University of California Berkeley GIFT OP PROFESSOR LYSLE E. SHAFFER Mining Rights ON THE PUBLIC DOMAIN Lode and Placer Claims TUNNELS, MILL SITES AND WATER RIGHTS Statutes, Decisions, Forms and Land Office Procedure FOR PROSPECTORS, ATTORNEYS, SURVEYORS AND MINING COMPANIES ::x BY R. S. MORRISON AND F.MILIO D. DE SOTO ' OF THE COLORADO BAR 13TH EDITION REVISED AND ENLARGED Denver. Colorado The Smith-Brooks Printing Company 1908 COPYKKJIIT. 1908 BY K. s. MOKKISON AND EMILIO D. DE SOTO > EDWIN J. COLLINS. MINING RIGHTS DISTRICT RULES. The origin of Mining Districts and of their Rules was in the mining camps of California, in 1849, before any territorial form of government had been established, and the same system was followed and prevailed wherever valuable discoveries in other sections induced an influx of prospectors. Practically all the Pacific slope and the land east of the mountains to the Missouri river was then public domain. The vast ore bodies of the Comstock, the wealth of Alder Gulch, the veins and placers of Pike's Peak, and of countless intermediate min- eral localities were all appropriated and their values extracted under the protection of this form of local self-government for many years, with no paternal in- terference by the National Legislature. Each local camp called itself a Mining District as defined by the action of a mass meeting of the miners. Some of them were less than a mile square, others quite extensive, and they have become per- manent geographical divisions for purpose of de- scription in the conveyance of real estate of all kinds in the mining counties. After defining the name and local extent of the District these meetings usually designated certain officials to be elected from time to time, and CONTRACTIONS. A. C. Act of Congress. F. Federal Reporter. L. D. Land Decisions of the Interior Department. If. R. Morrison's Mining Reports. (Vols. 1-22.) P. Pacific Report, i. R. 8. Revised Statutes of the United States. R. 8. Colo. Revised Statutes of Colorado (1908). VJlAJilZlJ 4 DISTRICT RULES. then proceeded to adopt rules regulating the size of claims, prerequisites of location and for annual labor or periodical representation in some form. Before the territorial organizations were com- plete, and while the diggings were remote from or- ganized society, they often took a much wider scope and provisions were made for executive officers, for miners' courts, and covering all sorts of subjects. But these incidents have long since ceased. Where the districts, as quasi municipal organ- izations, have been abandoned, provision has gen- erally been made to preserve their records in the County Recorder's office. With almost no interference by State or Terri- torial Acts they were the mining laws of the land until the Act of Congress of July 26, 1866. This but slightly limited their authority, but the Act of May 10, 1872, covered so many essential incidents, and has been so supplemented by State and Territorial legislation, that they have been gradually abandoned, and survive now only as a name of description. Only in California, Utah and Alaska are the organizations still preserved to any extent. Where not extinct their existence is practically confined to the keeping of district records for the registry of locations, with regulations defining the size of claims and details of location. Undoubtedly where there is no State or Territorial Statute a district can yet be organized, and details of location fixed by its rules, but any attempt to revive old districts or enact new district rules in any State or Territory which has any pretense of a mining code would only tend to confusion. The details of these rules were not altogether arbitrary or experimental. In many respects they followed precedents already long established in Spain and Mexico. The requirements of discovery and discovery shaft, of sinking and record, period- ical labor, forfeiture for non-representation, and many others, are duplicates, more or less close, of like provisions of the Royal Code of 1783, but en- acted by these local conventions of practical miners DISTRICT RULES. 5 in entire ignorance of the existence of such code. Rockwell's Sp. d Mex. l For instances of the form and contents of Dis- trict Rules see llth edition, p. 5. The rules under which the Comstock lode was located are printed in Kinncy v. Cons. Va. Co. 10 M. R. Unorganized Districts. A mining title may he proved without either district organization or proof of district rules. Golden Fleece Co. v. Cable Co. 1 M. R. 120; 12 Nev. 312. Where land office or other forms contain a blank for the name of the mining district, and no district has ever been formed, it is usual to fill such blank with tlu word "Unorganized." And there is no doubt that a mining district may exist to the extent of giv- ing a name to a locality and limited to that extent, and such name, when adopted by common consent, is as valid as if adopted at a district meeting. The term mining district has a well known mean- ing while the term mineral district is only a vague and indefinite generalization. U. 8. v. Smith, 11 F. New Districts in Alaska. The Alaska Act (post ALASKA), recognizes old district organizations, provides for new ones and contemplates the passage of district rules. Upon the organization of a district the minutes of first meeting should show that it was called by public notice and attended by a majority of the miners either personally or by representation; should define boundaries; elect permanent Chairman and Recorder; 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 permanent and acces- sible records. 6 DISTRICT RULES. Judicial Decisions as to District Rules. Where in ejectment for a mining claim the plain- tiff has described the same as located under district rules, he may recover without proof of the existence of such rules by evidence of his prior possession and the entry of defendant; but if his prima facie case on possession is negatived by any title proved by de- fendant he must then show the existence of the dis- trict rules and his compliance therewith before he can introduce his location or record made under such rules. Sears v. Taylor, 5 M. R. 318; 4 Colo. 38. Courts will not inquire into the regularity of the mode by which district rules have been enacted, ex- cept upon allegation of fraud, or other like cause. Gore v. McBrayer. 1 M. R. 645 ; 18 Cal. 583. Where the evidence renders it doubtful whether the written laws of the district are in force, both the written laws and parol proof of the mining customs may be offered in evidence. Colman v. Clement*. ~> M. R. &f7; ..'.* (V//. !45. District Records. A district record kept in a pocket diary is no record. Fuller v. Harris, 29 F. N/'/. A district re- corder can not appoint a deputy. Van Buren v. McKinley, 66 P. 936. Once proved to exist are presumed to continue. Riborado v. Quang Pang M. Co. 6 P. l.!~>. The land office, in patent applications, has the power to decide what rules are in force. Parleys Park Co. v. Kerr, 130 U. 8. 256. A mining regulation can not restrict the num- ber of claims which a party may hold by purchase. Prosser v. Parks. 4 M. R. 452; 18 Cal J7. A district rule can not limit the size of a claim duly located before such rule was adopted. Table Mt. Co. v. Stranahan, 9 M. R. 465; 21 Cal. .if*. A right to hold a claim may be forfeited by fail- ure to comply with the district rules. St. John v. Kidd, J f M. R. 454; 26 Cal. 26 > h But not unless the rule itself so expressly provides. Bell v. Bed Rock U. S. LICENSE. 7 Co. 1 M. /,'. /.<: 56 f'(/7. U4; Emerson v. McWhirter, See Yosemite Co. v. Emer* ('. /,'.. 196. A valid district rule may exist and be proved, although not found among other written rules of the distrirt. Ihirvey v. Ryan. / M. I!. /.'">; }..' Co/. o& A custom, reasonable in itself, and generally ob- served, will prevail against a written mining regula- tion which has fallen into disuse. Id. The exist- ence of a district mining law is a question of fact for the jury. Effect of Mining Codes. Arizona, Colorado, Idaho, Montana, Nevada, New Mexico, North and South Dakota, Oregon, Washing- ton and NYyoming have adopted more or less com- plete mining codes. In California, Utah and Alaska much more is left to the control of the district or- ganizations, but the inclination in all is toward stat- utory regulations and on whatever point the statute is made to cover the authority of the district rules ceases, except as to rights already vested. The ten- dency is thus to their ultimate extinction. See STAT- UTORY Ri -:<>i na MKNTS and RECORD. CONGRESSIONAL RECOGNITION OF MINERS' RIGHTS. License to Appropriate the Public Domain. K. S. Sec. 010. No possessory action between per- sons, in any court of the United States, for the recovery of MII.V mining title, or for damages to any such title, shall be affected by the fact that the paramount title to the land in which such mines lie is in the United States; but each case shall be adjudged by the law of possession. Sec. 9, A. C. I >>. 27, 1865. License Under Congressional Act of 1866. Sec. 1. The mineral lands of the public domain, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and occupation by all citi/'-ns 8 U. S. LICENSE. <*f the United States, and those who have declared their intention to become citizens, subject to such regulation- may be prescribed by law, and subject also to the local cus- toms or rules of miners in the several mining districts, so far as the same may not be in conflict with the laws of the United States. July 26, 1866. Repealed May 10, 1872. License Under Present Congressional Law. R. S. Sec. 2319. All valuable mineral deposits In lands belonging to the United States, both surveyed and un- surveyed, are hereby declared to be free and open to explor- ation and purchase, and the lands in which they are found to occupation and purchase, by citizens of the Unit'ir intention i> ! come such, under regulations prescribed by law. and ac- cording to the local customs or rules of miners in the sev- eral mining districts, so far as the same are applicable and not inconsistent with the laws of the United States.- 1, A. C. May 10, 1872. Section 910 contains the first Congressional rec- ognition of the fact that the mineral lands of the United States were being appropriated by its citizens. From the time, however, of the discovery of gold in California, the government had tacitly recognized the occupation of its mining lands as such, and with- held them from survey and pre-emption. Judicial Recognition. The judiciary of California and all the States and Territories on the Pacific slope had recognized the "Miners' Title" as property entitled to protec- tion, and they were followed by the Supreme Court of the United States to the same effect. Sparrow v. Strong, 2 M. R. 320; 3 Wall. 97 ; Forbes v. Gracey. 1', M. R. 183; 94 U. S. 162. Consecutive Acts of '66, '70 and '72. In 1866 the first Act was passed looking to the absolute disposition of mineral veins. In 1870 a sup- plemental Act was passed embracing placers. In 1872 these Acts were revised and the Act of Congress of May 10 of that year, found in Chapter 6, Title 32 of the Revised Statutes of the United States, is, with slight change, the Congressional law still in force. POSSESSORY TITLE. LEGAL STATUS OF POSSESSORY CLAIMS. The National Government the Source of Title. By proper expressions in the Organic Act of each Territory or the Enabling Act of each State, the own- ership of the United States in the public domain is declared as fundamental law. The attempt once made in California to assort a State ownership in mines //(As r. BeU, 8 Cal. 219, has long ago been abandoned. Moore v. 8mau\ J2 M. R. J f 29; 17 Cal. //'.''. The title to all lands in the French and Mex- ican cessions is. in the first instance, in the United States of America, except ing grants made by the old governments prior to the treaties. These ces- sions iix-iude all land west of the Mississippi River Territory of Oregon. The fee simple thus remaining in the govern- ment, all < itixens. or persons who have declared their intention to become citizens, are allowed to enter upon the unappropriated public domain and acquire title to mineral lands by complying with certain reg- ulations intended to preserve the peace and protect the first occupant. Before the passage of Acts of Congress to this effect, the assertion of claims to mines by discoverers had been recognized by district rules, local statutes and decisions of courts. But ever since 1866 the matter has been regulated by specific Acts of Con- gress, supplemented by district rules and local legis- lation concerning the details of location and the manner of perfecting title. Whether a Vested Estate. That a possessory mining claim is a vested estate, is no longer debatable. It is "property in the high- est sense of that term." Its legal status is clearly and learnedly stated by GILBERT, J., in O'Connell v. Pinnacle Co. L f /0 F. 85//. This opinion, as well as the decision which it affirms (131 F. 106), gives the distinction between such a mining title and a pos- 10 POSSESSORY TITLE. sessory pre-emption or homestead title in cases of descent before patent. The Miner Holds a Qualified Title dependent upon possession and maintained by compliance with local directions. He is not compelled to advance Jx> patent nor to pay for the use of the land, but his holding is of the same legal class as a homestead or pre-emption and is in anticipation of an ultimate entry and patent. His title is not absolute in a tech- nical sense, nor secure in a practical sense, until he gets the fee simple title by such proceedings. Abandonment. Such an estate, dependent upon possession, is conversely one which may be lost by abandonment. Merritt v. Judd, 6 M. R. 62; 14 Gal. 59; MaUett v. Uncle Sam Co. 1 M. R. 18; 1 Nev. 188. Is a Freehold. That is to say, an estate which passes to the heirs. Harris v. Equator Co. 12 M. R. 118; 8 F. 863; White Star Co. v. Hultberg, 77 N E. 327; McFeters v. Pierson, 15 Colo. 201; Keeler v. Trueman, Id. 1 / .;. Is Real Estate. The miner's claim or title is real estate as dis- tinguished from chattel or personal property and is conveyed, sued for, descends, is devisable and is treated in other respects as the real property of the occupant, subject only to the paramount title of the United States. Roseville Co. v. Iowa Gulch Co. 16 M. R. 93; 15 Colo. 29; Butte Co. v. Frank, 21 M. R. 368; 65 P. 1; Bakersfteld Co. v. Kern County, 77 P. 892; Bradford v. Morrison, 86 P. 6. But in Oregon and Washington they have been held to be personal property. Herron v. Eagle Co. 61 P. 411; Phoenix Co. v. Scott, 54 P. 777. In the former state they are now declared to be real estate by statute, SCHOOL CLAIMS 11 The Distinctions Between Mining Claims and Other Classes of Realty are substantially those arising out of the following incidents: 1. The title being first acquired by possession, it may be lost by acts amounting to a discontinuance of possession; that is by abandonment. 2. Annual labor upon each claim is required by Act of Congress as a condition upon the non-per- formance of which the same consequences result as in the case of a technical abandonment; that is, the UK! becomes open to the entry of the next occupant. 3. The formula of notice and recording, and the method of initiating title are subject to regulation by the State, Territory or Mining District, in details not covered by the Acts of Congress. 4. Special modes of assessment and collection of taxes are or have been attempted; but distinctions of this sort have generally been found impracticable. 5. There are statutes to prevent forcible dispos- session of claimants, to allow of underground sur- veys and inspection and to regulate drainage. 6. The mode of perfecting patent in the U. S. Land Office is wholly different from that regulating pre-emption or homestead entries upon agricultural lands. SCHOOL CLAIMS, Fully one-half of all the sections of the old Colo- rado Statutes on the subject of mines was taken up by a persistent attempt to force a "School Claim" on each location. The whole effort was in violation of the Organic Act, and has been held absolutely null and void as well by the courts as by the land office, and repudiated by the miners as an attempt to put the whole cost of schools on a class of men who, as a rule, were not persons with families. By Act of 1862, claim No. 3, east or west, was to be set apart for schools; by Act of 1866, one side 12 SOLDIERS' CLAIMS. claim on each end of the discovery claim of 1,400 feet was to be recorded 100 feet for schools and 100 feet for disabled miners. SOLDIERS' CLAIMS. By Territorial Acts passed in instances during the civil war, claims belonging to soldiers were pro tected from forfeiture during enlistment and for a reasonable time thereafter; they were also allowed to locate and record claims by proxy; and their titles were protected from sale on execution during their absence. During the Spanish war Congress passed an act, approved July 2, 1898, relieving volunteers from per- formance of annual labor during their term of serv- ice. It required the record of a notice stating the fact of enlistment and of "His desire to hold said claim under this Act." 30 St. L. 651; Mining Rights llth Ed. 16. A notice filed under this Act was con- sidered in Field v. Tanner, 75 P. 916. Co-owners with such volunteers were required to do their proportion of the work, and in default of such labor their interest might be forfeited to any person who entered and did such work during the ensuing year. LENGTH OF LODE CLAIM LOCATED BEFORE MAY 10, 1872. 3,000-Foot Act of Congress of 1866. See. 4. * * * No location hereafter made shall exceed two hundred feet in length alone the Vein for each locator, with an additional claim for discovery to the dis- coverer of the lode, with the right to follow such vein to any depth, with all its dips, variations, and angles, together with a reasonable quantity of surface for the convenient working of the same* as fixed by local rules. And provided further. That no person may make more than one location on the same lode, and not more than three thousand feet LENGTH OF OLD LODE CLAIM. 13 shall l>o t:ik'ii in any one claim by any association of per- sons. July 6, 1866. Repealed May 10, 1872. Before the Act of Congress of 1866 the length of lode claims was regulated either by district rules or by State or Territorial legislation. It was by no means uniform. Short lengths of 100 or 200 feet, sometimes as low as fifty feet or less, were the limi- tations under the older district rules. In later years the tendency was to allow longer claims. In Colo- rado the statute fixed the length of a claim in 1861 at 100 feet. In 1866 at 1,400 feet. The Act of Con- gress of 1866 allowed 400 feet to the discoverer and a claim of 200 feet to each associate locator, not ex- ceeding 3,000 feet on the lode under one location. Associates and Side Claims. It is impossible to understand the limitations on the size of claims without considering a certain cus- tom which originated in the earliest mining camps of California, and became a general practice over the western slope. With slight local modifications this custom was for the discoverer to record a notice that he claimed 50, 100 or 200 feet, as the case might be, on a certain lode. On the same paper, or by a sepa- rate paper signed later, other parties, real or nominal associates of the discoverer, would give notice of claim to No. 1 East, No. 1 West, etc., on the same lode. Not only would the associates of the discoverer make such records, but often third parties, without even going on the ground, would file on these side claims in instances to the extent of several thousand feet on each side from the discovery claim. Joint Records. In other districts the discoverer and his asso- ciates would file on the discovery claim, No. 1 East, No. 1 West, No. 2 West, etc., indefinitely by a joint location certificate, not attempting to segregate the feet claimed by one from the feet claimed by the other. 14 LENGTH OF OLD LODE CLAIM. Record Without Location Work. These side claims, whether taken separately or as one joint location, were supposed to be at least staked off on the ground, but no discovery hole was required, and, in fact, in most cases, only the paper record was made and the claims seldom pursued fur- ther, unless developments on the discovery claim seemed to indicate that the side claims might be of value. Such was not the original intention of the miners, but the custom degenerated to this, and the records of thousands of such claims remain, whose owners never did any work upon, nor ever knew the exact situation of their claims. Nominal Associates Conveying to Discoverer. This privilege to locate side claims was soon taken advantage of by the discoverer, who procured nominal parties to record, and immediately after recording to convey their claims to him, and as soon as the Act of Congress, 1866, was passed, such be- came the universal practice, the custom as it already existed being altered only in this: That the claims were no longer numbered, but were taken together as a joint location by a supposed association of four- teen persons, taking fifteen claims of 200 feet each, or 3,000 feet in all the discoverer being allowed one additional claim. Further, after the passage of such Act, the staking of the lode into its several claims was abandoned altogether. Before the Act each lo- cator usually recorded one specific claim, in which the other locators had no interest, nor he in theirs, but after the Act, the record almost always showed a joint location of undivided claims. Validity of Such Nominal Records. It is more than doubtful whether at any time, as against an adverse bona fide claim, such nominal side claims were by the record alone, of any validity, unless actually possessed and defined upon the ground in some manner; Cons. Rep. Co. v. Lebanon Co. 15 M. R. 490; 9 Colo. 343; Becker v. Pugh, 15 M. R. 304; PRESENT LENGTH, OF LODE CLAIMS 15 Colo. 589; Hess v. Win of their location. A mining-claim located after the tenth day of May, eighteen hundred and seventy-two, whether located by one or more persons, may equal, but shall not exceed, one thousand five hundred feet in length along the vein or lode : * * * Sec. 2, May 10, 1872. Since May 10, 1872, 1,500 Feet has been the well- known limit of a lode. This number of feet consti- tutes one undivided claim, or one lode as the word 16 PRESENT LENGTH OF LODE CLAIMS. is commonly used that is, so much of a vein as is covered by one location based upon a single dis- covery and in practice so much of one vein as is known by a single name and covered by a single record. The length of 1,500 feet is the uniform length wherever the mining acts are in force. A State Statute could not shorten this length in oppo- sition to the positive permission of the Act of Con- gress above printed. It is the length almost invari- ably expressed in the location certificate and is rarely shortened except where only a fraction of clear ground remains to be taken up. Length How Distributed. This length, by common usage, is taken 750 feet on each side of center of discovery; but it may be 'taken all on one side except enough to include the discovery shaft itself, or it may be distributed in any desired proportion from the center of the discovery shaft. Location of Excessive Length. The import of the decisions on this point seems to be that an inadvertent over-stepping of the legal length or width will not avoid the claim; Richmond Co. v. Rose, 114 U. 8. 576; Burke v. McDonald, 11 M. R. 325; 33 P. J t 9 ; Hanson v. Fletcher, 37 P. 480; McElligott v. Krogh, 90 P. S23; but that the claim as to the excess is void ; Hausivirth v. Butcher, 4 Mont. 299; Oohres v. Illinois Co. 67 P. 666; McPherson v. Julius, 95 N. W. 428; and that a gross excess (1,763 instead of 1,500 feet) made without excuse will defeat the whole location. Leggatt v. Stewart, 15 M. R. 358; 5 Mont. 107. An excess staking in length or width does not invalidate, except as to the excess, when made with- out fraud (in this case by stepping the lines) and the mistake has been corrected before the rights of third parties attached. Stem-Winder Co. v. Emma Co. 21 P. 1040. WIDTH OF OLD LODE CLAIMS. 17 But where the excess was such that the end stakes could not be found on search within several hundred feet the location is not valid. Ledoux v. Forester, '.> / F. 600. WIDTH OF LODE CLAIM LOCATED BEFORE MAY 10, 1872. Indefinite Under A. C. 1866. 4. No location lirlVMl'hT made shall OXCCed tWO hundred feet **** together with a reason- able quantity of surfa, for the convenient working of the same, as fixed bv local ruls. .///// 26, 1866. lf>iul>y any mining regulation to less than twenty-five feet on ;< -ii side of the middle of the vein at the surface, except where adverse rights existing on the tenth day of May, eighteen hundred and seventy-two, render such limitation necess.ny The end-lines of each claim shall be parallel to each other. Sec. 2, May 10, 1872. Present Width Fixed by Colorado Statute. R. S. Colo. Sec. 4193. The width of lod<> < -hums hereafter located in Gilpin, Clear Creek, Boulder and SHIM rait counties, shall be seventy-five feet on each side of tli- center of the vein or crevice ; and In all other counties the width of the same shall be one hundred and fifty feet on each side of the center of the vein or crevice: Provided, That hereafter any county may, at any general election, determine upon a greater width not exceeding three hun- dred feet on each side of the center of the vein or lod<>. l.y a majority of the legal votes cast at said election, and :my county by such vote at such election may determine upon a less width than above specified. Feb. 13, 1874. In force finic 15, 1874. Between May, 1872, and June, 1874. Between May 10, 1872, when the Congressional section in regard to width was passed, and June 15, 1874, when the Colorado Act took effect, the width of all lode claims remained fixed at fifty feet under the Territorial Act of 1866, printed on page 11. Colorado, 300 Feet Except in Certain Counties. The A. C. of 1872, having allowed to the locator all the veins within the side lines of his claim, gave at once to the question of width an importance before unknown. The Legislature having in their PRESENT WIDTH OP LODE CLAIMS. 19 power to choose between the extreme width of 600 feet and the minimum width of fifty feet, a great difference of opinion resulted in that State, citizens of the older mining counties generally contending for a narrow width, while in the new districts the greater width was desired; after great debate it was fixed at 150 feet for Gilpin, Clear Creek, Boulder and Summit counties, and at 300 feet in all other coun- ties. Xo instance is known to the author of any at- tempt in any county, to change the width by an elec- tion held under the proviso above printed and the constitutionality of any such proceeding, if attempted, would admit of very great doubt. All the Other States and Territories allow the full limit of 600 feet width, except where the district rules fix a narrower limit, which they rarely now purport to do; and except also North Dakota, which fixes the width at 300 feet, allowing counties to in- crease or decrease it within the Congressional limit. Center of Vein, Center of Claim. It will be observed that the center of the lode is made the center of this width. If, therefore, a party attempt to locate more than half the extreme width on either side of his vein, the location of such ex- cess is without the authority of law, although the en- tire width be within the statutory limit. Taylor v. Parenteau, 23 Colo. 368. By Statute, in Wyoming, the discovery shaft must be equi-distant from the side lines of the claim. Location of Excessive Width. The Surveyor-General will not issue an order for survey for patent upon a location certificate which claims, in terms, on its face, more than the total width allowed or with an excess of more than one- half of the legal width on either side of the center of the discovery vein, and it is doubtful whether any court would receive such certificate in evidence. 20 PRESENT WIDTH OF LODE CLAIMS. Such mistakes are the work of surveyors who under- take to put their field notes into the form of a lo- cation certificate in total ignorance of what consti- tutes a valid location certificate. This document should be drawn by a competent attorney. But there is nothing to prevent a location of one-half the statutory width on one side the center of the vein and less than one-half on the other side of such center line. A location of excessive width is not void and a second location can not on such pretense take in the actual workings of the first party. Mclntosh v. Price, 121 F. 716. Where the lines were in zigzag form, thus mak- ing excessive width, the department required an amended survey. 34 L. D. 4^0- Excess by Vein Approaching Side Line. It is true that it may not be known when the stakes are set what the course of the lode may be, and honest errors in this respect may readily be com- mitted; but the vein being the basis of location, and it having been decided that when a vein leaves the side lines of its location, the claim -both as to veins and surface beyond that point is void, it necessarily follows, where either side line is found at any point to be more than the legal distance from the center of the vein, that the location of such excess in width has not been based upon a vein lying within the stat- utory limits, and comes within the same reasoning which renders all that portion of the location void in which no vein is found. Patterson v. Hitchcock, 5 M. R. 542. But no such fact would vitiate any part of the claim after patent issued. Peabody Co. v. Gold Hill Co. 91 F. 657. PRESENT WIDTH OF LODE CLAIMS. 21 Excess How Corrected. The case of A/cHi0ott v. tfroflr/i, 90 P. 825, serves to illustrate the above diagram and shows at the same time how the error is to be corrected and new lines established. Upon development after location the discovery vein of the Live Oak lode claim was found to run in such direction that its N. W. corner was 320 feet from the "middle of the vein," that is to say 20 feet beyond the point at which it could legally be placed. The appellant Court reset this corner by drawing it in 20 feet toward the vein and fixed the west side line, by drawing a straight line from the new corner to the point on the original west side line where the excess first began; allowing the original west side line to stand from that point to the S. W. corner which was within the 300 feet. See diagram, 90 P. 82//. The above diagram illustrates the preceding par- agraph. The shaded ground shows an excess over the allowed 300 feet from the center of the vein. A valid hostile discovery could be made upon such shaded ground or a location made taking it in. The plat shows a claim of 600 feet width. Where the full legal width is 300 feet, the excess would begin, of course, at 150 feet "from the center of the vein." 22 DISCOVERY AND LOCATION. DISCOVERY AND LOCATION OF LODES BE- FORE THE ACTS NOW IN FORCE. Mode of Location Not Strict. Prior to 1866 there was no United States law reg- ulating lode locations. Nor did that law state any definite formula further than to limit the extreme width and length. Nor were the requirements of the State or Territorial Legislatures usually specific. Either by statute or by district rule a discovery was always required and a notice at the point of discov- ery, and in many districts such a staking as would indicate the extreme points to which the claim ex- tended. In 1866 by statute in Colorado a location stake and a ten foot discovery shaft were required. In other States and Territories even these initial and essential points were left entirely to district regula- tions. In all cases the actual disclosure of the vein, and not merely the float or indication of the vein, was re- quired, and the stake was supposed to give the name of the lode and its locator, with usually the date of discovery and the number of feet in each direction. That some act of location was required, has never been disputed. But in the absence of district rules, what would amount to a sufficient location can only be defined as such acts of appropriation as would amount to a declaration that the locator had appropriated the ground, and be sufficient notice to other prospectors that he had so appropriated it. Hess v. Winder, 12 M. R. 211; 30 Cal. 31,9; English v. Johnson, 12 M. R. 203; 17 Cal. 101 ; Attwood v. Fri- cot, 2 M. R. 305; 11 Cal. 38; Gleeson v. Martin White Go. 9 M. R. 429; 13 Nev. 442; Oonu v. Russell, \> M. R. 630; 3 Mont. 358. In the case of Cons. Rep. Co. v. Lebanon Co. 15 M. R. 490; 9 Colo. 343, it was ruled that the posting of the notice and the recording of certificate not fol- lowed by development or representation, would not DISCOVERY AND LOCATION. 23 hold the claim against a subsequent location. See also Becker r. Pugh, 15 M. R. 804; 9 Colo. 589. DISCOVERY AND LOCATION UNDER LAWS NOW IN FORCE. Discovery Required. K - 520, * * * No lM-Mtion of a mining claim shall lie made until the discovery <>f tin- vein or lode within the limits of the claim located. * * * Sec. 2, A. C. M"n I". Itfg. Staking and Record. II. B 24, The miners of each mining-district 111:1 y in:ik.- regulations imi in c>ntlict with the laws of the 1'nited states. .-I with the laws of the State or Territory in which the district is situated, governing the location, manner of recording, amount of work necessary to hold i of a mining claim, subject to the following re- quirements: The i..rati<>n must be distinctly marked on the nd so that its boundaries can be readily traced. * * * -,.A. C. May 10, 1872. Discovery Shaft, Notice and Stakes in Colorado. II s. Cola Bee. IP'7. Before filing such location certificate the discoverer shall locate his claim by : If- Sinking a dlscorerj shaft upon the lode to the depth of .it Last ten feet from the lowest part of the rim of surh shaft at t ho surface, or deeper, If necessary to show a well defined < -re\ ; -,He a physical im- possibility for such drill hole to show a well defined crevice, and a drill hole is neither a shaft, cut or other opening such as are enumerated among those things which may constitute a discovery shaft or cut. The discovery . Arizona, New Mexico and Washington allow ninety days. Idaho allows sixty days, but claim must be staked within ten days after discovery. In Alaska the discoverer has ninety days to record, but district rules may prescribe shorter periods for shaft or other location work. Nevada allows ninety days from date of posting location notice, but requires the monu- ments to be placed within twenty days from date of posting. In those States which prescribe no specific time, what is denominated a reasonable time is allowed in which to complete the location. What is a reasonable time depends upon circumstances, but it is not to be stretched indefinitely. In Patterson v. Hitchcock, 5 M. R. 542; 3 Colo. 533, it was ruled that ninety days to sink a shaft was more than a reasonable time. In 34 DISCOVERY AND LOC'ATK x. Doe v. Waterloo Co. ','> /'. />, a prospector coin pleted his staking in twenty days, and he was held to be in good time. As soon as a vein is found by the prospector it is the custom to place at the point of discovery a notice about as follows: r<>.\T!:\TiN i.ii:. Tin- undcrsi.Lrnrd Hjiims sixty day 8 to >ink slinl't :iii(l three iiK.ntlis t<. iimrd .in iliis vein. .I;inu.-i I'.XIS. JiiMN S. V..I \ But if it is bona fide the intention of the discov- erer to complete his location, the absence of such notice would not be fatal. This is not the notice re- quired when the location is made (paye .W). It mere warning to other prospectors that some one has acquired a prior right to locate on that crevice. Erhardt v. Bor<>. i:> M. I!. ;7>; //.; U. A notice with no discovery to justify is of no avail. Qemmel v. Strain. 7 .' /'. '/>;.'; M<-l*ln>rmm v. Julius. !>5 N. W. J,28. And a notice not followed In- stalling does not make a location. Malecech v. T ley, 83 S. W. SI. In a New Mexico case this language is used: 'The locator is entitled to no appreciable time after discovery to determine whether he desires to locate and claim the benefit of his discovery. Discovery and posting notice of claim, therefore, must be prac- tically cotemporaneous." Deeney v. Mineral Co. /;? P. 735. If by discovery is meant mere ocular perception of an outcrop visible to all it may be true, but every- where else, where the discovery is the result of the labor of the prospector he has without doing any further act a reasonable, or the statutory time, to perfect the location. * Rene wing: Notice. It seems useless to add that if the discovery shaft is not completed within the legal time it is *Cited and approved: Ingemarson v. Coffey (Colo.), 92 P. 910. DISCOVERY AND LOCATION. 35 mere folly to pull down the old notice and put up another of a later date. The sixty days or other stat- utory period, or the reasonable time, begin to run from the date of discovery, and no self-serving act of the prospector can enlarge the time. It is often attempted to evade this point and secure further time hy posting a new notice with some other per- son named as discoverer. Location. The locatiqn of a lode consists in defining its position and boundaries, and in doing such acts as indicate and publish the intention to occupy and hold ii under the license of the United States. The formal parts of location include: 1. 'I lie location notice at discovery. 2. The discovery shaft. 3. The boundary stakes. Location Stake. Although a very old custom, the requirement of the Colorado Act of 1866, repeated in the Act of 1874 as to a location stake, was not always con- sidered imperative, but there are decisions under the present statute which enumerate it as one of the con- stituent parts of a complete location. Strepey v. Colo. $18; <' ! ' ret >< . \0 n M. n. In fact this location notice was in early locations the principal and often the only specific act of loca- tion. It was a universal custom before any statutes existed purporting to regulate location. The words of the act require "a plain sign or notice," but there has never been any uniformity among prospectors in the details of the notice, or in the mode of posting it. It may be substantially com- plied with by writing on a blazed tree or on a board nailed at discovery, or by legible carving, or by any other rude but honest form of notice, so that it be intelligible and open to observation; but the loose practice of writing on a chip or stick thrown into the discovery hole, is an attempt to evade or abuse 36 DISCOVERY AND LOCATION. the fair requirement of the law. In Gird v. Califor- nia Oil Co. 60 F. 531; 18 M. R. J t 5, the notice was placed in a tin can on a mound of stones and it was ruled a proper posting. The following r'i;.M i.i Tin-: FA MI NT: I. "in:, discovered by Patrick Corcoran, nary 17, 1007. I claim 750 feet easterly and 750 feet westerly from dlscovrry. PATRICK < fully complies with the law and custom, and would still be sufficient without signing at the foot and without stating the number or direction of feet claimed. This notice need not call for monuments or ties that is required of the record only. Poujade v. Ryan, 33 P. 660; Brady v. Husby, 33 P. 801. Such notice holds the claim for a reasonable time before setting the boundary stakes or other work. Union Go. v. Leitch, 64 P. > A notice giving name of the lode, length, width and direction of claim, dated and signed; held a good compliance with the statute of Wyoming. Cohm Co. v. Duchess Co. 19 P. 385. A Territorial statute requiring location notice to be posted is supplemental to the Federal Mining Act, and a failure to comply therewith renders the loca- tion void; but the mere fact that by mistake the notice was posted on the over-lap of a prior claim does not invalidate the location. Upton v. Santa Rita Co. 89 P. 275. Right to Swing Claim. In Sanders v. Noble, 55 P. 1037, the Never Sweat discoverers had posted their notice claiming 500 feet Southerly and 1,000 feet Northerly. During the ninety days allowed for filing location certificate other parties discovered the Yukon. They had read the Never Sweat notice and purposely kept clear of its ground. The Court held that the law gave the lo- cators full ninety days to choose where they would ultimately fix their corners; that the Never Sweat locators were not estopped by their notice and could DISCOVERY AND LOCATION. 37 swing their location nearly at right angles and take in the Yukon ground. The opinion is very thorough and contains a full review of previous cases, but does not meet the proposition: that while the prospector may have such full time for such purposes he loses it the moment he by a positive act limits the general area which his monuments when set will include, can not for a moment believe that a prospector T posting notice claiming 750 feet easterly and 750 feet westerly, could dispossess an intervening party who had sunk a hole 800 feet easterly from such no- tioe. But such an instance is scarcely distinguish- able from the decision quoted. See Wiltsee v. King Co. 60 P. 896. Discovery Shaft Must be on Public Domain. The discovery must be sunk upon unoccupied publir l;ind: that is to say, it must be outside of the lines of any patent or even of any valid location. Upton v. Larkin, 6 P. 66; Little Pgh. Co. v. Amie Co. 11 F. 51; Armstrong v. Lower, 6 Colo. 393; 15 M. R. 681; Golden T. Co. v. Mahler, 4 M. R. 390: 4 P. C. L. J. 405; Moyle v. Bu11<'<\ ',', ]>. <;!> ; Watson v. Mayberry, 49 P. / 10 Co. v. Maier, 66 P. 863; Reynolds v. Pascoe, Id. 1064; Peoria Co. v. ' r, 19 P. In the Larkin-Upton case, the discovery shaft was partly on patented ground, but a part of it showing the vein or a portion of the vein was on clear ground and its validity was upheld. 7 Mont. 449; J44 U. 8. 19. Plaintiff in an adverse claim suit must show that his location was on vacant public domain. McWil- liams v. Winsloiv. 82 P. 538. Location Must be Good, When Made. "A location to be effectual must be good at the time it is made." Belk v. Meagher, 104 U. 8. 