or point of commencement of the lp:ehey'8 mixing code. 37 onsidered a.s the line of or the pur- >nipany. the •nsidered as or company 1(1 (> or lodi's f Febi'iiary •) iply to give essory rigiit intersected ithin three ich tunnel, the tunnel, ine thereof )des appear d and held signify t!-.e from thi-. 'hich pros- on of law, time they ocation l)y r jKjint of and suffi- iming the le tunnel; such face 3biect.s in Si- hereto- the time rospectors e lines of )r monu- us of the it of the tunnel, and t'lc lines so marked will define and govern as to the specific boundaries ', ithin which prospecting for lodes not previously known to exist is prohibited while work on the tunnel is being prosecuted with reasonable diligence. '' 22. — At the time of posting notice and marking out the lines of the tunnel as afore^id, a full and correci copy of such notice of location defining the tunnel claim must be filed for record with the mining recorder of the district, to which notice must be attached the sworn statement or declaration of the owners, claimants, or projectors of such tunnel, setting forth the facts in the case; stating the amount ex- pended by themselves and their predecessors in interest in proisecuting work thereon; the extent of the work performed, and that it is bona fide their intention to prosecute work on the tunnel ^io located and described with reasonable diligence for the development of a vein or lode, or for the discovery of mines, or both, as the case may be. Thio notice of location must be duly recorded, and, with the said sworn statement attached, kept on the recorder's files for future reference." rOitiviS. — A form of tunnel location notice for posting is submitted in Form No. 5, Appendix A, while Form Xo. 6 is recommended for record. There is no provision in either the laws of the United States, Washington or Alaska for posting or recording notice of tunnel location, but the locator will find it advisable to post such notrice, and, in Wash- ingtn, tf^ complete such record by filing notice with the county auditor. The matter of record in Alaska will of course be governed by the lOcal regulations, but in the absence of any specific rule as to tunnel rights, the locaLor should record his notice with the recorder of the district. TUNNEL RIGHTS.— The owner of a mining tunnel has an in- choate right to all undiscovered lodes or veins along the line of his tunnel, not included within the lines of a prior location, contingent only on the diligent prosecution of its construction and the subsequent dis- covery of the vein or lode therein (1). And he is entitled to the posses- sion of any fifteen hundred feet in continuous length along such lode or vein which includes the point of discovery in the ♦tunnel (2). Any person may locate a mining claim at any place on the surface except on the line of the tunnel itself, but he will do so at his own risk, for if the vein or lode on which his location is made should be subsequently discovered in such tunnel, the owner of the tunnel may claim fifteen hundred feet thereon as above stated, and the (1) Hope. Mng. Co. vs. Brown, 7 Mont. 550; Id., 11 Mont. 370; Corning Tun. Co. vs. Pen, 4 Col. 517. (2) Enterprise Mng. Co. vs. Rice Aspen Con. Mng. Co., 66 Fed. Rep. 200. 13 surface claimant will l)e invalid as to the conflict. Hot\'- ever the loc.itor of a tunnel claim, located subsequent to a lode claim through which the tunnel )>asf?es, cannot acquire title to any blind or undiscovered lodes within the lines of such prior location and which may be discovered in the tunnel, since the prior lode location acquires all veins within its lines whether known at the time or not (3). LOCATION OF LODES.— Lodes discovered alonff the line of the tunnel must be located and marked as in other cses f'voept that the discovery within the tunnel takes the place of ttic -■• > • shaft, and the location notice should be posted directly above iiie roint of discov- ery in such shaft. AMNUAfy LABOR on tunnel claims may be performed by work on the tunnel itself, when the tunnel and claims are owned by the same person or company. This is authorized by act of Congress of February 11, 1875. 1 * 1 i . U i . *?- V ' CHAP. ER X. MILL SITES. United States Law. Sec, 233?, Rev. Stats. — "Where non-mineral land no<- oou,,^^ js to the vein or lode is used or occupied by the proprietor of such vein > lode for mining or milling purposes, such non-adjacent surface ground may Ije embraced and included in an application for a patent for sucii vein or lode, and the same may be patented therewith, c." '"^ct to the same preliminary requirements as to survey and notice as are applicable to veins or lodes; but no location hereafter made of such non-adjacent land shall exceed fivt acres, and payment for the same must ' made at the same rate as fi.ved by this chapter for the superficcs of tht .'v'".« The owner of a quartz mill or reduction works, not owning a mine •■': ooh- nection therewith, may also receive a patent for his millsite, as provided in this section." MaxYNER of locating.— A riilbite I? Voated in the same man- ner as a placer claim, witlv the excordons tlm. nu discovery or discovery shaft is necessary, and it need not conform to the public survey. Only non-inineral land can be talcen as a mil'site. TWO CLASSES OF MILLSITES.— The first class are millsites ap- (3) Calhoun G. Mng. Co. vs. AJax Gold Mnff. Co., 69 Pao. Rep. (Colo.) 807. conflict. B.OW- to a lode claim any blind or tion and which )cation acquires lot (3). tlie line of the "veept that the • shaft, and >int of diacov- led by work on id by the same ess of February of such vein v surface ground )atent for sucii E'.' "-^ct to the I are applicable li non-adjacent ust I made at the <-.> The I miij*' ; ■; ooli- te, as provided the same mau- T or discovery survey. Only e millsitea ap- (Colo.) 607. LEEHEYS MINING CODE. 39 pnrtenant to lode claims. The object of the requirement of law that .sueii millsites be non-adjf.cent to the lodes is to ])revent the acquisition of mineral land as millsites. But it is the practice .)f the Land Depart- ment to allow the patent of a millsite contiguous to the side of a lode .?laim ^\here its non-mineral 'Character is shown, and even where the millsite adjoins the end of the ode claim, patent has been granted where it has been shown tbat the lode does not extend beyond the end line of the lode claim. The presumption is however that land adjoining the end line of a lode claim contains the vein extended and therefore is mineral in character and cannot be entered as a niill3ite(l). This pre- sumi)tion may be rebutted by proof (2), and in any event proof is re- quired of the non-mineral character of land sought to be patented as a millsite (3). When a millsite is patented in connection with a lode clain:, live hundred dollars' worth of improvements is sufficient to secure a patent for both. But where the millsite is patented separately, five hundred dollars' worth of improvements mi st ]>e shown thereon. THE SECOND CLASS OF MILLSITES are those which are claimed and ]iatented b} reason of their being in actual use for quartz mills, reduc- tion works,, or some necessary mining or milling purpose. CHAPTER XI. WATER RIGHTS WITH MINING CLAIMS. United States Law. Sec ^'339, Eev. Stats. — "Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purjioses, have vested and accrued, and the same are recognized and aokiiovvledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and l)j'otoctf.d in the same; and the right of way for the construction of ditches and canak for the purposes herein specified is acknowledged and confirmed; but whenever any person, in the construction of any ditch or canal, injures or damages the possession of any settler on the public domain, the imrty committing such injury ((r damage shall be liable to tlu' party injured for such injury or damngo." Sec. 2310. — "All patents granted, or i)iv-omption or homesteads al- (1) MoMle UvUln Millsite, 7 \. O. 4. (2) Morrison Mng. Rights, p. 184. (3) See Land Office Regulations, Sees. 13 and 6!?. i I 'I- 40 leehey's mining code. lowecl, shall he snhif ci to any vested and accrued water rights, or rights to ditclios and reservoirs used in connection with such water rights, as may have been acquired under or recognized by the preceding section." Washington Law. Constitution, Art. XXL, Sec. 1. — " The use of the waters of this state ^ i irrigation, mining, and manufacturing purposes shall be deemed a ^ use." .. . '1090, Bal. Code. — " The unit of measure for water for irriga- tion, mining, iniljiiig and mechanical purposes in this state chall be a cubic foot of water pei second of time." Sec. 4091. — " The right to the use of water in any lake, pond, or flowing spring in this state, or the right to the use of water flowing in any river, stream, or lavine of this state, for irrigation, mining, or manu- facturing purposes, or for supplying cities, towns, or villages with water, or for water works, may be acquired by appropriation, and as between ap- propriations, the first in time is the first in right." Sec. 4093. — "Any . ?rson. persons, corporation, or association, de- siring to appropriate water must post a notice in writing ia a conspicu- ous place at the point of intended storage or diversion, stating therein, — 1. That such appropriator claims the water there lying, being, or flowing to the extent of one cubic foot of water per second of time, or some multiple or some fractional portion thereof; 2. The ])urpo.se for which said water is appropriated, and the place or places, as near as may be, of intended u^e; 3. The moans by which it is intended to store or divert the same; 4. A copy of the notice nui't, within ten days after it is posted, bo filed for record in llie oilico of liic county auditor of the county in whica it is posted." Sec. 'JOl'o. — •' If said use is ly storage, the appropriator must, within lliree montba after the notice is posteil, commence the construction of tlie works bv wliich it is intended to store the same. If said use is by diversion, the appropriator m;i?t. within six months after the notice is posted, commence the excavnlioi! or construction of the works by v.Idoh it is intended to divtit tl\e i?:nne; it being herein expressly provided that suc-h works must he diligently and continuously prosecuted to completion, unless loinporarily intcii'iiptcd \'\ the elements." See. 4094. — "By a strict compliance to the above rules the appmpria- tor's rights to the use of the water actually stored or diverted relates back to the time the notice was posted; but a failure to comply therewith deprives the appropriator of the right to the use of the water as again.--t a subse(pient appropriator who fai'thfully complies with the same." rights, or rights water rights, as eding section." aters of this state lall be deemed a water for irriga- state chall be a y lake, pond, or water flowing in nining, or manu- lages with water, d as between ap- association, de- ig in a conspicu- tating therein, — lying, being, or eond of time, or d, and the place ert the same; • it is posted, bo county in which ;or must, within construction of f said use is by er the notice is works by v. Jdoh y provided that \ to completion. i the appi'opriji- ied relates back nply therewitli ^ater as again.st e same." leehey's mining code. 41 Sec. 4005. — " PerfOiis who have heretofore appropriated Avater, ard have not .nnstruelcd works or have not diverted the water and applied it to Slime pur{ ose, ns herein ttatod, must, within thirty days after this act lakes effect, proceed ai^ in this chapter provided, or their right ceases. Sec 409G. — " The right to the use of water acquired by appropriation may be transferred, like other property, by deed. The county auditor of each county in this state must keep a book in which he must record the notices provided for in this chapter." Sec. 1097. — " Appropriations of water heretofore made for any of the purposes in this chapter provided are hereby recognized, but this chapter shall not be construed to interfere with vested rights.'' Sec. 4098.—'' The provisions of sections 4092, 4093, 4094 and 4095 .shall only apply to appropriations of water made for irrigation, and shall not apply to appropriations for irrigation made prior to the passage of this act, nor to water rights existing at the date of the passage of this act: Provided, That in ap]n-opriations for irrigation, begun but not com- ])leted prior to the pa-^sage of this act, the appropriator shall comply with the pnwisions of said sections 4092, 4093, 4094 and 4095: And further provided, That said sections shall not interfere with the vested rights of any irrigation district now organized." Sec. 4099. — " Water appropriated for ony of the purposes in this chapter mentioned may be changed to any other purpose herein specified, or to any other bejieficial use, and the right to such use shall relate back to the original appropriation." NOTE ON WASHINGTON LAW.— AVe have qtioted above the laws of this state under which water must be appropriated for mining pur- poses, and call attention to the fact that while section 4098 limits the application of sections 4092-5 to appropriations for irrigation purposes only, yet section 4099 provides that the purpose for which the appropria- tion is made may be changed "to any other purpose herein specified, or to any other beneficial use,"' and both the constitution and laws recognize the use of water for mining purposes. For this reason we have recommended in Form No. 7, Appendix A, that the appropriation be made for "mining and irrigation purposes."' This may be consistently done, for it is quite ju'obable that water so appropriated may not always be used for the same purpose, and such changes in use are authorized by the law. There am other provisions of the Washington law not herein quoted, but the same apply only to water for irrigation purposes. Sections 4281-la Bal. Code confer upon per.>?ons, and corporations formed under the laws of this state for the purpose of mining or manufacturing, certain rights in the use of wrter and its diversion from its natural channel, together with certain 4r. .1 4 ■ iii i' M ■ i t 1 1 1 "i ; ■' ^ m 11 ^A 42 i.kkhky's mining code. ])rivik'ititution, but the extent ot such nioditication has never l>een judicially declared. An Act of .March 11, 1S!»!» (Ijjuvs 1S!)J), p. 2(il), provides a method for cou- deiunation of rights of way for waterways for mininjf and agricultural purposes. This lirief reference to these other enactments is deemed sul- ficient for the scope of this work. TPIK mPAHIAX OWXKR'S lUGHTS to liave the water run in its natural channels still exist in Washington, and are not abrogated by the act giving special ])roperty in water. to prior appropriators (1). FOli^IS. — A form of location notice for both posting and record is submitted in Form \o. r. Appendix A. The notice should be posted at both jtoint of diversion and of intended storage, if .stciv.ge be intended, and in Washington, must be recorded with the County Auvlitor within ten days after it ha.s been iK)sted. / ■f*^ I ,: » * I CHAPTER XIT. COAL LAND... United States Law. Sec. '^31?, l{ev. Stats. — "Every person alwve the age of twenty-one years, who is a citizen of the Ignited States, or who has declared his inten- tion to become such., or aiiy association of persons severally qualified a.s above, shall, upon application to the Eegister of the proper land office, have the right to enter, by legal subdivisions, any quantity of vacant coal lands of the United States not otherwise appropriated or re.ser\'ed by competent authority, not exceeding one hundred and sixty acres to such individual person, oi- three linndred and twenty acres to 5uch association, upon payment to the Keitivcr of jiot less than ten dollars per acre for siich lands, where the same shall be situated more than fifteen miles from any completed railr(»ad, and not less than twenty dollars })er acre for such lands as s-hall ])e within fifteen miles of such road. Sec. 3348. — " Any person or association of ])ersons severally qualified, a.s above |>rovided, who have oiKMied and in»])roveil, or shall hereafter open and improve, any coal mine or mines u})on th< public lands, and shall be in actual jws.session of the same, shall be entitled to a preference- right of entry, under the preceding section, of the mines so oi>ened and (1) Benton vs. Johnoox. IT Wash. 277; 49 Pac. Rep. 495. leehey's mining code. 43 s liavo perhaps list it lit ion, but flt'Hared. An L^tliod for con- 1 agricultural i'* deemed sul- ater run in it.s ofiated by the I). and record is I be posted at 1m? intended, Uvlitor within f twenty-one •ed his inten- ' qualified as r land office, f vacant coal reserved by icres to sucli I association, per acre for ;i miles from ure for sucli lly qualified, ill hereafter • lands, and preference- opened and improved: Provided, That when any association of not less than four persons, severally qualified a.s above provided, shall have expended not less than five thousand dollars in working and improving any such mine or mines, such a^'sociation may enter not exceeding six hundred and forty acres, including such mining improvements. Sec. .'2349. — "All claims under the preceding section must be pre- sented to the Register of the proper land district within sixty days after the date of actual i>ossession and the commencement of improvements on the land, by the filing of a declaratory statement therefor; hut when the township pkt is not on file 'at the date of such improvement, filing must be made within sixty days from the receipt of such plat at the dis- trict office: and where the improvements shall have been made prior to the expiration of three months from the third day of March, eighteen hundred and seventy-three, sixty days from the expiration of such three months shall be allowed for the filing of a declaratory statement, and no sale under the jn-ovisions of this section shall be allowed until the expira- tion of six nuinths from the third day of March, eighteen hundred and seventy-three. Sec. 2350. — " The three precciljng sections shall be held to authorize only one entry by the same person or association of persons; and no asso- ciation of persons any member of which shall have taken the benefit of such section coal lands where the improvements shall be commenced, after the third ossession and improvement, fol- lowed by proj)er filing and continued good faith, sluill determine the pref- erence-right to purchase. And also whore improvements have already been made j)riorto the third day of March, eighteen hundred and seventy- three, division of the land claimed may be made by legal subdivisions, to include, as near as ?nay be, the valuable improvements of the respective parties. The Commissioner of the General Land Office is authorized to 44 leehey's mining code. issue all needful rules and regulations for canning into effect the provi- sions of this and the four preceding sections." NOTE that coal lands can be entered by legal subdivisions only, hence the lands must be surveyed before entry. An individual can enter IGO acres and an association only 320 acres. Only one entry can ever be made by any one jxnson; that entry exhausts his right, and no entry can be made by an association any member of which is discpialified by reason of having made a prior entry. TWO METHODS AEE PROVIDED FOR ENTRY OF COAL LANDS. — By the first the entry is accompanied by satisfactory proofs by artidavits of the character of the land. Upon receipt of such entry by the Register the same is certified to the Receiver and one year is allowed for jiayment. By the second method possession must be at once taken of the land and improvements made thereon. This method was adopted for unsurveyed lands, and where such entry has been made by taking possession, the entryman is allowed sixty days after the filing of the sur- vey in which to make his entry at the land oifice. THE PRICE TO BE PAID FOR COAL LANDS is not less than twenty dollars per acre if within fifteen miles of a completed railroad, and not less than ten dollars ]>er acre if at a greater distance. Coal lands are not as a general rule excepted from railrod grants. 'i't I ' CHAPTER XIII. TIMBEK AND STONE LANDS. UNITED STATES LAW, applicable to Washington, provides two methods by which both timber and stone may be ac' mired. First, non- mineral lands chiefly valuable for timber or stone may be purchased under the act of June 3, 1878. Building stone lands may be entered under the placer mining laws by authority of the Act of August 4, 1892, and timber may, under the Act of ]\iarch 3, 1891, be cut and removed from public lands for mining and other purj^oses. The following com- plete and concise statement of the law upon the subject has been taken literally from Howell's Miners' Code: USE OF TIMBER WITHOUT PURCHASE.— " Every miner has the right to use the timber upon his own cl- a for domestic use or the improvement of his claim. If there is insufficient timber upon the claim, under the provisions of the circular of the Secretary of the Interior of ) effect the provi- iubdivisions only, lividual can enter entry can ever be lit, and no entry is discjualified by RY OF COAL itisfactory proofs of such entry by le year is allowed at once taken of liod was adopted made by taking filing of the sur- is not less than apleted railroad, ace. Coal lands n, provides two 3d. First, non- y be purchased may be entered August 4, 1892, it and removed following com- has been taken ^ery miner has stic use or the ipon the claim, ihe Interior of LEEHEY S MINING CODE. 46 March 17, 1898, hereafter referred to, the claimant can resort to non- mineral unappropriated public lands, and cut and remove timber to an amount not exceeding $100 in stumpage value annually. This privilege extends to any company owning mining claims as well as to individuals. PURCHASE OF TIMBER AND STONE LANDS.— "The Act of Congress of June 3, 1878, provided that surveyed non-mineral lands of the United States, unfit for cultivation and chiefly valuable for timber or stone, might be sold at the minimum price of two dollars and fifty cents per acre in tracts not exceeding 160 acres to any one i>erson or association of persons. The applicant for such a tract must file with the Register of the local land office a statement in duplicate, designating the tract by legal subdi- visions, and certifying: (1) That said tract is unfit for cultivation and is chiefly valuable for its timber or stone; (2) that it contains no mining or other improvements (except ditches or canals where any such exist) save such as are made by or belong to the applicant; (3) that it contains no known valuable deposit of gold, silver, cinnabar, copper or coal; (i) that the applicant has made no other application under this law; (5) that he does not apply to purchase the same on speculation, but in good faith for his own exclusive use and benefit, and (6) that he has made no agree- ment, directly or indirectly, for the transfer of the titli? or any part there- of to any other person. The applicant must swear to this statement before the Register or Receiver. Notice of said application must thereupon be published for sixty days in a newspaper published nearest the premises, and be posted during the same period in the office of the Register. After the expiration of sixty days, if no adverse claim be filed, the applicant must furnish to the Register of the land office satisfactory' evidence of the truth of the state- ments contained in his sworn application and of the publication of the said notice. Thereafter, upon payment of the land office fees and the price of the land, he is entitled to a patent." PURCHASE OF TLMBER WITHOUT LAND.— "The Act of Con- gress of March 3, 1891, provided that timber might be cut and removed from the timber lands of the United States, by the resident of any state or territory for agricultural, mining, manufacturing or domestic pur- poses, under rules and regulations to be prescribed by the Secretary of the Interior. By the circular of March 17, 1898, the Secretary of the Interior has prescribed the rules under which timber can thus be obtained. Briefly stated, this circular provides that settlers and claimants on public lands, who have an insufficient supply of timber on their own claims for neces- ■ ^ii I* .;-q / ^'^V i 1 ' i :■ 1 : 1 1 j 1 .H 1 * i I ! 1 1 I 1 j 1 i 46 leehey's minino code. ?ary ii«e in dt'vt'lopin^' tlio mineral and other nntnral rc^onroo? of their lands, may procmv timl)t>r, free of charge, from unoccupied, unrenerved, non-mineral public lands, to an extent not exceeding $100 in jitnmpago value in any one ycnr. Tiie tim))er must he strictly for use upon the claim of the person exercising tlie i)rivilege, however, and cannot he sold. It is not necesvsary to secure the permisf*ion of the land de])artnient to exercise such privilege, but the department reserves the right to restrict or prohibit such privilege in case of abuse. Wliere larger amounts of timber are required by any resident of the state, a petition for tlie j)urchase of any particular tract will be considered by the land department. The details of the procedure in the land ofRce are too extensive to deseril)e here in detail. Briefly stated, the petition should state the location and character of the land, describe the timber situated thereon and make an estimate of the quantity. Before any sale is authorized, the timber is examined and appraised by an official appointed for that purpose, and it cannot be sold for less than the appraised value. When a sfile is ordered, a notice is published stating the time and place for tiling bids, and other information neces- sary for a correct understanding of the terms of the sale. The success- ful bidder must pay the amount of his bid within thirty days after notice of the award, and the timber must all be cut and removed within one year." OW^JEBSHIP OF STONE TAKEX EROM PUBLIC LANDS is in the party who removes the same, and he may claim a lien therefor upon a building in the construction of which it has been used, although the title to the land from which it was taken is in the United States (1). Alaska Law (2). We quote the following section from the Act of Congress of May 14, 1898, and apj^end the Land Office Regulations issued thereunder: '• Sec. 11. — Tluat the Secretary of the Interior, under such rules and regulations as he may prescribe, may cause to be appraised the timber or any part thereof upon public lands in the District of Alaska, and may from time to time sell so much thereof as he may deem proper for not less than the aj)praised- value thereof, in such quantities to each purchaser as he shall prescribe, to be used in the District of Alaska, but not for ex- (1) Johnson vs. Harrington, 5 Wash. 73; 31 Pac. Rep. 316. (2) House BUI No. 9291, now pending before Congress, provides for the exten- sion to Alaska of the Timber and Stone Act of June 3, 1878. Without the privileges of this law timber can be acquired in Alaska under Sec. 11, Act of May 14, 1898, just quoted, and should the pending bill become a law It will simply add another method. Of course in all cases timber may be cut from mining claims even before patent, for mining purposes. Including the building of miners' cabins, roads, etc. LKEHKY's MININ', lyrosiKK'tinp, and for domestic puri)(t.>;es. as may actually be needed by such persons for such purposes." (From J>and Office Kegulations Issued June 8, 1808.) ''43. — While sales of timber are optional, and the Secretary of the Interior may exercise his discretion at all times as to the necessity or advisability of any sale, iK'titions from responsible persons for the sale of limber in particular localities will be received by this department for consideration. Such ]ietitions must de.«cribe the land upon which the timlx-r stands, as definitely as ]»ossible by natural landmarks; the character of the country, whether rough, steep, or mountainous, agricultural or mineral, or valuable chiefly for its forest growth; and state whether or not the removal of the timber would injuriously affect the p ':Mc interests. If any of the timber is dead, estimate the quantity in i'jcl, board measure, with the value, and state Avhether killed by tire or other cause. Of the live timber, state the different kinds and estimate the quantity of each kind in trees per acre. Estimate the average diameter of each kind of timber, and estimate the numl)er of trees of each kind per acre above the average diameter. State the number of trees of each kind it is desired to have offered for sale, with an estimate of the number of feet, board meas- ure, therein, and an estimate of the value of the timber as it stands." "44. — Before any sale is authorized the tindier will be examined and ap})raised. Notice thereof will 1)e given by publication by the Commis- sioner of the General Land Office. " 4"). — The time and place of filing- bids and other information for a wrrect understanding of the terms of each sale will be given by pub- lished notices or otherwise. Timber is not to be sold for less than the appraised value. The Commissioner of the General T^nd Office must i 48 I.KEHEY S MINIKQ CODE. appnjvi' ill! sales, and lit> may make allotment of quantity to any biddiT or bidders if he deems ])roper. The right is also resorvi'tl to reject any or all l)id>. A reasonable cash deposit, to accompany each bid, will be re(iuir('d."' " 4fl. — Within thirty days after notice to a bidder of an award of tim- ber to him i)ayme'nt must be made in full to the Receiver for the timber so awarded; or e(|unl ])ayments therefor may be made in thirty, sixty, and ninrty days from date of such notice, at the option of the purchaser. The purchaser must have in hand the receipt of the Receiver for each payment before he will l)e allowed to cut, remove, or otherwise dispose of the timl>cr covered by tluit payment. The timber must all be cut and removed within one year from the date of payment ther'^'for: failing to do sio. the i)urchaser will forfieit his right to tihe timbe- standing or unrenioved and to his purchase money: Provided, ' he limit of one year herein named may Iwi extended by tlie Conimi.s>sioner of the General I^and Of!ice, in his discretion, upon good and sufTicient reasons being shown." " 47. — Notice must be given by the purchaser to the Commissioner of the General I^and Oflfice of the proix)sed date of cutting and removal of tlK' timber, so that, if practicable, an official may be designated to supervise such cutting and removal. Upon application of purcha-sers, pennits to erect temporary saw mills for the pur]K)se of cutting or manu- facturing timber purchased under this act may be granted by the Com- missioner of the General I^and Office, if not incompatible with the pul)lic interests." " 48. — Xo timber taken from the public lauds and sold as above pre- scribed may be exported from the District of Alaska." " 50. — Actual seittlers, residents, individual miners, and prospectors for minerals may procure, free of charge, from unoccupied, unreserved public lands in Alaska, for firewood, fencing, buildings, mining, pros- pecting, and for domestic purposes, so much timber as may be actually needed by such ])ersons, for individual use, to an extent not exceeding, in stum])age valuation, $100 in any one year. It is not neoessar}' to secure permission from the dei)artment to take timber from public lands as al- lowed in this paragraph. The e.xereise of siieh privileg(> is, however, subject at all times to supervision by the department, with a view to restriction or prohibition if deemed necessary. The uses specified in this paragraph constitute the only purposes for which timber may be taken, free of charge, from public lands in Alaska." " 51. — In cases arising under the preceding jiaragraph in which the parties needing the timber are not in a position to procure it from the W i LEKHEY8 MININ(J CODE. 49 ity to any bidder v<'(\ to reject any each bid, will be an award of tim- ?r for the timlier in tliirty, sixty, >f the ])nrcha.^er. eeeiver for each n'wke dispose of t all be cut and •'"for: failing to standing or he limit of iis»'5ioner of the LitRcient reasons 3 Commissioner ng and removal ? designated to of purcha.sers, itting or manu- al by the Com- with the public i as above pre- nd prospectors ed, unresen-ed mining, pros- lay be actually t exceeding, in fsarj' to secure lie lands as ;>1- )wever, subject to restriction this paragraph :aken, free of in which tlio ■e it from the public lands thcmsclveg, it is allowable for them to secure the cutting, removing, sawing, or other manufjictnre of the timber thro'.igh the medium of others, agreeing with the parties thus acting as their agents direct in taking or othcnvise handling the timber that they S'hall be paid a reasonable mnount to cover their time and labor exj)ended and all legiti- mate expens<^s incurred in (•onneetion therewitli exclusive of any charge for the timber itself." CHAPTER XIV. ANNUAL LABOR ON MINING CLAIMS. United States Law. (From Section 2324, Rev. Stats., as Amended by Act of Jan. 22, 1880.) * * * * On each claim located after the 10th day of May, 1872, and until a patent has been issued thei-efor, not less than one hun- dred dollars' worth of labor shall be performed or improvements made during each year. * * * . jj^t; where such claims are held in common, such expenditure may be made upon any one claim; and upon a failure to comply with these conditions, the claim or mine upon which such failure occurred shall be open to relocation in the same manner as if no location of the same had ever been mado, provided that the original locators, their heirs, assigns, or legal representatives, have not resumeers-on in whose belialf sucli work or improvements was made or some person for him knowing the facts, shall make and record in the ottice of the Coimty Auditor of the counity wherein such claims are situate an affidavit or oath of labor performed on such claim. Such affidavit siiall state the exact amount and kind of labor, including the number of feet of sliaft, tunnel or ojk'u cut made on :mch claim, or any other kind of improvements allowed by law or by rules of mining districts made thereon." See. 7. — " Such affidavit when so recorded sliall be prima facie evi- dence of the ]i)erformance of such labor or the making of such improve- ments, and such original affidavit after it has been recorded, or a certified copy of record of s;inie. shall l)e received as evidence accordingly by all the courts of this state." Alaska Law. As there is no special legislation u|X)n the subject of annual labor on mining claims in Alaska, the matter is regulated by the laws of the United States al)ove quoted, and sucli further local rules and regulations as may be made. Section 15 of the Carter Alaska Act, just pas.sed by Congress, |)rovidcs that the Recorder shall record, among other writings, "affidavits of aiiinuil work done on mining claims," and section Hi pro- vides that mining di.«tri(ts ]nay }irovide for a similar record. We have been unable to fiiul, liowcvcr, any provision making such recorded affida- vits presumptive evidence in court that sudh work has lx>en performed. This is the sole ])nrpose of the reconl, for if the work be done the claim will not be forfeited by a mere failure to file the affidavit, Tlie statuiory provision for tiling ],rovi mI' annual labor has usually in the states made the recorded atlidavit evideiu-e that the work was done, and hence a con- venic.it ujeans of pnvof, but if the fact must always be proven by oth.'r evidence, as would seem to be the case uiuler the Carter Act, there can be notliing gained by tiling the atlidavit. LEEHEYS MINING CODE. 51 essni-v right to a rtli of work must Provided, That annually on all t day of January er the expiration ual labor or the nining claiin or iprovements was nake and record •ein such claim* ?h claim. Such r, including the 3h claim, or any mining districts prima facie evi- f such improve- d, or a certified aceordingl)' by nuual laDor on le laws of the md regulations Just passed by other writiiiifs, section Ki pro- >rd. AVe have ecordeo this statute and every requirement must be carefully followed. Ever} prcsumpti n of law is against forfeiture (1). If any of the essential elements are wanting, or if there is no foundation in fact for the notice, its sendee will no divest the co-owner of his title (2). MERE POSSESSORY RIGHTS in lands on the public domain can be retained only by continued possesion and are forfeited and lost by abandonment. (3). (1) Lindley on Mines, Sec. 645. (2 ) Turner vs. Sawyer, 150 U. S. 585; Brundy vs. Mayfleld, 15 Mont. 201, 38 Pac. Rep. 1067. (3) Carroll vs. Price, 81 Fed. Rep. (District Alaska) 137. wm 54 leehey's mining code. \ CHAPTER XVI. RELOCATION AND AMENDED LOCATION Washington Law. Sec. f). Act of 1890. }). TO. — " If at any time the locator of any quartz or lode mining claim heretofore or hereafter located, or his assigns, shall learn that his original certificate Avas defective, or that the requirements of the law had not been comi)lied with before filing, or shall be desirous of changing his surface Itoundaries, or of talcing in any additional ground Avhich is subject to location, or in any case the original certificate was made i)rior to the pasfWge of thi:' la,. , and he shall be det-irous of .securing the Ijenefits of this act, such locator or his assigns may file an amended certificate of location, sul)joct to the provisions of this act, regarding the making of new location.'*.*" Sec. 8. — ■■ The reh)cation of forfeited or abandoned quartz or lode claims .