285. If made on the ground of a prior location, and there- fore initiated by trespass, the subsequent abandon- ment of the prior claim does not make the later location good. Where there were successive reloca- 38 DISCOVERY AND LOCATION. tions, one made before the abandonment and the other after, the latter is the only valid relocation. Brown v. Gurney, 201 U. 8. 184, affirming G. v. B. 77 P. .J57. There is one case, Lavagnino v. Uhlig, 198 U. 8. W, which can not be reconciled with the above rule, nor can any satisfactory distinction be made between it and the Gurney case: but, as the Gurney case is the later decision, it must be taken as silently overruling the Uhlig holding. Exceptional Cases Town Site Placer. Assuming that all known lodes have been ex- cepted from a Town Site Patent, a discovery shaft may be sunk upon and within the area of its patent. Moyle v. Bullene. '/ / P. M. U. \8%; Miller v. Girard, 33 P. W: (tirard v. Carson. .'/.'/ P. Where a senior claimant allows a location to be made over his discovery shaft and to go to patent, his claim becomes a void location not only as to such patent, but as to all persons and claims. In an instance with special equities where an ag- ricultural patent was issued covering that end of a lode claim on which all', or nearly all, the work had been done and where the clear end of the claim could be practically reached only by work commenced on the patented end, the court distinguished the case and held that Gwillim v. DonneUan did not apply. Richard v. Wolfing, 32 P. 971 : Post, p. 131. Sale of Discovery Shaft. But the sale of that part of the claim containing the discovery shaft does not invalidate the title of DISC -VKRY AM' LM \\TION. tt that part which the locator retains. Little Pgh. Co. v. Amie Co. 77 /'. .17 ; and in this case the grantees hal afterwards gone to patent on the ground contain- in^ the discovery shaft, as parcel of another claim, istinction can readily be drawn between this and the Dour and \vt they are so close that it may be- considered dangerous to convey that portion of i lie lode containing the discovery without proper coven;. linst patenting it as parcel of another claim. Claim Must Include Discovery Shaft. It is self-evident that the claim must include the discovery shaft, and proof that by change of boun- daries they were made so as to exclude the discovery shaft is admissible to defeat such location. McGin- . K'/iH'rt. 8 Colo. 54; /.i M. If. A location of certain bounds upon a discovery shaft exterior to such bounds, upon a lode which on would extend into the lines staked off, is a claim without a discovery and is void. Michael v. Mills. ',:> />. ;. An underground discovery in another claim aid- ed by finding quartz on surface of the claim in con- troversy was held suflM -ient to support the location in Reiner r. NC///-O. .1/7. The Shaft Must be Ten Feet Deep, by statute in all the mining States except Alaska, California, North Dakota and Utah. In the excepted States the discovery point may show the lode by a hole or cut sunk or driven to or on the vein; but if the discovery notice is posted on a naked outcrop no hole or cut is necessary unless required by district rule, or by stat- ute as in North Dakota, which requires a shaft, but does not fix the depth. A State Statute requiring a specific depth of ten feet is a valid exercise of the right of regulation allowed to the legislature under the Congressional Act.8i89OH v. Sommers, 5;> P. 82.9; Beals v. Cone, . ; 7 Colo. \1S; 20 M. R. am. 40 DISCOVERY AND LOCATION. Depth How Measured. In those States requiring specific depth, the lan- guage of the statute requires the shaft to be at least ten feet from the lowest part of the surrounding surface. In the instance of a shaft started on a steep slope there might be two or three feet of difference btween its two ends or sides. In the instance of a shaft sunk not vertical but following a vein with a heavy pitch it is obvious that a slight difference would exist between a vertical measurement and a measurement following the pitch of the shaft, the latter measurement being the shorter (list;m<- and favoring the prospector. And although usually the measurement is taken vertically, yet in such case we do not see but that the measure following the dip would strictly conform to the law, unless, as in Montana, the Statute mentions vertical depth, specifi- cally. It is obvious that a cut being equivalent to a shaft and the pitch of the vein varying to any de- gree between true vertical and the horizontal it is impossible to say at what angle the cut would be so flat as to be no longer in strictness a shaft. But a pit dug on a blanket vein reaching down ten feet being a compliance with the law, and no more work being required on a blanket vein than on a fissure, the pit or shaft following the vein by measurement along the vein would be a compliance with the law without regard to its relation to the vertical. Precautions as to Depth. After a shaft has been sunk ten feet, the ground at the collar may cave, or the shaft may become so filled with debris, or the making of a platform or raised collar may make it difficult to ascertain the exact line of the original rim of the shaft, or to ascer- tain its original bottom. In view of these facts and of the essential importance of the shaft being full ten feet deep, it is always advisable to sink 'it two or three feet deeper and remove all ground for cavil or contention. DISCOVERY AND LOCATION. 41 Subsequent Deepening of Shaft. Where the discovery shaft has not reached the legal depth at time of record, but has been completed to that depth afterwards and before any adverse rights have intervened, such discovery shaft is valid. This is a matter of course on the general ruling as to performance of the various acts of location being suf- ficient in all instances where complete before third parties assert rights, though not completed within the statutory period.- >is v. Egbert, 8 Colo. J/; 15 M. R. .; Discovery Shaft Must Show Well Defined Crevice, besides reaching a certain depth. Cheesman v. Shreeve, 40 /'. HT7; n M. R. 260. "Crevice" means a "mineral bearing vein." Beals r. Conr. tit r. .958. If a crevice does not show in ten feet, the shaft must go deeper; if it appear sooner, the ten feet must still be completed. The crevice shows the lode dis- covered, the depth shows the lode appropriated. In the instance of a thin flat deposit a ten-foot shaft niiitfit pass entirely through the vein, but it would still show the crevice in its sides and ends. It Need Not Contain Ore or Mineral, but it must show mineral bearing rock that is the gangue or crevice material of the vein Copper Globe v. All- mann, 64 P. 10*20 and it is error to omit this, as one of the essential elements of a discovery shaft in an instruction purporting to define such elements. Bryan v. McCaig, 10 Colo. 309. It need not show pay ore. Muldrick v. Brown, 61 P. 428. Discovery Shaft Need Not Show Wall. It has been decided in Montana (Foote v. Na- tional Co. 2 Mont. 402; 9 M. R. 605) that at least one wall of the lode must be disclosed before the vein can be considered as discovered. But this de- cision makes the discovery dependent upon a single incident, which is not by any means the only proof of the existence of a vein. This case, as well as O'Donnell v. Glenn, 19 P. 302, was based on a re- 42 DISCOVERY AND LOCATION. quirement of the Montana Statute to such effect (since repealed), and not upon reason or the nature of the subject-matter, and has therefore no perti- nency to discoveries made under the regulations of an entirely different Statute, or in territory where there is no statutory regulation of the subject. Fleming v. Daly, ">') P. #J7. There are certain classes of deposits which 'are doubtless lodes or veins within the intent of the Act of Congress, which show no well defined walls after thorough dev ment, much less within that amount of working which is required as the basis of a record. Shaft Through Slide or Country. Nor does it make any difference that the shaft is started in slide or upon a stratum of country rock, if it pierce through the slide or country and find a crevice at a depth of ten feet or more. Such a shaft fulfills all the statutory conditions. But it must reach the lode in place; it is not enough that it strike a mass of ore mixed with broken slid.- and country. Van Zandt v. Argentine Co. 2 McCr. !'>'.>: ', M. R. ', Discovery in Broken Ground. It is a common incident to find the lode at sur- face with its sides and body more or less shattered, or perhaps with the entire top of the vein broken over with the adjacent country. Such a lode is never- theless in place. The shattering and breaking over are only mechanical accidents and no more destroy the position of the vein as a thing in place than a fault breaks the legal continuity of a vein followed on its strike. Jones v. Prospect Co. .?/ P. t; ' t ?. Separate Discovery for Each Claim. The attempt to locate two full claims upon one discovery shaft is a palpable fraud. JG L. D. 1; Me- Kinstry v. Clark. ', Mont. 310; Reynolds v. Pascoe. 66 P. 106.'}. It is sometimes alleged that two lodes cross in the discovery shaft, but no ten-foot shaft DISCOVER? AND LOCATION. 43 an prove such fact if such a coincidence ever occurs. nor would it alter the law of the case if it did occur. Open Cut, Adit and Tunnel Discoveries. All the mining States which legislate specifically on the subject practically follow the Colorado Statute providing that discovery by means of an open cut, adit, cross-cut or tunnel shall be equivalent to a shaft. When- ihe -discovery is by cross-cut tunnel or open cut. it must show the lode at a depth of ten feet below the surface; that is to say, the breast of the cut or tunnel must be of that depth at its bottom to be the equivalent of a ten-foot discovery shaft ; but where discovery is by an adit, the Colorado Su- preme Court have ruled in two cases that it need not be ten feet deep, nor any specific depth, at the breast, but that the adit must be ten feet in length along the vein. (fray v. Tr/; Electro Co. V. \' Colo. In the latter case they also held that an adit need not enter cover to be an adit. The effect of the latter decision is to confuse all the distinctions between an adit and an open cut, so that if the hole or stripping loses ten feet in length of the vein, it may be styled an adit, although in fact an open cut. It is not safe to rely on this construction, and no prospector should consider his discovery complete until he has ten feet in depth at the breast of his cut, or a covered adit at least ten feet in along the vein. The words cross-cut and tunnel are identical terms, except that the former is usually applied to short workings and the latter to those of greater length. In States which have no such statute the law is the same upon general principles. It can make no difference to the government nor to the rights of other prospectors whether the discovery be by verti- cal or horizontal cutting. Either mode complies with both the letter and the spirit of the law. 44 DISCOVERY AND LOCATION. Secret Underground Discovery. The only class of discoveries which would sug- gest any difficulty is where, by extending the works of an old claim, the drift or an underground cross- cut or other working, passes beyond the claim and discloses either a new vein, or the extension. of the old vein into clear ground. We can not see any ob- jection to locating such claim upon the discovery so made below, the notice being placed on surface at the proper point above the underground discovery and referring to such point of discovery. In Little Gunnell Co. v. Kimber, 1 M. R. 536, a secret underground working from an old claim was not allowed to hold as a valid basis for re-location of an adjoining claim, but that decision was upon the letter of the Colorado Statute concerning re- locations which in terms requires a shaft to be sunk or other new opening to be made, nor had such secret discovery been followed by proper surface notice. In Butte Co. v. Barker, 89 P. 302, defendant had run a cross-cut 102 feet long at 132 feet depth start- ing from a shaft on a patented claim owned by a third party, the cross-cut extending into new ground which new ground defendant had staked and marked on the surface at a point above the discovery. The location was held void under the Montana Statute, but the reasoning supporting the decision is by no means persuasive. If such cross-cut were run by license of the patentee we cannot see why it would not make a good discovery. Notice and Staking Upon Cross-Cut Discoveries. In the case of cross-cuts or tunnels not recorded under the Act of Congress, the point on surface above the discovery intended as the center line of the claim is the point at which the location notice is posted, and the stakes are placed to embrace an area in which this notice stands at a point on such center line. The discovery in the cross-cut will of course be on the same line carried down vertically unless an allowance is made for the dip. With the exception DISCOVERY AND LOCATION. 45 of the point of placing notice, no distinction exists in the process of locating and recording between these cases and those of surface discoveries. Where the discoverer staked the claim on the projection of the dip found in his cross-cut (not a statutory tunnel) to surface, the location was held good. Brewster v. Shoemaker, 68 P. ,W. Discovery in Statutory Tunnel. Where a lode is cut in a tunnel located and re- corded so as to claim the rights of a prospecting tunnel under the Act of Congress (Sec. 2323) we advise where practical a posting, staking and record- ing of each lode as it is cut, exactly as in the case of discovery in an unrecorded cross-cut. But it has been held that such discovery in a located tunnel is good and will hold without any staking on the sur- face against a subsequent surface discovery. Ellet v. Campbell, 18 Colo. 510. In the case referred to a notice had been posted at the mouth of the tunnel and a record had been made reciting the discovery in the tunnel and claiming the proper length and width, but not giving surface boundaries. This case was affirmed in the Federal Supreme Court, so that the question has now received final judicial construc- tion. The Court, however, concede that it may be true, as suggested in previous Editions of the Mining Rights, that before a patent can be secured to the lode there must be a surface location. Campbell v. Ellet, 161 V. 8. 116. Staking Boundaries. That the staking of the surface boundaries of the claim has been required upon all surface locations made since May 10, 1872, has been repeatedly decided. Gelcich v. Moriarty, 53 Cal. 217; 9 M. R. 498; Haus- n-irth v. Butcher, 4 Mont. 299; Oohres v. III. Co. 61 P. 666; Deeney v. Mineral Co. Id. 124. These de- cisions are not made upon local statutes, but as the construction of R. S. Sec. 2324; nor can we see how any other construction can be contended for. It follows, therefore, that since May 10, 1872, surface 46 DISCOVERY AND LOCATION. staking along the bounds of the claim has been re- quired in all cases, without regard to State, Terri- torial or District legislation requiring such staking Such legislation, when it existed, has been to din < -t the details of the staking, but a sufficient staking has been required under the Act of Congress whether the local rule has been silent or outspoken on this point. The Martin White case, below quoted, is to the same effect and gives a full review of the different modes of location on. the Pacific Slope. It may be true in instances, that hardship results under this provision; but it is better for a party to lose a portion of his vein by its departure from its staked lines, than that he be allowed to leave his vein and its course undetermined until a rich discovery in the vicinity suggests the time arrived to "prove up" and take his neighbor's lode. This is not a forced illustration it is the very evil which tho law is intended to prevent. Gleason v. Martin White Co. 13 Nev. 442; 9 M. if. ','->: 0on v. Russell, .; M 858; 12 M. R. 630: (///;,/// Co. v. Drake, 8 Colo. Sweet v. Webber, 1 Coin. ',',.:. Posting the discovery notice is not the equivalent of marking the surface boundaries. Doe v. Watrrlnn Co. 10 F. .',~>>i. Overlap on Prior Claims. The setting of stakes on prior locations or pat- ents has been held valid. Such surveys are sustained with the reservation that such technical trespas accomplished without breach of the peace. Del Monte Co. v. Last Chance Co. Ill U. S. 55; Hunker Hill Co. v. Empire State Co. I'M / 538; Davis v. Shepherd. 7.' P. 57; 30 L. D. ','<>: .11 Id. ill. But the overlap belongs, of course, to the prior claim, and doing the location work upon a prior sub- sisting claim which has kept up its annual labor initiates no title at all in the new location. Ander- son v. Caughey, 84 P. 221; Hoban v. Boyer, 85 P. 831. Where by mistake the location notice was posted on the overlap it was held that this did not avoid the location. Upton v. Santa Rita M. Co. 89 P. 875. I .IS't >Vi:i;Y AM L( H'ATloN. -IT Fractional Claims. Where the surrounding ground has been taken up hat only a fraction remains to be located, perhaps three-cornered or otherwise irregular in shape, while a location conforming itself to the lines of the vacant area would be good for the ground covered and for everything t-i y its vertical planes (Cnum Point Co. r. >. it is advisable to take up such vacant aiva as a parallelogram with Rllel c-nd lines. so as to secure extralateral rights h would otherwise be lost. The fact that .some or all the corners in such case would he on foreign ground would nor :nvalidate. M<-Kllii/ntt r. K rogh. The locator Owns Only What His Lines Enclose, although not chargeable with fault in makiim them. It is better for him to lose part of the lode than to make title dependent on the result of developments made after lines have been chosen. Iron N//rrr Co. v. Elgin Co. 118 U. 8. 196; 15 M. /,'. <;//. Three Months to Complete Staking is the time al- lowed by implication from the Colorado Statute. The discoverer has sixty days to complete his dis- ry shaft and three months to record. If his staking is completed at any time within three months, that is. within the period allowed between the date of discovery and when the record must be made, it is in apt time. He is allowed less time to sink his discovery than to set his stakes, because he may know, as soon as his vein is disclosed, where to sink; but he can not so readily know the course of the vein, and consequently needs time for this part of the location, inasmuch as, his stakes once set, he covers no more of his vein than lies within them. Krhardt v. Boaro, 113 U. 8. 527; 15 M. R. Jflt. If the setting of his stakes is delayed be- yond the period of three months, the location is not invalidated where no adverse rights have intervened. McGinnis v. Egbert, 8 Colo. J t l ; 15 M. R. 3.W : Crown Point Co. v. Crismon,-65 P. 87. 48 DISCOVERY AND LOCATION. When the time to complete staking is not fixed by statute or district rule, a reasonable time is al- lowed. Twenty days has been held to be a reasonable time. Doe v. Waterloo Co. 10 F. 456. All Statutes Limiting Time to perfect location and record are directory where there is but a single claimant, or but one set of claimants, and delay be- comes material only where the rights of third par ties have intervened. Healey v. Rupp, 86 P. J<)i~; Columbia Co. v. Duchess Co. 19 P. 385. The Diagram of a Lode Correctly Located, under the present Colorado law (1874-1908), will show sub stantially as follows: Post Post Post Discovery Shaft Location State Post Post Po3t ELJEH LOCATION. 1st. Discovery Shaft at least ten feet deep from the lowest part of the rim at the surface, and show- ing a well-defined crevice. 2d. Location Stake; a plain sign or notice con- taining the name of the lode, the name of the lo- cator, and the date of discovery. 3d. Center Stakes; two substantial side posts sunk in the ground and hewed or .marked on the side which is in toward the claim. These side posts must be sunk in the center of each side line; that is, in a 1,500 foot claim, 750 feet from each end line. 4th. Corner Stakes; four substantial posts, one at each corner of the claim, sunk in the ground and hewed or marked on the two sides which are in to- ward the claim. DISCOVERY AND LOCATION. 49 5th. Extra Angles. It is the invariable custom where there are angles in the side line, to place a stake, hewed on the side in toward the claim, at each angle. For number, position and marking of stakes in the several States, see STATUTORY Ki QI 11:1 MI \ re, page 60. Must Cover Apex. The stakes of the location must include the . of the vein, and in so far as they fail so to do the claim is void or defective to that extent. That is to say: the theory of the Statute Is that a normal loca- tion will cover the apex of a vein and have the right to follow the vein on the dip. If the location fail to cover the apex and the lode dips away from the claim, so much of the vein is clearly lost; if after losing the apex the location is laid so as to cover the vein on its pitch underneath the side lines as it dips back into or under the side lines, it is still lost to the locator and is held to belong to such outside claim as may cover the apex beyond the point of departure. See page Locating Without Aid of Surveyor. In locating any class of claim, a survey is always advisable. If the prospector, however, can not procure a pro- fessional surveyor (and it is often impracticable), a reasonable degree of care will suffice to locate his boundaries with certainty sufficient to make the sub- sequent record valid. The record is merely a description of the claim as staked on the ground; if not properly staked the record does not make a good location, but if the loca- tion has been properly made, the record can readily be made to describe it fully, whether such location has been made by a surveyor or otherwise. The discovery shaft being taken as the center of the claim and the initial point of location, a tape 50 DISCOVERY AND LOCATION. measurement from its center 150* feet at right angles to the lotfe, reaches to the point where a center stake must be set; return to discovery shaft and continue the same line on the other side the same din>< -tion and set the second center or side stake; at right an- gles to this line and across the center of discovery shaft run a line 750 feet each way along the supposed course of the lode. This gives the center line length- wise of the claim, and from each end of this center line measure 150 feet on each side for the end lines on the same course as th< //// hrhrmi the center stakes, which will give the four points at which to set the corner stakes, and will also make the end lines parallel as required by law. Measuring the length of the claim almm its cen- ter, with an offset of 150 feet at right anulcs in e direction at discovery shaft and at each <'iid, brings the same result as if both the side lines as well as the end lines were measured. Diagram of Lines to be Run. The dotted lines on the following diagram the four lines to be measured on a prospector's sur- vey, and the six points at which stakes are to be set: Corner Center Stake Corner Corner Center Stake Corner Staking and Marks on Stakes. At each of the four real corners of the claim, at the center of each side line and at each extra angle made in the claim, set a substantial stake, blaze it and mark the blazed part with its proper "Throe hundred feet in all States and Territories ex- cept Colorado and North Dakota: 1~o feet in North Dakota; 7.". tVet in Clear Creek. (Jilpin. Konlder. and Summit Coun- ties, Colorado, and l."o feet in all other counties. This """. 1.~o or 7.~i feet is. f course, ne half the width of a 600, aoo or 150 foot wide claim. DISCOVERY AND LOCATION. :.I number and the name of the lode. In addition to the number write 'North center side stake," "South cen- ter side stake," "N. E. Cor.," etc., as the case may be, and put the name of the lode on each stake. The Statute of Colorado requires each stake to be hewed or marked on the side or sides in toward the claim. This would be satisfied by blazing alone, but it is customary to shave the /// sidt (which in- dicates the relation of the stake to the claim) and mark with pencil th.- name of the lode, number of :ier, etc., as above directed. Marking three out of four corners was held sui ficient in a Utah case. Warnock v. DeWitt. ',<> r K'vi-w of citations on the point of sufficient staking. Howeth v. N////oif/er, 45 P. 8|1, Where not required by Statute it is not essential to put the name of the claim on the boundary stakes. Smith v. Newell, 86 F. Numbering the Corners. Any corner may be called No. 1; call the other corner on the same end line No. 2, and proceed thus continuously around the claim, setting an additional corner post at each angle of the claim. Except in of- ficial surveys there is no uniform rule as to which corner is numbered one. L. O. Keg. 138. Position of Center Stakes. In the case of the Hardin Lode, the claim was surveyed GOO feet in one direction and 900 feet in the opposite direction from center of discovery. The cen- ter stakes were placed opposite discovery, which left them each 150 feet from their proper places. The Supreme Court held that they could not be con- sidered as substantially in the center; but on the other hand, they held that if the corner posts were properly on the ground, the absence of center stakes did not invalidate the location. Pollard v. Shively, 5 Colo. 309; 2 M. R. 229. 52 DISCOVERY AND LOCATION. Tying the Claim. In addition to staking the boundaries it is essen- tial to have sufficient ties by which to identify the claim in the location certificate. The use of tne bearings to mountain peaks used by surveyors with instruments is impracticable in this kind of survey take instead of such monuments, marks carved on prominent boulders or prominent blazed trees, neigh- boring shafts or shaft-houses. Anything which is ;i "natural object" or "permanent monument" (ami reasonably substantial and prominent) is sufficient* to identify the claim. From the center of the dis- covery and from at least one of the corner p<> take careful measurements of the exact distance to such monuments (the most prominent possible un- der the circumstances) as have been selected to use in the location certificate to tie, describe or identify the claim. No specific number of ties are required, but at least two different monuments should be selected for such purpose. What Are Sufficient Ties. A tree blazed or otherwise referred to by some peculiarity as in Qnimby v. Boyd, S Colo. 194, "a double spruce tree," has been declared a sufficient monument. In certain places trees might be the only objects available, and have been considered good boundary monuments or witnesses from time im- memorial. A neighboring shaft or a prominent post firmly fixed in the ground is a good monument. Jupiter Co. v. Bodie Co. 11 F. 666; 4 M. R. 412. Mountain peaks are good calls. Craig v. Thompson. 10 Colo. 517. A tie to a corner of an unpatented claim is pre- sumptively a good tie. Londonderry Co. v. Unitrij Co. 88 P. 455. In Vogel v. Warsing, 146 F. 949, a call for a mountain by name, with course a mile distant, was held a sufficient tie. DISCOVERY AND LOCATION. 53 Calling for Adjoining or Neighboring Claims. The earlier decisions were to the effect that a all for another mine or claim was not a call for a I'tTinanent monument, and that a location certificate having such a call and no other, or no other suf- iiily sp -i-iiir. was not a compliance with K. S. Sec. 2324. Baxter Co. v. Patterson, S P. 7/7: Drum- mond v. Long, 9 Colo. 5S8; 15 M. R. 510; Gilpin Co. v. Drake, 8 Colo.- 586. As late as 1896 an extreme ruling to the same effect was made in an Idaho case, Brown v. Levan, 46 P. 661; overruled in 1902 by Morrison v. Regan, 67 P. 955. In the location certificate in the Levan Case the first call was "about one-half mile from the Hurt mines, the direction being Southwest." That call of itself was indefi- nite enough, but the paper also called for three ad- joiners. The Statute of Idaho (at that time) re- quired adjoining claims to be named. The Court held that such call for adjoiners did not aid the tie to the Hurt group of mines. If the call for the ad- joiners of itself made a good description we can not see why such call should be rejected as not aiding the defective tie to the Hurt mines, from the mere fact that to call for adjoiners was a statutory require- ment of the location certificate. All the later cases hold that a call for even a single claim, either as an adjoiner or near neighbor, makes a sufficient description. That a mine or min- ing claim may be a permanent monument and that if not so developed or known as to be a permanent mon- ument the proof of such fact is upon the objecting party. Book v. Justice Co. 58 F. 106; Riste v. Morton, 49 P. 656; Kinney v. Fleming, 56 P. 123; Seidler v. Lafave, 20 P. 789, overruling the Baxter case, supra; Shattuck v. Costello, 68 P. 529. A notice calling for adjoiners on all four sides was held valid, although the claim was described as in a quarter section different from the true one. Duryea v. Boucher, 7 P. 'i?L 54 DISCOVERY AND LOC'ATK N. Description by Degrees and Minutes Not Essential. A record based on a location made as above di- rected, the corners and side stakes being marked and the notice set, which so identifies the situation of the claim (by reference to natural objects or permanent monuments tied to its discovery shaft or corners that it may be readily found by a stranger examining the record, and for courses calls for some certain gen- eral direction and otherwise complies with all the statutory requirements herein stated is as valid as one which calls for degrees, minutes, metes and bounds. The Terms Southerly, Northerly, Etc., as used by miners in location certificates and notices, are not to be read as due south or due north so as to defeat the location. Smith r. Newell, 86 /'. 56; f/'/a.s.v v. Basin Co. 55 P. J0.fi: \V\Usee v. King Co. f>o /'. And the word "west" may be read "east" when neces- sary to close upon the starting corner. Upton v. Santa Rita Co. 89 P. 27.;. Precautions at Time of location. The side and corner stakes being properly set, the location stake fixed and properly inscribed, and the distance to ties or monuments measured, take the precaution at the time to measure the depth of the discovery shaft to see that the full ten feet in depth exist, recollecting that the collar is apt to cave in and the bottom to fill up with soil, inviting an attack on the location for want of legal discovery. Note the exact result of this measurement on the location stake. Size of Stakes, Etc. The statute says that the posts shall be sub- stantial and shall be sunk in the ground. The Land Office regulations, on survey for patent, require them to be not less than four inches in diameter, three feet long, and set eighteen inches in the ground; it of stone, twenty-four inches long. Rule ]'/'>. DfflO -VKKY AND i.o- \\TION. 55 Trees, Stumps and Boulders as Corner Posts. In PoUard v. Shively, J Colo. 309; I If. /' i he court held that a stump properly marked might be adopted as a boundary stake, and there is no doubt that a stone post literally complies with the law. And the calling for trees as corners, when In fact stakes stood for corners, has been treated as immaterial error, when there were other calls by whi.-h to fix the claim. Upton v. Larfcin, 7 Mont. ',',<>; 15 M. P. ',<>',; ihuisnn v. Flet /' \80. The L. O. Regulations also recognize both stones and rock in place. y.'///' Cutting a letter into a solid rock held not equiv- alent to a stake. Taylor v. Parenteai< ffi /'. Where Stakes Can Not be Set. When- a stake can not be driven on account of liould be fixed in a pile of stones, and in <)tti< ial surveys this marking is required in all cases. Where a stake can not be set on account of precipi- ground, the witness stake should be set as near as possible and on it should be expressed the course and distance to the corner or center stake, for which it is a substitute. The provisions of the Colorado statute on this poin' can not be invoked re the setting of the stakes is merely difficult or inconvenient. Crusus Co. v. Colorado Co. in / Where the stakes on one end of the claim are not set, merely because the point was difficult of access, it was held that the claim was not valid. Id. A like ruling was made where a corner fell upon a railroad embankment. Beals v. Coin. >i ; /. .';/;. And as a matter of course, the failure to set them through in- advertence or neglect would be fatal. Patterson v. Tarbell, 37 P. 7ff. Variation Between Courses and Monuments. As the result of carelessness, accident or defect- ive instruments, variations between the courses called for in the record and the monuments on the ground, are matters of constant occurrence. The 56 DISCOVERY AND LOCATION. general rule in such cases is that the monuments control. Cullacott v. Cash Co. 8 Colo. 119; 15 M. R. 302; Book v. Justice Co. 58 F. 106; Stonewall Co. v. Peyton, 2* So. 4^0; Galoraith v. Shasta Co. 16 P. 901; Treadwell v. Marrs, 83 P. 350. But it was held in the Hardin Lode case, 5 Colo. 309; 2 M. R. 229, that the monuments would not con- trol where they varied from the kind of monuments called for in the record that a call for a "post" not satisfied by a "stump" and further, that in the case of possessory claims the monuments must be kept up. From this it follows that while a claim remains unpatented if there be in fact a variance between its calls and its ties making it necessary to correct its calls by its ties, that the stakes or other monuments must be maintained on the ground. Otherwise the calls in the location certificate would control. In the same case the Court says that this ruling is es- sential to prevent the swinging of locations. Variations Chargeable to Connected Plat. The U. S. Surveyor General of each state keeps what is called the "Connected Plat." purporting to show every approved survey in relation to each other on its proper section. Where the first survey on any section made an erroneous call for a Gov- ernment corner, say 1300 feet, when the proper measurement was 1600 feet, it was platted as 1300 feet distant. A second survey correctly measured would show a certain distance from the corner, but, of course, would not tie to the first survey as traced on the connected plat. Instead of recognizing the error as soon as discovered the department persist- ently for years compelled each successive applicant to treat the first survey as correct and tie to it ac- cordingly. This resulted in the issue of patents which really overlapped prior surveys, but the field notes appeared clear of any overlap; conversely, an overlap and consequent exclusion would appear where there was in fact no conflict with any prior survey. DISCOVERY AND LOCATION. >7 It was to remedy this state of affairs that A. C. 2327 was amended in 1904 (p. 512). The effect of the amendment is, however, only to emphasize the common law rule declared in the Cullacott case above cited. Maintaining Stakes. Once properly set stakes have performed their original office and their subsequent removal or ob- literation not done by the act of the party does not vitiate the claim. Book v. Justice Co. 58 F. 107; McEvoy r. / 5 F. 596; 15 M. R. 397; Smith v. Newell, 36 /'. But where not maintained, a misdescription in the record, otherwise immaterial, may become seri- ous, if not fatal, as above stated, because to correct courses or other errors by monuments, the monu- ments must, in general, be found upon the ground. A location May be Made by an Agent, and in such case written authority is not essential. Hurley v. Ennis, 2 Colo. 300; 12 M. R. 360; Schultz v. Keeler, /; /'. ;*/; Rush v. French, 25 P. 816; Dunlap v. ruttisnn. 42 P. 504; Moore v. Hamerstag, 18 M. /.'. Oat. i'. I. In such case the location certifi- cate should be signed by writing the name of the principal, followed by that of the agent "Barton A. Hopkins by J. Mason Hall, agent." In writing names on stakes and notices this is unnecessary write only the name of the principal because such a signing is not a signature and it is immaterial by whom done so that the act is recognized or adopted by the party whose name is used. Even in sub- scribing the location certificate the names are often written by the party who makes out the body of the paper (without any mention of agency), and we do not apprehend that this, invalidates the document. Such writings are obviously of a class different from deeds, notes, etc., where a name can be legally sub- scribed as a rule only by the party himself or by one fully authorized so to do by power of attorney or other formal authorization. Morton v. Solambo 58 DISCOVERY AND LOCATH )N. Co. 26 Cal. 521; 4 M. A'. .'//;,?; Gore v. AfcBroyer, 18 Cal. 583; 1 M. R. 6 jo; Morrison v. Regan, 61 P. !>'>'>. Where a location is made in the name of a sup- posed principal there must either be a previous authorization to use the name of a principal or a subsequent ratification or adoption of the act. Where the name of an absent person is used without his knowledge there is no legal owner to the claim no person to stand for its paternity and the loca- tion is not good as against a later valid appropriation. Thompson v. Spray, 12 Cal. .>.?/. A Corporation May Locate. r l"h is has been expressly decided in the cases of McKinley v. Wheeler. 130 U. Sf. tf.R and Tln,,as v. Chisholm, 13 Colo. 105. It is required only that it be chartered under the laws of some federal State or Territory. As to the citizenship of its stockhelders. see Doe v. Waterloo Co. 10 /'. /'/.;. Minors, The case of Thompson v. &;>//. 7 ._> Cal. .".,/. holds that a minor child may make a valid mining loca- tion. Where a minor old enough to prospect ami work locates a claim we do not see why his minority should invalidate his title, but the use of the names of minor children to obstruct creditors or for other sinister purpose should certainly be unable to resist attack made in proper form. Where a minor takes by descent his title is, as unimpeachable as that of his ancestor. By Government Employe Deputy Surveyor. Section 452, R. S., prohibits the location of gov- ernment land by any officer, clerk or employee of the General Land Office. In Lavagnino v. Uhlig, II P. 1046, the Supreme Court- of Utah held that a lode location by a Deputy Mineral Surveyor was void under said Section. On appeal the Federal Supreme Court did not pass on the point. J98 U. S. J,',3. In the late case of Hand v. Cook, 92 P. 3, the Supreme Court of Nevada, by a majority opinion, held that DISCOVERY AM) LOCATION. .v. such Deputy was not a government employee and his location was valid. Location Prevented by Colluding Co-Tenant. If the staking and record are in fact not made the claim never becomes perfected, although the rea- son be that a co-owner violated his duty by colluding with third parties and allowing them to take up the ground. The sole remedy of the injured party is by appropriate action against his co-owner, based on his fraud. LockJxirt r. Wills, '>'/ /'. Irregular Locations. The contemplation of the law is that a lode claim should be substantially a parallelogram. Del Monte case, 111 U. .< t it seems that with the limita- tion that the length may not exceed 1,500 feet nor the width 600 feet a location may be madr in any con- venient shape, the only loss from such form of sur- vey being that n<> teral rights can be claimed for a survey which has not parallel end lines. Sur- veys in the shape of a horse shoe and in the shape of a triangle respectively were considered in the US ('. 8. I'.ni; \:> M. if. r,',i. and in Montana Co. v. Claris. ' t t r. <;.'<;.- //; .!/. if. *n and to both, all dip-rights were denied. In the North Star case, 83 F. 658, both patents were of no conformable shape, but each of them had issued on a consolidation of claims located before 1872. "There is liberty of surface form under the Act of 1872." Walrath v. Champion Co. Ill U. 8. 312. Locating Across the Strike. The loss of extralateral rights by such location is considered under API x. In Walsh v. Mueller, J/0 /'. 192, location had been made, fraudulently, as was alleged in the complaint, across instead of along the strike. We can not see how fraud could be predi- cated upon such fact standing alone. It simply loses the right to follow on the dip and the surface be- yond the proper distance from center of vein is open to hostile location, as explained by diagram on p. 21. 60 STATUTORY REQUIREMENTS. Sunday. la Union Co. v. Leitch. 64 P. 829, the first act of location was done on a Sunday and in the sir quent contest no point was made on this fa It has been intimated that where the last day of filing falls on a Sunday the locator is within the time if he files on the Monday following. C<>1 '<>. v. Duchess Co. 79 P. 385. Neglect of Statutory Details of location. Omission to establish center end stake (along with failure to verify the certificate) held fatal under Oregon Statute. Wright v. Lyons. 77 P. .S/. The same as to corner stake in Colorado. Seals v. Cone, 20 M. R. 592; 62 P. 948. Contra. Warnock v. De- Witt, 11 Utah, 324; 40 P. 205. Compliant with I law must be proved. Copper 'Olo be Co. v. AUman. ,11 M. R. 296; 64 P. 1019. Parties made a location valid to the extent of the Congressional requirements, but failed to comply with the State Statute then in force. The S Statute was repealed while the locators continued in possession. Held that upon the repeal the location became valid. MCFARLAND, J., dissents. '/ r. Dyer, 145 Cal. 12; 78 P. A location notice is not required by the U. S. Mining acts, nor at all if not called for by District Rule or Statute. Anderson v. Caniilu'i/. >/ /' TABLE OF STATUTORY REQUIREMENTS. Indispensable Federal Requirements. Whether required or not by State Statute or Dis- trict Rules, the Federal Statute requires that the lo- cation must be distinctly marked on the ground, so that its boundaries can be readily traced, and the location certificate must contain (1) the name or names of the locators, (2) the date of the location and (3) such a description of the claim or claims STATUTORY REQUIREMENTS. til located by reference to some natural object or perma- nent monument as will identify the claim. R. S. Sec. I Taking Colorado as a basis for the manner of locating and recording lode claims, the difference in the regulations of the other States and Territories of the Pacific slope is neted in each paragraph num- bered to correspond with the Colorado table below: Before filing his location certificate the discov- erer is required by Statute in Colorado. 1. To post MI ih.> point of . on tin- sur- .1 notirr rontaininj: ilu> name of the lode, the name of ih,. locator and ih,. date of the discov< i \ J Within sixty days from the discovery, to sink a dteooren ihaft too feet deep, fnm tin- io\\.si pan .r \\\<- rim of shaft, or deeper, ii" necessary. t<> show a \\.-ll defined ice. 3. To mark the surface boundaries by six i> sunk in the ground. .ne at each corner and <>n- at h> liter of each side lino h\\i or marked on the side or sides in towards the claim. 4. The disclosure of the lode in an open cut, cross- cut, or tunni'l at tin- d.-pth of ten feet below th> sin in adit at least ten foot iu along the lode, suffices instead of the t-n foot shaft. .". Within tin... months from d.-.t.- of discovery in tile a location certificate with iho ('<.unty K-c..rd.-r ^ivln^ a proper description of the claim, as ivqnin-d l.y Federal Statute, and containing also: name of the lod. : b. the name of the locator; c. the date of the location ; 1 the number of feet in length <>n a< h si.l tin- center of the discovery shaft, and e. the general course of the lode. Alaska. nn .him' '.. 1000, Congress passed an Act purporting to le a full code of Statute Law for this Territory. SI xt. L. S21. It leaves the status of mining titles the same as in those States which have but few statutory regulations. . It provides for three Recording Divisions and these Divisions ar to be subdivided into Recording Districts, for each of which is provided a recorder. The Clerk of the Court is ex officio recorder of all that parr of any Recording Division not set off into record- ing districts. 62 STATUTORY REQUIREMENTS. I'ntil the District Recorders are appointed tin- min- ers may appoint a recorder of any organized local min- ing district. Sec. jc,. There is obvious confusion in th< 'ions, hut it seems evident ili.-it ih.' oilice fur the record, and while hy its general t. -.irily requiring a discovery and such m. irking of hounds and ii. -script ion ;is are every where required |,\- the terms of I; _"_' I. (fill. ..'.{ tiinl ii'.}. it dors imt require ;i discovery shaft or any other special condition. Sections 1 ." and 'J< of tin- act are printed under the heading AIASKA. Arizona. 1. Krect at point of discovery stone monument three feet high, or a post four feet ahove ground, mi which. post notice signed hy locator containh a.--- Tin- name of the claim loc.-n. b. The name or names of the locators. c. The date of ill,- I. .cation. d.~ The length and width of tlie claim in feet. and the distance in feet from the point of discovery to each end of the claim. e. The general course of ihi- claim. f. The iocality' of the claim with reference to some natural object or permanent monument whereby the claim can he identified. '_'. \Yiihin '."> d; the time of the loca- tion" sink discovery shaft lo feet de,-p from lowest part of the rim at the surface, or deeper, ii how mineral in place. .",. Within same time mark l.oimd.-iries hy '. stantial posts, projecting ;n ! ; ahove the sin of the irroiind. or hy suhstantial stone monuments at least :: feet hi-h. to-wit, one :it each corner, and one .-it tin- center of each end line. 4. Same as Colorado; amount of work must In- equal to a shaft 1" iVi-t deep and 4 feet wide hy ; feet long. .">. Within ninety days from time of location, record with the County Recorder a copy of the location notice pest cd. 0. The Act of 1!>'. The manner of staking and other incidents of location are controlled by STATCT>KY REQUIREMENTS. 63 district rules. :mt; y monuments MI .-ich r.u-ner and at radi ani:le in side lines, rii.-irk.-d with name of claim and comer or anjje it represents. Monument! ; Ml be four feet aimvr groiind; inn^t ! -ipiare or diameifr. and hewn and marked >n side faeini: 4. Any excavation which cuts the vein H> feel deep and in- el in extent shall he sullicient. within ( .to d;i\s after location tile \\itii c..utity Mninu IMsiriel a BUbStaD tial c..|.\ with allidavit of one of |oc;i (hat he is a eili/.en of the I'niied 81 1 his intentions: that he is 1C quainted with the -round claimed and that no part has ;!. tliat it bl .r-iandon,-i| or forfeited hy reason of (he failure of the former locators to <-om|ily in "respect thereto with the requirements of law. and that he has opened new ground to the extent or depth of ten feet as required hy the laws of Idaho. '. At the time of marking houndarhs post at the very monument 'iitainin^ the name of the locator, name of the claim, date ,,: di-eovery. the direction and distance claimed aloim the ledp- from I he discovery, the distance claimed mi ea.-h sid.- f the middle of the led-e. the distance and direct ion from the discovery monument to such natural ohject or permanent monument. if any such there |,e. as will lix and descrihe in the notice itself flie location of the claim and the namo of the mining District. County ami State. fife< I, ground, with a in'iinil "T earth or stone alongside at least 4 feet in diameter by 2 feet in height, or I A boulder at least 3 feet above tin- natural sin- face of the ground on the upper side. The above classes of monuments (a-d) are merated as jnhnd f days after posting file with County Recorder certificate of location containing: (a) the name of the lode: ibi the name of the locator; (c) date of location and such description with reference t.S posted at the point of dis- , ml that the said cert ilk-ate and all statements therein made are correct and true. \\ . B. CULLEN. Sworn and subscribed before me this first day of October, A. D., 1907. Notary Public. Nevada. (Act of 1907.) 1. Juc l. r.MK.x NOTICES. The discoverer posts notice "at ih'- time and point of discovery." which notice must contain the name of the lode, the name of the locator, i In- date oi location, the number of feet claimed each way fro in point of discovery, the width on each side of the cen- t*i ..i the vein, and the general course of the vein. Later. when the monuments are placed, he is re- quired to post the same notice on some one of his monu- ments. - Discovni SHAFT. There must be a discovery Feet an*! 10 feet deep from the lowest part of the rim of the shaft at the surface, or deeper if neces- sary, to show mineral in place. A crosscut, showing the lode at a depth of 10 feet, or an open cut along the vein containing the same cubical displacement as a shaft 4 by 6 by 10 feet, is equivalent to a discovery shaft. MI; TO SINK AM MOM MI:M. Ninety days are allowed to complete discovery, but the claim must be mon- uniented within 1:0 days from date of posting. 4. M".M MI: NTS. Must be placed at each corner and at center of each side line, and may be trees, posts, stones, stumps, or rock in place. "All trees, posts or rocks used as monuments, when not 4 feet in diameter at the base, shall be surrounded by a mound of earth or stone 4 feet in diameter by 2 feet in height." Assuming that the use of a tree or post 4 feet in diameter would be so rare an instance as practically never to occur, the only construction of the statute is that all the monuments should be surrounded by these mounds of earth or stone 4 feet square by 2 feet high. Where a tree is used as a monument it must have a diameter of not less than 4 inches and be cut off not less than 3 feet above the ground and blazed and marked. Where rock in place is used as a monument it must be capped with loose stone to a height of not less than 3 feet. Posts must be at least 4 inches in diameter by 4*& feet in length, set 1 foot in the ground. 66 STATUTORY REQUIREMENTS. When a loose stone is used as a monument it must be at least 6 inches in diameter by 18 inches long, set two-thirds of its length in the top of a mound of earth or stone 4 feet in diameter by 2^ feet high. All monuments "must be so marked as to designate the corners of the claim located." 5. LOCATION CERTIFICATE. Must be filed within '.<> days from date of posting, with County Recorder, and with the District Recorder if there be one. It must contain : a. The name of the lode or vein. b. The name of the locator. c. The date of the location and such description with reference to some natural object or permanent nofonu- ment as will identify the claim. d. The number of linear feet claimed in length along the course of the vein each way from the point of discovery, with the width on each side of the center of the vein, and the general course of the lode or vein as near as may be. e. The dimensions and location of the discovery shaft or its equivalent, sunk upon the claim. f. The location and description of each corner, with the markings thereon. SPECIAL RECORDS. The Act provides for the filing, after the monumentlng, with th District Recorder, of a preliminary "notice of location," and also for a third filing after survey by a deputy U. S. or licensed St.m- Surveyor, both of which filings are optional and useless except to provide prima facie proof of the acts of discovery and loca- tion which same function is allowed to the original loca- tion certificate. New Mexico. 1. Post in some conspicuous place on location a notice in writing stating thereon the name of the locator, his intention to locate the claim, and a description of the claim, by reference to natural object or permanent monu- ment. 2. Within 00 days from date of taking possession sink a discovery shaft to a depth of at least 10 feet from the lowest part of the rim, exposing mineral in place. 3. Mark surface boundaries by four substantial posts or monuments one at each corner of the claim so as to distinctly mark the claim on the ground so that its boundaries can be readily traced. 4. Same as Colorado. 5. Within three months after posting notice record a copy thereof in the office of the Recorder of the County. North Dakota. 1. Same as Colorado, adding length on each side of discovery and width on each side of lode. 2. Within 60 days from uncovering lode sink dis- covery shaft sufficient depth to show well defined mineral vein or lode. STATUTORY REQUIREMENTS. 67 3. MAI:KIN; BOUNDARIES. "Such surface boundaries shall be marked by 8 substantial posts, hewed or blazed on the side facing the claim, and plainly marked with the name of the lode and the corner, end, or side of the claim that they respectively represent, and sunk in the ground as I'M|I.\VS: One at the corner and one at th center of each side line, and one at each end of the lode." 4. Same as Colorado. 5. Within 50 days from date of discovery record in office of Register of Deeds a location certificate containing same as Colorado, adding width claimed on each side of vein. Oregon. l. To post notice containing name of lode, nanu> of locator, date of location, number of feet in length claimed oarh way from discovery, width on each side of general course or strike of the vein or lode as nearly as may !. with reference to some natural ob- ject or permanent monument in the vicinity thereof." L' Within ;o days from date of posting to sink discovery shaft at least 10 feet deep from lowest part of rim, or deeper if necessary, to show lode or deposit in place. 3. Within ."." days after posting, mnrk boundaries -ix posts or mounds of stone, or earth and stone, one ach corner and one at center ends of claim ; posts 3 feet above ground, 4 inches square or diameter ; mounds 2 feet high. 4. Same as Colorado, but open cut must be at least 6 feet deep, 4 feet wide and 10 feet in length along the lode. ~>. Within 60 days after date of posting, record with Recorder of conveyances, if there be one, otherwise with <'lrrk of County, a copy of the notice posted, attach- ing thereto an affidavit showing that required location work was performed. NOTE. By Sec. 3974 Bellinger and Cotton's Code. only one claim by location, may be hold upon each lead or vein, by the same person : the discoverer of any new lend or vein, not previously located upon, is allowed one additional claim. South Dakota. 1. Same as Colorado, adding length on each side of discovery and width on each side of lode. 2. Before filing location certificate sink shaft suffi- cient to show a well defined mineral vein or lode, and not less than 10 feet in depth on the lower side. 3. MARKING BOUNDARIES. "Such surface boundaries shall be marked by 8 substantial posts, hewed or blazed on the side or sides facing the claim and plainly marked with the name of the lode and the corner, end. or side of the claim that they respectively represent, and sunk in 68 STATUTORY REQUIREMENTS. the ground, to-wit : One at each corner and one at the center of earn side line, and one at each end of the lode." 4. Sjimo as Colorado. 5. Within 60 days from date of discovery, record in office of Register of Deeds, a location certificate contain- ing same as Colorado, adding width claimed on each side of vein. Utah. 1. At time of making discovery erect a monument and place thereon a notice containing name of lode, name of locator, date of location, length each way from discov- ery, width on each side of the center of the vein, general course of lode and description with reference to natural object or permanent monument. 2. Regulated by district rules. 3. Claims must be distinctly marked on the ground so that the boundaries can be readily traced. Details of marking left to District Rules. 4. Regulated by District Rules. 5. Within 30 days from date of posting the loca- tion notice, file for record in office of County Recorder, ii claim be situate without and beyond an original mining district, a substantial copy of the notice of location. 6. Where a mining district exists an original and duplicate copy of the notice of location are filed with th.> District Recorder, which duplicate the District Recorder sends to the County Recorder to be by him recorded. NOTE. The Acts of 1899, page 26, allow districts to be organized, but provide that the nearest boundary line of district shall not be within ten miles of the office of any County Recorder. Washington. 1. Post at the discovery, at the time of discovery, a notice containing same as Colorado. 2. Within 90 days from date of discovery sink shaft 10 feet deep from the lowest part of the rim. This re- quirement of shaft does not apply to any mining claim located west of the summit of the Cascade mountains. 3. Within 90 days mark boundaries by substantial posts or stone monuments, bearing name of lode and date of location, at each corner of claim. Posts and monu- ments not less than 3 feet high ; posts not less than 4 inches in diameter. Brush must be cut away and trees must be blazed along lines of claim. 4. Same as Colorado. 5. Within 90 days from date of discovery, record in office of the Auditor of County, a notice containing same as Colorado (except no specific requirement that it con- tain name of lode). RECORD. 69 Wyoming. 1. Same as Colorado, adding name of discoverer. 2. Within 60 days from date of discovery sink a discovery shaft 10 feet deep from the lowest part of the rim. 3. Mark the surface by six substantial monuments of stone or posts, placed and marked same as Colorado. 4. An open cut 10 feet in length, with face 10 feet hitfh, or crosscut or tunnel 10 feet long, cutting the vein 10 feet below the surface, measured from the bottom of such tunn vuh-nt to a discovery shaft. 5. Will) in on days from date of discovery record with County Clerk a location certificate containing same as Colorado, adding width on each side of center of dis- covery shaft, and describing claim, if on surveyed land, by such reference to section or quarter section corners, as shall identify the claim beyond question. RECORD. Essentials of Location Certificate. R. S. Sec. 2324. * * All records of mining- claims hereafter made shall contain the name or names of the locators, the date of the location, and such a descrip- tion of the claim or claims located by reference to some natural object or permanent monument as will identify the claim. Sec. 5, A. O. May 10, 18VZ. Colorado Statute Time to File. R. S. Tolo. Sec. 4104. The discoverer of a lode shall, within three months from the date of discovery, re- cord his claim in the office of the recorder of the county in which such lode is situated, by a location certificate which shall contain : First The name of the lode. Second The name of the locator. Third The date of location. Fourth The number of feet in length claimed on each side of the center of discovery shaft. / 'ifth The general course of the lode as near as may be. Feb. IS, 187J. Indefinite Record Void. II. S. Colo. Sec. 4195. Any location certificate of a lode claim which shall not contain the name of the lode, the name of the locator, the date of location, the number of lineal feet claimed on each side of the discovery shaft, the general course of the lode, and such description as 70 RECORD. shall identify the claim with reasonable certainty, shall be void. Id. Separate Record of Each Claim. R. S. Colo. Sec. 4196. No location certificate shall claim more than one location, whether the location be made by one or several locators. And if it purport to claim more than one location it shall be absolutely void, except as to the first location therein described, and if they are described together, or so that it can not be told which location is first described, the certificate shall be void as to all. Id. The Statutory Requirements essential to a loca- tion certificate stated in section 3150 above printed are followed by similar but not identical statutes in all the mining States and Territories, except Cali- fornia and Alaska. The statutory requirements in the several States, in addition to those above noted, are tabulated, page 60. Where no statutory requirements other than the Federal Statute exist, a certificate following the form below given (page 75 would in any State or Terri- tory fully comply with the requirements of the law. The Nevada Statute requiring the distance each side of the discovery and the general course of the vein to be stated in the location certificate was held merely directory in Zerres v. Vanina, 134 F. 616. So far as such Statutes require a discovery shaft of certain depth or any other item of location or record in itself material, they are only reasonable and have uniformly been held mandatory; but oppres- sive and trifling details, such as imposed by the 1907 mining act of Nevada, and the 1895 act of Montana (materially amended for the better in 1907) requir- ing "a description of each corner" and the "dimen- sions" of the discovery shaft, ought to be held di- rectory only and non-compliance not fatal, as was ruled concerning the requirement that the record give the length each side of the discovery and the general course of the vein, in Zerres v. Vanina, 134 F. 616. The Montana act of 1895 above cited was held mandatory and the attempted compliance fatally de- fective in Purdum v. Laddin, 59 P. 153, and in Hahn RECORD. 71 v. James, 73 P. 965, but the description in Walker v. Pcnninn. IIP. 156. was sustained. Necessity for Record. 1 1 is conceded that the Federal Statute does not in terms require a record to be made. Southern Cross Co. v. Europa Co. 15 Nev. 383; Haws v. Vic- ''i U. S. SJ8. And although before the mining acts a record in some form was almost uni- versally required, and although either in terms, or assumedly, required in almost every state, yet it seems that the necessity for a record must be cre- ated by Statute or District rule. On these grounds there have been two decisions on the construction of the Nevada law, holding in terms that record was not mandatorily imposed by the mining act of that State. In Zerres v. Vani,><>. i .;; / 010, it was held that failure to record either within the time mentioned in the statute or at any time, did not avoid a discovery made complete by discovery shaft, notice and staking. In Ford v. Campbell 92 P. 206, the Statute is considered more fully with the holding that a rec- ord in Nevada if made at all must be with both District and County Recorder. But that the intent of the Statute was merely to give the locator the benefit of a means of making prima facie proof of discovery and location by production of the record and not to defeat the location for want of a record; and that the first location, having a record in only one office, and its description further being fatally defective, was nevertheless a good and permanent location without any record at all. Close as the question may be this construction is defensible and affords an escape from defeat of priority by failure to comply with the burdensome and almost impossible details required to show in the record, under the act construed by these deci- sions, and the even more indefensible act in these particulars of 1907, the wording of which on the 72 RECORD. point of necessity of record, is the same as that of the old act. The Time to Eecord the location certificate is fixed by statute in Colorado within 3 months; North and South Dakota and Wyoming, 60 days; Alaska and Washington, 90 days from date of discovery; Utah within 30 days after date of posting. Mon- tana and Oregon 60 days from such date. Nevada 90 days from date of posting. New Mexico three months from such date. Arizona and Idaho within ninety days from date of "location." In California no time is fixed by statute. For proper office or offices in which to file the location certificate, see Statutory Requirements tab- ulated on page 60. Where there is no organized mining district, and therefore no district recorder, the certificate should always be filed with the county recordei Recording Location Notice as Certificate. It is a custom in California and in many local districts elsewhere to make the location notice in du- plicate, placing one on the claim and filing the other for record. The same is the statutory regulation in Idaho, Arizona, Utah, Oregon and New Mexico. The location certificate, or record, everywhere, must con- tain all that is required of the notice besides giving a full description which is not required of the notice. If, therefore, the custom be to make these instru- ments duplicates, each must contain what is re- quired of the greater and both would have to contain a full description with reference to monuments, to conform to the Act of Congress. If not exact du- plicates it is not fatal. Gird v. California Co. 60 F. 531; 18 M. R. 45. Description in Location Notice. Unless expressly required by statute or district rule, and barring the above noted exception as to States, where the record is a duplicate of the posted notice, the location notice is not supposed to call for RECORD. 73 any tie or to contain a description of the claim. Poujade v. Ryan, 38 P. 660; Souter v. Maguire, 21 P. 18& Only the items specifically commanded for it to contain are material and the additional facts so often recited in such notices are harmless surplus- age. Filing for Record is equivalent to record, and subsequent errors or neglect of the officer can not prejudice the locator. Weese v. Barker, 7 Colo. 118; Shepard v. Murphy, 58 P. 588. The Record Follows the Location, as the location follows the discovery. The record is a publication of the location, and is therefore called the location certificate. Many of the old forms of these certifi- cates are not sufficiently specific and the Surveyor- General in such cases requires a new record to be made before issuing order of survey upon applica- tion for patent. The Certificate as Proof of the Acts of Location. See EJKI i ii M. p. 349. Description of Claim Ties. The record contains a description of the claim as staked on the ground. If not properly staked the record does not make a good location ; but if the loca- tion has been properly made, the certificate can read- ily be written so as to describe it fully, whether staked by a surveyor or otherwise. The essentials of a valid location certificate are stated concisely in sections 4194, 4195 and 4190, above printed, and a form is given below. The discovery shaft should always be treated as an essential point of description, and tied to some near and prominent monument, with course and dis- 74 RECORD. I 1 RECORD. 75 tance therefrom, because it is a much more perma- nent monument than any stake or corner. In addition, one or more corners should be tied to other natural objects or permanent monuments, a government corner or discovery shaft of an ap- proved survey being unobjectionable. The text of the Statute, however, is complied with by the use of only a single tie as the words "natural object or permanent monument" are used in the singular form. FORM OF LOCATION . 1:1:1 n i ATI:. KNOW ALL MI:N i\\ IHI.M; rui.sLNTs. Thai I. i;f D, m , , . Stair Of ::i by right of discovery and location, fift>aid vein at tin- orface; and ail reins, lodes, ledges, deports and sur- -r..und \\ithin ih- lim-s of said claim; M i < n hundred ami fij tit I'ITI mi said li-iv-ry slial't, and ->< i ( n liuiiiu said ceii- ihaft Said claim Is situate on the east* in >/<./>< of Hull Hill in i Minin- District, Cdunty -i 7'. ////'//'/ of .\ianntny L ilfj/n-c* E. ?.}(/ /cct y // /o corner A". I; ///. /< - A. 2 dtjy/ KX0 feel fo corner Ao. 4 (nort In atst i-ornti-> f JK.IH n Itk-h bliuid ., Z feet in dinmctir ntni'kt il / \. 8 degrees W. 22 feet; thence xnntli M (/( ll. 7 ' / M. R. 137. And a government corner is a good call, although its true position was seriously disputed. Gird v. California Co. 60 F. 531 ; 18 M. R. 45. A single tie to a patent corner is sufficient. Car- lin v. Freeman. 75 P. 26. So is a tie to a single stake. Mclntosh v. Price, 121 F. 716. The description of a placer claim by its number as one of a tier of claims was held good in Smith v. Cascaden, 148 F. 792. The Test of Sufficiency. On the same line as the above case of Gamer v. Glenn, and stating the converse of the proposition, the party attacking the certificate may show that a person could not find the premises, taking the loca- 80 . RECORD. tion certificate for a guide. Dillon v. Bayliss, 27 P. 725; Londonderry Co. v. United Co. 88 P. 455. The A. C. requires the date of location to be given, but the locator is not estopped to correct a mistake in the date. We&& v. Carlson, 88 P. 998. Contradicting. A location certificate regular on its face may be shown by parol to be false in what it calls for. Dillon v. Bayliss, 27 P. 725. Its recited dates may be proved not true. Muldoon v. Brown, 59 P. The same case holds that the misdating must be pleaded. But that is not only to require a party to plead his evidence but to anticipate his adversary's case. The locator is estopped to deny the validity of his discovery or location as against his grantee. Blake v. Thome, 16 P. 270; McCarthy v. Speed, 80 N. W. 135. Overlapping Stakes. Where a fractional claim was located by stakes all set on or near the lines of the surrounding claims, the staking was upheld. West Granite Co. v. Gran- ite Co. 17 P. 547. And the same where, through locating in the night the stakes overset on the ad- joiner. Doe v. Tyley, 14 P. 375. Immaterial Calls. The statute does not require the certificate to state the distance from the discovery shaft to the side lines. Quimby v. Boyd, 8 Colo. 194. Wrong County. Where the record is made in the right county but a wrong county is called for in the description the error is not fatal. Metcalf v. Prescott, 16 M. R. 137. Like ruling where the record failed to name county or State. Talmadge v. St. John, 62 P. 79; Carter v. Bacigalupi, 23 P. 363. RECORD. 81 Verification. Idaho, Montana and Oregon require the location certificate to be verified, and it has been decided that such requirement is legitimate State legislation under R. S., Sec. 2322. Fan Buren v. McKinley, 66 P. 956; Wright v. Lyons, 77 P. 81. The rulings on the Montana Act have been severe, if not extreme. McCowan v. McLay, 40 P. 602; Berg v. Koegel, Id. 605; Hickey v. Anaconda Co. 81 P. 806. But a verifi- cation made on information was sustained in Mares v. Dillon, 75 P. 963. Priority of Record is so generally involved with questions of priority of location and of continued possession that this point has in most cases less weight than is generally supposed. Record is the inception of the written title, but the actual title of a mining claim, properly followed up, reaches back to the discovery. But if a discovery be not followed by a location and record within the time fixed by the statute, "an intervening record becomes the prior title. In other words, the rights acquired by discovery are forfeited by neglect to perfect the title by location and record; and that title which if properly followed up would have dated from discovery, will, if it be not so fol- lowed up, be suspended in favor of any valid record made after the expiration of a reasonable time, or the period fixed by statute, and before any record of such prior discovery. Or a record filed before the statutory period nas expired, although based on a junior discovery, be- comes the senior title the moment the time allowed to the first discovery to complete its record has elapsed without such record being consummated. The same rule applies to any senior locator who allows the time allowed for sinking his discovery shaft, to expire before he has readied the required depth and found the required crevice. 82 RECORD. Possession Without Valid Location or Record. The cases upon this point require careful ex- amination to ascertain the distinctions made and even after such examination manifest inconsistencies appear. One series of cases states that where a party is in actual possession no stranger can invade such pos- session in order to initiate an adverse title; in other words, a prospector can not go upon the claim how- ever invalid or defective, to sink a discovery, set up a notice or plant stakes. Phoenix Co. v. Lawrence, 55 Cal. 143; 12 M. R. 261; North Noonday Co. v. Orient Co., 1 F. 522; 9 M. R. 524; Weese v. Barker, 7 Colo. 178; Craig v. Thompson, 10 Colo. 517; Rush v. French, 25 P. 816. Certain of these cases hold that he may not in- vade the actual workings then or lately occupied. Faxon v. Barnard, 2 McCr. 44; 9 M. R. 516. Others hold that he may not enter within the lines of the claim. Eilers v. Boatman, 3 Utah, 159; 15 M. R. 462. Some of the above citations can be justified, within certain limits, on the principle of preserving the peace on the public domain. But their logical result, if taken without qualification, would be that a party in possession could hold by his possession alone, in disregard of all the requirements of the State Statute and of the Act of Congress. On the other hand there are many decisions to the effect that a party, after the lapse of the statutory time to complete location and record, can not hold against a claim later in discovery but which has been the first to complete a valid location and record under the Statute that a miner can hold his claim only by compliance with the regulations prescribed by the owner of the fee (the United States) and the State or district regulations which such owner has author- ized. McKinstry v. Clark, 4 Mont. 395; Noyes v. Black, Id. 527; Horswell v. Ruiz, 67 Cal. Ill; 15 M. R. 488; Garfteld Co. v. Hammer, 8 P. 153; Glee- son v. Martin White Co. 13 Nev. 442; 9 M. R. 435; Sweet v. Webber, 7 Colo. 44^; Lalande v. McDonald, RECORD. 83 IS P. 349; DuPrat v. James, 65 Cal. 555; 15 M. R. 941. The Supreme Court of Montana said: "Such lo- cation is a condition precedent to the grant. Mere possession not based upon a valid location would not prevent a valid location under the law." Belk v. Meagher, 3 Mont. 65; 1 M. R. 534; and the decision was affirmed by the Federal Supreme Court on the same lines. 104 U. S. 279; 1 M. R. 510. First Complete Location One Party in Default. The first in time to comply with all the require- ments, after allowing to the one who takes the first step to initiate a title his reasonable or his statutory time to complete the same is the first in law. If the first discoverer fail to sink his shaft within the statutory period, or to stake or record within the time fixed by law (or within a reasonable tinio where there is no Statute), and a second party makes a discovery while the first party is in default, such second party has the statutory time to complete his location and record and will hold the ground against the original discoverer, although such orig- inal discoverer perfects his location and record before the location on the second discovery is complete. We think the language of the two preceding paragraphs is justified by the language of the Su- preme Court in Lockhart v. Johnson, 181 U. 8. and many other cases. Copper Co. v. Allman, 64 P. 1020; Gregory v. Pershbaker, 73 Cal. 109; 15 M. R. : Patterson v. Hitchcock, 3 Colo. 533; 5 M. R. r> ', i ; Thallman v. Thomas, 111 F. 277. Entry During Discoverer's Locating Time. The Golden Bell lode was first discovered, put up its notice, sunk its shaft in due time, but did not re- cord until the three months had expired. The Verde had made a discovery during the sixty days allowed to sink the Golden Bell shaft, making such discovery beyond the distance claimed by the Golden Bell no- tice. After the three months allowed to the Golden Bell had expired, and when the Golden Bell was in 84 RECORD. default but the Verde within its time, the Verde made its survey by such survey taking up ground cov- ered by the Golden Bell notice. The court held that the Verde, though its discovery shaft was sunk on clear ground, was a title initiated by trespass and could not be made the basis of a claim to survey over the Golden Bell territory. Omar v. Soper, 11 Colo. 380. The Jessie Mac posted its location notice on June 30, 1899, but failed to complete its location. The Cripple Creek posted its location notice within the feet claimed by the Jessie Mac on the 59th day there- after. Held: that the first posted notice was an appropriation of ground claimed by it, and that no title could become initiate during the 60 days allowed to sink discovery, and that, therefore, the failure of the Jessie Mac to complete its location within the statutory time could not avail to make good the Cripple Creek location. Sierra Blanca M. Co. v. Winchell, 83 P. 628. (Colo.) With the doctrine that a notice is a complete appropriation of the ground so as to make the entry of a second prospector within its area a trespasser, we can not for one moment agree, (1) because it is carrying the idea of trespass beyond the reason on which it is based; (2) because it operates unjustly against later but more diligent prospectors, and (3) because the weight of authority is against it. 1. The assertion that it is a trespass at all is not true, because there is no possession invaded. Nash v. McNamara, 93 P. 405. 2. It is indefensible that a mere notice of in- tention to locate, which intention the party stating it is not bound to make good, should bar other pros- pectors from the right to search for mineral on the assumption that the intention will be carried out. The second prospector takes the chances of the notice being perfected into a complete location, and if it is he must yield to the now perfected prior right; but if the second party completes his location and the first never does, we can see no reason why it should be said that he has a tainted title. If these RECORD. 85 last cases cited are law the party who thus failed to perfect his location could wait for years and until the first complete location had been developed into a valuable mine, then make his record and take the ground. For if a location is initiated by trespass it never ripens into a good title short at least of the period of the Statute of Limitations. 3. The exact point is discussed and decided as we claim that it should be in Helena M. Co. v. Bagga- ley, 34 Mont ;md in the Nash case, supra. In their opinion the Supreme Court of Montana hold: That where a second discoverer enters on the ground within the area covered, by a notice lately posted and within its lifetime, but the first discov- erer fails to perfect his location in due time and the second does so perfect, the second party holds the ground. No exact rule can be laid down to meet every variation in which the question could present itself, but after conceding that a man's actual occupation of his workings may not be invaded, and that a drift would amount to such actual occupation of the vein for the length of such drift upon the vein above and below; and that an adverse entry would not be al- lowed so near to, although not actually upon, the workings of the prior party as to threaten to provoke a breach of the peace it would seem that after such concessions, the first party having made no record, or no location certificate amounting to a valid record, or having otherwise failed in any essential point necessary to constitute a valid location, the ground would be open to the location and record of a valid claim thereon. Lockhart v. Wills, 54 P. 336. Record Complete Before Adverse Rights Initiated. Notwithstanding delay to record or delay to sink discovery or to set stakes or to find a well-defined crevice or to do any other essential act of location, it has been repeatedly and in many forms held that if at length the record or location be in fact perfected before the hostile title had its inception, that the 86 RECORD. title to such delayed but finally completed location is perfect as against any later initiated title, and that the last act of location relates back to and the title begins from the original date of discovery. McOinnis v. Egbert, 8 Colo. 41; 15 M. R. 829; Preston v. Hun- ter, 67 F. 996. All Parties in Default. In the suit between the Green Mountain and the Ontario it appeared that the Green Mountain was dis- covered in August, 1877, and recorded in March, 1878. The Ontario was discovered in February and recorded in July, 1878. Each had exceeded the three months allowed by law to record and the priority in title (as to this point) was given to the first discovery. It seems that it would have been otherwise if the On- tario, although a later discovery, had completed its record within the three months. Faxon v. Barnard, 2 McCr. 44; 9 M. R. 515. The Green Mountain had both first discovery and first record, but with a long interval between. Dur- ing its delay a second discovery had intervened, but it also over-stepped the statutory time and so allowed the Green Mountain to secure the first record. This case has been lately approved in Lockhart v. Johnson, 181 U. 8. 527. We have always contended that where all parties are in default in completing their location and record within the statutory periods that the first record based upon a valid discovery and location be- comes a perfected title and takes the ground without regard to priority of discovery. Copper Co. v. All- man, 64 P. 1020. Possession During Locating Period. The possession of the prospector during the pe- riod allowed by law to complete his location and record is protected, although he has so far no paper title. Erhardt v. Boaro, 113 U. 8. 521; 15 M. R. 472; Marshall v. Barney Peak Co. 47 N. W. 290. His loca- tion certificate when recorded relates back to the date of his discovery. And no party can intrude within his lines marked out or within the ground which he has a right to RECORD. 87 cover during that period limited to 750 feet on each end of his discovery, unless his location notice (page 36) fixes the number of feet claimed each way. Itramlctt v. riirJc, 11 P. 869. Possession After Such Period Elapsed. Possession, at all times, without regard to record, location or even the fee simple, still gives a certain title as against a mere trespasser, upon which eject- ment and other actions may be maintained. Camp- bell v. Rankin, 99. U. 8. 261; 12 M. R. 257; Hawxhurst v. Lander, 28 Cal. 231; 12 M. R. 214; Haws v. Victoria Co. 160 U. 8. 303. Long continued possession pre- sumes ownership. Risch v. Wiseman, 59 P. 1111. But as we have already intimated, such right by possession yields place at once to right by title, when such title is offered and proved. Wilson v. Triumph Co. 56 P. 301. It requires location to give the right of possession. Jordan v. Duke, 36 P. 896. See "Eji< Possession is a title only by sufferance in default of something better it is the starting point, not the goal of title and will not prevail against the fee simple; Courchaine v. Bullion Co. 4 Nev. 369; 12 M. /.'. ..'.?o; or against a title perfected under the district rules; English v. Johnson, 17 Cal. 107; 12 M. R. or against a complete location and record made in compliance with the law. Sears v. Taylor, 4 Colo. 38; 5 M. R. 318. Where neither party perfects a valid location the first in possession has the better right. Neuebaumer v. Woodman, 26 P. 900. Where a placer locator has no discovery he has no actual bona fide possession and the ground is open to peaceable entry by others. Miller v. Chrisman, 73 P. 1083. Trespass Force Fraud. No right can be initiated on government land by force, fraud or clandestine entry upon the actual pos- session of another, whether the location of such other be valid or invalid. Nevada Co. v. Home Co. 98 F. t:t /. Title to a mining claim can not be initiated by an entry upon a prior valid existing location. Kirk 88 RECORD. v. Meldrum, 65 P. 634. But the possession of the first occupant, where he has no valid location, does not prevent an entry by a later party intending to make a location. Thallmann v. Thomas, 111 F. 277; Walsh v. Henry, 28 P. 449. A pretended relocation by marking the stakes of the first locator and adopting his lines in the certifi- cate, the first locator being in no default, is void. Moffatt v. Blue River Co. 80 P. 189. Defective Record Aided by Possession. In Eaton v. Norris, 63 P. 856, the Court consid- ered both the fact of continued possession and the fact that the intruders had admitted knowledge of the prior claim as matters of evidence to aid the older title. These dicta were wholly unnecessary to the decision, as the prior locators had substantial proof of location without these incidents. In Tal- madge v. St. John, 62 P. 79, a description calling only for its own corners was held valid by the aid of such possession. But in Brown v. Oregon Co. 110 F. 728, it is held in terms that if the prior location is not valid the later comer may locate though with full notice of the prior asserted claim. In general terms, the first who complies with the law in completing his location is the first in right and this complaisant recognition of priority on the ground, and of void notices, as tending to raise a* supposed equity, is simply judicial weakness, leading only to uncertainty and injustice. The Oregon Co. case boldly states the law as it should be stated. As between two prospectors, the fact that one is the first comer or the fact that the second knew that the first was on the ground before him, does not weaken the rights of the second comer if he be the first to comply with the law the common protector of the rights of both. The extent of the indulgence legally to be al- lowed to the prior locator is to view his evidence "in the most favorable light such evidence will reason- ably justify." Ambergris M. Co. v. Day, 85 P. 110. ABANDONMENT. 