*hall only lie made by sinking a new discovery shaft and fixing new boundaries in Hie sauio numner and to the same extent as is required in making a new location, or the relocator may sink the original discovery shaft ten feet deejjer tbaii it was at the diate of commencement of such re- location, and shall ei'<'ct new, i)r make the old monuments the same as originally required. In cither case a new location monument shall be erected, and the location certificate shall state if the whole or any part of the aiew location is located as abandoned proi>erty." IN ALASKA there i- no provision for either relocation or amended location of mining claims. Of course either may be made without special provision in the law therefor, but in all such cases it must be made in the same manner as an original location. FOEMS. — The same form .should be used for either relocation or amended location as in the case of original locations, with an additional clause inserted to the effect that "This is an amended location (or reloca- tion) of the Ivode ^Mining •laim, located on the same ground {giyii reference to date and record)." AMENDED LOCATION.— By Sec. 5, of the Act of 1899, Laws of "Washington, just quoted, it is piivided that a locator may amend his location, or his recorded certificate thereof. By this course the ground included in the claim may be changed, subject, however, to any interven- ing rights of others who may have made locations in the vicinity, and whose rights could not, of eoui-se, be afCected ])y the amended location. Whether it will be necessary in such cases to again sink the discovery shaft or cut required by .sections 2 and 3 of the same act is doubtful, LEEHEYS MiyXG CODE. 56 itor of any quartz ' his assigns, shall the requirements ' shall be desirous idditional ground al certificate was ^irous of securing file an amended ict, rej^arding the d quartz or lode shaft and fixing 3nt as is required original di-seovery inent of such r.e- !nts tlio same as luinient shall be le or any part of ion or amended without special be made in the r relocation or h an additional ition (or reloca- e same ground 189fl, Ijaws of nay amend his rse the ground ) any interven- ? vicinity, and iidod location. the discovery ?t is doubtful, depending upon the interpretation \vl. ch the court may place upon the concluding clause of section 5, which reads: '•Subject to the ])rovisions of this act regarding the making of new locations." If this be held (as would seem more reasonable) to refer only to the latter portion of the section, then this work' is required only in case of amendment of locations made prior to the approval of the act; but if it be held to apply to the whole section, then with any amended location the discovery exploration work must be done anew. Tntil « judicial determination has been had, the jirudent locator of a valuable claim will do the extra work. Of course, m any event, if the amendearty relocating is not necessary, but a vein or lode sufficient to support .. location must be known to him (3). ABANDOXMEN'T. — When a mining claim is abandoned by the lo- cator, it is thereu}x>n immediately subjeit to relocation. xAbandonment is a question of intention. Leaving the claim in a neglected condition is no evidence of abaiulonment. But if a claimant leaves his claim with tiie intention of never returning and of never asserting any further right of ownership over it, he thereby abandons it, and the claim thereupon be- comes subject to relocation. The intention.once formed and acted upon is as a]).*olute if it exists for a minute or a second as though it continued for years. The burden of proving abandonment rests upon the party alleging it (4). KORKKITFRE. — The failure of a locator of a mining claim to per- form the requisite annual labor subjects the claim to relocation, and a (1) Uelk vs. Meagher, 104 U. S. 279. (2) VVUUs vs. Blaine, 20 Pac. Rep. 798. (3) Llndley on Mines, Sec. 403. (4) Stone vs. Geyser Co., 52 Cal. 315; Carter vs. Baclgalupl. 83 Cal. 187; Omar vs. Soper (Col.), 18 Pac. Rep. 448; Trevaskls vs. Peard, 44 Pac. Rep. 246. 56 leehey's mining (;ode. 1^ i u 'M peaceable entry may be made for that purpose, even though the claim is occupied by the original locijtor. The right of the original locator to perfom the required amount of work after such failure depends upon his beginning the work before tlie relocation, and completing the same with reasonable diligence (5). RELOCATION BY OWNER AFTER FORFEITURE.— It has been held in Utah that the locator of a mining claim, who, by failure to per- form annual labor, has allowetl his location to lapse and become subject to relocation, has a right to make a new location himself covering the same ground (6). This would seem to give to the locator, who has failed to perform his annual labor, the altematiA'e of resuming work under the old location or making a new one. In such a case a relocation would be aJi evasion of the positive requirement of annual labor, and it is doubtful whether the Utah decision is good law.. Where a claimant who is in default of his annual labor desires to still hold his claim, he should pursue the safe method of resuming work on the claim rather than adopting the questionable one of relocating. CHAPTER XVII. MININ(; PARTNERSHIPS. u .j1' 1 % ./ 'IK ' \ . ^■m HOW' FORMED. — There is no special legislation concerning mining partnerships in either Washington or Alaska. Nor is any necessary to their creation or exisitence. A mining partnership is formed when two or more }tersons who own or acqiiire a mine actually engage together in working the same. The relation exists without statutory authority by what Lind- ley terms the "American common law of mining" (1). Such a partner- sliip may be formed without a special agreement therefor. When parties do sucli acts as in law constitute a partnership, they are such in law wliether they s-o intend to bi' or not. It is not necessary that the parties "own" a mine; to "accjuire"' one is sufficient, and they may acquire the same by lease, option or location, as well as by direct purchase. Mining partnerships differ froration anthorized to locate a claim under this chapter, having claimed and located a piece of land for such purposes, who has, or have, complied with the terms of this chapter, may file in the proper land office an application for a patent, under oath, showing such compliance, togetlicr with a plat and field notes of the claim or claims iu common, made by or imder the direction of the United States Surveyor- General, showing accurately the boundaries of the claim or claims. • ich shall be distinctly marked by monuments on the ground, and shall \,rjat a copy of such plat, together with a notice of such application for a patent in a conspicuous place on the land emhraced in such plat previous to the filing of the application for a patent, and shall file an affidavit of at least two persons that such notice has been duly posted, and. shall file a copy of the notice in such land office, and shall thereupon be entitled to a patent for the land, in the manner following: The Register of the land office, upon the filing of such application, plat, field notes, notices, and affidavits, shall publish a notice that such application has been made, for the period of sixty days, in a newspaper to be by him designated as published aearest to such claim; and he shall also post such notice in his office for the same period. The claimant at the time of filing this application, or at any time thereafter, within the sixty days of publication, shall file with the register a certificate of the United States Surveyor-General that five hun- dred dollars' worth of labor has been expended or improvements made upon the claim l)y himself or grantors; that the plat is correct, with such further description liy such reference to natural objects or permanent monuments as sliall identity the claim, and furnish an accurate descrip- tion, to be incorporated in the ixitcnt. At the expiration of the sixty days of publication the claimant shall file his affidavit, showing that the plat and notice have l)een posted in a conspicuous place on the claim dur- ing such jieriod of ])ublication. If no adverse claim .shall have been filed with the Register and the Receiver of the proper land office at the expira- tion of the sixty days of publil|^ •.# . m\ %M m\ ;:lj!U I 60 LEEHEYS MINING CODE. the land district where the claims may be situated, and all testimony and proofs may be taken before any sueli oflficer, and, when duly certified by the officer talking the same, shall have the same force and effect as if taken before the Register and Receiver of the land office. In cases of contest as to the mineral or agricultural character of tlie Itod, the testi- mony and proofs may be taken as herein provided on personal notice of at least ten days to the opposing party; or, if such party cannot be found, then by publication of at least once a week for thirty days in a newspaper, to be designated by the Register of the land office as publis'hed nearest to the location of such land; and the Register shall require proof that such notice has been given. Sec. 2321. — "Proof of citizenship, under this chapter, may consist in the case of an individual, of his own affidavit thereof; in the case of an association of })ersons unincorporated, of the affidavit of their authorized agent, made on his own knowledge, or upon information and belief, and in the case of a corporation organized under the laws of the United States, or of any state or territorv' thereof, by filing oi a certified copy of their charter or certificate of incorporation. Sec. 2. — " That applicants for mineral patents, if residing beyond the limits of the district wherein the claim is situated, may make any oath or affidavit required for proof of citizenship before the clerk of any court of record, or before amy notary public of any state or territory." — Act of April 26, 1882. OBTAINING PATENTS.— It does not come \\^thin the purpose of this book to give minute directions as to the method of obtaining a patent. The locator who desires to secure a j)atent will be compelled to secure the services of a United States deputy mineral surveyor, who will advise him as to the varicvus j^teps necessary. We will state briefly, however, the course which must be pursued. An application is first made to the Surveyor-General for an order of survey. This application iiiustbe accompanied by a certified copy of the notice of location, and a fee of $30 in case of lode claims, and from $10 to $80 in case of placers; which fees must be deposited in an United States depository. The Surveyor-Cieneral thereupon issues an order of survey to the reputy mineral surveyor designated by the claimant. That official will then make the survey, and send his returns to the Surveyor- General's office. IVo copies of the approved plat will be returned to the claimant, one to be jKteted on the claim, the other to be forwarded witli the application for patent. The claimant will then jwst the plat, and notice of his intention to apply for patent, in a conspiciious place upon the claim, where they must remain posted during the succeeding sixty LEEHKYS MINING CODE. 61 testimony and ily certified by id effect as if In cases of tod, the testi- onal notice of mot be found, 1 a newspaper, bed nearest to roof that such nay consist in the case of an eir authorizetl nd belief, and United States, copy of their ig beyond the :e any oath or ' any court of »ry."— Act of le purpose of ling a patent, ed to secure lO will advise however, the an order of copy of the nd from $iO an United an order of tiant. That le Surveyor- irned to the varded with le plat, and place upon eding .sixty day period i)f publication. The claimant must tluMi .send to the Register of the local land office the following documents: (1) Proof by athdavit of two disinterested persons that the plat and notice of intention to apply for patent have bo<'ii |h).sI»'(1 on tln' claim, and remained .so {H)st«l during the entire sixty days. (2) Copy of the otficiail plat. (3) Tran.script of field notes. (4) Application for patent. (5) Atlidavit of $500 improvements. (()) An affidavit of the citizenship of each claimant; or, in case of a cor})oralion, a certified copy of the certificate of incorporation. (7) Agreement of publi.sher to hold the claimant alone responsible for cost of j)ublicati(m. (8) Two co'pies of the notice to be published. (9) Certified co])y of the notice of location. (10) An alwtract of title showing title to the claijii in the claimant. (11) Ten dollars for fees for filing in the land office. Upon tiic a))[)iK)val of these papers the Register .signs the notice and forwards it to the local paper for publication. If after the expiration of sixty days no advei^se claim is filed, the claimant is ])i'rmittcd to make his fiiud ju'ool's. With the submission of these proofs in due form he must pay the purchase i)rice ($5 per acre in case of lode claims, and $8.50 per acre in case of jilacer claims) and a Receivers recei{)t will at once be issued to him therefor, and patent should follow in due course of time. CHAPTER XIX. ADVERSE CLAIMS. United States Law. Sec. 2326, Rev. Stats. — "W^iere an adverse claim is filed during the period of publication, it shall be upon oath of the person or persons mak- ing the .«iame, and shall show the nature, boundaries, end extent of such adverse claim, and all proceedings, except the publication of notice and making and filing of the affidavit thereof, shall be stayed until the contro- versy shall have been settled or decided by a court of competent jurisdic- tion, or the adverse claim waived. It shall be the duty of the adverse claimant, within thirty days after filing his i laim, to commence proceed- ings in a court of competent jurisdiction, to detennine the question of the right of possession, and prosecute the same with reasonable diligence to 62 LKEHEY's MININd CODE. I i (I '1=r final judgment ; and a fadlure ao to do shall be a waiver of hie adveiTBe claim. After such judgment shall have been rendered, the par*y entitled to the possession of the claim, or any portion thereof, may, without giving fur- ther notice, file a certified copy of the judgment roll with the Register of the land oflice, together with the certificate of the Sur^'eyor-General tlhat the requisrite amount of labor has been expendd or improvments m.ide thereon, and the description required in other cases, and shall pay to the Receiver five dollars per acre for his claim, together with tlie proper fees, whereupon the whole proceedings and the judgment roll shall be certified by the Register to the Commissioner of the General Land Office, and a patent shall issue thereon for the claim, or such portion thereof as the applicant shall appear, from the decision of the court, to rightly possess. If it appears from the decision of the court that several parties are entitle ' to separate and different portions of the claim, each party may pay foi hio portion of the claim, with the proper fees, and file the certificate ana description by the Surveyor-General, whereupon the Register shall certify the proceedings and judgment roll to the Commissioner of the General Land Office, as in the preceding case, and patents shall issue to the sev- eral parties according to their respective rights. Nothing herein con- tained shall be construed to prevent the alienation of the title conveyed by a patent for a mining claim to any person whatever." " The adverse claim required by section twenty-three hundred and twenty-six of the Revised Statutes, may be verified by the oath of any duly authorized agent or attorney-in-fact of the adverse claimant cogniz- ant of the facts stated; and the adverse claimant, if residing or at the time beyond the limits of the district wherein the claim is situated, may make oath to the adverse claim before the clerk of any court of record of the United States or the state or territory where the adverse claimant may then be, or before any notary public of such state or ten-itory." — (Act of April 26, 1882.) " If in any action brought pursuant to section twenty-three hundred and twenty-six of the Revised Stattutes, title to the gi'ound in controversy shall not be established by either party, the jury shall so find, and judg- ment shall be entered according to the verdict. In such case costs shall not be allowed to either party, and the claimant shall not proceed in the land office or be entitled to a patent for the ground in controversy until he shall have perfected his title." — (Act of March 3, 1881.) ADVERSE CLAIMS.— During the sixty days while the notice of application for patent is being published, any one who has a prior claim to any part of the ground applied for should adverse the application. The extent of the adverse claim should be set fcith by an affidavit of the fe'H LEKHKY r MINING CODE. 63 adverso rlaiinrtnt or his agent, showing the niituro, boundaries and extent of snch adverwi claim, and should be accompanied by a plat. For this reason the wrvice (►f a mineral surveyor is required, who Mill be able to direct the claiiiuuit as to the steps necessary. The law reiiuires the notice of application for patent to be served on the pulilic in two ways: First, it must l)o publishcHl for sixty days in some nowspaper publishcil nearest the claim, and, second, during the same per- iod it must be poeied in a conspicuous place on the claim, together with a plat of the claim as oflRcially surveyed. An adjoining claimant, who may have adverse rights, is presumed to have notice of the application through these two methods of service. If he does not in fact have such notice by either of tliese methods it may be his misfortune, but the law will con- clusively presume it to be his fault. After the sixty days have elapsed and mineral entry of application has Ixl-u made, all adverse rights that might have been asserted thereto arc forever 'tarred, though, of course, a failure to adverse does not determine adverse rights that on development may be found to exist beneath the surface (1). NEW NOTICE. — When by reason of defects in the giving of notice a new notice is required, adverse claimants will have sixty days after the first publication of the new notice in which to file their adverse claims (2). CHAPTER XX. LODES WITHIN PLACER CLAIMS. Unitated States Law. Sec. 2333, Rev. Stats. — " Where the same person, a.ssociation, or cor- poration is in possesion of a placer claim, and also a vein or lode included within the l)oundaries thereof, application shall bo made for a patent for the placer claiin, with the statement that it includes such vein or lode, and in such case a patent shall issue for the placer claim, subject to the provisions of this chapter, including such vein or lode, upon the payment of five dollars per acre for such vein or lode claim, and twenty-five feet of surface on each side thereof. The remainder of the placer claim, or any placer claim not embracing any vein or lode claim, shall be paid for at the rate of tw o dollars and fifty cents per acre, together with all costs of pro- ceedings; and where a vein or lode, such as is described in section (1) Last Chance Mng. Co. vs. Tyler Mng. Co., 61 Fed. Rep. 565. (2) Llndley on Mines, Sec. 738; Wheeler vs. Smith, 23 L. D. (Wash.) 395. *. -li ;. i . 64 lp:khey's mining code. twenty-tlir'-; luindretl and twenty, is known to exist within the boiind- arie.s of a i)lacer claim, an application for a patent for such placer claim whicli does not inehidc an application for the vein or lode claim shall be construed as a conclusive declaration that the claimant of the placer claim has no right of ])08.ses8i(»n of the vein or lode claim; but where the exist- ence of a vein n'- IimIc in a placer claim is not known, a patent for the placer claim shall convcv all the val'.able mineral and other deposits within the bouridaiies tliireof." IX CASK A LODE IS KXOWX TO EXIST within the boundaries of a placer clairi at the time when patent is sought, a statement of that fact should be made in the ap])lication, otherwise it will be conclusively presumed that the placer claimant has no right to the lode. The time at which the lode must be known in order to be excepted from the grant of a ])1. cer ])atent is the date of the application for patent (1). If a lode is discovered subsequent to that date, the plaC'.T patent will con\(\y gu.>d t'itle to the sa.ne. WHAT IS A " KXOWX LODE."— Xot every crevice in the rocks, nor every outcrop])ing on rlie surface which suggests the possibility of mineral, or which on subsequent exploration develops ore of great value, can be adjudged a known vein or lode within the meaning of the statute (1). ]?ut if a vein is of such a character as to justify the expendi- ture of money in its development, and to add some substantia' value to the land l)y reawui of its existence, then it is a "known lode" within the meaning of the law (2). It is not necessaiT that such a lode should have Ijecn located nrior to the time of anplication for ph'cer patent to make it a tcnown hole. It is enough that it be known to the applicant or known to the community generally, or else disclosed l)y workings and obvious to i.'ny one making ■^ reasonable and fair inst^eetion of the i)remises for the purpose of obtain- ing title from the government (3). Where, however, th.^ lode has boen properly located and the title is held by third p-^^^rties, it is kuovrn to exist within the meaning of the law, and a placer application covering such a lode and nuiking no niention of it, originates no title adverse to the lode claimant (1). Vndcr such circumstances it is not even necessary for the lode claimant t>i adverse tlie placer application, though it would be ad- visable to do .so. As no title to a known vein not included in the placer application, can 643. (1) Iron Silver Mng. Co. vs. M. & S. Mng-. Co., 143 U. S. 402, 12 Sup. Ct, Rep. (2) Brownfield va. Bier, 15 Mont. 403; 39 Pac. 461. (3) Jiipiler Mngr. Co., vs. Brodle Con. Mnsr. Co., 11 Fed. Rep. tnS. (4) Noyes vh. Mantle. 12T U. S. 348. LKEHEY S MINING CODE. 65 1)6 conveyed by a placer patent, the fee simple to all such known lodes continues in the United States until it jwirts wM\ the same in accordance with law. It may be located as other veins or lodes. The placer grantee can never acquire title to such lode by adverse possession, since the statute of limitations does not run as against the United States. PATENT FOR KNOWX I.ODE.— Whenever it is ascertained by in- quiry instituted by the Land Department, or determined by a court of (umpetent jurisdiction, that a lode exists within the boundaries of the land covered by a placer i)atent, and that such lode was known to exist at the date of the application for such i)atent, a patent will issue for the lode claim if the law has been in other respects fully complied with (5). If the lode claim was a valid, subsistinj^ location at the date of placer location, patent Mill issue for the full width of surface rightfully claimed (6). If the lode location was nuide after the i>lacer location, patent will issue for surface twenty-five feet wide on each side of the Before the ])lacer claimant applies for patent he should search his claim diligently to discover if iodcs exist therein, and if they do, he should state the fact in his application, and make it include mx applcation for the lodes as well. AVhen a valuable lode is developed in placer ground after patent, there is always the danger that adverse claimants will attempt to show that the lode was known to exist at the date of the ])lacer application. This danger constitutes an infirmity in such patents which should be guarded against by diligent examination of the ground in the presence of witnesses before patent is sought (8). Also Mt. Rosa Mng. (C) South Star Lode, 20 L. D. 204. (6) Noyes vs. Mantle, Supra. (7) North Star Lodd, decided Land Dept.. March 10, 1896. Co. vs. Palmer, 56 Pac. Kep. 176. (S) The foregoing chapter has been taken veioatlni, with annotations, from Howell's Miners' Code, and is a concise and accurate .statement of the law upoi the sub.iect. leehey's mining code. 1 if H CHArTER XXI. POSSESSORY RIGHTS IN MINING CLAIMS. United States Law. Sec. 233?, Eev. Stat. — '"AVhere sucli a person or association, they and their grantoi-s, have held and worked their claims for a period equal to the time prescribed by the statute of limitations for mining claims of the state or territory Avhere the same may be sitnated, evidence of such pos- session and working of the claims for such period shall be sufficient to establish a right to a patent thereto under this chapter, in the absence of any adverse claim; but nothing in this chapter shall be deemed to impair any lien which may have attached in any way whatever to any mining claim or property thereto attached prior to the issuance of a patent." MERE POSSESSION of a mining claim and working of the same for the ctatutory period will not of itself give one a right to the claim. The statute quoted presupposes a valid entry and a possession under a claim of right, and was enacted to lessen the burden of proof upon old claims, in California and elsewhere, the records of which in many cases had been destroyed. No patent will issue to an ap])licant claiming under this pro- vision unless he brings himself squarely within it by a full compliance with its terms (1). A POSSESSORY RIGHT to non-mincra] land in Alaska is a right to the sole occupancy and use of such land, and the prior right to enter and purchase the same from the government whenever a law may be enacted for its entry and purchase. This is evidently on the theory that where there is no method provided for the acquisition of title (as in case of shore or tide lands for commercial purj)oses in a now territory) the fir-r one in possession will be entitled to hold such possession and have the first right to enter tlie same Mhen a metliod for entry and purchase i-' provided by law. But in case of mineral lands, a method by location and development is provided by law, and mines can be acquired only by that method. Hence a location in due form sliould be made and no reliance placed upon mere possession ('•?). (1) McCowan vs. McLay, 40 Pac. Rep. 602. (2) CarroU vs. Price, 81 Feil. Rep. (District Court Alaska) 137. LEEHEY S MINING CODE. 67 CHAPTER XXII. RIGHTS AND PROPERTY IN MINING CLAIMS, AND LEASE AND SALE THEREOF. United States Law. Sec. 2322, Kev. Stats. — " The locators of all mining locations hereto- fore made or which shall hereafter be made, on any mineral vein, lode, or ledge, situated on the public domain, their heirs and assigns, where uo adverse claim exists on the tenth day of May, eighteen hundred and seventy-two, so long as taey comply with the laws of the United States, and with state territorial and local regulations not in c^onflict with the laws of the United States governing their possiessiory title, shall have the ex- clusive right of possession and enjoyment of all the surface included within tlie lines of their locations, and of all veins, lodes and ledges throughout their entire depth, the top or apex of which lies inside of such surface hnes extended downward vertically, although such veins, lodes, or ledges may so far depart from a perpendicular in their course down—ard as to extend outsiide the vertical side lines of siich surface locations. But their right of possession to such outside parts of such veins or ledges shall be confined to such portions thereof as lie between vertical planes drawn downward as above described, through the end lines of their locations, so continued in their own direction that such planes will intersect such exterior parts of such veins or ledges. And nothing in this section shall authorize the locator or possessor of a vein or lode which extends in its downward course beyond the vertical lines (jf his claim to enter upon the surface of a claim owned or possessed by another." Sec. 2336. — '' Where two or more veins intersect or cross each other, priority of title shall govern, and such prior location shall be entitled to all ore or mineral contained within the space of intersection; but the subsequent location shall have the right of way through the sjtace of inter- section for the purposes of the convenient working of the mine. And whore two or more veins unite, the oldest or prior location, shall take the vein below the point of union, inehiding all the space of intersection." Washington Law. Sec. 3152. Bal. Code (quoted in full at page ]5 ante) provides, with reference to lode claims, among other things, that the end lines of such claims ihall be parallel to each other. Sec. 3153. — " The locators of all mining locations heretofore made, or herea^fter made under the provisions of this article, on any mineral €8 leehey's mining code. ! i i' * I'l H 'li ^ 1 * i ! I 1 i • h ^. H li \ein, lode or ledge on the puljlic domain, and their heirs and assigns, so long as they comply with the laws of the United States and the state and local laws relating thereto, shall have the exchisive right to the posses- sion and enjoyment of all surface included within the lines of tlioir location, and of all veins, lodes and ledges throughout their entire depth, and the top or a])ex of which lies M'ithin the surface lines of such locatioi., extending downward vertically, although such veins, lodes or ledges may so far depart from the i)erpendicular in their course downward as to ex- tend outside of the vertical side line of said surface location." Sec. 3157, Bal. Code ])rovides- among other reqnirements that "all location notices, honds, a-signments, and transfers of mining claims shall, he recorded in the ollice of the County Auditor of the county where the same is situated, witlvin thiity days after the execution thereof." In so far at least as this section ait'ects location notices it has been re[)ealed by the Act of 1899 quoted in this hook. The only effect of a failure to so record ''bonds, as.e be a lien if patent therefor had issued to the debtor or his grantor. MINING LOCA . IONS ARE NOT COMMUNITY PROPICRTY — 'Mining claims, mere locations, prior to patent and the payment of any money therefor, are not community j)roperty, but are the se])arate ])rop- erty of the locator or his assignee. A wife is not entitled to dower in ail uni)atented mining claim, and hence it follows that HUSBAND AND V.IEE, as such, have no interest whatever in the ininvng locations made by the other (2). This remark applies to both Washington and Ala.-ika. In either the cli'''n }nay be transferred by tin dfccd of the spouse holding the legal title. REPRESENTA'i'lOXS made l)y a party concerning the characrc: and existence of a mine for the ]uirposc of securing a ptirchaser therefoi are admissable in evidence in an action brought by a purchaser against the ]>arty making the statements to recover money paid on the pur- (1) Phoenix Mngr. Co. vs. Scott, 30 Wash. 48; 54 Pac. Rep. 7T7. (2) Black vs. Blkhorn Mug. Co., 163 U. S. 445; 16 Sup. Ct. Rep. 1101. LEEHEY S MISINCJ CODE. 69 uui as.siii;ns, so I' his ifraiiLor. cliii?e price, even tliough the representation.'? were ina*o be recorded. It is not the purpose of this work to treat leases, bonds, options or sales at any lengtli, ior this would involve an extended ex.aminatifm of the laws of contracts and the diJfercnt siate statutes upon the same. However FORMS, for Mining Lease (lode), Option. Mining Ijcase and Option together (placer), Bond for Deed and so-called Urubstake Contract are submitted in Forms Nos. 10, 11, 12, 13 and 14. Appendix A. OPTIONS to purchase are usually given witli leases, and bonds for deeds are common. They amount to practically the same. The law as to such contracts when applied to mines differs materially from that applied to other real estate, most notably, however, in that time is of the. essence of every contract to purchase mines, wlietber so stated in the contract or not, and an option given a party to purchase a mine can be specifically enforced against the person giving it although there is no corresponding obligation on the other party to purchase, and hence no m uKiuli ty i n the , contract (4) . A DEED is necessary to pass title to a mining claim, for the courts now treat such property as real estate. F\)rmerly it was held that a written conveyance was unnecessary, .but that rule seems to have been af)fuidoned (5). The mineral rights may be transferred and surface reserved or vice versa. GIIUBSTAKF] contracts are common and so well understood that little nientioii need be made of the sanu^ here. They need not be in writijig (G). Such contracts, properly speaking, apply only to pros- pecting or search for minerals. A partv-who Ux'ates a mine in his own name while he is actually working under a grubstake contract will hold the title as trustee for the other party to the contract. When parties aftually engage in mining a claim, a mining })artnership is formed, RIGHTS OF LOCATOR WITIIIX THE CLAIM.— Within the lines of each lowation the owner has not only the right to the exclusive l)o«Jse88ion of the surface, but may be regarded as liaviiig the sole right to (3) Oudln vs. Crossman, 15 Wash. 519; 46 Pac. Rep. 1047. An action to recover a broker's commission on a sale of a mine Is also decided In Bishop vs. Averlll, 17 Wash. 209. (4) Llndley on Mines, Sec. 859. (5) Same authority, Sec. 642. (6) Raymond vs. Johnson, 17 Wash. 232; 49 Pac. Rep. 492. 70 lbehky's mining code. llMi r! 1 1 "i all mineral that may be found beneath the surface until some one can show a clear title to it as a part of some lode or vein having its top or apex in other territory. In other words, there is a presumption of ownership in every locator as to the territory covered by his location, and where other parties enter such territory, they are prima facie trespassers (7). The burdi a is upon them to show that they are rightfully there. EXTRALATERAL RIGHTS.— By this term is meant the right of the locator of a valid claim to follow his vein on its dip beyond the ver- tical plane of the side line of his claim. No branch of mining law haa given rise to more extensive litigation than the question of extralateral rig]its. We can here give only a brief outline of the present status of the law. POSSESSION OF APEX NECESSARY.— Only such veins can be f'.)llo\ved beyond the side lines as have their apex within the surface granted to the claimant. A |>atent cannot grant the vein and exclude the surface in which it aj)exes. It is void as to the portion of the veia so aitempeted to be granted (8). PARALLELISM OF END LINES NECESSARY.— For the exer- cise of extralateral rights it is necessary that the end lines of the claim should be parallel. Hence it has been held that a triangular claim ha.5 no extralateral rights (9). APEX CROSSING BOTH SIDE LINES.— For the exercise of the right to follow a vein beyond a side line, the direction' of the apex should be along the course of tlie claim and not transversely to it. Hence wJ.oif the apex crosses both side lines, it has been held that the side lines become end lines and terminate the claimant's right in that direc- tion (10). In that case if the claimant has any extralateral right it is tc follow the vein on its dip under the end line. APEX CROSSING A SIDE LINE AND AN END LINE —Where llv. apex crosses one end line and one side line, the claimant can follow his vein on its dip between ttie vertical plane of the end line crossed by the ape.c and a }>arallel plaiu» drawn through the point where the apex crosses the side line (11). CONFLICT UPON THE SURFACE.— Where two locations conflicr upon tiie surface, the prior location takes the area in conflict. But il the junior locator apply first for patent and include in his application the I > ■ > (I ! ' ■ . ■ (7) Cheeseman vs. Shi-eve, 37 Fed. Rep. 36, (8) M. O. P. Co. vs. B. & M. Co., 20 Mont. 3.36; 51 Pac. Rep. 159. (9) Montana Co.. Ltd., vs. Clark, 42 Fed. Rep. 626. (10) King vs. Amy & S. Co., 152 U. S. 222; 14 Sup. Ct. Rep. 510. (11) Del Monte Mng. Co. vs. Last Chance Mng. Co., 171 U. S. 65; 18 Sup. Ct, Rep. 895. LEEHEY S MINING CODE. 71 »ne can show area in conflict, it is necessary for the prior locator to adverse the applica- tion; otherwise the patent will convey to tlie junior locator a good title to the area in conflict. Where two locations conflict upon the surface and the prior location is abandoned or becomes forfeited, the ground in contlict does not pasa to the junior locator. If the latter desires to acquire title to the area in conflict after the forfeiture or abandonment of the elder location, he should relocate his claim. Othenvise the resuniption of work on the prior location will revive it in its entirety, including the ground in con- flict (12). THE SPACE OP INTERSECTION, in case of cross lodes, men- tioned in Sec. 2336, Eev. Stats., has been held by the more recent authorities to mean the intersection of the claims, and not the intersec- tion of tho veins. Hence, the prior location will in such cases take all the cross vein within its own lines; and t'liy statement that the junior locator has a "right of way through the space of intersection" means sJDiply that he has a right of way througli the claim of the prior locator, and no more (13). (12) Johnson vs. Young, 34 Pac. Rep. (Coli.) 173; Oscamp vs. Chrystal River Mng. Co., 58 Fed. Rep. 293; 7 C. C. A. 233. (13) Calhoun Gold Mng. Co. vs. Ajax Gold Miigr. Co., 59 Pac. Rep. (Colo) 607. Action on Injunct'on bonds in mining litigation, see Donahue vs. Johnson, 9 Wajh. 187; 37 Pac. Rep. 322. 18 Sup. Ct r 1 'I ; APPENDIX APPENDIX A. FOKMS FOR GENERAL USE. Form No. i— Notice of Lode Location for Posting on Ciaim.— Washington. NOTICE IS HEREBY GIVEN: That the undersigned, who are (or have declared their intention to become) citizens of the United States, have dis- covered on this date at the place where this notice is posted, a vein or lode of quartz or other rock in place bearing gold and other valuable mineral deposits, and hereby locate and claim the same as the "Rainier" Lode Mining Claim. The general course of the vein so far as can be now ascertained is north and south, and the undersigned claim 1000 feet in a southerly direction and 500 feet in a northerly direction along the course of said vein or lode from the said point of discovery where this notice is posted, and a total width of iWO feet, or 300 feet on each side of the center of said vein. Notice dated and posted this 23rd day of May, A. D. 1900. RICHARD HUGHES, DAVID HARUM. Locators and Claimants. Form No. 2— Notice of Lode Location for Record.