89 Extensions. The paragraph from section 2320, quoted on page 23, of itself disposes of all "extensions" and side claims, unless they be of themselves, howsoever named, independent discoveries and locations. "Ex- tension" is a word often added to the name proper of a location staked off to the right or left of some developed vein, suggestive of the hope, if not the fact, that the new location is planted on the same ore body on its strike. Lode Location Held Good as Placer. Where a party had located a claim, not describ- ing it as a lode, but of the length and width of a lode claim upon a deposit usually classed as placer, the Court held that placers and lodes are taken up by substantially the same procedure and that if what was done made it a valid mining location it would be sustained as a placer. McCann v. McMillan, 62 P. SI. But a placer location on a metallic vein was held void in Buffalo Co. v. Crump, 70 Ark. 525; 22 M. R. 276. ABANDONMENT. District and Territorial Regulations. The district regulations in early years often de- clared what acts or omissions should amount to an abandonment. Failure to represent or work for a single season or even for a very limited period was usually sufficient cause. As a camp became more or less deserted the miners about to leave frequently met and passed resolutions to the other extreme that all claims should remain valid without any work or representation. Where the district organizations are still pre- served a rule covering or attempting to cover this point may remain valid and enforceable except that a rule requiring less than $100 annual labor would be an infringement upon the Congressional Act. 90 ABANDONMENT. Original Co. v. Winthrop Co. 60 Cal. 631; Northmore v. Simmons, 97 F. 386. The legislatures have not attempted the danger- ous matter of defining in terms what amounts to abandonment. The circumstances surrounding each particular case vary too much to make a sweeping rule in all instances fair. Confined to Possessory Titles Associated With Annual Labor. Although the title to mining claims has been at all times of that class which might be lost by aban- donment (Ferris v. Coover, 10 Cal. 631), and although a technical abandonment may at this day be proved as to any sort of possessory title, the subject has lost much of its importance except in connection with the annual labor acts. Abandonment Is a Question of Fact, and the fact is to be found from the intention. Myers v. Spooner, 55 Cal. 257; 9 M. R. 519; Taylor v. Middleton, 67 Cal. 656; 15 M. R. 28 J t ; Mallett v. Uncle Sam Co. 1 Nev. 1S8; 1 M. R. 17; Oreamuno v. Uncle Sam Co. 1 Nev. 215; 1 M. R. 32; Marshall v. Harney Peak Co. tf N. W. 290. It is a question of fact for the jury. Aye v. Philadelphia Co. 44 Atl. 555. Desertion and abandon- ment are equivalent terms. Derry v. Ross, 5 Colo. 295; 1 M. R. 1. Abandonment being thus a matter of intention, it follows that even after doing his work if the miner should deliberately quit his claim with expression of his intention to never return to it, or give permission to others to occupy it as their own, such manifest proof of intent would establish abandonment; but in most cases the failure to do the annual labor is the fact upon which the issue is predicated and the law of annual labor involves no question of intent. Depuy v. 'Williams, 5 M. R. 251; Doherty v. Morris, 11 Colo. 12. Ceasing to work because ore not salable is no abandonment. Hosford v. Metcalf, 84 N. W. 1054- ABANDONMENT. 91 In McCann v. McMillan, 21 M. R. 6, the owner of a claim, on the last day but one for doing his annual labor proclaimed the claim abandoned and at once went through the form of relocating it in the name of a third party. On the first day of January it was relocated by the plaintiffs. The Court held that the pretended relocation of December 30 was void be- cMiise there was in fact no abandonment. The de- cision was clearly right because the whole affair was a collusive proceeding: the defendant did not intend to abandon but to hold in the name of a friend. But if a third party not in collusion with the first owner had located on December 31 it could have been read- ily held that the abandonment was complete although the friendly relocation attempted in connection with it was void. A father failed to do the work In 1890. His son re-located in 1891 and afterwards conveyed to the father. The location of 1891 was defective. In a suit by the owner of a later location. Held: that de- fendant, the father, could not recall his abandon- ment and rely on his original title. Niles v. Kennan, ii', r Abandonment and Forfeiture Distinguished. These two terms are often used indiscriminately, but there is a clear distinction between them. Aban- donment is the act and forfeiture is the consequence. It requires only one party to abandon; it requires at least two parties to work a forfeiture. If the owner of a claim quits work and leaves the country, in- tending never to return, leaving no agent to repre- sent his property, it would be a typical case of aban- donment. But if at a later period he returns and resumes work his title would not have been lost he would not be required to relocate if no second party had in the meantime attempted to locate the claim. There has been in such case an abandonment but no forfeiture, and no second party having acquired rights, the intent to abandon has been a mere matter of sentiment. 92 ABANDONMENT. On the other hand the intention to abandon be- comes immaterial in two classes of cases where it may be said there has been no abandonment, but there is a forfeiture. 1. Where a lessee is under covenant, or an owner is under a legal duty to do a certain thing; if he neglects to do it his rights are forfeited without regard to his intention as soon as the lessor elects to declare the forfeiture, or in the case of an unpat- ented mining claim when a second party makes his relocation. Parish Fork Co. v. Bridgewater Co. 51 W. Va. 583; 22 M. R. 145; McKay v. McDougal, 64 P. 669. 2. Where the conduct of the party is such that abandonment is a necessary conclusion notwithstand- ing the want, or a party's denial, of his intention. Trevaskis v. Peard, 18 M. R. S58; 44 Pac. 246; N. A. Expl. Co. v. Adams, 104 F. 404. Quitting to Lure. Such a thing as a conditional abandonment can not be recognized. Where the owner allows strangers to hold a claim under color of title, standing by and intending to resume work only in case its de- velopment shows pay, his action amounts to aban- donment. Trevaskis v. Peard, 44 P. 246. How Proved. Lapse of time, though not conclusive, is an in- cident tending to prove abandonment. Mallett v. Uncle 8am Co. 1 Nev. 188; 1 M. R. 17; Beaver Co. v. St. Vrain Co. 6 Colo. App. 180. Leaving tools in the mine tends to disprove it. Harkness v. Burton, 89 la. 101; 9 M. R. 818. Proof that a stranger had re- located ground as abandoned does not prove that it was in such condition. McOinnis v. Egbert, 8 Colo. 41; 15 M. R. 829. Where the owners of a three-fourths interest in a claim permitted J. to enter and relocate it as a new claim, this was an abandonment as to such three-fourths interest, but did not bind the owner of the remaining fourth. But such owner subsequently ABANDONMENT. 93 assenting the abandonment became complete and the new location was not to be considered as a claim initiated by trespass. Conn v. Oberto, 76 P. S69; Oberto v. FjtiitJi. S6 P. 86. Of Prospect Before Record. Where a discoverer by conduct shows an intent to quit and not perfect his location begun, the claim is abandoned and strangers need not await the ex- piration of the prospector's time before locating. Kinney v. Fleming, 56 P. 723. Ditches and Water. Failure to use water and allowing ditch to go to decay are evidence tending to prove abandonment. Dorr v. Hammond. 7 Colo. 79; Sieber v. Frink, 7 Colo. JJ f 9. But non-user alone does not of itself necessarily imply abandonment. Welch v. Garrett, 51 P. .'fO-j; Integral Co. v. Altoona Co. 75 F. 379; N. A. Co. v. Adams, 10.' t F. 404. A ditch may be abandoned without the abandonment of the owner's water rights. Nichols v. Mclntosh, 19 Colo. 22; Wood v. Etiwanda Co. 81 P. ~> I .'. Other Subjects of Abandonment. A leasehold interest, water, slag and tailings, are things which may be lost by abandonment. Qlasgow v. Chartiers Co. 25 Atl. 232; Barker v. Dale, 3 Pgh. r.>; 8 M. R. 597; Dougherty v. Creary, 30 Cal. 290; 1 M. R. 35; McOoon v. Ankeny, 11 III. 558; 1 M. R. 9; Porter v. Noyes, 10' N. W. 77. A prospecting contract may be abandoned. Chadbourne v. Davis, 9 Colo. 581; 15 M. R. 620; McLaughlin v. Thompson, 2 Crto. App. 135. And failure to supply his outfit to the prospector will justify abandonment. Hurley v. Ennis, 2 Colo. 300; 12 M. R. 360. All improvements found on abandoned claims belong to the relocator. Wolfskin v. Smith, 89 P. 1001. 94 ANNUAL LABOR. Pleading. There has been no consistency in the rulings as to whether abandonment necessitates a special plea. California has uniformly held that it does not. Will- son v. Cleavcland, 30 Cal. 192; Bell v. Bed Rock Co. 1 M. R. 45; 36 Cal. 21 4. Contreras v. Merck, 63 P. 336. Trevaskis v. Peard, supra. But the current of au- thority elsewhere seems to require such plea. Hector Co. v. Valley View Co. 64 P. 205. Bishop v. Baisley, 41 P. 936. Renshaw v. Switzer, 13 P. IT.. Whether pleaded or not the decisions are uni- form that when relied on the party asserting it has the burden of proof. Johnson v. Young, 18 Colo. 625; Nichols v. Mclntosh, J9 Colo. 22; Hammer v. Oar- field Co. 130 U. 8. 291. And it must be strictly proved. Mt. Diablo Co. v. Callison, 5 Saw. 439; Col- man v. Clements, 5 M. R. 247; 23 Cal. 245. As to pleading and proof in Adverse Claim cases see p. 487. Outstanding Abandoned Title. The fact that there may have been locations now abandoned and not claimed by either party renders such outstanding titles of no relevancy to the rights of either. Craig v. Thompson, 10 Colo. 517. ANNUAL LABOR. Annual Expenditure. R. S. Sec. 2324. * * * On each claim located after the tenth day of May, eighteen hundred and seventy- two, and until a patent has been issued therefor, not less than one hundred dollars' worth of labor shall be per- formed or improvements made during each year. On all claims located prior to the tenth day of May, eighteen hun- dred and seventy-two, ten dollnrs' worth of labor shall be performed or improvements made by the * first day of Janu- *In the Revised Statutes the date printed is June 10, 1874, the compilers having overlooked the second Act ex- tending the time, approved June 6, 1874. 18 Stat. L. f part 3, page 61. ANNUAL LABOR. 95 ory t eighten hundred and * >> nd/fl ve, and each year there- after, for each one hundred feet in length along the vein until a patent has been issued therefor ; but where such claims are hold in common, such expenditure may be made upon any one claim; and upon a failure to comply with c.iiiditions. the claim or mine upon which such failure occurred shall be open to relocation in the same manner as if no location of the same had ever been made, provided that the original locators, their heirs, assigns, or legal rep- tatives, have not resumed work upon the claim after failure ;md bofoiv such location. * * * Sec. 5, A. C. 10, 187t. Amendment of 1880, Adopting the Calendar Year. Sec. 2. That "section twenty-three hundred and twenty-four of the iii-vis.-.i statutes of the United States be amended i>y adding the following words: "rmriilni, That the period within which the work required to be done annually on all unpa tented mineral claims shall commence on the first day of January succeeding the date of location of such claim, and this section shall apply to all claims lo- cated since the tenth day of May, anno Domini eighteen hundred and seventy-two." rJan. ft, 1880. Annual Labor Was Not Required by either Legislative or Congressional law until after passage of the A. C. May 10, 1872. Often Required by District Rules. By some of these rules a man was bound to do some work upon his claim every week, or every month, but these rules in most sections had fallen into disuse at the time of the passage of the Act re- ferred to. Their provisions both as to amount re- quired and the period in which to perform are largely if not entirely superseded by the terms of the Con- gressional Act. The idea of annual or periodical labor is not new; it was a part of the Spanish system, and gen- erally prevailed on the Pacific slope. The A. C. May 10, 1872, divided lodes into two classes with respect to labor: 1. Lodes located before its passage. 2. Lodes located after its passage. Claims located Before May 10, 1872. The amount of labor required on all lodes was $10 for each hundred feet, but where claims were 96 ANNUAL LABOR. held in common, the whole amount of work might be done on one claim. The time for the first work on old lodes was originally fixed to expire May 10, 1873, i. e., one year after the passage of the act. It was further extended to June 10, 1874, and finally postponed to January 1, 1875. Thompson v. Jacobs 2 P. 714. The Act of 1880 made no change either in the amount or time of annual labor on old claims. It has always been and still is, $10 for each 100 feet during each year of our Lord, beginning January 1, 1875; and the time between May 10, 1872, and January 1, 1875, constituted the period for the first required labor. Where the lode consists of undivided claims ol 100 or 200 feet each, as in the case of most locations made before May 10, 1872, any one or more claims may be saved by the expenditure of $10 worth of la- bor to each 100 feet which the owner desires to seg- regate and hold, leaving the remainder to forfeiture; or when the series of claims are held in common, the full amount may be expended on any one claim, whether they were originally recorded as joint or as several locations; but in all cases where less than the amount required to hold the entire lode is ex- pended, the owner, in his proof of labor, should state the work as done for the purpose of holding only so many feet, designating where they lie upon the lode. But few claims remain subject to this law. Dur- ing the lapse of time, now more than thirty years, they have been either abandoned or passed on to patent, or have been re-located under the Act of 1872. When so relocated they would be governed by the terms of the next subdivision. Claims Located Since May 10, 1872. The various extensions of time for work on old lodes did not apply to the new lodes. The period for the first work was nexer extended, nor has any change been made except the Act of 1880. Under the original Act the annual period for labor on claims located after its date, May 10, 1872, began on ANNUAL LABOR. 97 the date of location, and this date was hard to fix with exactness. It might have been the date of discovery, or any date, intermediate between discovery and rec- ord. The Act of 1880 makes the annual period now coincide with that fixed for old claims, to wit: each calendar year. Each Claim an Entirety Work on Subdivided Claim. The 1,500-foot lodes being single claims of that length and a certain amount of work being required upon the claim and the clause as to "each 100 feet in length along the vein" not applying to these new loca- s, it does not seem that a party, by expending any portion of the full amount, can save any f na- tional portion of his lode. But if a party own a seg- regated portion of such claim: Is he required to do the full amount essential to hold a claim, in case the other owners refuse to contribute? It seems he is under this necessity, and each interested party must see for himself that the amount required to hold the claim is done by some person, and if the whole burden falls upon one party, the rest of the claim becomes forfeit to such parts. There is no distinction made between those who own separate feet and those who own undivided interests in the claim. The word "co-owners," used in the Act, does not appear to be used in its ordinary acceptation, as ten- ants in common, but to include all the owners, either in common or after they have segregated their inter- ests; the claim seems to be treated as an individual item so far as the relations between the Government and the miner are concerned; if, therefore, all the labor is performed by the owner of the east end, he may claim forfeit of the west end; or if it is all performed by the owner of an undivided half, he is in position to become the sole owner by proper notice under the forfeiture clause upon refusal of the other co-tenant to contribute his proportion. But 98 ANNUAL LABOR. this is only the apparent reading of the Act as to claims which have been segregated into several parts, and would give a benefit to a party who had no more connection with the other end of the claim than a mere stranger. Consequently this can only be treated as a suggestion of the true construction of an Act which is so worded as to be entirely ambiguous on this point. The above paragraph is from the Fifth edition of this book in 1881, but we have seen no decision nor found any reason to since change it as the tru*> construction of the Act. $500 Work Already Done. The fact that sufficient improvement ($500 worth) has been done to authorize issuance of patent, does not dispense with the necessity for the annual expenditure. Annual labor is required, although the claimant has been in possession for more than the statutory period. Upton v. Santa Rita Co. v /'. Pending Application for Patent, until entry, the work must be kept up. South End Co. v. Tinney. .L~> P. 89. Where an applicant after publication delays entry and neglects his annual labor the ground is open for relocation. Gillis v. Downey, 85 F. (89, But see on this point, page 467. Annual Labor After Entry. It has been decided that annual labor can not be required after entry in the Land Office, although the patent has not yet been formally issued; and such decision is clearly correct, because the patent, when it issues, relates back to the date of entry, and so satisfies the wording of the Act, which requires the annual labor each year "until patented." Alta Co. v. Benson Co. 16 P. 565; 145 U. S. 428; Aurora Hill Co. v. 85 Co. 34 F. 515; 15 M. R. 581; L. 0. Reg. 14; 26 L. D. 196; 27 Id. 396. A relocation can not be made on entered lands as long as the entry stands. Neilson v. Champaigne Co. Ill F. 655; Benson Co. ANNUAL LABOR. 99 v. Alta Co. 145 U. S. ^28: Southern Cross Co. v. Sexton, 82 P. 423. Nevertheless, in such case, a party runs the risk of the consequences in case his re- ceiver's receipt should be canceled. Swiggart v. \Valkrr. .10 P. //;>. In Murray r. Pulylase, 59 P. 440, the Receiver's receipt had been set aside for fraud, the annual labor not kept up and there had been a relocation. Held that the claim was lost to the entryiiKin. Time During Which Labor Must Be Completed. On all lodes located before or since May 10, 1872, tho year for doing the labor is each year of our Lni. beginning January 1st, and ending December 31st. The Location Year. Since the Act of 1880 no annual labor is re- quired during the year in which the location is made. Hall v. Hale, 8 Colo. 351; McOinnis v. Egbert. l.~> M. R. 829; 8 Colo. 41. Its language is that the period "shall commence on the first .lay nt .January suc- ceeding the date of location." If a discovery be made in the latter part of the year but the staking and record are not completed un- til some time in the early part of the following year the latter year would be, in our opinion, the location year, and there could be no forfeiture for neglect to do the annual labor during that year; but we find no case where the point has been in terms decided. A location is not complete until all its several parts have been perfected. McKay v. McDougall, 64 P. 669; Hir'key v. Anaconda Co. SI P. 811. But a district rule or Statute may impose condi- tions which imply expenditure during the location year. NortJimore v. Simmons. 97 F. 387. Each Annual Period An Entirety. The owner has the whole of each year to do his $100 worth of work or make his $100 worth of im- provements. Belk v. Meagher, 3 Mont. 65; 1 M. R. : Atkins v. Hendree, 1 Ida. 107 ; 2 M. R. 328; Mills v. Fletcher, 34 P. 637. 100 ANNUAL LABOR. It therefore follows that if, for instance, he has expended $100 during the first month of the first year he may wait until the twelfth month of the second year before he does his second year's work. That such is the law admits of no doubt upon the reading of the Act. At the same time the disposition to take advantage of this fact leads to delays which often ultimate in allowing the whole time to pass by and the claim to become liable to relocation. What Counts for Improvements. Any work done for the purpose of discovering minerals is improvements within the spirit of th statute. U. 8. v. Iron-Silver Co. 24 F. 568. Road building counted as annual labor. Doherty v. Mor- ris, 28 P. 85; Mt. Diablo Co. v. 'Callison, 5 Sawy. 439; 9 M. R. 616. Flumes, drains or the turning of a stream or the sinking of a common shaft will count. St. Louis Co. v. Kemp, 104 U. 8. 636; 11 M. J: Work done by any party in privity of title with the owner (Godfrey v. Faust, 101 N. W. 718; 105 N. W. 460), and even work gratuitously contributed, will count. Anderson v. Caughey, 84 P. 223. Watchman. Where a mine is idle, the time and labor of a- watchman or custodian may be treated as annual labor. Lockhart v. Rollins, 21 P. 413; 16 M. R. /', Altoona Co. v. Integral Co. 45 P. 1047 ; Tripp v. Dun- phy, 28 L. D. 14. Pay of watchman allowed where there is portable property needing protection. Kins- ley v. New Vulture Co. 90 P. 438. Otherwise where there is no such property. Gear v. Ford, 88 P. 600. What Will Not Count. A house for the use of the miners built 200 feet away from the claim can not be considered as annual labor. Remmington v. Bandit, 9 Pac. 819. The expense of taking timbers, lumber, bucket, rope and tools to the mine all carried away after slight use, if used at all will not avail for annual labor. Honaker v. Martin, 27 P. 397. ANNUAL, LABOR. 101 Dumping tailings on a claim is no improve- ment. Jackson v. Roby, 109 U. 8. 440. Traveling and expenses in getting ready to go to work can not be considered. McGarrity v. Byington, 12 Col. 426; 2 M. R. 311; DuPrat v. James, 65 Cal. 555; 15 M. R. ..'// Nor work done by third parties and bought in. Little Gunnell Co. v. Kimber, 1 M. R. 536. But see post p. 463. Taking specimens for assays will not count for annual labor nor as a legitimate resumption of work. Bishop v. Baisley, 41 P. 936. The cost of sharp- ening tools may or may not be a legitimate item, according to circumstances. Hirschler v. McKen- tlrirks. 40 P. 290. Work Done Outside of Claim or on Group. Work done beyond the lines will count when it has direct reference to the drainage or development of the claim. Packer v. Heaton, 9 Cal. 569; 4 M. R. /;:; Kramer v. Settle, 1 Ida. 485; 9 M. R. 561; Mt. Diablo Co. v. Callison, 5 8awy. 439; 9 M. R. 616; Klopenstine v. Hays, 57 P. 712; 17 L. D. 190. Whether the work done on one is really for the bene- fit of the group is for the jury to say. Wilson v. Triumph Co. 56 P. 300; Yreka Co. v. Knight, 65 P. 1092. Where sundry claims are worked to- gether as one group, the development work though confined to a single claim, may count for all. chambers v. Harrington, 111 U. 8. 350; Jupiter Co. v. Bodie Co. 11 F. 666; 4 M. R. J t 13 ; St. Louis Co. v. Kemp, 104 U. S. 636; 11 M. R. 692; DeNoon v. Morrison, 83 Cal. 163; 16 M. R. 33; 23 L. D. 267. There are two cases which hold that the claims must be contiguous in order that work done on one may count for another. Gird v. California Oil Co. 60 F. 531; 18 M. R. 45; Royston v. Miller, 76 F. 50; 18 M. R. 418. But Altoona Co. v. Integral Co. 18 M. R. 410; 114 Cal. 100, is to the contrary and there is nothing in the wording of the Congressional Act which compels them to be contiguous except in the case of oil placers. 102 ANNUAL LABOR. The work may be done on an adjoining pat- ented claim but when done outside the bounds of the claim intended to be protected, the burden of proof is on the party asserting that it was for the benefit of such claim and was done as annual labor for the protection of such claim. Hall v. Kearny, 18 Colo. 505; 17 M. R. 59J f ; Sherlock v. Leighton. >;.>, P. 580. The Question of ''Benefit to the Claim" can only arise when the work itself was done on some one claim and it is sought to utilize it for the benefit of another claim held by the same party or where it is outside the claim proper in the shape of road, building, ditch, etc. For any work whatever done upon and within the lines of the claim in the nature of mining or preparing for mining is strictly within the terms of the statute. A cross-cut started on the claim, above the vein, intended to benefit a claim further up. would count for work on both claims; upon the claim on which it started because within its lines and for the claim above because driven for its benefit. Assessment work outside the claim must be of value to the claim intended to be protected. Little Dvrrit Co. v. Arapahoe Co. 71 P. 889. Diverse Ownerships in Group or in Tunnel. Work done by tunnel intended to cut two claims owned by the same person is good to hold both. Book v. Justice Co. 58 F. 107. Work done on one of a group held in different names but really owned in common has been ruled to avail for all. Eberle v. Carmichael, 42 P. 95. And we see no reason why a tunnel owned in common and worked by the joint labor or contributions of the? several owners of different claims intended to be cut by such tun- nel should not avail to protect each claim provided the full $100 is expended for each claim. Fissure Co. v. Old Susan Co. 63 P. 587. A blacksmith shop used for the benefit of the claim in controversy, and for other claims, cannot ANNUAL LABOR. 103 be counted for annual labor with no proof of how much of its value could be apportioned to the claim in controversy. r/jfo/; r. Son to Rita Co. 89 P. 276. Annual Labor by Tunnel. See p. 257. Amount, How Estimated District Rules. As to such district rules as attempt to fix the value of a day's labor above its real cost in esti- mating the amount of work done, they amount to >lutely nothing. The "fiat" does not alter the "fact." The true measure is the real expenditure. Wright r. Killinn. fon such location." If this location of the third party is complete be- fore the re-entry of the original owner, of course the original owner is too late. If, on the other hand, the original owner has bona fide resumed work bet on- the attempted location over his ground, his original title becomes revested the moment he has completed an amount of work equivalent to that required for the previous year. But where the third party has entered, and before he completes his location the original owner also enters and resumes work, the question remains: Is such re-entry of the owner suf- ficient to defeat the intervening claimant? The Act says that the owner may resume work at any time "before such location." The location of the inter- venor is not complete until he has done a series of acts, usually requiring several days to consummate. The locator must sink a shaft ten feet in depth, and set his stakes. In the meantime has the original owner the right to resume work? It was so decided in the case of Pharis v. Mnlrtoon. 15 Cal. 28%; 15 M. R. 348. There, however, the relocator had entered and posted his notice just after midnight of the last day of the year and the original owner resumed work by the usual hour for honest labor on the morning of the first. The relocator had barely a technical case, if any. In another instance, on facts much stronger for the second party (Gonu v. Russell, 3 Mont. 358; 12 M. R. 630), it was distinctly held that the re-entry of the original owner before the newcomer's location was completed, would save the forfeiture. The same ANNUAL LABOR. 107 court reaffirms this ruling in McKay v. McDougall, H't P. On the contrary, HALLETT, J., in the case of Lit- tle Ounnell Co. v. Kimber, 1 M. R. 536, held that the party attempting to take up abandoned property has the same period of three months to complete his lo- cation, which is allowed by law to a discoverer; and Pelican Co. v. 8nodgr<< in. 339, is to the same effect. We have little doubt of the correctness of the lat- ter opinion. "The" condition of development should be attached to every mine; and courts should, as far as consistent with legal principles, maintain the con- struction of mining customs which accomplish this end." King v. Kdwards, 1 Mont. .>.'..',: .' t M. R. \80; weJZ v. Brosseau, 65 Cal. 605. In B ("o. v. Dt'i'-rrnn. n > < P. 1040; Hall v. Kearny, 18 Colo. 505; 17 M. R. 594; Harris v. Kellogg, 49 P. 708; Axiom Co. v. White. 72 N. W. 462; Beals v. Cone, 62 P. 948. And the proof should be clear and convincing. Strasburger v. Beecher, 49 P. 740; Dibble v. Castle Chief Co. 70 N. W. 1055; Crown Point Co. v. Crismon, 65 P. 87; Upton v. Santa Rita Co. 89 P. 275; Gear v. Ford, 88 P. 600. As to burden of proof when the work \\;is done outside the claim, see p. 101. On Rebuttal the other side may show that the work did not benefit the claim. But the work done need not be that which would be most beneficial to the claim. Sherlock v. Lci'/liton. r,.i P. 580. Proof that the labor in question had been ap- plied as improvements on application for patent on another claim is admissible. White River Co. v. Langston 76 Ark. 'j>>0; 88 S. W. in I. Proof of Annual Labor. R. S. Colo. Sec. 420{. Within six months after any set time or annual period allowed for the performance of labor or making improvements upon any lode claim or placer claim, the person on whose behalf such outlay was made, or some person for him. may make and record" in the office ANNUAL LABOR. Ill if the ivcorIT MI' the county wherein such claim is situate, .-in :iHiil:ivit in sulist.-inrr ;is tallows: The continuation of same section contains a form, same as on page 112, and makes the affidavit, or -rtificd copy of it, prima facie evidence of the performance. The object of the section is to pro- vide a convenient method of preserving proof of the labor performed by making the affidavit prima facie evidence of the fact. Coleman v. Curtis, 30 P. MS. Like acts exist in most of the other States and Territories, the time for filing the certificate being: in Arizona within three months; California and Washington within 30 days; Idaho and New Mexico within 60 days after the period allowed for perform- ance. In Montana 20 days, Nevada and Wyoming 60 days, Utah 30 days after completion of work. The special A. C. of 1907 for Alaska covering this matter of proof of labor is printed on p. 502. Failure to File Affidavit of labor. The neglect to file proof of labor, if the labor has in fact been done, would not leave the lode open to relocation, and the doing of the labor can be shown by oral testimony. M cOinnis v. Egbert, 8 Colo. / / . 15 M. H. .;.'.'; Book v. Justice Co. 58 F. 118; 17 M. H. 917; Murray Hill Co. v. Havenor, 66 P. 162. But the precaution to file should by no means be neg- lected. The filing makes out the proof of the fact of the labor being done, which might afterwards be a difficult matter to show. The California Act of 1891 purported to make the filing obligatory. Harris v. Kellogg, 49 P. 708, and in Idaho the failure to file is prima facie evidence that the work has not been done. The great objection to annual labor, with the pro- fessional mind, is that it throws a mining title upon constant parol proof, takes it out of the chain of title as found recorded, and makes it depend upon the ex- 112 ANNUAL LABOR. istence of facts which do not appear of record. This evil should be obviated as far as possible by precau- tions, such as are above suggested; but, after all, the result remains, that no claim can be considered se- cure until a patent is obtained, and the title taken out of the class of conditional estates. FoKM ] AITIPAVIT <>F LABOR Pi: UK" ' STATK <>i COLORADO, Summit County: as: I'.efore me, the subscriber, personally appeared I. P. Lnnthhuj. who lieint: "' Inniilmt dollars' \\orth of work or improvements were per- formed or made upon ilu- Chun* I.ntlc. situate on 8w>f momTtain. in .\niltnn-ln- Mining IMstrict. County of Summit. State of Colorado, between tin- first dny of Ja'nuary, A. D. I!ni7. :ind tin- I hiny first day of I >,-,-, -mlM-r. A. l'>. I!". 7. Such expenditure v. :,s made by or at the expense of Robert ]\ . r'ntiif. owner (or one of the owners) of said claim, for the pin-pose of complying with the law and holding said claim. I. P. LAMBING. Sworn and sul.s, -ril.ed In-fore me this second day of JriHiinrii. A. l> r.mv Jami's W. 8 wisher, I SKA i.| Notary Public. A single affidavit may be filed for the labor on several claims. McOinnis v. Egbert, 8 Colo. ',1: J~> M. R. 829. And it may be filed before the year s. Id. Certificate in Lieu of Annual Labor. In 1893 and 1894 Congress passed Acts suspend- ing for each of those years the requirement of annual labor, provided the claimant recorded a notice of his intention to hold and work the claim. 28 St. L. 6; 114. In both Acts South Dakota was excluded. Each of the Acts required the record to be made during the year for which it was to have effect. But a certificate filed in 1894, although neither work was done nor certificate filed for 1893, would hold the claim if it had not been in the meantime relocated. The act of filing the certificate provided for, was ac- cepted by the statute the same as the performance of the work and if filed at any time during the period ANNUAL LABOR ON PLACERS. 113 allowed, would prevent a lawful relocation of the claim by third parties. There can be no forfeiture for failure of co-tenant to contribute his proportion of expenditure for 1893, when he has filed the certificate allowed by the Act, even where the work had been done before the Act was passed. There is no vested interest in a right to enforce a penalty. Royston v. Miller, 16 F. 50. When the Ground is in Litigation the court may appoint a receiver to see that the work is performed and a forfeiture prevented. Nevada Co. v. Home Co. 98 F. ' It is not contempt of a mining injunction to perform the amount of labor necessary to save the claim from forfeiture Peak Mines v. Han chett, 20 M. R. 19; 93 F. 16. A party made a new location over an older claim which he afterwards purchased. Held, that the work done on the new location could be treated as annual labor for the protection of the older title. Johnson v. Young, 18 Colo. 6SO. ANNUAL LABOR ON PLACERS. Judicial Rulings As to Labor on Placers. The question of annual labor on placers is a curi- ous instance of the growth of law by following the first judicial oversight as a precedent until the wrong interpretation is firmly rooted as the true one. By no fair construction of the Act of 1872 could it be ap- plied to anything except lode claims. The very amount of the labor was fixed by the number of feet "in length along the vein." But in 1876, in Chapman H4 ANNUAL LABOR ON PLACERS. v. Toy Long, 4 Sawy. 28; 1 M. If. //>?. placers were referred to incidentally as subject to the labor law. In Jackson v. Roby, 109 U. 8. 4W, without argument, the same dictum was expressed. Later, in Carney v. Arizona Co. 65 Gal, J t O, the point was definitely made as to whether such labor was required on placers, and the Supreme Court of California, basing their opinion on the force of the general terms of 2329 a section enacted two years prior to the annual labor section sustain the affirmative of the proposition. In Sweet v. Webber, 1' Colo. 443, the precedents thus established were followed without reference to the original statute. Morgan v. TiUotson, 15 P 88. A single record of a placer claim, whether of i!" acres by one person or 160 acres by eight pera is a full claim and requires $100 annual expenditure to protect it and $500 to patent it. In other words a 20 acre claim requires as much annual labor and patent expenditures as a 160 acre claim. The Forms of affidavit, notice and proof of for- feiture given for lode claims will apply with obvious alterations to placers. Void State Legislation. In 1879 the Legislature of Colorado passed an Act fixing the amount of annual labor on pla- cers, altering the period during which it was to be performed, and providing for forfeiture of the delinquent co-owners' interest. It was declared in conflict with the Congressional Act in attempting to lessen the annual expenditure in Sweet v. Webber, ? Colo. 443- It is obviously so in its attempt to inter- fere with the beginning and end of the annual period. All the other provisions of the section are superflu- ous where they agree with the Act of Congress and nugatory where they conflict with it. FORFEITURE TO CO-OWNER. 115 Special A. C. as to Group Oil Claims. That where oil lauds :uv located under the provi- sions of title thirty-two. rhapter six, Revised Statutes of the United States, as placer minim: claims, the annual as- sessment labor upon such claims may be done upon any one of a group of claims lying contiguous and owned by the " person or corporation, not exceeding five claims in all : r>-<,ri.. i : .s'f. L. 825. FORFEITURE TO CO-OWNER. By Failure to Do Annual Labor Notice. K. S. B0C. -"-'! * * * Upon the failure of any one of several co-owners t<> contribute his proportion of the expenditures required hereby, the co owners who have per- formed the labor or made the improvements may. at the expiration of the year, give such delinquent co-owner per sonal notice in writing or ny publication in the ne\\s paper published nearest the claim, for at least once a week for ninety days, and if at the expiration of ninety days alter such notice in writing or by publication such delin- quent should fail or refuse to contribute his proportion of the expenditure required l.y this section, his interest in the claim shall become the property <>r his c-i \\ners who have made the required expcndiiii! < l r. Mai/ to, 1K72. Expenditures in Excess of the Statutory Amount. Although one co-owner has expended more than enough to hold the claim, the delinquent co-owner, to save forfeiture under the Act of Congress, is only required to pay or tender his proportion of the amount which the law required to be expended upon the claim. The recovery of his proportion of additional ex- penditures depends upon other grounds, and is to be enforced only by judicial proceedings, involving the question of mining partnership," or the expressed or implied assent of the co-owner to the expenditure of the additional amount. 5 L. 0. 4>' Neuman v. Drei- furst, 9 Colo. 228; McCord v. Oakland Q. Co. 64 Gal. 134; 49 Am. R. 689. The distinction is clearly ex- pressed in Holbrooke v. Harrington, 36 P. 365. lit; FORFEITURE TO CO-OWNER. If There Are Three Owners and One Performs all the labor, and gives notice to his co-owners, and one of them pays his proportion and offers to pay one-half and join in the division of the forfeited inter- est of the third party, we apprehend the second party may refuse such proposition. The forfeiture accrues solely to him who has performed the labor. 31 L. D. 178. Estoppel. When a co-owner is delinquent, but the pany who has made the expenditure afterwards assooi; with him in developing the claim, it would probably be considered a waiver of the forfeiture. Preservation of Proof. The presumption in law is always against for feiture, and the party who asserts it must be pre- pared to make his proof in such case. Turnr, c . Sawyer, 150 U. 8. 578; 11 M. R. 683. Amount and Place of Expenditure. Where a forfeiture notice covered two claims it was held void for not stating the "amount of money spent upon each claim nor the facts which might cuse expenditure upon each claim" Haynes v. J: coe, 67 P. 156. The clause in italics we apprehend refers to the possible case of group work where the full amount might have been expended on a single claim. Choice Between Personal Service and Publication. If the demand is made by personal service of the forfeiture notice the delinquent must comply within ninety days from dajte of service. If publication be made the forfeiture is not complete until ninety days after the last publication. If publication be attempted it can not be turned into personal service by showing that copies of the paper were sent to and received by the party in de- fault. Haynes v. Briscoe, supra. FORFEITURE TO CO-OWNER. 117 Nearest Newspaper. As to what is the "newspaper published nearest the claim" the construction followed by Sni 11 . J., in Haynes v. Briscoe, seems to be clearly right; to wit, that it means nearest in a direct line, and not by the usually traveled route. Length of Publication. Publication for 13 weeks was held sufficient in KMer v. Horseshoe Co. 81 N. W. 58<> ; afl'd ly the terms of said section. J.\MI:S II. PERSHINO. If the demand contained in this Forfeiture Notice js not complied with, within the prescribed period, it should be recorded after making proof of its service or publication, which can be most readily done by endorsement upon the Notice "A" as follows: 118 FORFEITURE TO CO-OWNER. PBOOF OF FORFEITURE. (B) STATE OF COLORADO, County of Clear Creek: SB. James H. Pcrshiny, being duly sworn, saith tli.it ! served the within forfeiture notice upon Robert II // the delinquent co-owner therein nanu'd. upon the /?