— Washington. NOTICE IS HEREBY GIVEN: That the undersigned, who are (or have declared their intention to become) citizens of the United States, have dis- covered at the place herein stated a vein or lode of quartz or other rock in place bearing gold and other valuable mineral deposits, rnd after such dis- covery, on May 23rd, 1900, located and claimed the same as the "Rainier" Lode Mining Claim, and on said date posted on said claim at the point of discovery a notice in writing stating the name of the lode and of the locators and the date of discovery, and thereafter marked the surface boundaries of the claim so located by placing firmly in the ground at each corner of said < iaim a substantial post or stone monument not less than three feet high and four inches in diameter, each bearing the name of the lode and the date of the location. The general course of the vein or lode so located is north and south, and the total length of surface claimed by said location is 1500 feet, the same lieing 1000 feet in a southerly and 500 feet in a northerly direction from the point of discovery and the center of the discovery shaft at which the notice of location was posted, and the total width claimed is 600 feet, the same being WQ feet on each side of the center of said vein or lode. The said claim is situated in the Miller River Mining District in King County, Washington, about eight miles, southwest of the station of Skykomish on the line of the Great Northern Railway, and about one mile above the l)lace where .Fiction Creek flows into Miller River, and is within Township h i ! ji'l 'I- I i 74 I.KKHKYS MIXINO CODK. 25 North of Range 11 East, and the diacovery shaft on said claim is situated 300 feet north and 270 feet west of the southeast corner of Section 19 in said township, and the location Is so distinctly marked on the ground that Its boundaries can be readily traced. As the northwest portion of salQ claim is covered with brush and trees, the trees have been marked and blazed and the brush cut along the north end and west side lines of said claim in such manner as to Indicate the location of such lines. At the point of discovery on said claim where the notice of location was posted, the untlersigned have sunk a vertical shaft to the depth of more than ten feet from the lowest part of the rim of such shaft on the surface, which shaft is ten feet in length along the vein and six feet wide, and shows a well defined crevice and valuable deposit of ore. The undivided interests owned in said claim by the undersigned locators are indicated by the fractions set opposite the name of each. RICHARD HUGHES. ?; DAVID HARUM. % State of Washington, County of King, ss: Richard Hughes, being first duly sworn, says: That he is one of the locators and claimants named in and who executed the foregoing notice, and is the person who located the mining claim therein described; that said loca- tion was made in good faith; that he has read the foregoing instrument and knows the contents thereof, and that all the statements therein contained are true. RICHARD HUGHES. Subscribed and sworn to before me this 3rd day of July, A. D. 1900. J. P. GLEASON. Notary Public for Waahlngton, residing at Seattle. NOTE.— The dpscriplion of the location of the claim given in the forefr?(:ie: N merely for the purpose of Illustration. It Is not often that the section numbers, or perhaps eren the township or range numbers can be ascertained, but If no' tb^n care must be taken to secure a definite measurement of some initial point on the claim from some well known natural object or permanent monument. If tli.^ notice states nothing as to the interest taken by each claimant, it will be pre- sumed that they take equal undivided interests. Form No. 3— Notice of Lode Location for Both Posting and Record In Alaska. NOTICE IS HEREBY GIVEN: That the undersigned, who are (or have declared their intention to become) citizens of the United States, have dis- covered at the place where this notice is posted on this 23rd day of May. A. D. 1900, a vein or lode of quartz or other rock in place bearing gold and other valuable mineral deposits, and hereby locate and claim the same as the "Seward" Lode Mining Claim. The general course of the vein or lod^^ as far as the same can be now ascertained is east and west, and the under- signed hereby locate and claim the same 1000 feet in an easterly and 500 feet in a westerly direction from the point of discovery where this notice is posted. and a total width of 600 feet, the same being 300 feet on each side of tli- center of the said vein. Notice dated and posted this date herein above written. WILLIAM SWEENEY, S. R. CLEMERSON. Post the foregoing on the claim at the time of the discovery. Then for th^ notice to be recorded, add the following paragraph to the foregoing-: ArPKNDIX. 7« ned locators "The said claim is situated In the Eureka Mining Diatrict on Prince of Wales Island, Alaska, one and one-half miles due south of the townslte and harl)or of Gowen on said island, and is so dlstinitl\ marked upon the ground that its boundaries can be readily traced, as tollows: Beginning at the southeast corner of the said claim, which is marked by a granite boulder about seven feet high and ten feet in diameter, situated about GOO feet north- west from the bridge across Imaginary Creek on the Revilla road, and which boulder is marked "S. E. Cor. No. 1, Seward Lode Claim," and running thence west 1500 feet to a post marked "S. W. Cor. No. 2, Seward Lode Claim," run- ning th "lice north «00 feet to a post marked "N. W. Cor. No. 3, Seward Lode Claim," running thence east 1500 feet to a post marked "N. B. Cor. No. 4, Seward Lode Claim. ' and thence south 600 feet to the place of beginning, all of which posts ar^- not less than four inches In diameter and four feet high, set firmly into the ground, with a mound of earth and stone about four feet in diameter and (wo feet high around each post. Dated this 4th day of June, A. D. 1900. WILLIAM SWEFNBY. S. R. CLEM LARSON. Signed in the presence of: WM. D. HARPER, A. P. SWINEBURNE, Witnesses. NOTE.— The foregoing is subject to modllicatl'n by the reaulremonts which may be ma>ved lands, the second paragraph should describe similar to the following: "The said claim hereby located is a tract of land 660 feet wide and ex- tending in a northeasterly direction 1320 feet along the northwesterly bank of what is known as Foster Creek, in Bonanza Mining District, on the Sumner Peninsula of Alaska. Tlie point of discovery on said claim at which this notice is posted is situated on said northwesterly bank of said creek 1600 feet above the place where said creek flows into the Dayton River, and said dis- covery is distant from said bank 29 feet and is marked oy a post five inches I ) I I' 76 LKKIIEY8 MINING CODK. I I in (Uameter and eight feet high, set firmly into the gioiiiid with a mound ol' earth and stone fonr feet in diameter and three feet high almiit said post, which is marlted "Discovery Post, Dewey Placer, May 23. 1900." and run- ning thence on a line parallel with said northwesterly bank of said creek H"> feet to the lower end of said placer claim; thence southeasterly toward th<' said stream to the southernmost corner of said claim, a point in said stream marked by a rock in place ten feet in diameter, rising about eight feet above the bed of said creek and marked "Cor. No. 1, Dewey Placer"; thence in a northeasterly direction following in a general way the course of said creek 1320 feet to the easternmost corner of said claim, which is marked by a blazed pine tree on the opposite or southeasterly bank of said stream, which tree is blazed on the south and west and marked "Cor. No. 2, Dewey Placer"; thence in a northwesterly direction at right angles to the said creek 660 feet to the northernmost corner of said claim, which is marked l)y a post four Inches in diameter, five feet high, set firmly into the ground and marked "Cor. No. 3, Dewey Placer"; thence in a southwesterly direction parallel to and 660 feet distant from the center of said creek 1320 feet to the west- ernmost corner of said claim, a pdint marked by a post four inches in diameter and five feet high, set firmly into the ground and marked "Cor. No. 4, Dewey Placer"; thence in a southeasterly direction 660 feet to Corner No. 1 of said claim herein described." Notice dated and posted this 23rd day of May, A. D. 1900. FRANK P. VAN ORSDEL. JOHN LEWIS. HERBERT KENNEDY. NOTES ON FORMS. IN AVASHINGTON It is required that the notice posted on the claim shall contain a description of the cialm by reference to the legal subdivisions, If on sur- veyed land, and to natural objects or permanent monuments if upon unsurveyed lands. This would seem to require that the corners be definitely established if not actually located and marked before the notice is posted. In order that a proper reference to tb.e same may be made in the notice. It is also rpQulred in Washing- ton that this notice be recorded within thirty days, and that within sixty days at least ten dollars' worth of work for each twenty acres or fractional part shall be expended in dovelopinR the claim, and that upon the performance of such work or labor an aftldavit thereof shall be filed. This last Is of course not mandatory, and if the work was actually done, it could be proven by oral testimony. IN AI>ASK>. of course the details just recited are not required, but the loca- tor must (irst familiarize himself with the local rules of the district and carefully follow the same. The form just Riven meets all usual requirements, and will perhaps be found sufficient to meet every requirements of each district. "While it contains some statements that may not be required, yet the prudent locator will omit nothing that is therein suggested. Form No. 5— Notice of Tunnel Location, for Posting at the Face of Tun- nel; Recommended for Use Both in Washington and Alaska. NOTICE IS HEREBY GIVEN: That the undersigned, who are (or have declared their intention to become) citizens of the United States, have on this 1st day of February, A. D. 1899, located a tunnel for the purpose of discovering, developing and working lodes and valuable deposits along the line thereof as herein descrilied, which tunn>?l is named the "Honolulu Min- ing Tunnel." and is to he eight feet in height and six feet in width, and the claim hereby located extends three thousand feet in a southwesterly direction from the face of the tunnel where this notice is posted, which face or mouth of said tunnel is situated on the west bank of Hoosier Creek, 1800 feet north of APPKNDIX. 77 1 mound ot snid post, ' and run- Id creek H'. toward th< aid stream eight feel er"; thence rse of said is marlced aid stream. 0. 2, Dewey ; said creek d by a post ind marked parallel to the west • inches in irked "Cor. t to Corner DEL. claim shall IS, if on sur- unsurveyed Ushed If not t a proper n Washing- xty days at rt shall bi" c'h work or mandatory, y. ut the loca- d carefulh and will While it locator will ts, ce of Tun- iska. e (or have s, have on purpose of along the olulu Min- h, and th" y direction r mouth of t north of the Great Northern Railway bridge over said creek, in Snohomish County, Washington. The uuflersigned intend to prosecute the construction of the said tunnel with due diligence and to claim and locate all veins, lodes and valuable mineral deposits discovered in said tunnol along the line thereof, to the extent of ttfteen hundred feet in length along flU(!h veins or lodes and three hundred feet in width on each side thereof. Notice dated and posted this date above written. DANIEL POWERS, LEE D. MAURICE, Locators and Claimants. Form No. 6— Notice of Tunnel Location, for Record; Recommended for Use Both In Washington and Aiasita. NOTICE IS HEREBY GIVEN: That the undersigned, who are (or have declared their intention to become) citizens of the United States, did on February Ist, A. D. 1899, locate the "Honolulu Mining Tunnel" by posting at the face of said tunnel a notice In writing which contained the name of said tunnel of the undersigned locators, described said tunnel by stating its dimensions and general course, and stated the course and distance of the face of said tunnel from a well known natural object and permanent monument. The said tunnel is to be eight feet in height and six feet in width and is to be extended in a southwesterly direction three thousand feet from the face or point of commencement thereof whereon said notice was posted as afore- said, and said face or point of commencement is situated on the west bank of Hoosier Creek, eighteen hundred feet north of the Great Northern Railway bridge over said creek, in Mammoth Mining District, Snohomish County, Washington; the course or line of said tunnel is so distinctly marked on the ground by means of posts and blazed trees that it can be readily traced. The undersigned intend to prosecute the construction of the said tunnel with due diligence and to claim and locate all veins, lodes and mineral deposits discovered in said tunnel along the line thereof to the extent of fifteen hundred feet In length along such veins or lodes and three hundred feet in width on each side thereof. Dated this 14th day of February, A. D. 1899. LEE D. MAURICE. DANIEL POWERS. State of Washington, County of King, ss: Lee D. Maurice, being first duly sworn, says: That he is one of the locators and claimants named in the foregoing Notice of Tunnel Location; that said location was made in good faith and for the purposes therein stated; that said claimants have expended already on said tunnel the sum of $200.00, and have extended the same the distance of twenty-six feet, and it is their bona fide intention to prosecute the work on said tunnel with all reasonable rtiligence for the discovery and development of veins and lodes therein; that affiant has read and knows the contents of the foregoing Notice, and the same are true of his own knowledge. LEE D. MAURICE. Subscribed and sworn to before me this 14th day of February, A. D. 1900. J. P. GLEASON, Notary Public for Washington, residing at Seattle. 78 i,i:kip;y s minin*; codk. Forn No. 7— Notice of Appropriation of Water; Recommended for Use Both In Washington and Alaska. NOTICE IS HEREBY GIVEN: That the undersigned did on May 3rd. A. D. 1900, locate, appropriate and claim ten cubic feet of water per second of time of the waters of Papoose Creek, lying, being and flowing over Sec- tion 26 of Township 34 North of Range 3 East, in Slcagit County, Washing- ton, (or of the waters of Winston Creek, in Glacier Basin, about six miles north of the town oi Thornton, in Harris Mining District, Alaska), a* the point where this notice is posted, which water is intended for uee in mining, irrigation and for other beneficial industries, and especially for use in the operation of the Kensington Placer, now owned and worked by the under- signed, and situated on the right bank of said croek, ab'^i t two miles below said point of diversion as aforesaid. The said water is to be diverted and conveyed to said place by means of a dam and ditch, which ditch la to be four feet wide at the bottom, six feet wide at the top, and two feet deep, and to have a gra(?e of three inches to each one hundred feet in length, and the undersigned hereby claim a right-of-way over all unappropriated lands of the United States through which said ditch shall be built, together with the right to repair and enlarge the said ditch whenever and wherever found necessary. Measured from the bridge across said creek on what. Is commonly known as the Noyes & Upton wagon road, the point of diversion whereon this notice has been posted as aforesaid is 720 feet up the said creek in an easterly direction. LEROY AMOS, GUS T. MORGAN, Appropriators and Claimants. State of Washington, County of Skagit, ss: Leroy Amos, being first duly sworn, says: That he ib one of the aiypro- yriators and claimants named in and wh«.^ executed the foregoing notice; that the said appropriation was made in goo'' faith and for the uses and purposes therein stated; that a copy of the foregoing notice, m't containing the iast paragraph, however, was posted in a conspicuous place at the point of diversion above described, on May 3rd, 1900; that all the facts stated in the for'.'gning notice are true. LEROY AMOS. Subscribed and sworn to before me this 10th day ot May, A. D. 1900. H. S. CONNETR. Notary Public in and for Washington, residing at La Conner, Skagit County. NOTE.— Tlie loreproing notice must be posted In a co.ispicuouR. place at tlm point of iiiten(le<1 divpi-sion or storage, Oi" both, and in Washington il must bf filfil for record within ten davs after posting. The .affldavlt Is not required, hut in Washington af least will be advisable. Form No. 8— Affidavit of Annual Labor. State of Washington. County of Ferry, ss: Tae unde'^digned, Thomas Boland, being firs' duly sworn, says; That he is IE,: 'liar with the "Wftshoe" Lode Minih Claim, situated in Republic Mining District, Ferry County, Washington, at tice of location of which is rt'ccrded at page 106 of "Volume "A" of Mining Records of said county; that ! (1 AITKNDIV. 79 during the period beginning October 2nd and endinr November 2t;tli, 1900, lie performed forty days' labor of the reasonable value of $2.50 per day upon said mining claim, and expended thereon in iuiprovements the sum of $12.00; that said sork was done at the request of, and affiant was paid therefor by, Hugh McDermott, the reputed .^"vner of said claim; that said labor and improvements consisted in sinki?.,, the shaft theretofore sunk on said claina to a depth of twelve feet, the further depth of twenty feet, or to a total depth of thirty-two feet, and in well and aufficiently timbering the same; that said work was performed and improvements made upon the said claim as the annual representation thereof for the year 1900, and this affidavit is made in proof of the same, and for the purpose of establishing permanent record evidence thereof in the manner provided by law. THOMAS BOLAND. Subscribed and sworn to before me, this 3rd day of December, A. D. 1900. J. E. MORAN, Notary Public for Washington, residing at Republic. Form No. g— Notice to Delinquent Co-Owner. To Richard Pringle, his heirs and assigns: You are hereby notified that during the year 1899 the undersigned have expended more than $100 in labor and improvements upon the "Murphy" Lode Mining Claim, in Harris Mining District, Douglas Island, Alaska, in which mining location you claim an undivided one-third interest, as shown by the notice of location thereof of record at page 32 of Volume 3 of the Mining Reco''ds of said district. The said labor was performed as and for the annual representation of said claim for the said year of 1S99, as required by the provisions of Section '324 of the Revised Statutes of the United States, and the amendment thereto approved .January 22nd, 1880, concerning annual labor upon mining claims, and the same was the amount required to hold said claim for said year. You are further notified that unless within ninety days after the personal service of this notice upon you, or within ninety days after the publication thereof, you contribute your portion of such expenditure as a co-owner, to wli, the sum of $33.33, your interest in the claim will be forfeited to the undersigned co-owners who have made such fTpenditure, and will become their property in the manner provided by law. Dated, January 6th, 1900. E. T. McKINSTRY. ARTHUR DU''"GAN. NOTE.