/// day of March, A. D. 1908, at said county, by delivering to him a true copy of the same and explaining the contents th'iv- of ; and that the said Rnlnrt II. Tin In r wholly faih-d to comply with the demand contained in said notice or to pay or tender his proportion of said expenditures during ""' period of ninety days after said date or at any time since hitherto. jAXBfl II. I'KKSH IN... Sworn and subscribed before me this first day i July. A. I). 1908. Jnhn Tnimm. I SEAL] Notary Public. The above form completes the proceeding where the notice has been personally served, but where it has been by publication, discard the form "B" ;m/, (Copy of JVoffcc "A" Attr foiirtcrn successive weeks. th' first puldicat ion ap ]M'ariii^r in the issue of Janmirn 7. /'"^. and the lust puMi .atiou in the issue of April 8, 1908. JBMl KANOAJ.I.. Sworn and subscribed IH-I'IH-I- nu- this ti-iith day oi Altril, A. D. 1908. ,/nhi, Toman. [SEAL] Notary Public. Upon the publisher's proof (C), the party who has done the work will endorse his affidavit of non- payment as follows: AFFIDAVIT OF X >N -J'A YMENT. (D> STATE OF COLORADO, County of Clear <'>> < James II. 1'ertfhiinj. being duly sworn saith that Robert H. Tinker, ihe person named in the forfeiture notice attached to the within proof of publication, wholly faihd to comply with the demand contained in said notice or to pay or tender his proportion of said expenditure*, during FORFKITl 'HE TO CO-OWNER. 119 tin* prriod of said notice >r witliin ninety l:i\s ili.'ivafter, ..r at jiny tiint-. .1. \.MKS II. I'I.KSHING. S\v this tt nth day t J ul ii. A. D. 1908. John Totnnii. [SEAL] Notary ruMIr. These forms "A" and "B," in cases of personal service, and "A," "C" and "D" in cases of advertise- ment, complete the forfeiture and place its proof in a shape where it is recognized in all land office pro ceedings as the equivalent of a deed from the delin- quent party; but when the forfeiture has to be proved in court, these ex parte proceedings would not be rec- ognized, except the publisher's proof (if this proceed- in ir can be considered as an advertisement required by law i which is in Colorado made evidence by stat- in.' K s. $2503. Similar procedure for proof of statutory publication is provided by statutes gen- erally. The forfeiting party is not bound by law to make record proof of the forfeiture except as it may be required by the practice of the Land Office. Riste v. Morton, w P. 656. Minor Heirs Grouping Notice. In Elder v. Horseshoe Co. 21 M. R. .5.10: affii // . i.w F. 888, where the performing co-owners had conveyed their claim to a corporation taking its stock for considera- tion the forfeiture perfected by the corporation upheld. In Forderer v. Schmidt, U t 3 F. 415. a friend of the party who was being advertised out offered to pay the amount due, which tender was approved by the party as soon as he learned of it: Held that the tender defeated the forfeiture. RELOCATION OF ABANDONED CLAIMS. Statutory Regulation of Such Relocation. R. S. Colo. Sec. 4211. The relocation of abandoned lode-claims shall be by sinking a new discovery shaft and fixing new boundaries in the same manner as if it were the location of a new claim ; or the re-locator may sink the original discovery shaft ten feet deeper than it was at the time of abandonment, and erect new or adopt the old boundaries, renewing the posts if removed or destroyed. In either case a new location stake shall be erected. In any case, whether the whole or part of an abandoned claim is taken, the location certificate may state that the whole or RELOCATION OF ABANDONED CLAIMS. 121 any part of tl> IK \v location is located as abandoned prop- . 1874. The Old Claim Must First Be in Default. This is the basis of the right to relocate. Oarthe r. Hart, 13 Cal. 541; 15 M. R. 492; Lockhart v. Rol- linfi. !1 r. //.;/ 16 M. R. 16. Two locations can not legally occupy the same space at the same time. Porter v. Tonopah Co. 133 F. 756. Admits a Prior Hostile Claim. Where the record on its face purports to be a re- location of the claim of a stranger, this amounts to an admission that the old claim had once a legal existence, and an assertion that it has become open to forfeiture. Wills v. Blain, 20 P. 798; Shattuck v. Costello, 68 P. 529. The burden of proof is upon the relocator. Providence Co. v. Burke, 57 P. (i / / . - | r. \ anina, />'/ /'. (HO. The term "relocation" implies that there was a former location and the use of the word estops the user to deny a valid prior location. Jackson v. Prior Hill M. Co. (8. Dak.) 104 X- W. 207; Slothower v. Hunter. 88 P. Form and Manner of Eelocation. In the relocation of abandoned claims, the party locates and records with the same particularity as in making an original location or record. The only practical distinctions are that he may, if found standing, adopt the stakes of the old claim. And his discovery shaft may be by sinking the old one deeper. He has the same rights as an original dis- coverer, although not in strictness a discoverer at all. Armstrong v. Lower, 6 Colo. 393; 15 M. R. 631; Pelican Co. v. Snodgrass, 9 Colo. 339. It has been held that a relocation can not be made on a blind working a drift which has been run underground from the bottom of the shaft on an ad- joining claim. Little Gunnell Co. v. Kiinber, 1 M. R. 536. See page 44. 122 RELOCATION OF ABANDONED CLAIMS The fact of improvements already on the ground does not lessen the labor required from the relocator; he must do the required amount of sinking, usually ten feet, on the old, or on a new discovery shaft; must erect a new location stake or at least change the notice on the old stake and must re-stake the claim unless he adopts exactly the lines and bound- aries of the old location. The stakes of the old claim may be adopted as the stakes of the new. Conway v. Hart. >'.' 1*. //; ..'/ M. R. 20. Brockbank v. Albion Co. 81 P. 863. But in Moffatt v. Blue River Co. 80 P. I .;/'. and Miller v. Chrisman, 13 P. 108.i, where in cadi instance an attempt had been made to jump a valid prior claim in the actual possession of its owner by adopting its stakes and filing a record on the boun- daries set by the first party the second attempted loca- tion was held a vain proceeding. The relocator must set new posts or at all events must see that his boundaries are established on the ground. Where the old stakes are taken they should be marked with the new name. A secon'd party has a right to enter upon ground although he knows of an attempted prior location upon it, if such prior location be fatally defective. Brown v. Oregon Co. 110 F. 728; Deeney v. Mineral Co. 67 P. 72.}. But if he enters as a relocator he can not assert defects in the original notice. Yosemite Co. v Emerson, 28 8. C. If. /.%'. No Connection With the Old Title. The relocator has no rights by relation to the date and priority of the title which he has destroyed by his relocation. Cheesman v. Shreeve, Jfl F. 7 >'.'': 11 M. R. 260. Reference in Location Certificate to Old Title. By statute in several States in the relocation of forfeited or abandoned claims, the location certificate is required to state if the whole or any part of the new location is located as abandoned property. In Montana and Nevada such requirement is permissive, RELOCATION OF ABANDONED CLAIMS. I- 1 - but if relocation is made by sinking the original dis- covery shaft deeper, the location certificate in the latter State must give the depth and dimensions of the original shaft at date of relocation. Cunningham v. Pirrung, 80 P. 329. rightly ad- judged that the Arizona Statute had no application where the prior location was not in fact a valid one. But it went further and said that the burden of proof was on the second location to show that the over- lapped prior location was not valid. Except where by estoppel or from the pleadings there is an adniis sion of the existence of a prior and once valid claim we ran not see why such burden should be so shifted. In Matko v. Daley, 85 P. 721, the Arizona SU- IT* me Court held the record void for such non-recital, but in Kinney r. Lundy, 80 P. //.%*, qualified the rul- ing to make it voidable only and therefore open to amendment. The statute itself was repealed in 1907. The Act requiring such recital does not require mention of a location never completed. Paragon Co. v. Stevens Co. (Wash.) 87 P. J068. All such statutes are useless and produce only em- barrassment. A prospector finding old works or no- tices may be in entire ignorance as to whether they represent a perfected claim or an unperfected pros- pect. Where the language of such statutes will possibly permit, they ought to be held directory merely, not mandatory, and thus no loss of title from non-com- pliance would follow. Re-Entry by Original Owner. After the annual period has expired, the old claimant has still the first right; but if he has com- menced work before another party enters, he must complete the full amount required with reasonable diligence, as otherwise the claim would remain for- feit. Honaker v. Martin, 21 P. 391. And after the relocator has entered he has the right to maintain his possession. Morgan v. TiUottson, l,t Cal. ~>to. 124 RELOCATION OF ABANDONED CLAIMS. In Field v. Tanner, 75 P. 916, a party at- tempted to relocate for failure of owner to do his annual work. After his purported relocation the owner re-entered and did the work and recovered because of defects in the relocation, to wit: shortage in the depth of the discovery shaft. When the Original Owner Had Begun Work before the expiration of the year and so being not yet entirely in default was at work on December 31st an entry by a relocator on January 1st (a Sunday) or on January 2 (a legal holiday) will not initiate a valid claim. M cNeil v. Pace, 8 L. D. :> '>:. />e v. Durham, 121 F. 468. Relocating Instead of Resuming. In Warnock v. De Witt, .'/0 P. 2(9,7, the Supreme Court of Utah decide in terms that an owner may allow his claim to be in default as to annual labor and then renew his monuments, file a new record and hold under such second location. It cites the case of Hunt v. Patchin, 35 F. 816, as upholding such relocation. This Hunt case was a controversy between co-owners where the rights of strangers or of a hostile title were not involved and does not jus- tify the citation. The law requires the owner to do a certain amount of work within a certain period. It allows him the indulgence of retaining his old title if he re-enters and resumes work either during such pe- riod or during the next year before another has en- tered. To allow him from year to year to renew his monuments and file new records would result in wholly defeating the intent of the law. We think that there is an implied distinction between his rights and the rights of others in such a case. He has forfeited the right to locate that ground by virtue of his default in not living up to his assumed obliga- tion to follow up his location by labor in good faith. The claim is open to relocation by all citizens bar- ring the one whose default is the occasion of its be- ing open and his only rights are those conferred on him by the Statute to wit: the right to resume and EDVV ' J. COLLINS. RELOCATION OF ABANDONED CLAIMS. 125 perform. Mr. Lindley fully coincides with these vi.'ws. / Lind. $ There is a legislative construction to the same effect by the insertion at the proper context of the words "open to location by others" in the Special Act concerning Annual Labor on claims in Alaska. P. 502. Relocation After Patent Applied For. In South End M. Co. v. Tinney, 85 P. 89. a lode had applied for patent and completed its publication, but considerable delay ensued without entry and the annual labor was not kept up. During this period a relocation was made. Afterwards the applicant com- pleted his entry, but it was held that the relocation title was valid and that the patentee took the pat- ent in trust for the true owner, the relocator. There would seem to be no doubt that the annual labor must be kept up until actual entry, but whether other courts will go to the extreme of this holding is not to be assumed. MUKPIIY, C. J., dissented, as did BEL- KNAP. J., in part. Nee page 98. In Land Office proceedings the party asserting a relocation must prove an abandonment of the orig- inal claim. 21 L. D. 219. Or the original application may be cancelled for laches. See page 467. Overlapping Senior Claim. It has been held that the filing of amended cer- tificate giving such bounds as include the interfer- ence of a prior survey which has failed to have its annual labor performed operates as a relocation of siirh abandoned overlapping area without specific mention of such being the intent of the amendment. Johnson v. Young, 18 Colo. 625. See page 108. Where the Court had decided that neither claim- ant to the mine had title, a relocation by one of the parties after such adjudication was held valid. Lau- man v. H offer, 19 P. 953. Eelocation of Abandoned Claim by Co-Tenant. Where the several owners of a claim have al- lowed the annual period to expire without doing the 126 RELOCATION OF ABANDONED CLAIMS annual labor, it has been asserted that any one of them may enter upon the ground and relocate the claim in his own name, leaving out his former co- tenants. The Statute says that after the year has expired without the labor being done, the claim "Sh.Mll be open to relocation in tlu- s.-nnc manner as if no locution of tin- sMiiH- h:ul -VT been made." It. S. Sec. tSZk. But these words are immediately followed by a proviso which seems to make a distinction between the rights of the old owners and the rights of stran- gers, and there is an inherent distinction arising from their joint ownership. It is certain that if all the owners return to the claim their title would relate back to the original discovery; and it is also a rule of law that a tenant in common can not rightfully do any act which is subversive of his co-tenant's title, and quite as certain that if he were allowed to relo- cate as a stranger he must yield his prior claim abso- lutely, and proceed in all particulars as an entire stranger. The question has been set at rest by repeated de- cisions that any relocation or attempted relocation made by a co-tenant is for the benefit of the common title and one co-tenant cannot by recording in his own name oust his co-tenants. McCarthy v. Speed, 77 N. W. 590; Yarwood v. Johnson, 10 P. 123; PerelU v. Candiani, 71 P. 537. In Saunders v. Mackey, 6 P. 361. a co-owner had agreed to see the work done; he did not do it, and afterwards was a party to a relocation. The court held that the failure operated to defeat the old location, and that the relocation was valid; but in- timated that in a proper action the party who had so violated his agreement would be declared to hold the title in trust. A very like case was Doherty v. Morris, 11 Colo. 12, where the same ruling was made and the breach of trust not considered on the plead- ings. In Royston v. Miller, 16 F. 50, it was more broadly held that a co-tenant so acting could take no advantage of his relocation. But it requires no de- cision to say that if a co-owner promise to do the RELOCATION OF ABANDON KI> CLAIMS. lL'7 assessment work and fail so to do, or if he do it and deny it and collude with a third party to relocate (as was the fact in the Morris case) whatever title he so by fraud obtains must enure to the good of the injured party. In the Morris case, the actual doing of the work was made apparent on the final trial. ' 85; 11 Colo. 105. The case of frmeood v. Johnson, 10 Pac. 123, was much like the Morris case in its facts. Plain- tiff alleged that defendant, a co-tenant, agreed to do the work and did it Defendant had relocated, using his brother's name, as soon as the year expired. The Court held that if the work had been done the re- location was void of course, but they further broadly and rightly held that any relocation made by a co- tenant was for the benefit of the common title. The case of Turner v. Sawyer, 150 U. 8. 57N. fj M. R. 68,1, lays down the true principle applicable to the point, to wit: that the co-tenant cannot acquire and hold adversely a hostile title without allowing opportunity to co-tenant to pay his proportion of the cost and take the benefit of the same, and that per- fecting patent was the purchase of such a title. xftenbach v. Bank, J t l N. W. 662; Mills v. Hart, 24 Colo. 505: Stevens v. Or. Cent. Co. 158 F. 28; Delmoe v. Long, 88 P. 118. A co-owner attempting to relocate in his own name so as to oust his associates from the title does not abandon his claim to the ground nor forfeit by estoppel his undivided interest in the original claim. HuUt v. Doerstler, 15 N. W. 210. Other Instances of Fiduciary Relation. The owners mortgaged their claim, abstained from doing the annual labor, and after the year elapsed, relocated. Held, that they could not so de- feat the mortgage. Alexander v. Sherman, JO P. 'i~> : I.', M. if. The grantoi by quit-claim deed is not estopped to relocate when his vendee fails subsequently to up his annual labor. Blake v. Thome, 10 P. 128 RELOCATION BY OWNER. 210. For attempted relocation by vendor after sale see Minah Co. v. Briscoe, 89 F. 891. In McDermott M. Co. v. McDermott, 69 P. ",1.1. McDermott had sold the lode to a company in which he became a director. Afterwards the company failed to do its work and the claim was relocated by a third party, who conveyed it back to McDer- mott. There was no collusion whatever. The com- pany had quit because it could find no pay. The Court held that upon abandonment of the claim by failure to do the labor the ground reverted to the public domain and the relocation was an independent new title having no connection with the old one. But an agent or other party in a fiduciary capac- ity cannot relocate for his own benefit. Lockhart v. Rollins, 21 P. 413; 16 M. R. 16. Nor betray the property to a stranger. Utah Co. v. Dickert Co. '/ P. 1002. Nor can a hired prospector say that what he has turned over to his outfitter is his own by a prior title. Fuller v. Harris, 29 F. 814. Lessees cannot take their lessor's property by going through the form of a relocation. Lowry v. Silver City Co. 179 U. 8. 196; Brash v. White, 75 P. 445. Where all the others have conveyed to one co- tenant for the purpose of patenting, any relocation made by him counts for the benefit of his associates, including new ground taken in by his relocation. HaUack v. Traber, 46 P. 110. A Location Made by an Ex-Employe is not void from the fact that his knowledge that the lode had been followed into vacant ground had been acquired while working for the owners of the adjoining pat- ent. ThaUmann v. Thomas, 111 F. 277. RELOCATION BY OWNER. In What Cases Owner May Relocate. R. S. Colo. Sec. 4210. If at any time the locator of any mining claim heretofore or hereafter located, or his RELOCATION BY OWNER. 129' -hall apprehend ihni his original certificate was defective, erron< ihat the requirements of the law had not IMM-H complied with before tiling. <>r shall be de- sirous <>f chan^inir bis surface boundaries, or of taking In any pan . rlapplni: claim which has been aban- doned. oi- in case the original certiticate was made prior to the passage of this law, and he shall be desirous* of secur- in.ir the benelits of this an. such !"cat<>r. <>r his assigns, may file an additional certificate, subject to the provisions of this act: /'*/ /.//. Thai such re-location does not Inter- fere with the existing riirhts of others at the time of such relocation, and no Midi re location or other record thereof shall preclude the claim::nt or claimants from proving any Midi title or titles as h they may have held under pre- vious location. ,v. ' / :. / , This section provides an escape from the conse- quences of loose and careless records; it also gives narrow claims th<> opportunity to take the full width allowed by the later law; and further, in case a lode is found to be not contained in the original boundaries, it allows the error to be corrected. All former rights are secured with the new privileges, and greater certainty obtained under the relocation. In a relocation under this section the name of the lode should not ordinarily be changed, and the iflcate should show that it is a relocation, and of what lode. AMI:MU:I> OB Rfl LOCATION ' i:i:TIFICATE. K\< \\ ALL .MI:\ Bl im:si: n:i:si:\TS, That I, Andrew I. iiniiiit .t. of the city and County of Denver, State of Colo- rado, claim by ri.L'ht of relocation, and this amended certifi- cate of location, fiftn-n fnnuh. iv.'4. and recorded on the first day of June. A. I). iv.i4. in i in ,,k 7. i>nate of relocation, January 7. I'.HIS. Date .f amended certificate, .January s, I'.mx. AM.I;I:\V .1. HUGHES. Nearly all the mining States have adopted stat- utes similar to the Colorado Act providing for the re- location of abandoned claims, for relocation by the owner, or the filing of amended certificate of loca- tion. But they are only declaratory of the right which any claimant has without the aid of any such statute to amend his own publication of claim. Thompson v. Spray, 12 Cal. 528. Same Particularity As in Original Location. The discovery shaft, side and corner posts should be found on the ground before any second record is made, and if the amendment changes the boundaries or is made on account of any previous mistake or irregularity in any act of location the same should be rectified upon the ground before recording. The description in the new certificate will, of course, cor- respond to the new boundaries. A new location stake should also be erected at the discovery, if the length or width called for on the original stake is altered, and especially if the name of the claim is changed. In other instances the old stake could be considered as answering all pur- poses of notice the same as the old discovery shaft which does not need to be sunk to any greater depth if it has already the legal depth. TonopaH Co. v. Tonopah Co. 125 F. 390; Becker v. Pugh, 11 Colo. 246. In fact, no change, whatever, upon the ground is necessary if the original location was perfectly regular, and the only idea in relocating or in filing the amended certificate is to formally appropriate abandoned interferences or to correct mistakes in the record. RELOCATION BY OWNER. 131 When admitted in evidence both the original and relocation certificates are to be construed together. Duncan v. Fulton, 61 P. 2'//. The Intent of the Act is : First, to provide a recognized mode of relieving from the consequences of clerical and other mis- takes; second, to give to old locations the benefit of the additional width allowed under the A. C. of 18V2, and third, to allow change of bounds, where the old survey was found to vary from the strike of the lode. Seymour v. Fisher, 16 Colo. 189. An additional or amended location certificate may be filed on old 3.000-foot claims for mere purpose of more specific description, but such claim can not In- crease its width and at the same time retain its old length. A relocation certificate is good for all purposes, although it does not state that it is filed for the ifir purpose material to the suit. It will take in abandoned overlap although intention so to do is not expressed on its face. Carlin v. Freeman. 7.1 P. 26; Tonopah Co. v. Tonopah Co. 125 F. 390. After Loss of Discovery Shaft. Where a discovery is made within the lines of an older claim, or the locator suffers his discovery to be patented by a hostile location, he may make a valid relocation of that part of the claim which remains to him upon a new discovery made on clear ground. Knrin v. Perego, 93 F. 609; Silver City Co. v. Lowry, 57 P. 11. Affirmed without discussion of this point in Lowry v. S. C. Co. 179 U. S. 196. In Treasury Co. v. Boss, 32 Colo. 27; V t P. 888, where a new discovery shaft had been sunk to get clear of patented ground on which the original dis- covery had been made the claim was held valid, al- though no amended location certificate had been filed and no notice posted at the new discovery. As to the latter point the case was followed in Ferrum Co. v. McMillen, 32 Colo. 38; 74 P. 461. 132 RELOCATION BY OWNER. But the ruling that such shifting of discovery shaft without a second record is good, is a dangerous precedent to rely on. To Reform End Lines. A relocation may be made so as to make the end lines parallel and place the lode in position to claim extralateral rights. Tyler Co. v. Last Chance Co. II F. 848. Changing Boundaries. A claim may be swung at right angles if it takes up no ground to which rights have intervened. Dim- can v. Fulton, 61 P. 244. Distinction Between Relocation and Amended Certificate. In strictness there is a relocation only when some change is made upon the ground, as by chang- ing length, width or boundaries; perhaps also when overlapping abandoned ground is taken. The certifi- cate filed to show such change is a relocation certifi- cate. But if the error is in the papers only, as by a misleading or too vague description, there is no relo- cation, but only the filing of an amended location certificate. But the terms are not always used with exactness even by the legal profession, all such papers as well as acts being called relocations or relocation certificates, and a misuse of the terms is not generally material. Cheesman v. Shreeve, JfO F. 789. An amended location certificate may be filed after suit commenced. Strepey v. Stark, 7 Colo. 61 /. And in Butte Co. v. Barker, 89 P. 304, it was admitted in evidence though not filed till after the trial had begun. Relation Back and Intervening Claim. It relates back, where adverse rights have not in tervened, to the date of the original location. Me- Ginnis v. Egbert, 8 Colo. 41; 15 M. R. 329; Strepey v. Stark, supra. RELOCATION BY OWNER. 133 In the case of McEvoy v. Hyman, 25 F. 596; l~> ^[. If. 397, and in Craig v. Thompson, 10 Colo. 511. the amended record was allowed in evidence and to affect and cut out intervening claimants. In the lat- ter case the intervening claimant was treated as a trespasser who could not initiate rights; in the for- mer the original certificate was treated as a defective but not as a void instrument. The same ruling was followed in Cheesman v. Shreeve, 40 F. 787, stating in terms that an amended record related back to the date of the original record. In the Colorado Statute above printed there is an express saving of intervening rights. But such exception is superfluous because vested rights save themselves. There is no doubt that an amended rec- ord, the land office entry, the patent, every successive incident toward perfecting title, relates back to the first step taken toward obtaining such title. But notwithstanding what might be gathered from the wording of the decisions, to such effect taken alone, they are to be read in connection with the fact that the doctrine of relation cannot be invoked to work injustice to third parties. Gibson v. Chouteau, 18 \\'aU, 101. And if a location or location certificate was so defective as to be void, or so irregular that it allowed strangers to become legal locators of the same ground, in such cases an amended certificate or a relocation will not relate back so as to cut out such intervening locators. Hall v. Arnott, 22 P. ..'"" . Jordan v. Schuerman, 53 P. 579; Deeney v. Mineral Co. 67 P. 724; Morrison v. Regan, 67 P. 956; Brown v. Oregon Co. 110 F. 728. New rights cannot be acquired by relocation in- consistent with the intervening rights of others. Bunker Hill Co. v. Empire 8. Co. 134 F. 268; Butte Co. v. Barker, 89 P. 302. Where Original Record Was Voidable Only. In Moyle v. Bullene, 7 Colo. App. 308, the very tenable distinction is made that where the original location certificate was so "defective as to absolutely fail to comply with the statutory requirements" it 134 RELOCATION BY OWNER. was void and the amended record would not relate back; but if the original paper was only lacking In technical detail the two should be construed as of the date of the first, and both construed together ac- cording to the doctrine of relation. But in Frisholm v. Fitzgerald, 53 P. 1109, where a record contained no reference at all to a natural object or permanent monument and was not only constructively void for non-compliance with the Congressional Act, but was declared void in terms by the Colorado Statute, the relocation was held to relate back to the original record and to cut out an intervening title. The opinion in the case is peculiar in this, that it is the personal view of one judge, and both of his associates refused to concur. It is not the opinion of a Court, and therefore has no obligation as a precedent binding the nisi prius courts of that state. Nothing in the case or the^ reasoning on which it is based shakes our conclusions as stated in the pre- ceding paragraph, and we consider untenable the proposition that any amendment can cure a void record as against an intervening location. Will Not Cure Want of Discovery-. In most of the cases above cited the point was one of objection to the form or contents of the orig- inal Location Certificate that is, to the papers in the case not the merits of the discovery or the lo- cation proper, but in Beats v. Cone, 62 P. O.'fO, there was no discovery when the original record was made. The second claimant had a valid discovery before the first had any discovery, and the court held that the intervening claimant took the ground and that tne subsequent discovery on the prior claim could have no relation back. An amended location made by a party who has parted with his title will not be recognized. Gray Copper Lode, 18 L. D. ;7..v;. RELOCATION BY ( \Y N BR. 135 The Official Survey Corrects the Errors of the original location and its stakes and corners need not IK> identified with the locator's survey. Howeth r. Siilh'nyrr. ',.', ]>. S',l. Changing Names of Locators on Notices Trans- fers Before Record. After a record is made based on a valid loca- tion, the possessory title becomes perfect as and for and subject to the conditions of a possessory title. Uu-illim v. DonneUun. u:> ('. N. ',:, : 15 M. If But befon record it is not unusual for prospectors to settle their rights among themselves by the prim- it ivc but practical method of adding or erasing names from the discovery notice. Names cannot be so erased without the assent of the parties to the ruction of the right vested by putting them there in the first instance. Thompson v. Spray, 12 Cal. 528. But this is matter of complaint only by the panics injured and strangers to the title cannot take advantage of such things. Thompson v. Spray, xui>ra; Omar v. Soper. 11 Colo. 380; 15 M. /,'. /.'"/. In Doe v. Waterloo Co. 10 Fed. 4, it was held that a verbal transfer of an interest in a title not yet recorded was valid and that the new associate taken in by the prospector could complete the loca- tion for their joint benefit. Where new parties become transferees of an un- completed or an irregularly completed location they have the right to perfect the record in their own names. Miller v. Chrisman, 13 P. 1083; Tonopah Co. v. Tonopah Co. JJ5 F. 889. Change of Name of Lode. It is not infrequent by filing amended location certificate and posting amended notice on the claim, hange the name of the lode. Butte Co. v. Barker, 89 P. 302. Where names such as decency forbids have been placed on record the Land Office has de- clined to patent the lode by name. In such instances, or even where the name is objectionable only for 136 UNITED STATES PATENT. sentimental reasons, where all parties interested con- sent, a change of name is certainly legal. Seymour v. Fisher, 16 Colo. 197. But when done, as it has been, in instances, preparatory to application for patent with intent to mislead and forestall an antici- pated adverse claim, or preparatory to intended for- feiture publication, there could be no stronger cir- cumstance from which to draw the inference of fraud. The Edith lode was located 1,200 feet in length, Discovering that there was 200 feet of vacant ground the Edith owners made a new location 1,400 feet long, calling it the Kirby lode. The Court held that the second location was a relocation of the first and a valid claim. Shoshone Co. v. Rutter, 87 F. SOI. UNITED STATES PATENT. Policy of the Government As to Mineral Lands. The policy of the United States has always been to pass the fee simple title to its lands to the ulti- mate purchaser, but to encourage offers to purchase from settlers and improvers only. To extend this policy into a system of land tenure it first gives a general license to prospect and discover mineral value passing then to the discoverer the sole right to possess and use, and finally grants the title in fee after due proof of occupation and improvement. A temporary departure from this rule in taking an impolitic royalty from the miner, was made in the attempt to lease the lead and copper lands on the Mississippi and Lake Superior. Lorimier v. Lewis, 1 Morris (la.) 253; 12 M. R. 437. The government had no occasion to deal with lands containing the royal metals until the acquisi- tion of California, upon which event, instead of adopting any system of legislation, it merely pre- served the mineral lands from sale and acquiesced in the asserted rights of the prospector and miner until 1866. UNITED STATES PATENT. l:',7 In that year were passed the first of what are known as the Mining Acts, now embraced in Title 32 of the Revised Statutes. This was followed by the Acts of 1870 and 1872, with other slight amend- ments. The ultimate intent of these Acts is to pass the fee simple to the discoverer of a mine, or his grantees, after a certain amount of development has been made upon the claim and until final entry the locator holds by a possessory title. Progression of Title. Title becomes initiate by discovery; the posses- sory title is complete upon location and record, and is maintained from year to year by compliance with the condition of annual labor. The occupant after $500 expenditure has the right to buy the land from the United States by entry thereof in the local land office. This entry entitles him to receive a patent which issues later from the general land office at Washington. Title After Entry and Before Patent. After entry in the land office, although the title is still technically equitable, it amounts practically to the legal or fee simple, because: First The receiver's receipt for the purchase money is evidence of title in the purchaser, with or without statute to such effect. Last Chance Co. v. Tyler Co. 61 *'. 558. Second The subsequent issue of the patent fol- lows as a mere ministerial act, except where some irregularity has occurred in the application, or a protest delays or prevents issue. Third Before entry is allowed the time for the assertion of any adverse title must have elapsed. Fourth Upon the issuance of patent, the fee passes to the purchaser, and the title relates back in all cases to the entry at least. 138 UNITED STATES PATH NT Choice of Land Systems. It was in the power of the United States to have adopted any one of several different systems in the disposition of its mineral lands; but at some stage, under any system, a decision of the conflicting equi- ties between the adverse claimants would have to be reached. First A system based on rectangular surveys, upon which a block book could be platted, which would, on its face, establish the priority of any as- sertion of title to the block representing any certain mining claim, the same as adopted in the disposition of agricultural lands by quarter-sections. Second A system under which every applicant would receive a patent upon an ex parte proceeding without regard to priority or adverse rights, leaving the several patentees to contest their equities in the courts upon an equal footing analogous to the old land system of Virginia. Third A system based on making the proceed- ing to obtain patent a proceeding in rent, compelling the applicant to give notice of his application and forcing an adjudication of all adverse titles before the issue of the patent, which was the Pennsylvania system. The last is the system adopted by the govern- ment, by the original act of 1866, and continued in Jill the amendments. Priorities Adjudicated Before Patent Issues. The result follows that upon the issue of a pat- ent the patentee has got rid of all assertions of title hostile to his own title, and all supposed prior dis- coveries and locations which might have interfered with him are lost, by failure to assert them as ad- verse claims, or to prove them in the ejectment suit brought in support of the adverse claim. Silver Bow Co. v. Clarice. 5 P. 570; Raunheim v. Dahl. 9 P. 892; Kannaugh v. Quartette Co. 2? P. 2-'/5; Seymour v. Fisher, 16 Colo. 191. UNITED STATES PATENT. 139 The publication required by the Mining Acts "is in effect a summons to all persons whose interests may be affected by the issuance of a patent," to appear and file their adverse claims. Wolfley v. Leb- anon Co. 4 Coin, lit; /.; .U. /,'. W; Wii/ht r. Dubois, .'1 r. 693. The Land Department Issues the First Patent to the first applicant, without regard to the priority of his possessory title, and in case the senior pos- sessory title fail to assert its seniority by filing and prosecuting its adverse claim, the seniority of such possessory title is lost, and yields to the title which the government issues to the applicant for patent. Segregation from Public Domain. The Surveyor General shows all conflicts with previous surveys, upon the approved plat; and notes all previous official surveys in the approved field notes; but only approves as to the correctness of the survey, not excluding the area of priorities, if their inclusion is asked. The register of the land of- fice, when application for patent is made, is supposed to except all previous surveys as noted in the ap- proved field notes (where such surveys have been followed by applications for patent), in his notice for publication, which is the first period at which the officers of the United States recognize the segregation of the claim from the mass of the public domain. From this point the claim so first segregated must, under the practice of the land office, be recognized by all subsequent applicants for survey as prior in point of time, and they are compelled to except from their applications such previously approved surveys, so duly followed by filing their applications. Under former practice the segregation took place in the office of the Surveyor General. But the Sur- veyor General now approves everything within the exterior boundaries as clear ground, to the applicant for survey, if he so request, leaving to the land office the duty of excepting from his entry and patent, prior patents and applications for patent. 140 UNITED STATES PATENT. Under the Act of 1866 the survey was not ap- proved until after the application had been otherwise perfected. The Doctrine of Relation. Where successive steps are essential to perfect title, as discovery, location, record, application for patent, entry and finally patent; and during the prog- ress of the time required to complete the series two hostile parties have taken some or all of these steps towards obtaining title to the same ground the doc- trine of relation may become material to determine between them the question of priority. When discovery is followed by location and rec- ord within the proper or fixed periods allowed and entry and patent follow in due course, the title is considered in general and in theory to relate back to discovery. This theoretical relation is, of course, of no materiality unless a second title has intervened, and if a second title has intervened at a period when the first title was in default the doctrine of relation does not apply, or rather it favors the second title. A patent always relates back to date of entry at least. But a senior entry on a junior application will not be prior to the entry of a senior application when made, because relation will carry the junior entry back to the date of its senior application. All three items, the application, the entry and the patent are merely successive steps, and the latter two relate to the date of the first. Many loose assertions are found in the cases on this topic of relation, not taking into consideration the conditions above attempted to be pointed out. If, in all cases, a patent related back to discovery, a patent of to-day on a location of 1866 would supplant a patent to the same ground issued twenty years ago. Relation never applies either to defeat a stat- ute or to work manifest injustice. In Hickey v. Anaconda Co. 81 P. 810, the Mon- tana Supreme Court refused to allow the law of re- lation to carry the title of the Nipper lode patent UNITED STATES PATENT. 141 back to the date of its location certificate, a paper so defective as to be void. The different classes of claims to which it ap- plies necessitate certain distinctions. Where Both Are Possessory the first discovery followed up by completed location within the al- lowed period becomes a title calling back to date of discovery, and by the doctrine of relation will cut out a possessory title completed sooner though initiated later than the first discovery. Patterson r. Hitchcock, S Colo. 532; J .17. /,'. >;?. For instance, if A discover a lode on January 1st in a State which gives 60 days to sink discovery and 30 days more to record, and he completes sinking on the 60th day and records on the 90th day, he has an older and better title than B, who discovers the same vein on Jan- uary 10th, but promptly completes his sinking by the 20th and surveys and records on the 21st. B is prior to A in point of time on every incident of location except discovery, but A, not exceeding his statutory limit of time, is not in default on any item of loca- tion, clearly calls back to January 1st and has the older and better possessory title. If, on the other hand, A allows any of his periods to expire without doing the act for which the law allowed a certain time and the second title becomes initiate during such period of lapse, the doctrine of relation does not apply and B has the older and bet- ter title. Patented Claims Failure to Adverse. Where two claims overlap or cover the same ground, and one of them applies for patent, the other must adverse and maintain its adverse, otherwise it loses all pretense to priority; and if it fails so to do and afterwards goes to patent on its own application, all claims to priority are gone and it cannot appeal to the doctrine of relation to defeat the express terms of the statute. Eureka Co. v. Richmond Co. 4 Sawy. 9 M. R. 578. 142 UNITED STATES PATENT. The above paragraph refers only to cases where there is a surface conflict. For if there be no surface conflict there can be no adverse and the rule has no application, Empire Co. v. Bunker Hill Co. llh F. 420. Thus, in the class of cases where two veins par- allel on surface, dip toward each other and are found to unite going down, the doctrine of relation has its full application and title will be carried back to the date of location and if necessary to the date of dis- covery so as to give the united vein to the title first initiated and perfected without default or lapse. Applications Pending at Same Time. The question may also arise between two claim- ants who are applying for patent at the same time. This proceeding begins by an order for Survey, which is followed by the survey in the field and by its approval in the Surveyor General's Office. This approved Survey or the date of its approval determines no priorities. It is only when the papers reach the Land Office that a survey be- comes "prior" by its right to be excluded from later applications, and the applicant whose area is ex- cluded in the Land Office becomes the party who musi adverse in order to maintain such priority of title as he may claim. 26 L. D. 81; 29 Id. 2>i>. If he fail to adverse, his patent when obtained will show the ground excluded in favor of the party who was first to file his "application for patent" (form M. ;>. J.i.n . and even if he be the first to enter and pay and ob- tain the Receiver's Receipt, the entry when made of the Survey which first filed its "application" will re- late back to the date of such filing. Double Patent Under Different Systems. It may become material, also, in any case where two parties hold patents for the same ground, which have been obtained under different ex parte proceed- ings where there was no opportunity to adverse and the proceeding therefore not a proceeding in rem as UNITED STATES PATENT. 143 iii a conflict between Sphool Land and a mining v\nim.Ht'!/'l<'nff1'lt r. Daney Co. 93 U. 8. 634: IS M. /,'. .'"/. Or between a lode and a Town Site. Talbott v. Kiny. :> r. ).;/; silver Bow Co. v. Clark, 5 Mont. The Smoke House Lode, 12 P. 858. Or where the same ground has been patented to one as a lode, to another as a placer. Iron 8. Co. v. Campbell / ..' ~> U. 8. 286; 16 M. R. 218. Excluded Area. It is the practice of the department to exclude from each later patent all claims which have land office priority and the junior patentee has no right under his patent to follow any vein on its strike through the area reserved in favor of such excluded survey. Montana Co. v. Boston Co. 5t P. 159. And \*here such exclusion plainly appears, and, adhering strictly to the ruling in the case just cited, it can hardly be said that there are two grants of the same thing, although each lode patent is issued on the theory that it covers so many lineal feet on the vein. Where a conflicting area has been allowed to go to a senior patent it does not make that patent senior except as to the overlap. U. 8. M. Co. v. Lawson. 7J.J / : The Nature of the Merger of the possessory into the patented title is learnedly discussed in /*/ It is a conclusive presumption that there is the apex of a vein within the patented ground. Gr. Central M. Co. v. Mammoth Co. 83 P. 668. It is conclusive evidence of a prior location as to all claims having surface conflicts not excluded from its area. Empire Co. v. Bunker Hill Co. 11] F. 420. And of a valid discovery. Calhoun Co. v. Ajax Co. 182 U. 8. 499. But the case of Uinta Co. v. Creede Co. 119 F. 164, makes the distinction that where a hostile claim has had no opportunity to contest the issue of the patent, as for instance, where a lode has been pat- ented across the line of a tunnel before it was cut in the tunnel, the patent is not conclusive evidence of a valid discovery as against the asserted rights of such tunnel. The facts were these: The lode was located before the tunnel site was located. After both lo- cations the lode was patented. The tunnel owner on reaching the claim, which crossed the line of the tunnel, had no right to cross if in fact a valid loca- tion of the lode claim had been made before the tunnel was started. The tunnel owners claimed that there was in fact no valid discovery on the lode claim before the location of the tunnel site. The lode owners con- UNITED STATKS PATENT, ur. tended that the patent was conclusive evidence that it had a legal discovery at .the time claimed in its location certificate; but the appellate court sustained the reasoning of the circuit court of appeals and held in favor of the tunnel site. 196 U. S. 331. Fol- lowed on like facts in Uinta Co. v. Aja.r c<>. r,i }\ 563. Conclusiveness As to Mineral Character of Land. See p. 207. Patent When Void. If not valid on its face or if issued in spite of a law which forbade its issuance, it is an inoperative paper, and may be passed upon and excluded in a suit at law, because it is void. Kahn v. Old Tele- graph Co. 2 Ut. Iti*; 11 M. R. 646; Si. Louis Co. v. Kemp. 104 U. 8. 636; 11 M. R. 673; Oarrard v. 8. P. Mines. 82 F. 578. A patent for a lode in excess of legal width has been held void. Lakin v. Dolly. S3 F. ,) >n v. Roberts, 54 F. 461: but otherwise as to patent perfecting locations made prior to the Act of 1872. Carson City Co. v. North Star Co. supra. Patent When Voidable. But if only irregular, or obtained by fraud, or issued to the wrong party, it is only voidable, and must, until set aside, or a trust declared thereon, be taken as conclusive both at law and in equity. Silver Bow Co. v. Clarke. 5 P. 510; Rose v. Richmond Co. n Nev. 26. A patent is not void as to the excess from the fact that it conveys more than 300' feet from the center of the lode. Peabody Co. v Gold Hill Co. 07 /'. W7; ni F. 818. The Land Office Can Not Insert Conditions or ex- ceptions not authorized by law, in a patent. Deffe- back r. // ncke, 115 U. S. 392; Clary v. Hazlett, 7 /'. 701; Talbott v. King, 9 P. 4.14: Silver Bow Co. v. Clark' 70; Davis v. Weibbold, 139 D. S. 521. 146 UNITED STATES PATENT. All Presumptions in Its Favor. When a patent is judicially attacked all pre- sumptions are indulged to its favor. It will be as- sumed that everything was done which the law re- quired to be done, and mere irregularities, though proved, will not impeach it. U. 8. v. Marshall Co. 129 V. S. 579; 16 M. R. 205; U. 8. v. Iron-Silver Co. 128 U. 8. 673; Galbraith v. Shasta Co. 76 P. 901. Placer Patented As Lode Claim. It is no fraud upon the Government that placer ground has been patented as a lode claim at a greater price per acre. Peabody Co. v. Gold Hill Co. Ill F. 818. Suits by IT. S. to Annul Patent. When obtained by fraud against the United States, as where mineral land has been entered as agricultural, or upon false representations, the false representations being material, the application to set aside being made without too great delay and inno- cent buyers being to a certain extent protected it may be set aside at the suit of the United States. This requires action by the Attorney General, who directs the U. S. District Attorney to bring suit in the U. S. Circuit Court. Boggs v. Merced Co. J ', Gal. 279; 10 M. R. 334; Mullan v. U. 8. 118 U. S. 271; U. 8. v. Iron-Silver Co. 128 U. S. Such action lies where the patent has issued through fraud, mistake or erroneous views of law by the Land Department. U. 8. v. Winona Co. 67 F. 948. See STATUTE OF LIMITATIO^ A patent will not be set aside for fraud where the property has passed into the hands of a bona fide purchaser without notice. Colo. C. & I. Co. v. U. S. /.?.,' U. S. 307; U. S. v. Clark, 138 F. :>!>',. Degree of Proof. In suits to set aside a patent or to declare a trust in favor of another claimant, the proof to over- come the presumptions in favor of the patent must UNITED STATES PATENT. 147 be clear and convincing. U. 8. v. Kinl : 1~> M. /.'. 575; Aurora Hill Co. v. 85 Co. 34 F. 515; 15 M. R. 581. Squatters' Improvements. A prior occupant of public land who takes no steps to perfect his title and allows it to go to patent to another has no claim either to title or to be re- imbursed for his improvements. Helstrom v. Rodes, S3 P. ISO. INTERFERENCE OF CLAIMS. Veins Uniting on Strike or Dip. R. S. Sec. 2336. Where two or more veins ini. or cross each other, priority of title shall govern, and such prior location shall be entitled to all ore or mineral con- tained within the space of intersection : but the subsequent location shall have the right of way through the space of intersection for the purposes of the convenient workii.. the mine. And where two or more veins unite, the olaest or prior location shall take the vein below the point of union, including all the space of intersection. Sec. //. Mil ii in. /\?J. Mining Acts Based on Erroneous Presumption As to Facts Irregularity of Veins. The cause of the principal question under this heading is the fact that the U. S. Mining Acts con- cerning lode claims are based on the supposition or theory that a lode is a straight vein whose course INTERFERENCE OF CLAIMS. 149 can be readily ascertained and indicated by a straight line or a series of straight lines; and that occasion- ally such a vein is crossed by another in a similar straight line, merely requiring the right of way to give each claim its proper lode. But in fact a lode is rarely a straight line; it is seldom to be traced with- out confusion for more than a few hundred feet; and in its course other veins are absorbed into it; and offshoots (not only spurs, but perhaps better devel- oped veins than itself) run from it; and in its ex- tension downward, it invariably dips laterally; and often shows a fork of which both parts approach the surface; and it will divide, and may or may not unite at another point; and it will abut suddenly upon country rock and so be thrown far to one side; and instead of showing distinct lines, mineral veins are as irregular, as disproportioned in length and width, as much intermingled, though on a larger scale, as are the veins in a block of marble. The theory that each survey covers a distinct vein, or that a survey covers any vein at all, or that its center line follows the apex of the vein, or that its discovery shaft is sunk on a vein, is all bare assump- tion these points depend upon developments, and not on diagrams or surface surveys. Presumption That Survey Covers the Vein. But upon proof of discovery and location it is in- ferred that the survey lines include the apex of the vein, and this presumption throws the burden of proof on the party alleging a departure. Armstrong v. Lower, 6 Colo. 585; 15 M. R. 458; Wakeman v. Nor- ton, 24 Colo. 1'.' .'. The interference of veins by uniting on the strike, or, more commonly, the interference of claims by the holder of one part of a blind lode developing into another part of the same lode located by an- other as a separate lode was of vital importance be- fore the Act of 1872, because surface lines were not marked and each claimant was supposed to follow his vein wherever it ran. But under present law the surface lines and the apex within them in general 150 CROSS LODES. define the rights of all parties, with the obvious ex- ception of First Cross lodes. Second Veins uniting on the dip which points are considered under the next two headings. Overlapping Surveys. The holder of the oldest patent, i. e., in general the patent which has the senior entry, holds all veins which apex within the area of conflict. Montana Co. v. Boston Co. 51 P. 159. The same rule applies in favor of the older title where both are possessory. Where one is patented and the other is possessory the patented claim holds because (1) it may always have been the earlier title, and (2) if not, it has beconi. so by the failure of the overlapper to adverse. Em- pire Co. v. Bunker Hill Co. J14 F. i-'" Where there are overlapping surveys, the side lines of the senior claim do not become the end lines of the junior claim when the location extends be- yond the intersecting claims. Cheesman v. Hurt. //; M. R. 263. Lines may be lawfully extended over, and stakes set upon prior locations so as to secure paral- lel end lines, or for any other legitimate purpose. Del Monte Case, 111 U. *Sf. ,55; McElligott r. A'/m//,. 90 P. 823. A subsequent location is entitled to the overlap on any part of a prior location which is not legally held by such prior location. McPherson v. Jill in*. 95 N. W. 428. CROSS LODES. Priority of Title Controls. R. S. Sec. 2336. Whciv two >r nnn> veins intersiM i or cross each other, priority of title shall govern, and sin -li prior location shall be entitled to all ore or mineral on tained within the space of intersection: but the subsequent location shall have the right of way through the space , the oldest or prior location shall t:iki- tin- vHn ln-lnw the point of union, including all tin* spare of intersection. ,svr. u f May 10, 1872. The above paragraph follows that part of 2336, which says that "priority of title shall govern" in case of interference of veins on their strike. It often happens that on developing two veins by shafts from surface they are found to unite as they go down. A vertical section of the two lodes in such case gives the form of the letter Y. Where both claims are possessory, the older title, i. e., the older discovery properly followed by location and record takes the vein below the point of union. If both are patented, or if only one is patented, the obvious question is: Does the first patent hold on account of failure of the first discovery to adverse? or does the first discovery hold? In the case of the Champion Co. v. Cons. Wyo- ming Co. 75 Gal. 78; 16 M. R. 145, the two lodes in controversy so came together at about 500 feet in depth. The Wyoming lode was patented in 1874. The Philip lode claimed to be a location prior in date to the Wyoming, but was not able to prove such al- legation, and therefore had no state of facts upon which the court could properly decide this point and interpret the statute. Still, they intimated that the older possessory title would hold without regard to patent. In the case of Lee v. Stahl, 13 Colo. 174; 16 M. R. 152, which involved the rights of cross lodes YKIXS UNITING ON DIP. 155 only, the court in argument leaned to the same con- struction. But the point has been since expressly decided and always to the same result, to wit: in favor of the older location. Little Josephine Co. v. Fullerton, 58 F. 521; 17 M. R. 66' f ; Con*. Wijominf/ Co. v. Cham- pion Co. 63 F. 540. Where two veins apexing in two patents were alleged to unite after they had come by the dip un- der a third patent it was held that the third patent had no title to the vein and that the controversy must arise between the patents which covered the apexes. Roxanna Co. v. Cone, 100 / /'> Relation Presumption. Even if suspected, such union would rarely be provable in time to support an adverse claim, and even if known an adverse claim could not be brought because an adverse is allowed only where there is a surface conflict. 6 L. D. 320. The doctrine of rela- tion back to discovery, therefore, applies, but the date of discovery and of the respective acts of loca- tion are open to parol proof. If the union becomes known or comes in contest, as it generally does after both lodes are patented, there exists a presumption in favor of each that it had a valid discovery and lo- cation at the date of entry, but there is no conclusive presumption that the date of discovery or of location claimed by the recorded location certificate upon which the patent issued is the true date. 8t. Louis Co. v. Kemp, 104 U. 8. 636; 11 M. R. 673; 2 Lind. 730, 783; Last Chance Co. v. Tyler Co. 61 F. 557. Conclusive presumptions binding on all parties are fixed only where the party to be bound has had op- portunity to have his day in court. Uinta Co. v. Creede Co. 119 F. 164. 156 SIDE VEINS. SIDE VEINS WITHIN LOCATION LINES BEFORE MAY 10, 1872. Congressional Bounty or Confirmation. R. S. Sec. 2328. Applications for patents for mining claims under former laws now pending may be prosecuted to a final decision in the General Land Office ; but in such cases where adverse rights are not affected thereby, patents may issue in pursuance of the provisions of this chapter ; nnd all patents for mining-claims upon veins or lodes here- tofore issued shall convey all the rights and privileges con- ferred by this chapter where no adverse rights existed on the tenth day of May, eighteen hundred and seventy-two. x< r. 9. May 10, 1872. Limited to Single Vein. Under the original Congressional Act of 1866, no vein except the first claimed was covered by the location or conveyed by the patent. A lode claim, therefore, located before May 10, 1872, originally covered but one vein, and a patent is- sued before that date covered but one vein. Blake i). Butte Co. 2 Ut. 54; 9 M. R. 503; Eclipse Co. v. Spring, 59 Gal. 304. Side Veins Donated to Old Claims Since 1872. By the A. C. of 1872, which gave to all new locations and future patents the benefit of every- thing between their side lines, it was added that all old locations and all patents under the old Act should have the same benefit, always saving any rights which had intervened before the passage of the Act of 1872. R. 8. 2328. The result of this Act is, that a location properly made before May 10, 1872, or a patent issued before that date, covers all side and other interfering veins practically to the same extent, and as fully as loca- tions and patents under the present law; always sav- ing the exception in the section last above cited. Pardee v. Murray, 4 Mont. 234; 15 M. R. 515; Walrath v. Champion Co. 63 F. 552. SIDE VEINS. 157 SIDE VEINS WITHIN LOCATION LINES SINCE MAY 10, 1872. All Veins Apexing Within the Lines. K. E 1'hc- locators of all mining locations tir which shall h>n>at'lT !>> made. * * \vluTf MM adverse claim cxi^i^ * * * shall have the ex- clusive ri^lit .f possession :uul enjoyment of all the surface inrlmlod within th> lin.s of ihoir locations. anil of all veins, l.nlrs. an-l 'Mii-hout their entire depth, the top or apex of which lies Insld 'a surface-lines extended <1. .\\n\v.-inl vertir.-'lly. * * * Sec. 3. May 10, 1872. Surface Lines and Apex Define the Claim. Under the law, as it has existed since May 10, 1872, it is < lear that all veins whose tops or apices are within the lines of the claim go with the lode which gives the name to the claim; and the surface lines, rather than identity of the veins, are made to control the extent of the claim, and to fix the boundaries between adverse parties. Book v. Jus- -. 11 M. R. 617: Doe v. Waterloo Co. 54 F. 935. The possible exceptions to this general assertion are: 1. In regard to what are commonly called cross lodes; p. Where the outcrops of two apparent veins appear on two separate lines at the surface, but in i heir downward course such veins dip into each other, unite and form a single vein; p. !'>',. 3. Instances where a location on the dip may have cut^ oft * tne right of a later appropriator on the apex to follow beyond his side lines extended verti- cally downward; p. 175. \. Locations and patents before May 10, 1872, where adverse rights had intervened so as to prevent them from taking the benefit of the grant of side veins under the Act of that date; p. 156. One Set of End Lines for Side Veins. See p. 178. 158 DEPARTURE FROM SIDE LINES. DEPARTURE OF LODE FROM SIDE LINES. Statement of the Point. That the vein, and not the surface, is the mate- rial grant of a patent to a mining claim has never been disputed; nor can it be denied that it is the intention both of the purchaser in buying, and the Government in selling, to deal with the mineral de- posit, the surface being, in itself, comparatively worthless to either. And if the case lay between the Government and the purchaser alone, this mani- fest intention might prevent any attempt to confine the party to an erroneous survey, giving him only valueless surface, notwithstanding the material fact that it is the patentee, and not the United States, who has chosen the lines which produce the mischief. Patterson v. Hitchcock, 5 M. R. 542; 3 Colo. 533. But it is the rights of innocent third parties, holding claims beyond the located or patented side lines, which has rendered this question so important, and which must result in maintaining the consistent construction already given to the Act of Congress, confining every claim to its own lines; though even if it were a matter of indifference, this holding re- quires no forced construction of the Acts under ordi- nary rules of interpretation, and had been the con- stant ruling of the Appellate and Circuit Courts be- fore its confirmation by the Federal Supreme Court. Uniformity of Rulings on the Point. This question, however, with singular t unanim- ity has been set at rest by the decisions of many courts. It is now beyond controversy that the mo- ment the apex of a vein leaves either side line of its survey the locator has no further claim thereto, on the strike, beyond such point of departure. Wolfley v. Lebanon Co. 4 Colo. 112; 13 M. R. 282; Johnson v. Buell, 4 Colo. 557; 9 M. R. 502; The Flagstaff case, 9 M. R. 607; The Golden Fleece case, 12 Nev. 312; 1 M. R. 120. DEPARTURE FROM SIDE LINES. 159 These decisions apply equally to patented and un- l>a tented claims, and have been universally acceded to as the only construction which would give to a mining claim the same certainty of title which be- longs to other classes of real estate which are free from the complications of dips and departures. Facts of the Golden Fleece Case. The case from Nevada is singularly illustrative of i he injustice which would result from a contrary holding. The Golden Fleece Lode was surveyed and staked in 1S74, upon a vein supposed to run northwest and southeast. The location claiming 1,500 feet ran due northwest and southeast, with 600 feet width. Afterwards developments by its workings and on the Leonard Lode, whose discovery was about 800 feet to the southwest, showed that the vein really ran at riidit angles to its originally supposed course. The Leonard Lode having applied for patent, the Golden Fleece made a second survey at right angles to the first which of course embraced all the workings and Toppings on the Leonard, and then filed its adverse claim, based on such relocation. But it was held that the Golden Fleece must be confined to its orig- inal location and to that part of the vein within the lines of such original location. Same Holding on Old 50-Foot Patents. The patent in the Wolfley case was issued under the Act of 18C6, so that the decision necessarily ap- plies to all patents; because the argument in favor of following the vein, under the Act of 1866, was much stronger than in the case of patents under the later Act. Lamed v. Jenkins, 113 F. 634 . Not Color of Title. In a later suit, upon the same patent construed in the Wolfley case, it was held that where the patent owner had followed his vein outside and had held it adversely for five years, that he had not even such color of title" as would operate to allow him the 160 DEPARTURE FROM SIDE LINES. benefit of the statute of limitations. Lebanon Co. v. Rogers, 8 Colo. 34. Surface Location Beyond Point of Vein Departure. If the location fail to cover the vein, not only is the vein lost after it leaves the side lines, but that portion of the location which extends beyond the point where it loses the vein, has been decided to be defeasible, if not void, having no discovery vein upon which to base any further claim to either sur- face or other veins which may lie within its lines. Patterson v. Hitchcock, 3 Colo. 533; 5 M. R. 542. See Plat, p. 21. The reason of this decision is the wording of the Act of Congress ( 2320) restricting a lode claim to a certain number of feet on "each side of the middle of the vein" so that if the vein is no longer found within the lines of the claim the loca- tor has no basis upon which to hold any number of feet, beyond the point of departure. Discarding this language of the statute, the case of Watervale Co. v. Leach, 33 P. 418; 17 M. R. 568, holds that a lode location need pay no attention to the strike and the only consequence of failure to plant it on the strike is to lose the right to follow on the dip. The decisions on this point do not apply to pat- ented claims; Argonaut Co. v. Turner, 48 P. 685; 18 M. R. 556, and there is an initial presumption or prima fades that the survey covers the vein until the contrary is affirmatively proved. Armstrong v. Lower, 15 M. R. 631; 6 Colo. 393. The reason that a patented claim is valid to its full extent for what it does cover is that the patent is of a "piece of land," with all the surface its lines include; the patent is supposed to have been based on a location made on a vein, with only the statutory width on either side, and if in fact it was otherwise, or if the vein departed before it reached the end line, it is too late after patent for any adverse claimant to set up any such variations to defeat the operation ot its grant to the entire surface and to such part of VEIN WIDER THAN PATENT. 161 the vein as it does cover. Oleeson v. Martin White Co. 9 M. R. 429; IS Aev. 442. VEIN WIDER THAN PATENT. In an early case between the Colorado Central and the Equator Lode in the U. S. Court at Denver, each claimed under a 50 foot patent, the vein being admittedly 100 feet wide. The Court held that the older patent, the Equator, could hold only to its side line and could not claim extralateral rights on its dip underneath the Colorado Central Patent. In Hull ion Co. v. Eureka Co. 11 P. 515 (Utah), the ma- of the Court took the opposite view. In Empire Co., v. Bunker Hill Co. 114 F. 417, the Court held that where there were two patents, one covering the hanging and the other the foot wall, the prior location had extralateral rights and took the whole vein except, of course, the segment within the vertical lines of the later location. The case of St. Louis Co. v. Montana Co. 104 F. Mf, which it cites, is to the same effect. These precedents are followed in an able opinion by VAN DKTAHTB, C. J. of the Eighth Circuit.. U. 8. M. Co. v. Lawson, 1S4 F. 169. Affirmed, L. v. U. 8. M. Co. 28 8. C. R. 15. A discovery shaft may be the valid basis of a location although it fails, being up to the edge of appropriated ground, to cover the whole width of the lode. Larkin v. Upton, 144 U. 8. 19; 11 P. 732. LODES, VEINS AND LEDGES. Definition of the Terms. The word "lode" and the word "vein" are used indiscriminately in the Acts of Congress* as well as in the popular language, to signify the same thing. See the text of Sec. 2320, p. 15; Sec. 2322, p. 157. 6 162 LODES, VEINS AND LEDGES. In Bainbridge on Mines, the text, page 2, defines them in the same sentence: "A mineral lode or vein is a flattened mass of metallic or earthy matter, dif- fering materially from the rocks or strata in which it occurs." A note to the same suggests the use of the word "vein" as incorrect, when applied to such deposits as those of anthracite coal. But the note is not justified, for the word "vein" is universally used to include coal, and other flat, non-metallic deposits, while the word "lode" is not so used. This is the prin- cipal distinction in the use of the words. The word "lode" is of Cornish origin (Bullion Co. v. Croesus Co. 2 Nev. 176); "vein" is Latin. In the Eureka case, 9 M. R. 578, 4 Sawy. 802, where it is said, every known definition was presented to the Court, the opinion does not intimate any difference in their meaning, but says: "Those Acts give no definition of the term 'lode.' They use it always in connection with the term 'vein.' " The word "ledge" came into use in California after the discovery of the quartz mines, because they were generally found in the hills above the gulches, and were often identified with protruding outcrop. The word "reef," not used in the Acts, is the popular equivalent for lode or ledge in Australia and South Africa. The word "range" is much used in the lead districts of the Mississippi valley. Rais- beck v. Anthony, 41 N. W. 72. Connection With Context of the Statute. The only limitation or qualification In the United States Mining Statutes in connection with the words "veins or lodes" or "veins, lodes and ledges," is the expression "of quartz or other rock in place." "In Place." These words have been construed material in cases where the vein has been found eroded or broken up. In Stevens v. Williams, 1 M. R. 557, where both the overlying and underlying bodies were solid, the deposit was held to be a lode "in place." LODES, VKINS AND LEDGES. 163 In Ta&or v. Dexter, 9 M. R. 614, where the loca- tion was on ore where the overlying rock had been eroded, the ore body remaining covered only with wash or gravel, it was held that the lode was not in place. A like ruling was made in Leadville Co. v. Fitzgerald, 4 M. R. 380. The practical point in these decisions is that where a location is claimed to be upon the apex of a lode, it must be upon such apex at a point where it is in place between the original en- closing rocks to be valid as such an apex location as will give it a right to the dip. Rock in place is contradistinguished from the soil or debris. But the lode is in place, though loose, broken or disintegrated. Jones v. Prospect Co. SI Pac. 642. Size and Richness of Deposit Not Material. In North Noonday Co. v. Orient Co. 9 M. R. 537, BAWYIB, J., says: "A vein or lode authorized to be located is a seam or fissure in the earth's crust filled with quartz or some other kind of rock in place, carrying gold, silver or other valuable mineral de- posits named in the statute. It may be very thin and it may be many feet thick, or thin in places almost, or quite pinched out, in miners' phrase and in other places widening out into extensive bodies of ore. So, also, in places, it may be quite, or nearly, barren, and at other places immensely rich. It is only necessary to discover a genuine mineral vein or lode, whether small or large, rich or poor, at the point of discovery within the lines of the claim lo- cated, to entitle the miner to make a valid location including the vein or lode." Its validity as a thing that may be located does not depend on what it runs. Shreve v. Copper Bell Co. 28 P. 315; Stinch field v. Gillis, 30 P. 839. Neither walls nor pay ore is essential, but it must show rock distinguishable from the country. Burke v. McDonald 33 P. 49. The fissure must be defined. Cons. Wyoming Co. v. Cham- pion Co. 63 F. 540. On the facts in this case it is too late to call one vein a spur and the other a main vein. Carson City Co. v. North Star Co. 13 F. 601. 164 LODES, VEINS AND LEDGES. There Must be More Than a Trace of Mineral U. 8. v. Rossi, 133 F. 380; but an assay of one or more ounces (of silver) will suffice. Stevens v. Gill, 1 M. R. 570. Whatever a Miner Would Follow with the ex- pectation of finding ore, or similar phrases, have been adopted as the practical test of what is to be considered a lode under the Act of Congress. Eu- reka Co. v. Richmond Co. 9 M. R. 578; 4 Sawy. 302; Harrington v. Chambers, 1 Pac. 362. Any body or belt of mineralized rock is a lode. Book v. Justice Co. 58 F. 106; Shoshone Co. v. Rutter, 87 F. 801. Different Degrees of Proof. In Fitzgerald v. Clark, 42 Pac. 283, the distinc- tion is made between the proof sufficient upon which to base a location and the proof required where the continuity of the vein is in question, holding to greater strictness in the latter case. The degree of proof required, and the use of the words "consider- able distance" or "considerable interval" in the con- tinuity, in the instructions, is discussed in Butte Co. v. Societe, 58 Pac. 111. What might be sufficient proof on which to maintain a mining location, may not be sufficient to maintain an assertion of extra lateral rights. Or. Cen. Co. v. Mammoth Co. 83 P. 648. In Land Office Controversies the value of the min- eral deposit is a matter immaterial to the govern- ment save in contests between mineral and non-min- eral claimants. 21 L. D. 440. Faults and pinches do not affect the legal contin- uity of the vein. Cheesman v. 8hreeve, 40 F. 793. The mineral beyond the fault is a part of the same lode or range. Raisbeck v. Anthony, 41 N. W. 7 .'. Show of Mineral by Seepage. While the richness or poverty of the vein or of the seam or stratum of rock followed as a vein, in LODES, VEINS AND LEDGES. 165 determining the question of such rock being vein ter, is not of controlling importance, yet, on prac- tical acquaintance with the subject, it will be seen that such point of relative value cannot be wholly ignored. Where the opinions say that it may be rich or poor, they refer to the well known fact that true veins, for long distances, are often quite barren. But it does not follow that every seam of rock which will assay is necessarily any vein at all. For there do exist seams which carry a little mineral and yet are not veins within the geological or legal definition. The mineralization in such cases, in some of them at least, is caused by infiltration of ore from a true vein or deposit along some plane of cleavage or along the plane between two formations, or through mere mechanical cracks in the rock, and all their mineral is only precipitated or crystallized seepage from the lode or deposit above. Such bastard veins have just enough resemblance to true veins to be used as a pretext of title against neighboring locations on the legitimate vein. They are generally lacking in walls, continuity and in the normal uniformity of a true vein, and yet may have slips which are prac- tically indistinguishable from walls, and have some discolored matter and particles of ore, just enough to be dangerously similar to what is of value only as it is unlike such things. Golden v. Murphy, 75 P. 625; 76 Id. 29. The question of vein or no vein in law, is, in such cases, a fact to be determined by the jury under the instructions of the court. Iron-Silver Co. v. Mike d Starr Co. 143 U. 8. 394; Blue Bird Co. v. Largey, 49 F. 289. Mineral Bearing Zone. A broad formation impregnated everywhere with mineral, but traversed by true fissures within itself, cannot be considered as the lode; the fissures within such zone are the lodes and the zone is the country. Mt. Diablo Co. v. Callison, 5 Sawy. 439; 166 LODES, VEINS AND LEDGES. 9 M. R. 616. Ore distributed generally, though un- equally, throughout the entire mass of limestone of the mountain does not constitute a continuous lode such as may be followed beyond the lines of its location. Hyman v. Wheeler, 29 F. 347; 15 M. R. 519. A belt of porphyry containing mineralized seams is a lode. Book v. Justice Co. 58 F. 106; Shoshone Co. v. Rutter, 87 F. 801. When a larger deposit is separated into two distinct seams with separate walls, each seam is a separate lode. Doe v. Waterloo Co. 54 F. 935; Hayes v. Lavagnino, 53 P. 1029. Where the mineralization of the alleged lode is not appreciably greater than the surrounding rock it does not constitute a vein. The absence of walls and want of continuity commented on. Grand Cen- tral M. Co. v. Mammoth M. Co., 83 P. 648. Ore in Pockets, Vugs or other irregular and dis- connected occurrences without vein matter between does not make a lode. Cheesman v. Shreeve, 40 F. 787. Nor ore bodies formed outside the fissure. Tombstone Co. v. Way Up Co. 1 Ariz. 426. Where the Continuity of the Ore Body Is Broken by the contact becoming barren for a considerable distance, the legal extent of the vein ceases. Ste- vens v. Williams, 1 M. R. 557; Leadville Co. v. Fitz- gerald, 4 M. R. 380. A vein need not be a straight line nor uniform in dip, thickness or richness of ore. The enclosing cleft or fissure may narrow or even close for a few feet and be found further on. Its continuity may be proved by following either the ore or the rock which carries the ore. Slight proof of ore is sufficient where the enclosing boundaries are distinct; there need be no proof of such boundaries if the ore itself can be followed. But if the vein dis- appear so far or so completely that it cannot be rec- ognized when it is again found or alleged to be found, there is no sufficient proof of continuity. Iron Silver M. Co. v. Cheesman, 116 U. S. 530; followed substan- APEX. 167 tially in Hyman v. Wheeler, supra, and in the Ghees- man case, 40 F. 787. Where the lode has no defi- nite walls the ore bodies are the guides to follow. Bunker Hill Co. v. Empire Co. 134 F. 268. All Deposits "in Place" Are Lodes. The uniform ruling has been that all forms of metallic mineral or mineral gangue in place, whether fissure or contact veins, or impregnations, or other irregular deposits, should be construed to come within the expression "veins or lodes" used in the Act of Congress, and as such to be subject to location and patent under the Act. Hayes v. Lavagnino, 53 P. 1029. There has been in fact a concession that such should be the holding rather than a contention to the contrary. The substantial and contested point has been whether a location or patent on certain forms of deposit was entitled by virtue of including the apex or so-called apex of the vein or deposit, to follow the vein or deposit beyond the side lines un- derneath the adjoining ground or claims of other parties. This point will be considered under the next heading, An \ Evidence of what has been followed up and located on in the same mining locality is admissible as to what is sufficient lode discovery. Ambergris M. Co. v. Day (Ida.), 85 P. 109. APEX. The Grant of the Apex Right. K. S. Sec. 2322. The locators of all mining loca- tions * * * shall h:m> the exclusive right of possession and enjoyment of all the surface included within the lines of their locations, and of all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of such surface-lines extended downward ver- tically, although such veins, lodes, or ledges may so far depart from a perpendicular in their course downward as to extend outside the vertical side-lines of such surface locations. 168 APEX. Limitation to Planes of Projected End Lines. 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. Sec. 3, May 10, im. The mining Act of 1866 which was the first pro- vision for advancing possessory claims to patent provided that the applicant should be granted "such mine, together with the right to follow such vein or lode with its dips, angles and variations, to any depth, although it may enter the land adjoining, which land adjoining shall be sold subject to this condition." The Act of 1872 made a material change by pro- viding that the end lines of every lode claim should be parallel and that these end lines protracted should become bounding planes between which the proprie- tor of the apex should have the right to follow his vein. The theory of th'e Act was that a survey would enclose a vein along its center line from end to end and that the end lines would be at right angles to the strike of the vein. But there are few locations where the miner is so fortunate as to place his stakes so as to comply with such theory. The course of the lode when located or when surveyed for pat- ent is generally a matter more or less of conjecture and even if known, the vicinity of prior claims may interfere with the desired survey and there being no requirement that the side and end lines must be at right angles it is found in practice that many diffi- cult points arise upon most of which by this time there is a satisfactory judicial conclusion. The common law grant of lands conveys the sur- face and whatever minerals underlie the surface within lines drawn perpendicularly downward to- ward the center of the earth. The apex clause in the act modifies the common law by enlargement to the extent that the claimant APEX. 169 owns and may follow any lode whose apex he cov- ers, beyond his side lines under land adjoining. On the other hand he is not the owner of lodes found within his lines extended downward vertically where such lodes have their apexes outside of his surveyed lines. Roxanna Co. v. Cone, 100 F. 168. Besides the right to follow his own vein on the dip, he is, under the common law grant of the pat- ent, owner of the soil and rock within his lines carried vertically downward. '1 his common law grant gives him the ownership of any deposit of mineral belonging to a class which has no apex and also of any lode which though it have an apex, such apex is not located upon or is surveyed in such form as to give no extra-lateral rights to the proprietor of such exterior location. The above general proposition must be under- stood with reference to certain limitations and con- ditions as follows: The Lode Must Have An Apex. The outcrop or edge of a vein or deposit is not necessarily its jipex. The typical or true fissure vein is a narrow zone of ore-bearing rock descend- ing indefinitely in depth. It is essentially a per- pendicular formation, though always, or nearly al- ways, inclining some degrees from true; this in- clination is called its dip. The bounding planes of such vein are called its walls. The outcrop or near- est approach of such a vein to the surface is, and always has been, properly styled its apex. Such were the veins generally known and worked on the Pa- cific slope at the time of the passage of the Mining Acts. To give such veins the right to their dip was essential to their full use and enjoyment. Other classes of veins are essentially horizontal in their formation. If found to approach the per- pendicular such fact is accidental, not incidental occasional and rare, not usual or normal. They may be, like coal, a layer of rock itself constituting a 170 APEX. separate geological stratum; or they may be a fill- ing between the planes of contact of two dissimilar formations; or they may be impregnations diffused irregularly through a broad zone. Such deposits are called beds or even fields, terms obviously inappli- cable to perpendicular deposits. Their upper bound- ary rock is commonly and properly called the roof rarely the wall; and while they may have an out- crop, such outcrop was never known among miners as an "apex" until the use of such term in the Min- ing Acts induced the attempt to abuse the term by imposing it upon the outcrop of horizontal forma- tions. The term itself means the top or highest point, and has no significance when applied to horizontal deposits. Blanket Veins. In the case of Duggan v. Davey, 26 N. W. 901 (Dakota), where an eight-degree vein having its out- crop on the side of a hill was claimed throughout its entire extent by those who had their location upon the outcrop, the court ruled that such lode had no apex and that a location on the dip, although made after a location on the outcrop, was valid, and that the outcrop claim eould not follow beyond its side lines. The case of Oilpin v. Sierra Nevada Co. 23 P. 5^7, also intimates that blanket veins cannot claim to have an apex under the Mining Acts. The in- clines on the deposit in that instance as worked ran from the surface up, instead of down. In the Leadville and Aspen cases arising upon veins of the character last above described, in the United States Circuit Court at Denver, any such dis- tinction as above made has not been recognized. But the strict ruling on other points, that there should have been no prior location on the dip; that the apex location must be made on a vein in place, and the necessity of having the apex parallel to the side, and not parallel to the end lines, which is a practical APEX. 171 impossibility when the real deposit is a deeply im- bedded field, bed or basin, -with a more or less circu- lar rim. have circumscribed and practically defeated most attempts to follow such veins on their dip. The strength of this position is increased by an attempt to apply the apex law to such deposits as the lead and zinc beds at Joplin, Missouri. There the country for miles is underlaid by a stratum carrying zinc and lead ore. The miner starts a shaft in the open prairie, without any indications whatever, of mineral, and at a certain depth confidently expects to pierce this ore-bearing stratum which is substan- tially a flat underlying deposit, the outcrop of which may be miles distant if it have any outcrop at all it is only when some bluff or ravine would expose the edge of the bed at the surface. As to such de- posits it is obvious that there is no such thing as locating a claim so many feet on each side of the center of the vein, for, as the Department holds: "The apex of the lode is coextensive with the side lines." 