— The foreRoin;;- roli-p imist bo served in iipri?on upon the delinquent co-owner, or published in the newspaper nearest to the lode claim. If published In a daily paper it must be published for ninety d^^ys, and if in a weekly for thirteen weeks. The dellmiiient co-owner has ninety days after personal service, or ninety days after completed publication, in which to contribute his portion. If he fallo to do so a copy of the notice of forfeiture should be filed for record. When filed It should be accompanied by an aflldavlt of the paity who made the personal service, or of the publisher who piibl'shed the notice, and also by the affidavit of the co-ownert.- who mide the expenditure, to the effect that the ninet> days havn elapsed and the delinquent co-owner has not paid or contributed his share. Tho followiiiK forms are submitted as such proofs: M !':• : 80 I.KKHKYS MININii CODK. Form No. ga. UnltPd States of Anifrica, District of Alaska, ss: K. T. McKinstry, Iwing first duly sworn, says: That iie is personally acquainted with Richard Pringle, the delinquent co-owner to whom the fore- going notice was directed; that on January fith, 1900, he personally delivere>i to said Pringle, in .Juneau. Alaska, a notice, of which the foregoing is a copy. 8i.s;ned by affiant and his co'owner, Arthur Duggan, as indicated therein. E. T. McKINSTRY. Subscribed and sworn to before me, this fith day of .January, A. D. 190t'. JOE P. DALY, Notary Public. ing the' Shol Gth.l Mini Wi-. Form No. pb. United States of America. District of Alaska, ss: I^hil. Goodwin, being duly sworn, says: That he is the publisher of ^v.'- Douglas Island Terror, a weekly newspaper published nearest the "Murphy" Lode Mining Claim described in the foregoing notice: that the said notice was published in said newspai)er for fourteen consecutive weeks, the first publication thereof appearing in the issue of January fith. 1900, and the last publlcat'on thereof appearing in the issue of April Vth, A. D. 1900. PHIL. GOODWIN. Subscribed and sworn to before me, this 30th day of April, 1900. ; JOE P. DALY, Notary Public. ' it'll I Form No. gc. United States of America, District of Alaska, ss: E. T. McKinstry ami Arthur l~)uggan, being duly sworn, say: That they are co-owners of the •Murphy" I^ode Mining Claim described in the fore- going notice, and are the persons whose names are subscribed thereto: that the said Richard Pringle. to whom the same is directed, has wholly failed to perform any work or labor, or to make any improvements upon said min- ing claim for the year 1899. or to pay or contribute to the undersigned any portion of the amount by them exp >nded therefor, although more than ninety days have elapsed since the i)erso'ial service upon him (or publication) of the foregoing notice. E. T. M( KINSTRY. ARTHUR DUGGAN. Subscribed and sworn to i)efore me this 11th day of October. 1900. JOE P. DALY. N'otary Piil)iic. Form No. lo— Mining Lease (Lode Ciaimst. THIS INDENTURE, Made this Is; day of May in the year of our Lord 1900, between William 13. McCarthy and James V. Gleason, rf Seattle. Wash- ington, lessors, and James 13. Gallagher, of Butte, Montanr . 'cssee. WITNESSETH: That the said lessors, in consideration of tne royalties, covenant? and agreements herein contained, do by these presents hereby lease unto the said lessee all of the following described mining claims and raining proper(y, situated in the Twenty-Mile Mining District, in the Copper River region of .Alaska, commonly known as the "Horseshoe" group of rain- Al'PKNKIX". 81 Ing claims, which group is situated al)out twenty-two miles northwest from the town of V'aldez, and consists of the "Acme,',' "Eureka, " "Golden," "Horse- Shoe" and "J-eigh" Lode M'ning Cl-iims, located !)>• Dudley Barnes on August fJth, 1898, and notices of l-Kation whereof are recorded in the office of the Mining Recorder of said district. TO HAVE AND TO HOld), unto the said lessee, for the term of one year from the date hereof, or until noon of May 1st, 1901, unless sooner ter- minated by forfeiture or mutual agreement. AND in consideration of such lease, the said lessee covenants and agrees wVl, the said lessors as follow.s: 1. To enter upon said mine, or premises, and work the same mine fashion, in manner necessary to good and economical mining, so as to take out the greatest amount of ore possible, wit), due regard to the development and preservation of the same as a workab e mine, and to the special cove- nants hereinafter reserved. 2. To work and mine said premises as aforesaid steadily and continu- ously irom the date of this lease with at least two persons employed under- ground, for at least twenty shifts each in each calendar month. 3. To well and sufTiciently timber said mine at all points where proper, in accordance with good miring, and to repair all old timbering wherever it may become necessary. 4. To allow said lessors and their agents frojii time to time ti enter upon and into all parts of said mine for purposes of inspection, and to use for that purpose any means of ingress and egress provided therefor. 5. To not assign this lease or any in erest thereunder, and to not sublet the said premises or any part thereof, w'Miout the written assent of said lessors, and to not allow any person not iu privity with the parties hereto, to take or hold possession of said premises, or any part thereof, i'nder any pretense whatever. t). To occupy and hold all cross or parallel lodes, spurs or mineral de- posits of any kind which may be discovered by the said lessee, or by any person under him. in any manner, by working within or from the demiined ground, as the projiei'ty of said lessors, with privilege to said lessee of wowk- ing the same as parcel of said leased premises. 7. To keep at all times the drifts, shafts, tunnels and other workini??" thoroughly drained and clear of locse rock and rubbish, unless prevented by extraordinary mining casualty, and i>; do nil mining in a cleaa, workman- like manner, and to sort carefully all ores for shipment. 8. To do no mderhand stoping, and to make all shafts 7 feet long by 4 feet wide in the clear, and all drifts 6 f»pt high by 4 feet wide in the clear. 9. To pay the said lessors as royalty five per cent, of the net mill returns of all ores to be extracted vhich run less than $30 to the ton, and 10 per cent, of all ores which run $30 and not less than $50 to the ton, and 15 per cent, of all ores running more than $50 to the ton; but all ore extracted from said mine is to be delivered by said lessee to some mill, smelter or ore buyer or sampling works, in Seattle or Everett, Washington, and the royal- ties due said lessors are to be deposited to thtlr credit with the purchaser of said ore at the time the returns are received. 10. To deliver to said lessors the said premi.ses. with the appurtenances w^ 82 lkkhkyj* mining codk. -.1' t!!r^ and all impiovenionti; in kocxI ordpr and condition, with all drifts, shafts, tunnels and other passages thoroughly dear of loose rock and rubbish, and drained, and the mine ready for immediate continued working (accidents not arising from negligence alone excusing), without demand or further notice, on the said Ist day of May 1901, at noon, or at any time previous, upon de- mand, for forfeiture. 11. And, finally, that upon AiolPiion of any covenant or covenants here- inbefore reserved, the terru of this lease shall, at the option of the said lessora, expire, and the same and said premises, with the appurtenances, shall become forfeited to said lessors; and said lessors or their agent may thereupon, after three days' notice and demand of possession in writing, served personally upon said lessee or his agent, or lu the absence of both, posted in a conspicuous place on said leased premises, enter upon said premises and dispossess all persons occupying the 8an.e, with or without force, and with or without process of law; or, at the option of said lessors, the said tenant and all persons found in occupation may be proceeded against as guilty of unlawful detainer. Each and every clause, covenant and condition of thifl instrument shall extend to and include the heirs, personal representatives ar.d assigns of each and every party hereto. IN WITNESS WHEREOF, The said parties have hereunto set their hands and seals, in the City of Seattle, Washington, on this day and year in this instrument first above written. WILLIAM D. McCarthy. (seal) JAMES P. GLEASON. (seal) JAMES B. GALLAGHER. (seal) If an option to puichase the mine be given with the lease (which is usually done), insert after paragraph 11 the following: "In consideration of the acceptance of the foregoing lease, and the per- formance of the covenants thereof, the said lessors grant to said lessee the option to purchase said mining claims or premises, on or before May 1st, A. D. 1901, by depositing in the Seattle National xJank, of Seattle, Washing- ton, to the credit of said lessors, on or before noon of said day, the sum of $20,000, and upon notice of such deposit the said lessors agree to make, execute, acknowledge and deliver, at their own cost, to said lessee, or to such person as uc may direct, a good and sufficient deed of conveyance to said mining claims and premises, free from all incumbrance; Provided, houever. that the surrender or forfeitur? of the foregoing lease for any caune shall at once render this option void, ai'd terminate the privilege hereby granted. NOTE.— If the foi-f Roliig bf' inteiulod for record (and nil inHtninionls affecting mines, in AVashington at least, should bi> recorded) it should alcio be acknowledsed by I lie owner." of the property in the manner provided by law for the acknowledgemeiil of deeds. Any notary public or other ofTloer entitled to take such acknowledgement will furnish form for same Form No. ii- Option to Purchase. IN CONSIDERATION of the sum of One Dollar now paid, the receipt whereof is hereby acknowledged, we, the undersigned, William D. McCarthy and James P. Gleason of Seattle. Washington, hereby grant to Wilbra H. Swett and E. H. Metcalf of the same place, an option to purchase the follow- ing described mir'iig claims and mining property, situated in the Twenty- APPENDIX. S3 <:, Mile Mining District, in the Copper River regon of Alaska, commonly known ;i8 the "Horse Shoe" group of mining claims, which group is situated about twenty-two miles northwest from the town of Valdez, and consists of the "Acme," "Eureka," "Golden," "Horse Shoe," and "Leigh" Lode Mining Claims, located by Dudley Barnes on August 6th, 1898, and notices of location whereof are reconiyd in the office of the Mining Recorder of said district, for the sum of $25,000, by deposit of said amount to our credit at the Seattle National Bank of Seattle, "Washington, on or before noon of July 30th, 1901. Within three days after receipt of written notice of such deposit we agree to make, execute, acknowledge and deliver, at our own cost, to the said Swett and Metcalf, or to such person as they may in writing direct, at said bank, a good and sufficient deed or deeds of conveyance of said mining claims and prop- erty, free from incumbi-ance. IN WITNESS WHEREOF, We have hereunto set our hands and seals, in the City of Seattle, Washington, on this 1st day of May, A. D. 1900. WILLIAM D. McCarthy. (seal) JAMES P. GLEASON. (seal) Add usual acknowledgment. Form No. i2— AMning Lease (Placer Mine), With Uption to Purchase. THIS INDENTITRE, Made and entered into on this 3rd day of April, A. D. 1900, by and between Edward J. Walsh and John J. Miller of Tacoraa, Washington, parties of the first part, hereinafter called the lessors, and Flor- ance P. Leehey of Iowa City, Iowa, party of the second part, hereinafter called the lessee. WITNESSETH: That tie said lessors, in consideration of the royalties to be paid and the covenants to be performed by the said lessee as hereinafter stated, hereby lease, demise and let unto the said lessee the lower divided one-half (the same beir.g 600x660 feet in dimensions) of that certain Placer Mining Claim known and (lesigna,ed as No. 3 below Boston Creek en the Salomon Rivf^r i« the Bonanza Mi ling District, between Golovin Bay and Oap< Nome, .\laska, together with the rights and privileges of entering upon and over (ho said property, and to prosn^rt the Fame for gold and the l>r*r termijiated by forfeiture or mutual agreement. IN CONSIDERATION of such lease and privileges, the said lessee cove- nants and agrees to and with the said lessors, as follows: 1. To enter \ipon the said mining claim and premises as soon as con- venient, and in any event on or before July 1st, A. D. 1900, and to at once begin to prospect and ex;iloit the same for the purpose of discovering thereon placer deposits of gold and other valuable minerals, in whatever form the same may be found, and to continue such work with due diligence as long as weather and the circumstances in the community will permit. 2. To work and mine the said premises as aforesaid steadily and con- tinuously from the t *^e of such entry, with at least two persons employed 84 LKKIIKYS MINING COOK. li V A : n thereon for at least fifteen days in each calendar month during the workiut; season, and to expend thereon each calendar month during the working season not less than $'')00 in actual money, to be paid as wages to employees working upon the said property. And it is understood that term "working season" as used in this contract shall mean the portion of any year during which placer mining may be prosecuted in said community. 3. To work said mining claim and premises iiereby leased in the most practical manner known to good mining in that particular region, and to such extent as to develop said property and discover its value as a placer mine, and to produce therefrom the greatest values in ores and minerals, extracted at the minimum of cost; and to that end the said lessee agrees to install such machinery, devices and appurtenances as may be in gener^^l use and best suiterl to mining in the community and to the peculiar conditions of the property hereby leased. And it is understood that the privilege hereby granted to prospect and work said property shall also be construed a privilege to employ thereon any new and approved machinery for the pur- pose of testing the value of the same In placer mining, and the final adoption of the same in general use on such claim if found satisfactory. 4. To kei?p all sluices, ditches, drains, water ways and passage ways cleared of loose rock and rubbish, in such manner as to promote the useful- ness of the property from year to year as a workable mine, and to do no act thereon with a view to immediate gain or profit during the term of this lease which would ultimately impede mining operations or impair the operating conditions of said mining claim at a future date, and geneially to so conduct operations as to conform to the laws of the United States and tlie District of Alaska, and the local rules and regulations of miners, and to do no act and suffer no default wbi<'h might in any manner involve the said lessors in liability of any kind or ( haracter. 5. To pay and deliver to the said lessors, as royalty, twenty-five per cent., or one-fourth, of all gold dust and mineral extracted twnn said prop- erty, which sum shall be delivered by the said lessee to the lessor Walsh or to any person whom he may direct, immediately .nfter each clean up, or at such times as he may demand the same; and to that end it is agreed that said lessee shall give to the said Walsh, or the authorized agent of said lessors, notice of the time of each clean up, and permit him to be present and assist at the same. 6. To deliver the said premises, with the appurtenances and all improv>" ments placed thereon, except machinery, to the said lessors, in good order and condition, upon the expiration of this lease, or at any time sooner, upoi the expiration of notice, upon demand for forfeiture, a 3 hereinafter stated. 7. Finally, it is agreed that time is of the essence of this lease as to each condition thereof, and upon the .allure of the Htiid lessee to perform any or all of the covenants herein contained, this lease and iUl rights ami privileges thereunder shall at tlie option of the said lessors, expressed by the said Walsh or their authorized agent, be at once forfeited, and the said lessors may cause notice in writing of their election to declare such forfeiture to be delivered to said lessee, or in his absence to be posted in a conspicuous place on said lea.sed property, which notice shall specify the grounds upon which such forfeiture has been declared. That thereupon the said lessee shall have the period of five days in which to repair any injury AI'PKNDIX. 86 caused to said premises through his act or neglect, or through the act or neglect of any person claiming under him. and a similar length of time in which to cflmply fully with any other comlition herein specified and in the l)erforman('e of which failure has been made; and at the expiration of said period, if such defect has not been cured, the said lessors, or their agents, may at once, with or without further demand, and with or without notice or legal process, enter into and upon the premises hereby leased, and may dispossess the said lessee and all persons thereon claiming under him or otherwise, and shall retain any royalties delivered as the stipulated rents of said property, and may proceed against the said leasee to recover for any damages which they may have sustained through his acts, defaults or negligence. The right is reserved by said lessors to enter upon and over said prop- erty at all reasonable limes, for the purpose of inspection, and for the pur- pose of obtaining access to and from any other property owned or operated by said lessors. This lease and the privileges hereby granted shall not be assignable, except with the consent of the said lessors, but in all other respects each and every clause, covenant and condition herein contained shall extend to and include the heirs, personal representativeb and assigns of each and every party hereto. In consideration of the foregoing lease, and the faithful performance of the same by the said lessee, the said lessors grant to him the right to purchase the premises hereby leased, to wit, the divideo lower half (660x660 feet in dimensions) of the placer claim known as No. '■', below Boston Creek, on Salomon River aforesaid, on or before December ist. A. D. IJKiO, for the sum of Ten Thousand Doli.irs ($10,000), or in default of this option he jihall have the right to purchase the said premises on or before the Jst day of December. 