29 L. D. 689. In Iron 8. Co. v. M. d 8. Co. 1'iS U. 8. 894, the opinion refers to this distinction and recognizes the validity of such blanket lode locations, treating this incident of no apex proper as an item of minor importance. Blanket veins must be located as lode claims and not as placers. Iron 8. Co. v. Campbell 17 Colo. 2?/. The End Lines Must be Parallel. When we claim the right to follow a vein on its dip as it leaves its side lines and plunges into the earth it is obvious that we are at once dealing with a third dimension rarely referred to in sur- face grants. It is also obvious that unless this third dimension is guided by parallel planes the claim will, if the end lines diverge, extend indefinitely as it goes down. If they converge, it would, like a wedge, diminish to a line. The statute therefore in terms requires end lines to be parallel and that require- ment has no reasonable meaning except as taken in connection with the right to follow the lode on the dip. If, therefore, the locator fail or neglect to 172 APEX. make his end lines parallel he is in disobedience of the terms of the Act, by either fault or misfortune, and has no right to this statutory donation. It was so ruled in Montana Co. v. Clark, 16 M. R. 80, where the claim was surveyed as a triangle which could not geometrically have two parallel lines. The same in the Elgin case, 15 M. R. 64 1, which had a sur- vey in the shape of a horseshoe. In both these cases the reason for the parallelism of end lines is fully stated. The Eureka case, 4 Sawy. 302; 9 M. R. 578, has been cited (Horswell v. Ruiz, 67 Cal. Ill ; 15 M. R. 489) as ruling that the requirement of end lines is di- rectory merely and that no consequences attach to its neglect, but the further details of the opinion (on page 596) much qualify the words to that effect used on page 593. We can see no reason why a sur- vey without parallel end lines should be void for the ground within its lines, nor can we conceive that it should be allowed extralateral rights if it do not have end lines substantially parallel. But the case of Doe v. Sanger, 23 P. 365, decides in terms that the end lines need not be parallel and that they do not affect the right to follow the lode on the dip for the weakest of all reasons in statutory construction, to wit: because the requirement of parallelism and the grant of the dip are contained in two different sec- tions of the Mining Act. It is evident from the language used and the 'plats in Walrath v. Champion Co. Ill U. 8. 294, in the Stone Lode case, 118 U. S. 196; 15 M. R. 641, and other decisions that practically a lode may be sur- veyed in any shape which a locator chooses to give to his lines. That there is no requirement that every claim be substantially a parallelogram or must have two endlines and two sidelines. But no such irregular survey has ever been allowed extralateral rights ex- cept in the case of Doe v. Sanger, supra. Such a lo- cation is good for its surface ground and for such parts of veins (not held by location on the apex out- APEX. 173 side) as may be found within its vertical planes. L'ruicn Point Co. v. Buck, 97 F. ) Apex "rights may be claimed, although the clear ground is a triangle, if the projected end lines are parallel. McEUigott v. Krogh, 90 P. 823. Locations under the Act of 1872 to claim extra- lateral rights must have parallel end lines. Daggett r. Yreka M. Co. 86 P. 974. The Department has held that end lines must have suustantial existence, and that two-tenths of a foot in length is not an end line within the meaning of the statute. 34 L. D. 470; 35 Id. 22. End Lines Under Act of 1866. It has been constantly held that patents perfect- ing locations older than the Act of May 10, 1872, may have extralateral rights without the necessity of parallel end lines, and where the end lines converge they may be protracted. Carson City Co. v. North Star Co. 75 Fed. 597: Central Co. v. E. Central Co. 79 Pac. 834. (Affd. E. C. Co. v. C. E. Co. 204 U. 8. 266.) In Argonaut Co. v. Kennedy Co. 21 M. R. 163; 63 Pac. 148 t where the end lines diverged the dip right was given at right angles to the strike of the vein. If the Argonaut case is correct and if par- allelism of end lines is not required, then we see no reason for drawing the distinction between end lines converging or divoriring nor why the former should not enjoy equal dip rights with the latter. The Lode Crossing Both Side Lines. In the case of Flagstaff Co. v. Tarbet, 98 U. fif. 463, 9 M. R. 607, the Supreme Court of the United States at an early date held where the lode crossed from side line to side line at practically a right angle to its survey, that in such case the side lines became end lines, that is to say: They passed down through the lode vertically and cut off all extralateral rights. This decision has been uniformly followed in all cases where the lode has been found to leave its lo- cated or patented area through both sides lines. King v. Amy-Silversmith Co. 152 U. 8. 222; Argen- 174 APEX. tine Co. v. Terrible Co. 122 U. 8. 478; Parrot Co. v. Heinze, 64 Pac. 826; 8. Nev. Co. v. Holmes Co. 73 P. 759. The Lode Leaving One Side Line. After much greater contention than in the in- stance of the lode crossing from side line to side line, it has now been repeatedly held that where the lode leaves the claim through one end line and one side line it preserves its extralateral rights, to wit: the right to follow the vein on its dip from the end line to the point on the side line where it leaves the claim. Such end line is protracted vertically downward and produced on its course to form a bounding plane and the other bounding plane is found by protracting and producing another line parallel to the end line plane across the claim at the point where the vein goes out. Last Chance Tyler case, 54 F. 284; 61 F. 557; Cons. Wyoming Co. v. Champion Co. 63 F. 540; Del Monte and Last Chance case, 66 F. 212; 171 U. 8. 56; Clark v. Fitzgerald, 171 U. 8. 92; Carson City Co. v. North Star Co. 73 F. 597. Divergence from Same Side Line Twice. In Catron v. Old, 48 P. 687; 18 M. R. 569, the Fulton survey had an angle in the center making it a V shaped claim; crossing the diverging halves the lode left the location twice through the south side line, the diagram of the conflict being as follows: The Supreme Court of Colorado held that the Fulton Lode had no right to follow the vein upon the dip into any ground beyond its side line carried APEX. 175 down vertically, and the correctness of such ruling could not be seriously disputed under the authority of the Amy-Silversmith Case. Discovery on the Dip. In Van Zandt v. Argentine Co. 2 McCr. 159, 4 M- It. ///. it was held that a prior discovery on the dip would hold against a junior discovery on the apex above. It is also obvious that all tunnel discoveries must necessarily be made on the dip and their val- idity has never been doubted. Jones v. Prospect Co. SI P. '//-' Where the width of the claim is sufficient to allow the apex to be within the side lines all doubt on the point ceases, but where the vein dis- covered on the dip apexes in foreign ground it is argued .that it never becomes the property of the lo- cator; that though he may rightfully plant his dis- covery shaft on the dip he must so locate as to cover the apex above the point of discovery with his sur- vey. Lindley on Mines, 864. See S3 L. D. 142. The case is stronger for such a discovery after patent, for there then arises a presumption that the patent was based on a valid discovery. If there be a valid discovery the patent should certainly convey the vein upon which such discovery was made; and the equity of the case in favor of such an instance, whether location or patent, is to urge strongly against such close construction as would deprive the discoverer of his asserted rights. In Colo. Cent. Co. v. Turck, 50 F. 888, 54 F. 262, a junior patent was allowed to take the vein on the dip underlying a patent whose discovery shaft was on the same vein, but the vein of which was as- sumed to leave the side lines on its strike, though it dipped back and remained between them carried ver- tically downward. The Common Law Grant of the Patent Veins Cut Within the Lines, Apexing Outside. The literal grant of a patent issued under the Mining Acts reads as if it conveyed all veins apex- ing within the lines and excluded all those whose 176 APEX. apexes were outside. And. such is its clear meaning where a prior location has covered the apex of such veins found to dip underneath a junior claim. But where in sinking, veins or deposits are found which have either no apex, or an apex not located upon out- side, or an apex not located upon at the date of the patent under which such veins or deposits are found, to whom do such veins or deposits belong? The decisions have with great uniformity held that such new discoveries presumptively belong to the patentee and refuse to give a literal construction to the patent. The case is fully stated and the point ruled in Doe v. Waterloo Co. 54 F. 935, following Duggan v. Davey, 26 N. W. 887; Leadville Co. v. Fitz- gerald, 4 M. R. 385. In Montana Co. v. Clark the ruling was made that such veins apexing outside, but not located out- side, remained still the property of the United States. 16 M. R. 80; 42 F. 626. This ruling is theoretically correct and such vein or part of a vein would become the estate of any locator who made a proper location upon such apex outside. But it often happens that all the surface ground has been taken up in such form that while the apex is covered it is covered in such shape as to allow no extralateral rights and where such is the case the portions of the vein in such position belong to the party whose survey includes them within the vertical planes of his side and end lines. Parrot Co. v. Heinze, 64 P. 326; State v. District Court, 65 P. 1020. In Roxanna Co. v. Cone, 100 F. 168, the Court re- fused to enjoin in favor of the common law right of the complaining lode which confessedly had no apex, the owners of all the claims which might assert apex rights not being defendants to the suit. Exception of Such Veins in Favor of Proprietor of Other Lodes. In Pacific Coast Co. v. Spargo, 16 F. 348, 16 M. R. 75, and Amador Co. v. South Spring Co. 36 F. APEX. 177 668, it was held that the exception of veins apexing outside, in favor of the proprietors of such veins, should be confined to instances where the rights of siu-h proprietors were in existence at the time of the grant to the patentee whose claim was underlaid by such veins. But all the later decisions refuse to recognize this distinction, and treat the exception as one standing for the benefit of future as well as pres- ent proprietors. Turck case, supra; Cheesman v. Hart, 16 M. R. 263; 42 F. 98. An Owner May Amend His Survey, even after patent applied for, to keep his vein within his short- ened claim, by making a" new end line and dropping that portion into which no vein extends. Last Chance Co. v. Tyler Co. 61 F. 557. And may amend to correct diverging end lines. Doe v. Sanger, 23 P.' 365. In both these instances the amendments were allowed after other claims had been located based on the supposed effect of the original error upon the rights of parties to adjoining ground. The right so to amend is undeniable, but to allow such amendment to operate to divest rights already vested in the underlie is more than questionable. We can see no difference between an estate vested in an a lateral portion of a lode and an estate vested in the surface of the same. Apex Covered by Several Patents. Where there are several contiguous patents the dip-right of each must be treated as a separate grant. The two patents cannot be considered together so as to treat them as if they were one patent enclos- ing the apex of the vein. Del Monte Co. v. New York Co. 66 F. 212. On the other hand in Carson City Co. v. North Star Co. 13 F. 598, where the owner of several irregular locations had patented them to- gether they were treated as one claim, enlarging to extreme limits the doctrine of Smelting Co. vs. Kemp, 104 U. S. 636, 11 M. R. 673,' where the distinction is made between a location and a claim. 178 APEX. There can be but One Set of End Lines, for all the veins covered by the patent. And where de- parture from one or both side lines renders it mate- rial, only the discovery vein can be used to determine what are the planes of the end lines. Walrath v. Champion Co. Ill U. 8. 293; Cosmopolitan Co. v. Foote, 101 F. 518; St. Louis Co. v. Montana Co. 104 F. 664; Jefferson Co. v. Anchoria Co. 15 P. 1010. The only decision inconsistent with this ruling seems to be Ajax Co. v. Hilkey, 12 P. 441, which allows extralateral rights to a secondary vein apexlng within the claim beyond the point at which the dis- covery vein left the side line- Eelation of End Line to Strike. The extralateral rights being defined by extend- ing the end lines as parallel vertical planes, it -is apparent that unless the end lines are at an exact right angle to the vein, which they rarely are, the grant of the patent is not the grant of the right to follow down on the dip, underneath the same feet of apex enclosed. On the contrary there must be a gain in one direction and a corresponding loss in the other. The following diagram will illustrate this. APEX. 179 The Senior and Junior lodes above are on the same vein, the Senior located obliquely to the apex. The Junior is correctly laid on the strike of the vein. The Senior is the older patent. By the dashed lines the Senior loses the bottom of its own shaft and cuts off the shaft of the Junior lode. The dotted lines and the shafts, of course, are at right angles to the strike of the vein. Right to the Vein Within the Four Vertical Planes. Although where the lode crosses from side line to side line it loses its extralateral rights, the claim- ant has a certain compensation by being allowed to follow on the dip to his end line. Where a dipping lode crosses from side line to side line, in following it down, it is obvious that two shafts sunk on the vein at the two points where it leaves the side lines will enclose between them all that part of the vein the apex of which is within the patent Lode Y, Plat X, p. 183. The right to the part of the lode between such two shafts in going down is lost as soon as the ver- tical plane of the south side line is reached. This is the ground marked B on Plat X. The vein below on B he does not own. On the other hand, he retains all of C, which is the vein within the vertical planes of his side lines and end lines. A patentee following down on the dip cannot take the vein where he finds it between vertical side and end lines of a prior location whose vein crosses both its side lines. Tyler Co. v. Last Chance Co. 11 F. 848; 157 U. 8. 684; Argentine Co. v. Terrible Co. 122 U. 8. 418. The vein may be followed between the planes of its end lines although they are at such angle to the vein as to follow the strike rather than the dip. Bunker Hill Co. v. Empire State Co. 134 F. 268. And where a segment is cut out of the lode by the dip rights of another lode the ore beyond the segment belongs to the junior lode. Id. 180 APEX. Following Lode Beyond End Line. In the Flagstaff Case, the Federal Supreme Court use this language: "The side lines of the location are really the end lines of the claim." In Last Chance Co. v. Tyler, 151 U. S. 87, it says "the side lines of that location become the end lines land the end the side lines." The use of this expression is far from holding that extralateral rights may be pursued be- yond the end line. In neither of these cases was the ground actually in controversy beyond the end lines of any of the claims in dispute, so that the expres- sions quoted are only dicta in both instances. The grant of a patent is of a piece of land with an extralateral grant upon a certain condition, to wit: that its lines enclose the apex of a vein, which vein extends "outside the vertical side lines" of its survey. If its lines enclose such apex from end line to end line or from end line to side line, the condition exists and its extralateral right is established. In the proposition that where it has a vein going through both side lines it can follow such vein be- yond its end line there is no assertion of a condition which, having been fulfilled, some right accrues as the incident to the compliance with the condition. The statute expressly gives the right to go be- yond the side line upon the existence of the condi- tion; it does not give such right to go beyond an end line. Nor is there any known principle of law which would enlarge a grant in derogation of the common law, and therefore to be strictly construed by allowing the grantee who fails to come within the terms of the condition of his grant to be com- pensated out of other lands upon the supposition of an implied condition to that effect. And yet the contrary is strongly contended for (Lindley, 589), and in. the only suit where the point has directly arisen, a case arising on an ore contract made in Arizona and sued on in Connecti- cut, the holding was made that the vein could be pursued beyond its end line. Empire Co. v. Tomb- stone Co. 100 F. 910; 131 F. 339. APEX. 181 Also, in Bunker Hill Co. v. Empire Co. 109 F. 558, the point was conceded to the same effect, but in that case all the claims involved were surveyed squarely across the strike, so that neither had any status as to the ore in contention unless it was so conceded. When a lode is recorded it is a publication to the world that a party claims all veins within its lines with the right to follow on the dip between the end lines protracted. It is, as well, a disclaimer of all other rights. The record shows which lines are claimed as side lines and which as end lines. Sub sequent to such location so recorded and published the lode is cut on the dip beyond the located end lines by tunnel. The discoverer by tunnel, locates records and by his own exploitation discloses that he is on a vein, which when followed to the surface brings it within the first location whereupon such first location claims the ore by its pretended right to follow the vein beyond its end lines. W. will never concede unless and until com- pelled by binding authority that by the mere allite- ration of language "side lines become end lines," "end lines become side lines," that the first locator can defeat the rights of such tunnel discovery, but hold that he is estopped by his record to claim the right to pass beyond what he, by his own act, has made his end lines. Recapitulation Explanation of Plat X. The plat on page 18S will illustrate several of the instances above mentioned. It represents a vein covered by a location from end line to end line; another location where the vein crosses from side line to side line, and a third location where the vein crosses one end line and one side line. The dip of the vein is to the south, that is, to the foot of the plat. The X location owns, of course, its entire sur- vey and may follow the vein on its dip between 182 APEX. its vertical end lines extended downward indefi- nitely. Y owns the vein in the triangle A. He does not own B. On the other hand, he does own C, being that part of the vein between his vertical side and end lines, unless X is the older location, in which case he loses to X the greater part of C. As to whether Y has any estate in D, being the extension of his vein beyond his end line, is the question discussed on page 180. Z, whose vein leaves one end line and one side line, is the owner of the parcel E, and the parcel F, the vein on the dip, to the extent of his extralateral rights. He can not follow into G. The vein in G becomes the property of whoever may disclose and locate the apex in the vacant ground between Y and Z. APEX. 183 * O % 184 APEX. Presumption Burden of Proof. The presumption, where a miner is found be- yond his side lines, is against him. He is prima facie a trespasser till he has shown that he gets there by following the lode on its dip from its apex within his lines. Cheesman v. Shreeve, 16 M. R. 79; 37 F. 36; Blue Bird Co. v. Murray, 23 P. 1022; Bell v. Skillicorn, 28 P. 768; Cons. Wyoming Co. v. Cham- pion Co. 63 F. 540; Iron 8. Co. v. Campbell, 11 Colo. 267 ; Duggan v. Davey, 4 Dak, 110; Leadville Co. v. Fitzgerald, 4 M. R. 380; Doe v. Waterloo Co. 54 F. 935; Maloney v. King, 64 P. 351; Red Wing Co. v. Clays, 83 P. 841; Gr. Cent. Co. v. Mammoth Co. 83 P. 648. But the fact that the owner is claiming extra- lateial rights does not prevent the application of the presumption that his surface bounds include his vein in such a manner as to entitle him to extralateral rights. Wakeman v. Norton, 24 Colo. 192. But the proof of the continuity of the vein downward must be made. Butte Co. v. Societe, 58 P. 111. The presumption that the lode extends through- out the claim applies to a lode location within a placer. San Miguel Co. v. Bonner, 79 P. 1025. Such presumption yields of course to the proof when it shows an outside apex. Montana Co. v. Boston Co. 70 P. 1114- But the opinion of a"n expert based on calculation of the dip through long space of un- broken ground is not enough. Heinze v. Boston Co. 77 P. 421. The issue of a patent raises a presumption that the lode has an apex within its lines. Iron 8. Co. v. Campbell, 17 Colo. 272. And the possession of the apex is the possession of the vein to the full extent of the extralateral right. Empire State Co. v. Bunker Hill Co. 121 F. 973; Montana Co. v. Boston Co. 71 P. 1005. Parties have a right to a trial by a jury on alleged apex rights, and equity has no jurisdiction of such an issue. Campbell v. Golden Cycle Co. 141 F. 610. DIP. 185 It is not essential in trespass for ore taken from the lode on its extralateral dip to allege in terms that the apex of the vein is within plaintiffs boun- daries. Id. The degree of proof required of an apex claim- ant to show continuity is considered in Daggett v. Yreka M. Co. 86 P. 968. DIP. Dip is a proper mining term and has a plain and important signification. It means the line of depar- ture of a lode from the perpendicular. The number of degrees may of course be calculated from either the perpendicular " or from the horizontal, and the usage with professional surveyors is to calculate the degrees from the horizontal, but miners generally speak of a lode as dipping so many degrees from the perpendicular, especially when referring to lodes \\<>rked by shafts. It is used along with "angles and variations," in the A. C. 1866, and is with those words omitted in the A. C. 1872, but its place is supplied by the phrase ( 2322): "All v, ins. * * * throughout their entire depth, * although such veins. * * * may so far depart from a perpendicular in tlx-ir course downward as to ez- outside the vertical side-lines, of such surface loca- tions." The term is to so great an extent associated with the terms APEX and DRAINAGE that it has been neces- sarily to a large extent considered under those heads. Practical Effect of Dip to Carry the Lode Away from Its Surface Lines. A lode dipping to the north will gain horizon- tally to the north about 1.7 feet in 100 feet of descent for each degree from the vertical. A shaft sunk upon a dipping vein will, in 100 feet depth, measured along the dip, acquire the fol- lowing vertical depths and horizontal departures 186 DIP. from the top of the shaft for the following angles, all taken from the horizontal: ANGLE VERTICAL HORIZONTAL DEPTH DEPARTURE 10 17.4 feet 98.5 feet 20 34.2 " 94.0 " 30 50.0 " 86.6 " 40 64.3 " 76.6' " 50 76.6 " 64.3 " 60 86.6 " 50.0 " 70 94.0 " 34.2 " 80 98.5 " 17.4 " 90 100.0 " 0.0 Cubic Incidents of Lode Claims. From the outstart it should be kept in view that a lode claim is a solid body of ground and not a "superficies." Massot v. Moses, 8 8. C. 168; 8 M. R. 607. Dip is only one of the incidents of this fact. A placer or even a coal bed furnishes few analogies to define the rights of a claim which leaves the sur- face at once and follows its own course, governed only by its natural but invisible boundaries. Estate in the Dipping Lode. Since the dip may carry a lode under the side lines of an adjoining claim, the right to follow such a lode must indicate either: First An easement to which the adjoining claim is subject, or, rather, Sec- ond An exception put of the estate of the adjoining claim. The maxim that ownership extends from the surface to the center of the earth in vertical lines, in either event, therefore, does not apply; the claim in its downward course is governed by the dip of the vein whose apex appears at the surface; it extends under the vertical side lines of the adjoining claims on one side, and on the other side it leaves veins pitching under its own side lines as the property of him who is their owner at the surface. Iron Silver Go. v. Clieesman, 116 U. 8. 530. DIP. 187 Where a lode cut in a tunnel has a dip it will be assumed that it carries the same dip to the sur- face. Brcicster v. Shoemaker. 63 P. 309. The Side or Auxiliary Veins, whose apices may be within the side lines of the claim or patent have the same right to the dip as has the principal or discovery vein. Jupiter Co. v. Bodie Co. 11 F. 666; 4 M. R. 412; Walrath v. Champion Co. 63 F. No Apex No Dip. Any located or patented claim which has been so surveyed that its vein runs practically at right angles to the side lines cannot claim the dip beyond its side lines. The Flagstaff case, 98 U. 8. 463; 9 M. R. 607; McCormick v. Varnes, 2 Ut. 855; 9 M. R. 506; Argen- tine Co. v. Terrible Co. 122 U. 8. 478, and cases cited under Ari.\. Effect of End Lines. The end lines of all lode claims are required to be parallel; and where the lode in its descent reaches the end lines protracted, the claim ceases and the dip can not be followed across the protraction of the end lines. Richmond Co. v. Eureka Co. 103 U. 8. 839; 9 M. R. 634; Stone Lode case, 118 U. 8. 196; 15 M. R. 641. To allow the end lines to diverge is to allow the claimant an ever increasing lineal extent of vein as he descends. Page 171. When the Grantor Conveys a claim or part of a claim he conveys the right to follow on the dip all veins apexing within the granted ground. Stinch- field v. Gillis, 30 P. 840; 40 Pac. 98; Boston Co. v. Montana Co. 89 F. 529. This would seem self- evident in a conveyance of the entire claim or of a claim divided across from side line to side line. But in every mining deed the dip right should be mentioned in express terms. 188 WALLS. WALLS. Defined. In a contact vein the roof or hanging wall is the plane of the contact above; the floor or foot wall is the plane of the contact below. In fissure veins the walls are the plane of demarcation between the country and the gangue. Relation to the Country. It should seem almost self-evident that the na- ture of the wall must depend upon the nature of the country rock and the nature of the material which it encloses. Between certain rocks the plane of separation would be distinct and traceable; be- tween other rocks a diffusion of the oxides and min- erals of the enclosed material through the adjoining country, would obliterate more or less all trace of the original plane of division. Where this plane of division is manifest to the eye there is what miners call a wall where it has become obliterated they say there is no wall. It is therefore manifest that the fact of the absence of one or both walls, is, in itself alone, no proof of the non-existence of a vein, they being a mere accidental circumstance. And it has been so decided in the Lime Lode case, 116 U. 8. 530, and in the Durant case, 29 F. S5>, : M. R. 519. In the former decision, after defining what constitutes a lode as a "body of mineral or mineral- bearing rock within defined boundaries," MILLER, J. adds: "In the existence of such body and to the ex- tent of it, boundaries are implied." In the latter case, in such language as would be used by a lawyer thor- oughly familiar with the subject-matter, HALLETT, J. says: "It is true that a lode must have boundaries, but there seems to be no reason for saying that they must be such as can be seen." Broken Ground Slips Natural Cleavage. It is also evident that subsequent disturbance of the vein matter would tend to destroy the con- SPURS. 189 tinuity of the wall; and in many classes of rock the natural cleavage is such as often to be mistaken for and followed as a wall. In such ground a very little manipulation may be made to show an apparent wall where none, in fact, exists. Disappearance of Wall. It is nevertheless true that where a wall has shown itself for some distance and disappears that is an important item to be considered where the fur- ther continuity of the vein is made doubtful by reason of the simultaneous disappearance of the min- eral and an apparent change in the rock which is being followed. See page ^1. Wall or Side of Working. It is also to be observed that the term "wall" is often used with reference to the actual side of a drift, shaft or other working without reference to its association with the vein, and finding mineral l>y "cutting through the wall" is spoken of as If it implied no contradiction of terms. SPURS. The word spurs is not found in any of the Acts of Congress nor in the patents issued under them. It is a dangerous term, because its meaning is rela- tive, not definite. That which, when first discovered, may be called a spur, may prove to be a better de- veloped vein than the lode from which it strikes off. But the term found its way into the Colorado Territorial Act of 1866, and is seen in most records; when properly applied it signifies a feeder to, or off- shoot from, a lode. As such it is part and parcel of the lode, at least as far as the side lines of the claim, and if it extended much further, it could hardly be called a spur. 190 ANGLES AND VARIATIONS. ,A spur is defined (Bainbridge, p. 2, note), as "A lateral branch from the main lead, not returning to it, but losing itself in the surrounding soil." Though called a spur (which word is apt to be used as a slurring term) it is in law a lode upon which a valid title may be founded if it do in fact show a "well-defined crevice." Where repeated locations have been made upon a mineral vein it is too late to call it a spur, espe- cially where the law fixes no limit to the size of the vein which may be located, nor admits comparison of different size between conflicting locations. Car- son City Co. v. North Star Co. 73 F. 601. When the discovery or existence of a lode is in contention, its size, strength, continuity and other like incidents are questions of fact to be found by the jury. Blue Bird Co. v. Largey, Jfi F. 289; Book v. Justice Co. 58 F. 106. Ore bodies formed off from the fissure do not form separate veins. Tombstone M. Co. v. Way Up Co. 1 Ariz. 426. ANGLES AND VARIATIONS. Use in Statutes and Conveyancing. In 4, A. C. 1866, the words "angles and varia- tions" were used, and under the Act a lode was pat- ented with its "angles and variations." They are neither law terms nor technical mining expressions, but are supposed to cover the digressions of a lode from a straight line, and might be extended to "faults." In arguing the important question arising upon patents under the old law when the vein left the side lines, these words were strongly urged as indicating the intention to pass the vein as the essen- tial grant of the patent. These words, or like terms, are in common use in the phraseology of mining deeds (Bullion v. Crcesus Co. 2 Nev. 168; 5 M. R. 251) but are not words of essential description. ANGLES AND VARIATIONS. 191 Irregular Surveys With Unnecessary Angles. A lode may and should be surveyed to cover all its angles. But acute angles such as were attempted in the Stone Lode, leading to fantastic figures, widely different from the parallelogram intended in the Act of Congress, even if they have two parallel courses which they call end lines, run a risk of being ruled out of any right to claim beyond their side lines. In other respects they may be wholly valid if the end lines are regular and the statutory width and length are not exceeded. Iron Silver Co. v. El- gin Co. 15 M. R. 641; 118 U. S. 200. Whether the presumption allowed in ordinary cases (Armstrong v. Lower, 6 Colo. 582) that the sur- covers the vein would be indulged to a claim which has acute angles may be doubted. Such pre- sumption is merely to fix the party on whom is the burden of proof, and on an angled claim ought to \u-ltl io y-ry slight evidence. In the case of the Jack Pot Lode the Department required an amended survey where, by assuming a zigzag shape, the width of the claim exceeded 600 feet, and also ruled that a long end line parallel to another end line less than 3 inches long could not be considered parallel end lines within the meaning of the law. S4 L. D. 410. Angles to Allow for Slope. But where the lode has a pitch and is located on rising ground, especially where it crosses the sad- dle of a mountain or passes through a deep gulch, an angle or angles ought sometimes to be made, the direction of which will depend upon the dip of the lode, whether into or out of the mountain, and the extent of which will depend upon the degree of the dip. Such allowances are not called for where the location is on level ground nor even on rising ground if the lode runs directly up and down hill; but are essential under conditions familiar to surveyors and to experienced prospectors, in order to keep the apex fairly between the side lines. See page 185. 192 DRAINAGE. DRAINAGE. Legislative Control. Sec. 3. The general assembly may make such regu- lations, from time to time, as may be necessary for the proper equitable drainage of mines.- Colo. Const. Art. XVI. Under the above authorization R. S. 4226- 4234, attempt to regulate this subject. Such State control is also recognized in section 2338 of the U. S. Statutes. But the subject itself is one of inherent difficulty. The Act seeks to provide that where one mine drains another, the mine thus benefited shall pay its propor- tion of the cost of drainage. Where a tunnel or lower adit drains another mine, it is doubtful whether such Acts have any application, as such drainage is only incidental. Baird v. Williamson, 15 C. B. N. 8. 316; 4 M. R. 868; Townsend v. Peasley, 35 Wis. 383; 2 M. R. 612. But where one mine hoists the water of another a natural equity is more apparent, and statutes in aid of contribution, even giving a royalty to the draining mine, have been enforced. Ahren v. Dubuque Co. 5 M. R. 144; 48 la. 140. Coal Mines. Where in case of veins or deposits of the class represented by coal beds, one mine lies under the dip of another mine at a higher level, it is under servi- tude to the water flow of the mine above. Philadel- phia Co. v. Taylor, 5 M. R. 133; 5 Leg. Gaz. 892. Servitude of the Lower. In lode mines the same rule applies that the lower workings must stand the water from the higher pits, subject to such regulations as the Drain- age Act supplies, where such Act exists and its pro- visions can be enforced; and the upper mine can not wantonly cast its water on the lower. Locust Co. v. Gorrell, 9 Phila. 247; 5 M. R. 129. The same rule applies to quarries. Ulmer v. Farnsworth, 15 Atl. 65. DITCHES AND WATER. 193 A Drainage Contract Between Two Mines having a common water burden was construed and enforced and a heavy judgment for damages sustained, the Court holding that the relation of the mines to the common enemy was such that there was ample con- sideration for the promise to contribute; that a promise to pay what was proper and fair, the mines being equally benefited, meant a promise to pay one- half of the expense and that the managing agent of the corporation had power to make such a contract. risk M. Co. v. Reed, 77 P. 241. DITCHES AND WATER. Congressional Recognition of Easements. tt.fi ;,y priority of possession, rights to the us.- of prater for mining, agricultural, maim :rillLT. or M|I. -I' plirpos.-s. !i:i\. 1 accrued, and ih- i acknowledged by the local ili.- decisions of onir;s. i in> possessors ami owners of rod shall be maintained and y fi.r ihe con- siruciion f ditch, -lie purposes herein i and conliniH'd : 1'iit whenever any prison, in the roiistrm-iion of any ditch st>ads allowed, shall !>.- subject to any vested ai.d riirlits to ditches and reservoirs i ith such \vati-r rights as may have been a((|uir.-d nnd r or recognized by the preceding section. 1870. Claims Subject to Ditches, Flumes and Trails Parol License. R. S. Colo. Sec. 421C. All mining claims now located or which i-iay be hereafter located, shall be subject to the riirlst of \\ay of ;my ditch or fhnm- for mining purposes, or .f any tramway or pack trail, whether now In use or which 194 DITCHES AND WATER. may be hereafter laid out across any such location ; Pro- vided, always, That such rijiht <>f \\.-iy shall not be exercised iigainst any location duly made and recorded, and not aban- doned prior to the establishment of the ditch, flume, tram- way or pack trail, without consent of the owner, except by condemnation, as in cas<> of land taken for public highways. Parol consent to the location <>f any such easement accom- panied by the completion of the same over the claim shall be sufficient without writings; And /'rurhlfil further, That such ditch or flume shall be so constructed that the water from such ditch or tlunic shall not injure vested rights by flooding or otherwise. Felt. J3, 187}. Besides the Act of 1866, above printed, Congress allows right of way to ditches, tramways, reservoirs and power lines over the public lands by Act of 1895 and its amendment. 28 St. L. 635; 29 Id. 120; 30 Id. 404- The Right of the Miner to Divert Water from its natural stream, in opposition to the common law, has been not only granted under the above Act of 1866, but the doctrine of appropriation has now become universally conceded in all the mining and arid states of the Pacific and Rocky Mountain slopes. Atchison v. Peterson, 1 M. R. 583; 20 Wall. r.oi : Jennison v. Kirk, 4 M. R. 504; 98 U. 8. 453. The party who first appropriates the water for mining, irrigation or other beneficial use, obtains the right to use it both as against those who later attempt to tap the stream above, or who need it in the stream below. Neither agricultural nor mining uses have any class priority one over the other. The first in time is the first in right. A homestead or other entry is subject to the rights of a prior appro- priation of water. South Yuba Co. v. Rosa, 22 P. .'.V. Tynon v. Despain, 22 Colo. 240. A Ditch is an Easement Over the Land which it crosses. Quinlan v. Xoble, 75 Cal. 250. A party can not locate a ditch in such a manner as to prevent the practical mining by hydraulic power, or other- wise, of claims which it crosses; nor so as to cut off the water used by the hydraulic. When ditch crosses ditch, the later claimant must adjust the crossings DITCHES AND WATER. 195 so as not to interfere with the full use of the prior ditch. Jcnnifinn r. Kirk, supra. Appropriation by Placer Location. It has been held that a placer location is of itself an appropriation of all the water flowing across it to the extent needed for working it. Schwab v. Beam, 86 F. 41. This is an extreme holding and seems to us an indefensible position. The Change of Locality where the water is used B not forfeit the right. Maeris v. Bicknell 7 Cal. 262; 1 M. R. 601. The owner may change either the point of diversion or the place of use. Telluride v. Davis, SO P. 1051; Strickler v. Colo. Springs, 26 P. .11 'i. If he has prior risht to the water he may take it by a new and different ditch. Jacob v. Lorenz, 33 /'. i.>0; Oreer v. Heiser, 16 Colo. 306. Intervening Rights. Hut he can not change the point of diversion or the line of his ditch to the injury of those who have in the meantime acquired rights. Last Chance Co. v. Bunker Hill Co. 17 M. R. .',.',9: 49 F. 430; Handy Ditch Co. v. Louden Co. 27 Colo. 515; /'////Hn- considered as abandoning the water by mingling it with the original waters of the stream. Butte Co. v. Vaughn, 11 Colo. 143; 4 M. R. Oppenlander v. Left Hand Co. 18 Colo. //.'. Location of Ditch Right. At the point where water is taken from the stream, post notice as follows: DITCH Nrrn i:. MIIH.AM* IMTCH.- I claim 1 ."in inches of the water of this stream, to be taken by ditch from this point to claims 196 DITCHES AND WATER. on Wightman'8 Gulch, in Summit Mining District, Rio (i ramie County, for mining purposes. January 17, 1007. ALEXANDER G. COCHRAN. The posting of this notice where local statutes require no further filings, would, when accompanied by collateral acts showing intention to follow up, give a reasonable time to begin the ditch. Dyke v. Caldwell, 18 P. 216. The ditch should be staked and work commenced and prosecuted with reasonable diligence. If tne no- tice be not followed up within a reasonable time by actual work in carrying out the intended appropri- ation, it amounts to absolutely nothing. Unless required by district rule or statute the existence of a record could not be insisted on as a condition of title, where the ditch is actually con- structed and continuously used. But record is cus- tomary, always advisable, and when made becomes the initial point in the chain of recorded title. In Colorado, by Act of 1903, R. S. 3181, dupli- cate maps and statements are required to be tiled with the State Engineer within sixty days after the commencement of actual construction, or the be- ginning of the survey of the ditch. After approval the State Engineer certifies the duplicate map and statement, returning it to the claimant who must file it within ninety days from the time stated as the date of commencement, with the Recorder of the county In which the headgate is located. Dm ii sT.\Ti:.Mi:vr. KN\V AI.I. MI:\ UN Tiiiisi: r That I, Al(