1901. for the sum of Twenty Thousand Dollars (120,000), which sum shall in either event be deposited in the First National Bank of Seattle, Washington, to the credit of the said lessors, on or before the date herein set, and to that end the said lessors herewith agree to execute, acknowledge and place in escrow in said bank their uood and sufficient deed of conveyance to said lessee of said property; but it is stipulated that time is of the essence of this option, and should the said sum not be deposited promptly at the date herein specified, then this option, and all the rights of the said lessee thereunder, shall at once be forfeited, without further act or declaration on the part of the said lessors. The forfeiture, surrender or termination ot the above lease for any cause, shall render this option void, and the above mentioned payment crnnot thereafter be tendered with any effect. IN WITNESS WHEREOF, the said parties have hereunto set their hands and seals, on this day and year in thlf^ instrument first above written. Signed in the presence of: EDWARD J. WALSH. (seal) .TNO. G. EVANS, JNO. .1. MILLER. (skal) .). F. O'BRIEN. FLOR. P. LEEHEY. (seal) Who witness the signatures of said lessors. T. H. .vIcBRIDE. JOHN J. NEY, Who witness the signature of said lessee. Usual acknowledgment should be added. 86 LKEHEY S MINING CODE. R ,1 m II Form No. 13— Bond for Deed. KNOW ALL MEN BY THESE PRESENTS: That the undersigned John Walker of Snohomish. Washington, and William Myers of Index, Washington, parties of the first part, are held and firmly bound unto Thomas Everett of Seattle, Washington, in the penal sum of Ten Thousand Dollars, for the pay- ment of which well and truly to be made, they bind themselves and their heirs, personal representatives and assigns, jointly and severally, firmly by these presents. The condition of this obligation Is that if the said parties of the first part, on receipt of notice in writing that there has been deposited to their credit in the First National Bank of Seattle, Washington, the sum of Ten Thousand Dollars, on or before noon of July 5th, A. D. 1900 (and time is of the essence of this obligation), will at once make, execute, acknowledge and deliver to said obligee, or to such person as he may in writing direct, a good and sufficient deed of conveyance to the "Merrimac" Lode Mining Claim in Fidalgo District, King County, Washington, described in the Notice of Location thereof recorded at page 332 of Vol. 6 of Mining Records in the office of the Auditor of said County, free from all incumbrance, and including all mineral and mining rights and privileges therein, then this obligation shall be null and void; otherwise to be and remain in full force and effect. Signed with our hands and dated this 4th day of April, A. D. 1900. JOHN WALKER. WM. MYERS. Add usual acknowledgment. Form No. 14 — "Qrub-Stake" Agreement. THIS AGREEMENT, Made this 10th day of December, A. D. 1899, be- tween Walter S. Ayres of Butte, Montana, party of the first part, and Jerry Brown of Spokane, Washington, the party of the second part: WITNESSETH: That whereas, the said party of the second part has this day procured and furnished for the party of the first part an outfit suit- able for prospecting and mining on the Koynkuk River and its tributaries in Alaska, together with all the necessary provisions, supplies and clothing, and has procured for the party of the first part transportation to St. Michaels, and has furnished and given to the party of tlip first part sufficient money to defray all of his necesHury expenses in continuing the said journey, and in procuring tho nocessariea of life. Now therefore, for and in consideration of the premises, the said party of tlu> first part agrees to go immediately to the ^n\ the laws of Alaska and of the United States, for holding the said mining properties, and to comply with all of the requirements of the said laws and of all lawful local regulations. And the said party of the first part does further asree to account on the Ist day of October of each year to the said party of the second part for all of his earnings during the year prior thereto, whether the same li- obtained la working mines himself or in laboring for others, and to give to the said party of the second part one-half of the said net earnings. And the said party of the first part further agrees that as soon as any mining properties located by him can l)o workee disturbed in the possession of any lands aitually in their \ise or occu- pation or now tlaimed by them but the terms under which such persons may acquire title to such lands is reserved for future legislation by Congress: And prin\(U'(l further. That parties who have located mines or mineral privi- leges therein under the laws of the United States applicable to the public domaii), or who have occupied and improved or exercised acts of ownership over SI ch claims, shall not be disturbed therein, but shall be allowed to per- fect th'iir title to such claims by payment as aforesaid: And pxnidcd also. That the land not exceeding six hundred and forty acres at any station now occupied as missionary stations among the Indian tribes in said section, with the improvements thereon erected by or for such societies, shall be continued in the occupancy of the several religious societies to which said missionary stations respectively belong until action by Congress. But nothing contained in this act shall be construed to put in force in said district the general land laws of the United States." Sec. 4 of the same act provides for the appointment of a clerk of court who shall be ex-offlcio secretary and treasurer of the district and ex-offlcio recorder of deeds, and mortgages and certificates of location of mining claims and other contracts relating to real estate (1). Washington. MINING CORPORATIONS. Section 4280, Bal. Code. — "In Incorporations already formed, or which may hereafter be formed under this chapter, where the amount of the capital stock of such corporation consists of the aggregate valuation of the whole number of feet, shares, or interest in any claim in any mining claim in this state, for the working and development of which such corpora- tion shall be or have been formed, no actual subscripi.on to the capital stock of such corporation shall be necessary; but each owner in said mining claim shall be deemed to have subscribed such an amount to the capital stock of such corporation as under its by-laws will represent the value of so much of his interest in said mining claim, the legal title to which he may by deed, deed of trust, or other instrument vest or have vested in such corporation for mining purposes; such subscription to be deemed to have been made on the execution and delivery to such corporation of such deed, deed of trust, or other instrument; nor shall the validity of any assessment levied by the board of trustees of such corporation be affected by the reason of the fact (1) NOTE ON ALASKA LAW.— 'From the foregoing it will be noted tiiat only the "general laws" of Oregon were extenied to Alaska. We are advised that tha District Court of the district has repeatedly held that the mining laws of the state of Oregon have never applied to Alaska, and the language of the act certainly sup- ports this view. The laws of Oregon under this act, governed as to sales of real estate, and hence of patented mining claims. Of course, upon the passage of the Carter Act to provide a civil code for Alaska, the foregoing stands repealed, and from this date the only interest Alaska people can have in the Oregon laws will be with reference to rights acquired under the operation of the same. 7 1. ^^\.i :id^m^. % s^. ^, IMAGE EVALUATION TEST TARGET (MT-S) /. 'S'" €P. :^< LO I.I 1.25 *'-^ IIIIM 12.5 14^ 1 2.2 2.0 1.8 M IIU Photographic Sciences Corporation ,\ S ,v S % m :\ \ 23 WEST MAIN STREET WEBSTER, NY. 14580 (716) 873-4503 ■^*- r O C/^ 90 I.EKHEY8 MIXING CODE. that the fuli amount of the capital stock of such corporation, as mentioned in its certificate of incorporation, shall not have been subscribed as provided In this section : Provided, That the greater portion of said amount of capital stock shall have been so subscribed: And provided further, That this section shall not be so construed as to prohibit the stockholders of any corporation formed, or which may be formed for mining purposes as provided in this Bection, from regulating > oe mode of making subscriptions to its capital stock and calling in the same by by-laws or express contract." (1). LEASING MINERAL LANDS BELONGING TO THE STATE (2). Sec. 2212. Bal Code. "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 herein- after provided." Sec. 2213. '"Any citizen of the United States finding precious minerals upon any lands belonging to the state of Washington may apply to the com- missioner 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 locating and recording mining ciaiui , and same dimensions." Sec. 2214. "The manner of locating a mineral claim upon state land shall be similar to the state law regulating locating mineral claims on gov- ernment land: Provided, That any citizens that have found minerals on state lands previous to the passage of this act and have posted up notice setting forth the dimensions according to the mining law of the United (1) NOTE.— This provision makes an actual subscription to the stock of a min- ing corporation unnecessary where such stock Is to be paid for by conveyance to the corporation of a mine or mlnlna; claim within this state, for the development of which the corporation has been formed. The language of the section Is not free from ambiguity, and whether a mining claim can be transferred in full payment of the entire capital stock of a mining corporation is a question. Hon. P. H. Brownell, of Everett, In a paper read before the Washington State Bar Associa- tion In July, 1898, suggests this doubt and states a conclusion In which we concur, viz. : That It will be well to assume that only the necessity of a subscription to the entire capital stock is abrogated in the case of a mining corporation, and that While a mining claim may be taken In payment of stock. It must not be overvalued. (2) NOTE.— The foregoing has referei.ce only to lands owned by the state and which contain valuable mineral deposits. Mineral lands were excepted from the grant to the state for educational purposes. This exception, however, had ref- erence only to such lands as were known to be mineral at the time of the grant. If lands which have been granted to the state should afterwards prove to be mineral the title of the state Iv not thereby affected, and the state has chosen this method of leasing such lands. STATE GEOLOGIST.-Sectlons 172-182 Bal. Code (Act of 1890) provide for the appointment of a state geologist, whose duty it is to collect information concern- ing minerals In the state; to assay samples of ores at a fixed schedule of prices, retaining sp<>clmens for the state museum, and to Inspect mines upon request or complaint to him. We are Informed that the first official appointed under this law published an Interesting report, but the legislature has not appropriated for its sup- port and the office Is now vacant. A MINING BUREAU was also authorized by an Act of 1890 (Sections 3145-Bi) Bal. Code), but is not now maintained. In 1891 an appropriation of fifty thousand dollars was made for a geological and mineraloglcal survey of the state, but the courts held that the r^pproprlatlon therefor could not be disbursed under the act. Sections 3196-3211 Bal. Code provide a method by which the tax payers of any county may vote upon a proposition to prospect the county for mineral deposits, coal, oil, etc., but so far as we can learn no attempt has been made in any county to put into effect the provisions of the law. mBuam uhmmmf^&in APPKNDIX. 91 States and the state of Washington, shall have prior right to lease the same, and shall have ninety days after the passage of this act to make application to the commissioner of public lands for a lease." Sec. 2215. "The lessee may cut and use the timber found upon said premises for fuel and construction of buildings, required in the operation of any mine or mines on the premises; also the timtier necessary for drains, tramways and supports for such mine or mines, and for no other purpose." Sec. 2216. "Before any lease shall be granted the applicant shall pay to the state treasurer the sum of five dollars. The holder of a mineral lease, secured, as above, shall have two years to develop said mine or mines: Pro- vided, That no more than five tons of ore shall be removed therefrom, for assaying or testing purposes, until a contract as hereinafter provided shall have been executed." Sec. 2217. (As amended by act of March 18. 189).) "At any time prior to the expiration of said lease, the lease holder, or any assignee thereof, shall have the right to obtain from the said commissioner of public lands a con- tract which shall bind the state of Washington as the party of the first part, and the person, persons or corporations to whom said contract shall issue as the party of the second part, in a mutual observance of the obligations and conditions as specified therein (the contract provided for in this act shall be as follows) : THIS INDENTURE, Made this day of A. D. one thousand eight and by and between the state of Washington, party of the first part, and party of the second part. AVITNESSETH. that the party of the first part, in consideration of the sum of ten dollars to It in hand paid by the party of the second part, being the first annual payment as provided for in chapter 102, section 7, of the Session Laws of 1897. the receipt whereof is hereby acknowledged, and in farther consideration of the covenants and conditions herein contained, to be kept and performed by the part. . . of the second part, does hereby contract, lease and demise to the part. . . of the second part for a term of thirty years from and after the day of one thousand eight hundred and , the following described land situated In the county of , In the state of Washington, viz.: , tvhlch premises are leased to the part. . . of the second part for the purposes of exploring for, mining, taking out and remov- ing therefrom the merchantable shipping ore, containing copper, lead, silver, gold and other minerals, which is or which hereafter may be found on, in or under said land, together with the right to construct all buildings, make all excavations, openings, ditches, drains, railroat^s, wagon roads, smelters and other Improvements upon said premises, which are or may become necessary or suitable for the mining or removal of ore containing copper, lead, silver, gold or other minerals from said premises, with the right, during the exist- enee of this lease, to cut and use the timber found upon said premises for fuel, and so far also as may be necessary for the construction of buildings required In the operation of any mine or mines, on the premises hereby leased, as also the timber necessary for drains, tramways and supporti^ for such mine or mines: Provided, however, that the part. . of the second part 92 LKKIIEYS MIMINfl CODE. shall have the right at any time to terminate this agreement In so far as It requires the part. . . of the second part to mine ore on said lands, or to pay a royalty therefor, by giving written notice to the party of the first (part), which shall be served by leaving the same with the commissioner of public lands, who sha^l officially, in writing, acknowledge the receipt of said notice and the foregoing lease shall terminate sixty days thereafter, and all arrear- ages and sums which may be due under the same up to the time of its termina- tion, as set forth in said notice, shall be paid upon settlement and adjustment thereof. The party of the first part further agrees that the part... of the second part shall have the right under this agreement to contract with others to work such mine or mines, or any part thereof, or to sub-contract the same and the use of the said land or any part thereof, for the purpose of mining for ore, with the same rights and privileges as are herein granted to the said part. . . of the second part." Sec. 2218. "The terms and conditions on which the same may be mined shall be agreed upon by the commissioner of public lands and the lessee: Provided. That the royalty or tax to be paid by the lessee shall be graduated. All claims or mines that do not yield a net income of more than two thousand dollars shall pay a tax of ten dollars per year; over two thousand dollars and not to exceed ten thousand dollars, shall pay fifty dollars; from ten thousand dollars to one hundred thousand dollars, five per cent.; all above one hundred thousand dollars, ten per cent. Where the lessee commits fraud the penalty shall be the forfeit of the mine or mines, and all property pertaining thereto." PROTECTION TO COAL MINERS. Section 35, of Article II. of the Constitution of Washington provides that "The legislature shall pass necessary laws for the protection of persons work- ing in mines, factorieb, and other employraents dangerous to life or deleteri- ous to health, and fix pains and penalties for the enforcement of the same." Sections 3158-85, Bal. Code, provide at length for the inspection and regulation of coal mines. It is not the purpose of this work, however, to enter into any discussion of the details or regulations of actual mining operations, and hence we will dlsmlas this subject by making only a general reference thereto. INDIANS. (Laws of 1899. page '55.) "Any Indian who own? within this state any land or real estate allotted to him by the government of the United States may with the consent of Congress, either special or general, sell and convey by deed made, executed and acknowledged before any officer authorized to take acknowledgments to deeds within this state, any stone, mineral, petro- leum or timber contained on said land, or the fee thereof, and such convey- ance shall have the same effect as a deed of any other person or persons within this state; it being the intention of this act to remove from Indians residing in this state all existing disabilities relating to alienation of their real estate." I APPENDIX. 98 APPENDIX C. CRIMINAL 8TATUTKS. • Alaska. ROBBING FLUMES OR SLUICE BOXES: TRESPASS. Sec. 75, Penal Laws. "That any person who shall break or rob In any manner, or who shall attempt to break or rob, any flume, rocker, quartz, quartz vein, or lode, bed rock, sluice, sluice box, or mining claim not his own, or who shall trespass upon such mining claim, with the intent to commit a felony, shall, upon conviction thereof, be punished by imprisonment in the penitentiary not less than one nor more than Ave years, or by fine not less than one hundred nor more than one thousand dollars, or by both such imprisonment and fine." Washington. PROTECTION AGAINST ACCIDENTS FROM OPEN OR DANGEROUS SHAFTS OR HOLES ON MINING CLAIMS. Sec. 3186, Bal. Code. "Any person or persona, company or corporation, who shall hereafter dip;. Dink or excavate, or cause the same to be done, or being the owner or owners, or in the possession under any lease or contract, of any shaft, excavation, or hole, whether used for mining or otherwise, or whether dug, sunk, or oxcavuted for the purpose of mining, to obtain water, or for any other purpose, within this state, shall, during the time they may be employed in digging, linking, or excavating, or after they may have ceased work upon or abandoned same, erect, or cause to be erected, good and sub- stantial fences or othei' safeguards, and keep the same in good repair around such works or shafts nufllcient to securely guard against danger to persons and animals from falling into such shafts or excavations." Sec. 3187. "Three rerscnB being residents of the county, and knowing or having reason to believe that the provisions of the last preceding section of this article are being or have been violated within such county, may file a notice with any Justice of the peace or police Judge therein, which notice ^all be in writing and shall state, — 1. The location, as near as may be. of the hole, excavation, or shaft; 2. That the same is dangerous to persona or animals, and has been left or is being worked contrary to the provisions of this chapter; 3. The name of the porKon or persons, company or corporation, who Is or are the owners of the same. If known, or if unknown, the persons who were known to be employed therein; 4. If abandoned and no claimant, and: 6. The estimated cost of fencing or otherwise securing the same against any avoidable accidents." Sec. 3188. "Upon the filing of th9 notice as provided In the preceding section, the Justice of the peace or Judge of the police court shall issue an order, directed to the sheriff of the county or to any constable or city marshal therein, directing such officer to serve a notice in manner and form as Is pre- scribed by law for service of summons upon any person or persons, or the f i 94 LKEHKYS MIXING CODE. authorized agent or agtrts ot' any company or corporation named in the notit * on file, as provided in the last section." Sec. 3189. "The notice thus served shall require the said persons to appear before the Justice or Judge issuing the same, at a time to be stated therein, not more than ten nor less than three days from the service of said notice, and show to the i;aiiBfactlon of the court that the previsions of this article have been complied with; or if he or they fail to appear. Judgment will be entered against him or them for double the amount stated in the notice on file; and all proceedings had therein shall be as prescribed by law in civil cases; and such persons, in addition to any Juagment that may be rendered against them, shall be iiable and subject to a fine not exceeding the sum of one hundred dollars for each and every violation of the provisions of this article, which Judgments and fines shall be adjudged and collected as provided for by law." Sec. 3191. If the notice filed with the Justice of the peace or police Judge, as aforesaid, shall state that the excavation, shaft, or hole has been abandoned, and no person claims the ownership thereof, said Justice of the peace or Judge shall notify the board of county commissioners of the county, or either of them, of the location of the same, and they shall, as soon as possible there- after, cause the same to be so fenced or otherwise guarded as to prevent acci- dents to persons or animals: and all expenses thus incurred shall be paid as other county expenses: Provided, That nothing herein contained shall be so construed as to compel the county commissioners to fill up, fence, or otherwise guard any shaft, excavation, or hole, unless in their discretion the same may be considered dangerous to persons or animals." SAFETY CAGES. Sec. 3192. "It shall be unlawful for any person or persons, company or companies, corporation or corporations, to sink or work through any verticp.I shaft ut a greater depth than one hundred and fifty feet, unless the said shaft shall be provided with an iron-bonneted safety cage, to be used in the lowering and hoisting of the employees of such person or persons, company or com- panies, corporation or corporations. The safety apparatus, whether consistirg of eccentrics, springs or other device, shall be securely fastened to the cage, and shall be of sufficient strength to hold the cage loaded at any depth to which the shaft may be sunk, provided the cable shall break. The iron bonnet aforesaid shall be made of boiler sheet iron of a good quality, of at least three- sixteenths of an inch in thickness, and shall cover the top of said cage in such manner as to afford the greatest protection to life and limb from any mattei- falling down said shaft." Sec. 3193. "Any person or persons, company or companies, corporation or corporations, who shall neglect, fall or refuse to comply with the provisions of the last preceding section of this article, shall be guilty of a misdemeanor, and upon conviction thereof shall be fined not less than five hundred dollars nor more than one thousand dollars." Sec. 3194. "Nothing contained in this article shall be so construed as to prevent reco'-ery being had in a suit for damages for Injuries sustained by the party so injured, or his he r or administrator or administratrix, or any one else now competent to sue in an action of such character." ■:.WSiat'^J£>^* AIM'KNIUX. 95 IS to the one ROBBING SLUICE BOXES. Sec. 7146. "Any person who shall break or rob in any manner, or who shall attempt to break or rob, any flume, rocker, quartz mill, quartz veiu or lode, bed-rock sluice, sluice box, or mining claim not his own, or who shall trespass upon such mining claim with the intent to commit a felony, shall, upon conviction thereof, be punished by imprisonment in the penitentiary of this state not less than one nor more than five years, or by fine not less than one hundred dollars nor more than one thousand dollars, or by both such imprisonment and fine, as the court or Judge thereof may direct." DESTRUCTION OF MONUMENTS ON MINING CLAIMS. Sec. 7146a. "Any person who shall wilfully and maliciously deface, remove, injure or destroy any location stake, side post, corner post, land mark or monument, or any other land boundary monument, the same having been erected or implanted for the purpose of designating the location, boundary or name of any mining claim, lode or vein of mineral, or for posting the name of the discoverer, locator or owner or date of discovery thereon; or any person who shall so deface, obliterate, remove or destroy any notice having been placed or posted, upon any mining claim for the purpose of marking or identifying the same, shall be deemed guilty ot a misdemeanor, and upon conviction thereof, shall be punished by a tine of not less than one hundred dollars nor more than five hundred dollars, or by imprisonment in the county Jail not exceeding one year: Provided, however, That the provisions of this act shall not apply to abandoned mining claims." FALSE PRETENSE IN SALE OF MINES; FAL&E ASSAYS. Sec. 7169. "Any person who shall, with intent to cheat, wrong or defraud, place in or upon any mine or mineral claim any ores or specimens of ores not extracted therefrom, or exhibit any ore, or certificate of assay of ore, not extracted therefrom, for the purpose of selling any mine or mining claim, or Interest therein, or who shall obtain any money or property by any such fRlsc pretenses or artifices, shall be deemed guilty of a felony." Sec. 7170. "Any person who shall interfere with, or in any manner change, samples of ores or bullion produced for sampling, or change or alter samples or packages of ores or bullion which have been purchased for assay* ing, or who shall change or alter any certificate of sampling or assaying, with intent to cheat, wrong or defraud, shall be deemed guilty of a felony." Sec. 7171. "Any person who shall, with Intent to cheat, wrong or defraud, make or publish a false sample of ore or bullion, or who shall make or publish or cause to be published a false assay of ore or bullion, shall be deemed guilty of a felony." Sec. 7172. "Any person violating any of the provisions of the last three preceding sections shall be deemed guilty of a felony, and upon conviction thereof shall be fined in any sum not less than fifty nor more than one thousand dollars, or by imprisonment in the penitentiary for not less than one year nor more than five years, or by both such fine and imprisonment." TRESSPASS ON STATE LANDS. Act of March 6, 1899. (Laws 1899, pp. 47-48.) Section 1. "If any person shall cut down, destroy. Injure, or cause to be cut down, destroyed or injured, any timber standing, growing or felled upon 96 leehey's mining code. any of the lands of the State of Washington before deed shall have been issued by the state therefor as provided by law, or shall take or remove or cause to l)e taken or removed from any such lands, any timber, wood, clay, sand or other material or substance thereon, or shall dig, quarry, take or remove any mineral (except by contract with the state), earth or stone from such lands, or shall cause to be dug, quarried, taken or removed, any mineral (except by contiact with the state), earth or stone from such lands, or shall otherwise injure, deface or damage, or shall cause to be injured, defaced or damaged any such lands, he shall be deemed guilty of a misdemeanor." Sec. 2. "That nothing in this act shall be so construed as to prevent any person who shall lease said lands or hold the same under contract with the state for the purchase thereof, and occupy the same for the purpose of a home, from cutting such timber as may be necessary for domestic use or to clear land for actual cultivation: Provided, That such lessee or contractor may sell such timber so cut in good faith for the purpose of clearing such land for cultivation: Provided further, however. That before any timber may be sold by any such lessee or contractor he must first obtain the written consent of the commissioner of public lands of the state of Washington to such sale: otherwise such lessee or contractor shall not have the benefit of the provisions of this section." Sec. 8. "Any person or persons violating the provisions of this act shall be guilty of a misdemeanor, and upon conviction thereof, be punished by .t fine of not less than twenty-five dollars nor more than one thousand dollars, or by imprisonment in the county jail of the county in which such conviction was had, for a time not less than one month and not more than one year, or by both fine and imprisonment." »»twii««w«»^».«a.M«8»^ 13 :!:' 14 :\-2 BHlIliiKor'H Code. Sw. 221 2 !M( 2213 Oo 2214 'HI 2215 !tl 2216 91 2217 91 2218 92 »151 15 3152 15 3153 67 3154 50 3155 32 3156 32 3157 32 S186 93 3187 93 3188 93 3189 91 3191 94 3192 94 3193 94 3194 94 4090 40 4091 40 4092 40 4093 40 4094 , 40 4095 41 4096 41 4097 41 4098 41 4099 . . * 41 4280 89 7146 95 71460 95 7169-72 95 Abandonment of mining claim 55 Abbreviations used In this volume 6 Adverse claims 61 Adverse possession, title by 66 None as against the United States 11 PBKf ....50 ....50 , . . . .'■) 1 ...It; . . . 2.^ . . .211 . . . :',2 . . . iv: . . . ;< J . . .'Ml . . .0(1 . . .nil .. .!tl . . .;•! ...91 ...92 ...15 ...u . ..67 .50 32 ...12 ..32 . .93 . .93 . . 93 . .91 . .91 . .94 . .94 ..94 ..40 ..40 ..40 ..40 ..40 ..41 ..41 ..41 ..41 .41 .89 ,95 .95 .95 .55 . B .61 .66 .11 INDKX. 99 ARfiut, location by .Mnska Laws — as lo phuoi-H 24 an to hrach and Hhor« laiulH 28-31 as to lodo or quartz claims 19 us to tlmbor and stono lands 46 as to mlninK districts and local rules 33-35 United StatPH mining laws cxtonded to Alaska 7, 27, 29. 88 Cap«> Nome beacii claims 28 Criminal provisions affectinK niiiH's in Alaska 93 HobbiiiK flumes, etc 93 Forms for use in Alaska t Appendix A ) 73 Aliens, rights to acquire oi- jiold mines in Alaska 9, 10 rights generally II Amended location 54 Annual labor on mining claims 49 On tunnel claims 38, 49 Korm of affl Development worlt. required In WushinKton 16-18 Dimensions of location 17, 24-27 Districts, mining, and local rules and regulatlonH R| Ditches, with water rights 40 Discovery, necessary to location 12 of placer deposit on each 20-iicre tract located 28 Discovery shaft It; Dower, none in unpatented miuliiK <'luinis «8 Dredging 29-31 Bmlnent domain, for mining, etc., In Wunhlngton 41 in Alaska 88 End lines should be parallel 15) Entry of mineral lands 58-6 1 Evidence, recorded instruments as 23, 24, nO, 52 Exploration work necessary upon locations In Washington 15-19 Extralateral rights 70 False pretenses In sale of mines, penalty for in Washington 95 Community property liable for 69 Floating the claim 17 Forfeiture by co-owner, notice, proof, etc 52 Forms for 79, 80 Strictly construed 5:? Forms (See Appendix A.) Notice of lode location for posting — WuHlilngton 73 Notice of lode location for record — WaHhington 73 Notice of lode Im^atlon for Alaska 74 Notice of placer location 75 Tunnel location notice — lor posting 7(! Tunnel location notice — for record 77 Water right appropriation 78 Affidavit annual labor 78 Notice to delinquent co-owner 79 Proofs of "advertising out" co-owners 80 Mining lease (lode) 80 Option to purchase lode claim . . 82 Mining lease (placer), with option to purchase 83 Bond for deed to mines 86 Qrub-stake agreement 86 Lay on placer claim 87 Fraudulent representations on sale of mines 68 Geologist, state, in Washington 90 Qrub-stake agreement 69 Form for 86 Husband and wife, no Interest In mining locution of the other 68 Indians, may sell mines in Washington 92 Knol hanj "LaJ iMen| Leas liOa><| Mini Local Lo4'ul INDRX. 101 I'HKU Known lode defined 64 LandH Hiibjcct to location under mineral laws 7 "Lay" on placer claim, form for 87 Lien of mining partners 67 I^ease, form of ; i .S l^eaHe, mineriil lands of the state '»!) Tiimestone, may be located as mineral IT Lot'ul rules, generally 31 In Alaska 33-34 Ucgulute mininK <»i Ih'uiIi and tide la.ids 30 Location of lode claims . . 15 21 of lodes discovered In luiincls 3S of placer (J-'nis 24 2H of tunnel claims 3r> of mill sites 3K of hnllding stone 13, 24, 27 of timber and stone lands 44-45) of coal lands 42 Made by agent or partnei- 17 Forms for ( See Forms ) 73-77 Amended locations 54 Who may make mining locations 8 One location only for each discovery 12 Dimensions of 17, 24-27, 35 Record of 21, 22. 33-34 What may be located 13, 27 Locators, must be citizens of the United Slates 8-10 Need not be first discoverer of the claim located cf, Lode, definition of 12 Lode claims, dimensions of 15-18 Location of 15 Discovery of 12 Lodes within placers G3 Forms for locating 73 Marking boundaries 18 Mill sites 38 Mineral, definition of, by Washington Supreme Court .13 Mineral entry of lands for United States patent 68 Mineral lands, reserved from school and railway grants 14, 44 of state, lease of 90 subject to location 7 Miners' rules and regulations in organized districts 31-85 Mining claim. (See Location.) Rights pertaining to 69 As property 68 Relocation of S^ Abandonment and forfeiture of 52 Either surface oi- minerals may bn reserved by deed 69 Mining corporations, special provisions as to 89 Miuiug districts and local rules 31 102 leehey's mining code. I'ajfc Mining partnerships 56 Minors may locate mining claims 10 Miscellaneous statutes 88 Monuments, corners of mines, description of 16-18 Permanent, what are 18 Destruction of, penalty ; . 95 Natural objects f\nd permanent monuments defined 18, 23 Necessity of complying with the law 11 New discovery, not necessary to re-location 55 Nome beach and shore lands (See Chapter VII.) 28 Nou-mlnei al lands, use of timber from 45, 4S Notice of location. (See Forms, Location, T.ode ('lainis. Placers.) Record of, in Washington 21 Record of, In Alaska 22 Liberally construed 17 Options, law concerning 69 Form for 82 Oregon Laws, formerly extended to Alaska 88 Overlapping of claims permitted 18 Ownership of stone taken from public lands 4G Parallel end lines to lode claims 19 Partner, location by 17 Partnerships, raining 56 Patent, application for, procedure (Chapter XVIII. ) 58 Penal statutes 93 Permanent monuments defined 1 8, 23 Placer claims, general laws as to 24 On beach and shore lauds in Alaska 28 Lodes within placers 63 What may be located as placei- 27 When to conform to public surveys 27 Possessory rights to mining claims G(> Power of attorney, location by Is valid 1 7, 27, 31 Priority of possession as to coal lands 44 Property In mining claims and mines 68 Protection to coal miners 92 Public domain, mining laws relate to 7 Receiver's receipt. Issues when 61 Records, of locations, etc., in Washington 21 In Alaska 22 Old law In Washington 22 Pui pose of 23 Regulations by local districts 31 Regulation of coal mines 92 Relocation and amended location 54 Representation of mining claims (See Annual Labor) 49 Resuming work after forfeiture 51 Returns of deputy mineral surveyor 14 Rights and property In mining claims i 67 Roadway, on shore in Alaska 29 Rotal Safe Salt Sallj Salcl Sch(] Secil Shaj Shlfl Slxtl Slull Sur' Pajff 56 10 88 ...16-18 18 .......95 . . . 18, 23 n 55 28 ..45.48 21 22 17 69 82 88 18 ....46 ...19 ....17 ....56 ....58 ....93 .18,23 ....24 ...28 . ..63 ...27 ...27 ...66 27, 31 ...44 ...68 ...92 ... 7 ..61 ..21 ..22 ..22 ..23 ..31 ..92 . . 54 ..49 .51 .14 .67 .29 INDEX. 103 Page Robbing flumes, etc., in Alaska 93 Safety cages in Washington mines 94 Sales of mines 67 Salines, or salt lands 13 Sales of timber on public lands 45 of timber in Alaska 46-48 School sections 14 Secretary of War, permits to mine from 30 Shafts and holes must be covered 93 Shifting the location 17 Sixty-foot roadway on shore in Alaska 29 Sluice boxes, robbing in Alaska 93 Surveys, public, placers conform to 27 Same as to coal lands 44 Tide lands, defined 28 rights to mine or dredge upon 29-31 Timber, use of and cla'.ms 44 Purchase of 44, 46 Purchase of in Alaska 46 Purchase of without land 45 Timber and stone lands 44 Time, computation of 24 Trespass on mines 93, nn Triangular claims, no extralateral rights 70 Tundra claims 27, 2!» Tunnel rights 35 Vein or lode defined 12 Veins uniting or intersecting on course or dip 67, 71 Verification of location notices 24 Walls of vein or lode 13 War Department, regulates dredging below low tide 29-31 AVater rights, chapter on (Chapter XI.) 39 Women can locate mining clailms 10 h I ^ h the J^es'i If so, give us a cull, as we carry many articles that will be of tise to you. ? LIST OP USEFUL AND NEEDFUL ARTICLES OP DAILY VSH BY MINSR8 AND tROSPBCTORS Snow GImsc* tof all descriptions Mineral end AUgnifying Glasses Pocket Surveyor's Aneroid Barometers P