7. i claimant may take either date of survey or date of actual -oust ruet ion lu-nuii for this paragraph.) Fifth. The estimated COSl of ditch is $3,000. A I I :\\M>i:u G. COCHRAN. QOLOBADO, County of I-'ntmnit: SB. t/ -ran, being first duly sworn, deposes and says that h> is the claimant of the wit'hin named ditch and \v:itT ri-hi : that \i>- I the foregoing statement and lias examined tin- a. -company ini; map. and that the same are true t< the best of his knowledge and belief. ALEXANDER G. COCHRAN. Subscribed and sworn to before me this 1st day of February, A. I> George W. Clelland, Notary Public. The map a<-< <>mpanying the above statement is required to be on white linen drawing paper, 24 by 36 in< lis in si/o. with a two inch margin on the left and should show the following: ^t. The location of the headgate by course and of th> public survey, or if upon unsur- -.'iii.' natural oi-j.-.-t. so that the same may be y located. Second. The general course and the name of the im. Third. Tin* route of the ditch by course and dis- rth. The legal 40 acre subdivisions and other <1 lands. h. Tin- ountiship of all lands crossed by the ditch or canal. And should also contain the following: A; I 'I DAVIT OP SURVEYOR. BTAT1 !:.M.... County of J-'ritufiut: ss. / / t -filial . being duly sworn on oath, deposes and that he is the engineer (or surveyor) of the MIDLAND 398 DITCHES AND WATER. DITCH ; that the survey of the same and the map thereof \v;is made by him (or that such map was made under his Instruction*), and that such survey is accurately represented upon this map ; that he has read the statement thereon, and that the same is true of his own knowledge. E. E. CHASB. Engineer (or Surveyor). Subscribed and sworn to before me this 1st day of February, A. D. !'.<. 7. local legis- lature of any Sjat Territory m.-iy provioV rub's for working iniin's. involving as.-nirnis. drainage, and otln-r necessary means to tlicir compiler development; and those conditions shall be fully expivss.-d in the patent. K, , i. c. .1 HI it m t / Highways. K. S Bee. -177 The ri-ln of way for the ronstruc- lion of hijrh\va\s i-ver public lands, not. reserved for public us. s. is hereby granted. Sec. *. \. V. -fitly 26, 1866. By the terms of the above section 2477, roads ;ind trails may be established without any license or formality over the public domain. Hobart v. Ford, 15 M. R. 836; <', .\v r . 77. By a very early statute in Colorado all claims are made subject to the right of way for hauling quartz (R. S. tJt), and by another section (4216) parol license to build a road is valid without deed. Where such statutes do not exist at the time when a location is made the estate of the miner in his claim is exclusive and a road can not be, laid across it, without his acquiescence, except by con- demnation under the Eminent Domain Acts with RIGHT OF WAY AND OTHER EASEMENTS. 203 < compensation in damages. Titcomb v. Kirk, 5 M. R. 10; 31 raf. ?8S. Except where granted by the above section, 2477, or allowed by state statute enacted under the per- mission of section 2338 (which has a very limited scope) the title to an easement must be created in- deed or other writing. That is to say, it is within the Statute of Frauds. It is true an easement may sometimes be sustained by estoppel or as an exe- cuted license, but if a good title is sought at the out- start it should be secured in writing in every in- stance. Highland Boy Co. v. Stickley, 1J6 F. Where a claim over which an easement exists is abandoned the rights of the holder of the easement are paramount to those of a relocator of the same land. Banner r. l!in Orande fl. R. Co. 72 P. 1065; mne Co. v. Maier, 66 P. 863. A Mineral Patent Does Not Divest a Valid high- way already on the ground when patent was applied for. And when construed in connection with the Act of Congress and the power of the State to regulate easements it would seem that the patent would be subject to any valid subsisting easement affecting the .mound prior to the application. Such an ease- in, -in saves itself and needs not to be protected by filing an adverse claim. Rockwell v. Graham, 9 Colo. 36; I", M. if. M>9; /ocofc v. inn/. ',', P. 243. Annual Labor. The building of trails or roads for the benefit of a claim counts as annual labor or towards mak- ing up the $500 improvements required before pat- enting. s f tv pcifjr I"''. One Tenant in Common can not by his general deed or license create an easement over the common claim in favor of a stranger. Pfeiffer v. University. ?/ cal. i~tH. Nor lias the general manager of a mine, power to grant an easement. Butte Co. v. Montana Co. 55 Pat. lit. 204 RIGHT OF WAY AND OTHER EASEMENTS. A co-tenant has no right to use a drift on the vein as a tunnel to convey ore from outside property owned by himself alone. Laesch v. Morton, 87 P. 1081. Nor to maintain a pipe line across the com- mon ground for purpose other than the mining of it. Pioneer Co. v. Shamblin, 37 So. 391. Tramways, Canals, Electric Power Lines. By various Acts of Congress the right of way through public lands is given to tramways, canals, ditches, reservoirs and lines for distribution of elec- tric power. Reference to the several Acts and the regulations of the Secretary of the Interior promul- gated thereunder will be found in 31 L. D. 13; 83 Id. 451, 503; especially with regard to the permit required where the line crosses a government reser- vation. See also IS L. D. J68 ; 27 L. D. 495. By A. C. May 21, 1896, 29 St. L. 127, oil pitfe lines in Colorado and Wyoming are given free right of way over the public land. Eminent Domain. Acts to condemn ditches are found in all the arid States. By Colorado Act of 1907 an aerial tramway, or pipe line, is allowed to condemn its right of way. The validity of such statutes depends upon whether mining is a public use; for, if not a public use, the statute is void. The tendency of the decisions is to sustain them. Clark v. Nash, 198 U. S. 361. It has been held a public use in Nevada. Dayton M. Co. v. Seawell, 5 M. R. 424; Byrnes v. Douglass, 19 M. R. 96; 83 F. 45. And in Utah, Highland Boy Co. v. Stickley, 78 P. 296. And in Montana, Helena Power Co. v. Spratt, 88 P. 773. But otherwise in California; Cons. Channel Co. v. C. P. R. Co. 5 M. R. 438: Amador M. Co. v. De- ivitt, 73 Cal. 482. A distinction has been made where the easement is intended only for the private benefit of the con- demnor and where intended to supply the public gen- erally, being allowed in the latter instance and DUMP. 205 denied in the former. Great Western Co. v. Haw- Icins, 66 N. E. 165; Miocene D. Co. v. Lyng, 138 F. '/;. Provision for condemnation by electric power companies and by mines seeking to connect with railroads is found in the Colorado R. S. Sees. 2459, 2460. Any mine owner may condemn land to con- nect with a railroad. Sec. 2464. Right of Way to Tunnel. See Ti \MI. SITE. DUMP. The Right to Dump is but little if at all affected by statutory regulations, and the right to dump, of necessity or by custom, across lower claims, has never been brought under the adjudication of the Court of last resort in any of the mining States, to the writer's knowledge; but in the case of Equator Co. v. Marshall Co. U. 8. C. Ct. Colorado, an action brought to restrain the dumping across a claim lying below on the mountain slope, it was held, as of course, that it was no case for injunction, unless where work was being prevented, shafts filled, life endangered or other gross and continuing injury, and the remedy, if any, was by action at law for damages. In a later suit in the same Court between the same parties it was held that when continuous dumping had been carried on by owners and lessees, without proof or attempt at proof, as to the injury clone by each party, that only nominal damages oiild be recovered against an owner, and that the owners were not responsible for the injuries done by their lessees; and there being no proof that the defendant, one of the owners, had ever taken an active part in the management of the mine, the jury found for the defendant. See also Little Schuylkill Co. v. Richards, 10 M. R. 661; 57 Pa. 142. 206 DUMP. In the case of continuous and indiscriminate dumping over lower claims it may, if not in the meanwhile regulated by statute, be finally recognized as a controlling custom and so fixed as a permanent easement on the lower claims. In the case of careless or wanton injury to im- provements the upper claim is, of course, liable; but the right to dump over unimproved and valueless surface ground is doubtless such an easement as may be prescribed by state statute under the permission of R. S. 2338, ante p. 202, or allowed by district rule. The owner of a gypsum bed cannot make his neighbors' land a convenience to dump his waste on. White v. Lansing, 103 N. Y. 8. 1040; and having covered up an acre of such ground defendant was decreed to remove it or pay damages at plaintiff's election. But the damages in cases when the cost of removal would exceed the value of the land cannot exceed the amount of such value. Harvey v. Sides M. Co. 1 Nev. 539. A Dump Is Real Estate and passes to the grantee without special mention. But a contract to sell the ore found in it need not necessarily be by deed. Smart v. Jones, 15 Com. Bench, .\. N. 7/7. Dump deposited on the land of another and allowed to re- main indefinitely becomes parcel of the land. La- custrine Co. v. Lake Guano Co. 82 N. Y. 476; Eric in'* App. 12 Atl. 140; 16 M. R. 91. A deposit of tailing becomes an accretion to the land. Rogers v. Cooney, 14 M. R. 85: 7 Nev. 213. Under a mining lease in general terms the les- see has the right to work over the dump, but the wording of the lease may be such as to exclude dumps by construction. Boileau v. Heatli, L. /'. (1898), 2 Ch. 301; Oenett v. Delaware Co. 43 N. Y. Sup. 589; 25 N. E. !>.'.'. The right to dump may be lost by allowing ad- verse possession of the ground for the statutory period. McLaughUn v. Del Re, 16 P. 881. Eject- MINERAL LA M >. 207 ment lies to recover ground used for tailings. Camiibt'll r. N//n-r Bow Co. '/.'' F. /7. The lessee has. no property in the dump after his term has expired; nor, during term, to minerals not contemplated in his lease. Erwin's App. 16 M. R. '.(1 : 1 > AtL 1',!); Doster v. FriedensviUe Co. 21 Atl. 251. Construction of contract to work dump. Fos- ter v. Li/ >, Co. 96 .V. W. 111. Appurtenance. It has been held that the grant of a tunnel right carries with it as an appurtenance the right to dump on the grantor's land at the mouth of the tunnel. Scheel v. Alhambra Co. 19 F. 821. MINERAL LAND. Contests With Non-Mineral Claims. The question: What is mineral land? arises in contests between mineral and agricultural claimants, .'. tin mill site and lode claimants, in timber cut- ting cases, indirectly in contests as to the exception oi known lodes from placers and in other instances. Where it is the duty of the land department to de- cide this point before they issue patent their de- cision is final. Gale v. Best, 11 M. R. 186; Traaphagen v. A' ///.-. 77 Pac. 58; Patterson v. Ogden, U f P. ', / .; ; 94 L. l>. }"/. Evidence that land in the vicinity is mineral is admissible as proof of the mineral character of the land in controversy. U. 8. v. Rossi, 188 F. 380. On the other hand it is held that a man may enter land as agricultural where no oil has been actually discovered on the tract although oil is found in the neighborhood and the entry man selected it for its supposed mineral values. Olive Co. v. Olm- stead, 20 M. R. 100; 103 F. 568; Bay v. Oklahoma Co. 13 P. 208 PLACERS. The subsequent discovery of mineral after a vested right in a non-mineral location does not in- validate the location. Cleary v. SkifflcH, 21 M. It. 284; 65 P. 59. Discovery of coal after entry will not defeat the issue of his patent to a homestead claimant. 2 1 L. D. 92; Colo. Co. v. U. 8. 123 U. 8. 308. The test in agricultural contests is one of com- parative values. Hunt v. Steese, 15 Cal a>l: 11 P. 920. A discovery justifying further exploration makes the land mineral. 19 L. D. //5o. Discovery of colors and fairly good prospects is not enough to establish the mineral character of land as against a prior homestead entry. Steele v. Tauann Mines, 148 F. 618. . The ruling of the Land Department in a con- test that the land is non-mineral, in the absence of fraud or mistake, is binding on the Courts and not subject to collateral attack. Old Dominion Co. v. Haverly, 90 P. S3S; Le Feme v. Amonson, 81 P. 11. The fraud must be extrinsic to the issue passed upon by the Department. Craig v. Roberts, ,'>..' /' The mineral value of the land, to defeat an agricultural entry, must be substantiaj. Abandoned works are not enough. U. 8. v. Blackburn, 48 P. 904. The panning of colors on surface held on the facts not enough to defeat a prior homestead entry. Steele v. Tanana Mines, 148 F. 618. PLACERS. Open to Location and Patent. R. S. Sec. 2329. Claims usually called "placers," in- cluding all forms of deposit, excepting veins of quartz, or other rock in place, shall be subject to entry and patent, under like circumstances and conditions, and upon similar proceedings, as are provided for vein or lode claims ; but where the lands have been previously surveyed by the United Snitcs. the entry in its exterior limits shall conform to tho legal subdivisions of the public lands. Sec. 12, July 9, 1870. PLACERS. 209 Size of Claim Legal Subdivisions. K. i sul. divisions of forty acres may \ ided into ten acre tracts; and two or more - ciations of persons, having contiguous claims of any si/.-. although such claims may be less than ten ]. may mue .joint entry thereof; but no location r claim, made after the ninth day of July, eighteen hundred ami seventy, shall exceed one hundred and - acres lor any one person ..i- assoriation of persons, which loe.-ition shall conform to the l"n: - surveys; and nothing in this se-iion contained shall defeat or impair any hona !i' - :u of public land surveys, and the rectangular sub-divisions of such surveys, and no such loca- tion shall include more than twenty acres for each Indi- vidual claimant : Hit where placer-claims can not be con- formed to legal subdivisions, ntirvey and plat shall be made as on unsurveyed lands; and where by the segregation of division a quantity of agricul- tural laii'i remains, such fractional portion of agricultural land may he entered by any party qualified by Taw, for homestead or pre-emption purposes. /", May 10, 1872. mlding Stone Act. 'I'h.-. i any person authori/ed to enter lands under the mining laws 01 ih.- I niied states may enter lands that are chietly valuable f..r building stone under the provisions of the law in relation to plaeer mineral claims: Proviilnl. That lands reserved for the benefit of the public schools or donated to an\ all not be subject to entry under this act. ' / j, 1892. 27 Stat. L. Stf. Location and Certificate Notice and Stakes. K. s. <'olo. Sec. 4205. The discoverer of a placer claim shall, within thirty days from the date of discovery. l claim in the office of the recorder of the county in which said claim is situated, by a location certificate, which shall contain: HIM. the name of the claim, desig- natii :- placer claim : second, the name of the lo- : third, the date of location; fourth, the number ot .limed; and fifth, a description of the claim. 210 PLACERS. l.v such reference to natural objects or permanent monu- ments as shall identify the claim. Before filing such location certificate the discoverer shall locate his claim : First, by posting upon such claim a plain sign or MM in-, containing the name of the claim, the name of the locator, the date of discovery, and the num- ber of acres or feet claimed; second, by marking the sur- face boundaries with substantial posts, and sunk into the ground, to-wit : om- at each Miigb> of the claim. March 12, 1879. Legislation Concerning Placers. Placer claims were not covered by the original A. C. of 1866. The Act of 1870 brought them within Congres- sional recognition and made them open to patent. They have been at all times regulated as to size, labor, mode of location, etc., by the district rules to a much greater extent than lode claims. Placer Defined. As commonly and properly understood a placer claim means a location in which gold is found loose in sand or gravel and not in the vein or in place: it includes gulch claims, old channels, cement and drift diggings. Mining Claims Divided Into Lodes and Placers. But the U. S. Mining Acts make an arbitrary division of all minerals into two classes, to wit: lodes and placers. All deposits of (metallic) min- erals in place are called, when located, lode claims, and all deposits of other minerals in place or not in place, are placers. Gregory v. Pershbaker, 15 M. /.'. 602; 73 Gal. 109. Distinction Between Lode and Placer. In Webb v. American AsphaUum Co. 151 F. 04, a placer location had been .made on a string shaped deposit of asphalt. Later lode locations were made over it. The issue turned on whether it was lode or placer ground. The Court held that the issue was determined by the form of the deposit and the forma- tion being fissure like and in place it? was a lode, dis- PLACERS. I'll carding entirely the non-metallic character of the mineral. In U. 8. v. Iron 8. Co. 128 U. 8. 619, the Supreme Court had said: "By 'veins or lodes,' as here used, are meant lines or aggregations of metal embedded in quartz or other rock in place. The terms are found together in the statutes, and both are intended to indicate the presence of metal in rock." And in St. Louis Co. v. Kemp. 104 U. 8. <>;.'>. occurs this clause: "A mining claim is a parcel of land containing precious metal in its soil or rock." But in neither of these last two cases was the point directly -involved and the use of the word "metal" is therefore not of binding force. The Asphaltum Co. case is therefore thus far the authoritative decision on this important question and we so print it with the qualification that it remains for the ultimate ad- judication of the Federal Supreme Court before we can concede that it is a correct exposition of the law. The latest ruling of the Land Department co- incides with the holding in the Asphaltum <'<>. cose, 85 L. D. 652. Other Non-Metalliferous Deposits. Discarding the rare cases instanced in the fore- going paragraph where non-metallic but valuable mineral substances are found in fissure or lode like formation, the uniform practice is to locate them as placers and the Department has so ruled as to many specific minerals. Deposits of alum, asphaltum, soda and sulphur may be patented as placer ground. Circi //. 579, Rev. Ed. 565; 17 L. D. 550; borax beds, 2 Id. "707; auriferous cement, marble, mica and slate, 25 Id. 354; 35 Id. 652; gypsum, Id. 29; Id. 181; limestone, 17 L. D. - 1 : phosphate, 18 Id. 58; 26 Id. 600. Oil Lands. Ever since the passage of the placer mining Act, lands valuable for deposits of petroleum were considered as open to location and patent as placer 212 PLACERS. claims and as such, records were made followed by entries and patents as a matter of ordinary course. 4 L. D. 60, 284; 16 Id. 111. And such action of the Land Office was followed by the courts in deal- ing with oil located or patented as placer ground without question of its regularity. Gird v. Califor- nia Oil Co. 60 F. 532; Van Horn v. State, 40 P. After this unbroken procedure of more than twenty years, the Land Office in 1896 (Union oil Co. 23 L. D. 222) abruptly held that oil was not a mineral and oil lands therefore not subject to entry. This was immediately followed by an Act" of Con- gress making such lands in terms patentable as plac- ers. 29 St. L. 526, post p. 51>i. The ruling itself which induced the confusion was later reversed by the Secretary of the Interior. 25L.D.351. The ju- dicial rulings that oil is a mineral have been uui form. Thompson v. JVo&te, 11 M. R. 137; Gill v. Weston, 110 Pa. 811 barring the anomalous case of Dunham v. Kirkpatrick, 101 Pa. 36. They are lo- cated and held like any other class of placers. Wolfskill v. Smith, 89 P. 1001. Salines were the subject of congressional legisla- tion for many years prior to the Mining Acts of 1866-72. Under those Acts they were still treated as neither lode nor placer but open to entry ir special statutes until January 31, 1901, when they were declared to be placer ground. 81 St. I.. r,~*. Quarries Building Stone. Land "chiefly valuable for building stone" may be located and patented as a placer claim. A. C. Aug. 4, 1892, ante p. 209. If such stone is found on unsurveyed land this is the only procedure to secure title. Under the Department rulings any stone of special commercial value is held to be placer ground. 15 L. D. 310; 16 Id. 508. Stone Land cannot be located or patented as a lode claim. 23 L. D. 353, 395; Wheeler v. Smith, 32 P. 784. PLACERS. 213 Stone Timber. But under the Timber and Stone Acts of 1878 and 1892 if on a surveyed section land is found which is "valuable chiefly for stone" it may be filed upon and title obtained by procedure much more ex- peditious and simpler than by locating it as a placer and with no necessity of annual labor or $500 ex- penditure. The other principle prerequisites are that the land do not contain "valuable deposits of gold, sil- ver, cinnabar, copper or coal" that it is "unlit for ( ultivation," "uninhabited" and contains no hostile improvements. The applicant makes no local staking or record but applies to the Land Office direct, to purchase, by filing sworn statement that the land and the ap- plicant come within the terms of the Act. Sixty days publication is then made, followed by proof by two witnesses of the character of the land; where- upon the applicant if no protest has been filed en- ters and pays for his 160 acres at $2.50 per acre. Exactly the same form and procedure applies to land "chiefly valuable for timber." The Acts are printed on p. 521 and blanks and instructions for such entries are furnished on re- quest by any local Land Office. Location Without Specific Mineral Value. Some of the decisions of the department aided by the Act of 1892 allowing quarries to be entered were sufficiently loose to allow a claim to be laid upon any ground; for either what can be called building stone, or a color of gold in the pan, can be found practically anywhere but the obviously needed declaration was at length made that land could not be taken up as placer ground on mere wash or because a color could be panned, its real value being on account of its proximity to lode claims. It must contain mineral in paying quanti- ties. Royal K. Placer, 13 L. D. 86. Nor where it had 214 PLACERS. 'no characteristic of any form of placer. Searle Placer, 11 L. D. 441. Discovery or Knowledge of Mineral Value. Unless specifically required by State Statute or District Rule no discovery shaft is required, but the Act of Congress implies that mineral shall have been found before the right to locate upon the same as a placer claim accrues. 13 L. D. 86. A discovery of the mineral sought for upon the claim is held to be essential to a valid placer location of any kind. Surface indications or knowledge of its existence upon adjoining lands is not enough. Ne- vada Oil Co. v. Miller, 97 F. 688; Nevada Co. v. Home Co. 98 F. 613; Olive Co. v. Olmstead, 103 F. o6S; Weed v. Snook, 77 Pac. 1023. A discovery pit or shaft on a vein shows to the eye a mineral formation specifically distinct from the surrounding country. A pit or shaft on placer gravel shows nothing of that sort. A pit or shaft on any of the various minerals claimed as statutory placers might or might not show such indication. Such working is not essential to the disclosure of mineral value on this class of claims. But it is clear from the implied requirement of knowledge or discovery of mineral character, that the ground about to be located must have a special value as either placer proper or for some special deposit treated as placer ground under the statute, and that merely surveying and recording vacant land as and for placer ground without known value under either class is a void proceeding when properly contested or attacked. Discovery is as essential on a placer as it is on a lode claim. Steele v. Tanana Mines, I. f f 8 F. < Panning colors on surface of deep gravel drift, known to be gold bearing by work to bed rock in the near locality, makes a good discovery. Lange v. Robin wm. 148 F. 199. There must be "such a discovery of gold as to give reasonable evidence that the ground is valuable for placer mining." Charlton v. Kelly. 1~>H /'. 436. PLACERS. 215 A Separate Discovery on Each Twenty Acres is not required where there has been a joint location of 160 acres. McDonald v. Montana Co. .M P. IMS : Kirk v. Meldrum, 21 M. R. 393; 28 Colo. >,3.] ; Union Oil Co. 25 L. D. 351 overruling previous Land Office holding to the contrary. L. O. Reg. 19. Use of Names Nominal Association. It requires eight "bona fide locators to lawfully claim 160 acres. The names of nominal parties are often used to locate placer ground, and such nominal association is not questioned in land office proceed- ings, but its validity may well be doubted when con- tested in court. Such use of names with agreement to reconvey without consideration, has been held void as against public policy. Mitchell v. Cline. 2', P. /-. 44, 56, 260. The applicant is not required by this pro- vision to take in acreage wholly valueless for mining purposes. 2 L. D. 764; 6 Id., 2.il. Where the mineral ground is confined within a narrow canon the location need not conform to the subdivisions. Mitchell v. Hutchinson, 76 P. 55. Procedure to Complete Location. Presuming that free gold or some other valuable deposit other than a lode in place, is known to exist on the ground, the claimant, if he desires the benefit of the 30 days allowed the discoverer, should pla. a notice conspicuously as follows: I--MKM OF fiojil Illl;/ Tln undersigned claims 20 acres for placer rainlnp with .".' d.-iys from date to complete location nmi ivrnnl. .II.SIAH WIN.- .l:mu;iry !. 1008. We do not consider that the above notice is es- sential in all cases, but it is customary. If the claimant was the actual first discoverer of the min- eral it might not be required; but if the existence of the gold or other deposit had been a matter of common notoriety, we do not see why one person more than another could claim the time allowed to a discoverer without some such notice. Proceeding to perfect the location the claimant must post upon- the claim the statutory notice (page 209) which may be in form as follows: PLACERS. 217 \ ri-iN NOTICE. Vi ///. U ' Clnint. Tiu> undersigned claims j<> '/ r.-uM. ttnllnrtit riaccr Claim. The mult rsii:nel claims /,;..' /" ( t in length along the iruleh i.y ;." /'/ in i.readih. for placer mining purposes, as staked on this trriiunil. I isi-ov-r-l January 9, 1908. T. S \Vvi/rEMEYER. Dates. It will be noted that the notice on the stake in Colorado, must contain the date of discovery while the record must contain the date of location. The date when the posting and staking are completed would be such date of location. Place of Posting. Where not directed by statute or district rule such notice should be posted at the center point of the clain some point where the prospecting pits show actual work. It should be conspicuous and either close to the apparent discovery or at the center as above suggested. Stakes and Ties. The locator then stakes his claim, placing a "substantial post," "sunk in the ground" at each angle of the claim. No center stakes are required. Accuracy and strictness in fixing and marking the boundaries cannot be too severely urged. Of course the discovery pit or some of the angles should be tied to "natural objects" or "permanent monuments" in order to make a proper location certificate or rec- ord. We advise the same as in case of lode claim. (See page JJ.) A failure to stake invalidates the claim. Anthony v. JiUson, 16 M. R. 26; 83 Cal. 296. Location by Trespass. The rule that a location cannot be initiated by trespass upon a prior valid possession applied in 218 PLACERS. contest where both claims were placers. Kirk v. Meldrum, 65 P. 633. Staking Government Subdivisions. Whether staking is required where the claim is taken up by governmental subdivisions has been the subject of curious judicial rulings. It was held that the locator must stake out his claim the same as if he were locating on- a private survey, in White v. Lee, 21 P. 36,1 This decision was followed by a case in Arkansas, Worthen v. Sidway, 79 8. W. 77, and just about the same time White v. Lee was overruled in Kern Co. v. Crawford, 16 P. 1111. It would seem that the question could arise only where a full quarter section is taken up as one claim, for the government does not stake any smaller subdivisions, while it allows subdivisions as small as ten acres to be taken up. It does not follow that the original survey stakes are on the ground when the location is made, nor if they were would they afford the slightest notice that the quarter section had been located as a mining claim. In view of the contrary status of the rulings the only safe procedure is to stake de novo. And yet the Land Office has ruled that no stak- ing is required where any subdivision is taken. 22 L. D. 409 Where the statute of any state requires staking as an item of the location the point should be clear to the contrary. Record. The notice being erected and the ground sur- veyed and staked, the location is complete and ready for record, the location certificate being in form as follows: I'LACER LOCATION CERTIFICATE. KNOW ALL MEN BY THESE PRESENTS, That I, \\ inchest er, of the City and County of Denver, State of Colorado, . claim, by right of discovery and location, the Nellie Moore placer claim, containing twenty acres (or 1320 feet in length by 660 feet in width), situate in Cripple Cr> /, Mining District, County of Teller, State of Colorado, bounded and described as follows, to wit : Beginning at stake at corner No. 1 : (here insert description, fjir-iny u t-nurxi l PLACERS. 219 'inc. nml tt/ing one or more corners to a yorcrnmcnt cnn>-. ffll kinnm natural objqct or permanent imtnunn'nt. Date of discovery, Jan. 9. 1908. Date of location, Jan. 15, 1908. Date of Certificate, Jan. l>:. 1908. JOSIAH \YINCIII:STI:I;. Description by claiming so many feet along the creek and so many feet on each side was sustained in McKinley Co. v. Alaska Co. 183 U. 8. 563. An amended location certificate may be filed the same as allowed for lode claims. Kirk v. Meldrum. 65 Pac. ;. The Statutory Requirements of the other mining States which provide for the manner of locating placer claims, are as follows: Arizona. 1. Post noti.v containing name of tin- claim, name of locator, date of location ana number of acres claimed, and description, with reference to natural object or perma- nent monument. L' Mark boundaries with post or monument of stones at each angle of claim. Posts must be 4 inches (square) by 4% feet long set 1 foot in the ground and tUTOUnded l>y a mound of stone or >arth. '"\Ylirn a mound of stone is used it must be at least thn-c iv.-t in height and fm- iV-t in dianu-ti-r at tlu- hase." Within r,n days aft.-r date of location, record with Bounty Kcrurdi-r a copy of the location notice. Idaho. 1. "i- monument, as required in location of lode claims, at each corner, and place on one of t* a notice of location containing date of location, name of locator, name and dimensions of claim. th<- mining district (if any), and County: also the distance and direction from such post or monument to sm-h natural oi.j.- ( i or permanent monument, if any such tin i !. as will fix and describe in the notice itself, the location of tin- claim _. Within l.~. days after making iln- location, make an excavation on the claim, for the purpose of prospecting the same, of not less than 100 cubic feet. 3. Within 30 days after the location, record with County Recorder or with Deputy Recorder of mining dis- trict, a substantial copy of the location notice, verified as In the case of lode claims, (p. 65.) Montana. 1. Post notice at point of discovery, containing name of the claim, name of locator, date of location ana number of acres of superficial* feet cHaimed. 220 PLACERS. 2. Within 60 days from date of posting, the equiva- lent in work of a 10-foot shaft must be done upon the claim. 3. Within 30 days from date of posting, mark boundaries in same manner as required in case of lode claims. 4. Within 60 days from date -of posting, file with Clerk of County a certificate of location containing same as notice posted, adding description of claim with reference to natural object or permanent monument, and "the dimensions or area of the claim and the location thereon of the dis covery shaft, cut or tunnel." This certificate must be verified by one of the locators. Nevada. 1. Post upon a tree, rock in place, stone, post or monument, a notice of location containing the name of the claim, name of locator, date of location, and number of feet or acres claimed. 2. Mark surface boundaries and the location point in the same manner and by same means required for lode claims ; on surveyed land when taken by legal subdivision, only the location point need !><> markrd. (p. 3. Within 90 days after posting the notice of loca- tion, perform not less than $20 worth of labor upon tin- claim for the development thereof and record with lustrirt and County Recorder a certificate which shall state the name of the claim, designating it as a placer claim ; name of the locator; date of location; number of feet or jn-n-s claimed and description of the claim with regard to some natural object or permanent monument so as to identify the claim and the kind and amount of location work done and the place on the claim where said work was done. Utah. The statutory provisions as to location and record of lode claims (p. 68) apply also to placer claims, the notice and record in cases of placers giving the number of acres or superficial feet claimed. Washington. 1. Post in a conspicuous place at the point of dis- covery a notice containing name of the claim, name of the locator, date of discovery and posting of notice, whiHi is considered date of location, description by reference to legal subdivisions if on surveyed lands, otherwise with reference to natural objects or permanent monuments. 2. Within 30 days from discovery distinctly mark the location on the ground so that its boundaries may be readily traced ; marking must be done even if claim is lo- cated by legal subdivisions. 3. Within 30 days from the date of discovery record the notice (1) in the office of the auditor of the County. 4. Within 60 days from discovery perform labor equivalent in the aggregate to at least $10 worth for each 20 acres. PLACERS. 221 Upon performance of such labor file with the < 'oiinty Auditor an affidavit showing such performance and the nature and kind of work done. The above paragraphs 4 and r do not apply to oil or gas placer locations. Wyoming. 1. Securely tlx upon the claim a plain imtirt 1 con- taining the name of the claim, name of the locators, date of discovery and number of feet or acres claimed. L .Mark the boundaries by substantial posts or stone monuments at each corner of the claim. 3. Wiihin '.H > davs from discovery record with the County <'lerk a location certificate containing the name of tin- claim, designating it as a placer claim, names of the locnt n ami number of feet or acres el:iime No Reservation Against Patentee. When patented under a location of the ground as a "placer mining or stone quarry claim" the pat- entee owns all minerals found within its bounds ex- cept known lodes Freezer v. Sweeney, 21 P. 20. And doubless he owns to the same extent under a location before patent subject to the right to locate lode discoveries over the same ground, and except lodes apexing outside but dipping underneath. 222 PLACER CONTAINING LODE. Homestead. Lands located and used as a placer and also used as a residence by the owner, may be selected by him as a homestead, under the State law of exemptions, the question of title in the United States being ex- cluded. Gaylord v. Place, 83 P. 484. Area in Feet or Acres. By the following table the number of feet nec- essary to include any desired number of acres when in the shape of a square or parallelogram may be ascertained: Claim 660 x 330 feet contains 5 acres. 500 x 500 " " 5.73 " 660 x 660 " " 10 1320 x 660 " " 20 800 'X 1089 " " 20 933% x 933' " 20 1320 x 1320 " " 40 2640 x 2640 " " 160 43560 square feet equal one acre. A square 208.71* feet in length and width makes one acre. PLACER CONTAINING LODE. Claim Intersected by Lode. R. S. Sec. 2333. Where the same person, associa- tion or corporation is in possession of a placer-claim, and also a vein or lode included within the boundaries thereof, application shall be made for a patent for the placer- Haim. with the statement that it includes such vein or lode, and in such case a patent shall issue for the placer- (hiiin, subject to the provisions of this chapter, including such vein or lode, upon the payment of five dollars p-i- 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- cl.-iiin, shall be paid for at the rate of two dollars and fifty cents per acre, together with all costs of proceedings ; and where a vein or lode, such as is described in section t \\outy-tliree hundred and twenty, is known to exist within the boundaries of a placer-claim, an application for a patent PLACER CONTAINING LODE. 223 for such placer claim \\hirh does not include an applica- tion for th vfin or lode claim shall be construed as a :usiv> declaration that tlu ciahnaiu of the placcr-Haim has no right of possession of the vein or lode claim ; but \vhnv tin- existence of a vein ur lode in a placer claim is not known, a patent for the placer-claim shall convey all valuable mineral and other deposits within the boundaries thereof .Sec. 11. Mn>> /". tffB. Known Lodes Excluded. An api)lication for patent to a placer claim is not supposed to include any known lode running through it, unless such lode is owned by the appli- cant and espe -ially designated in the application, but it covers any at'n -r discovered lode. O'Keefe v. Cannon, 52 F. 898. The placer patentee acquires no title to lodes known to exist prior to and not included in his appli- cation. Clary v. Bazlitt, 67 Cal. 286. The exception of known lodes does not apply to placer patents issued on entries prior to May 10, 1872. Cranes O. Co. v. Scherrer, 66 P. ^87. What Are Known Lodes. Where a lode within the placer lines has been discovered, located and recorded, and has kept up its labor to the time of the placer application, it is clear that such is a "known lode" beyond any possible danger of construction. But lodes, which though known have not been ildered worth locating, or after location have been abandoned, or where they have been known as a ter of common knowledge to be within the lines, as in the case of outcrops not considered worth work- . are not such known lodes as are excluded from a placer patent. McConaghy v. Doyle, 75 P. J^19. A placer application was adversed by two lodes, but won the adverse suits, and its patent issued: Held, that this was no adjudication of the non-ex- istence of a known lode even within the area in con- flict with the adversing lodes as against parties not claiming under the defeated lodes. Butte Co. v. Merriman (Mont.), 80 P. 675. 224 PLACER CONTAINING LODE. Known But Not of Known Value. It has been with much reason held that a lode or vein though known to exist but having no such value as would justify its exploration or working, or by like expression to the same effect is not within the exception of the patent O'JTeefe v. Cannon, 52 F. 898; Brownfield v. Bier, 89 P. J,61; Butte Co. v. Sloan, 40 P. 211. It must be a lode of known prac- ' tical value for working. Montana Ry. v. Migeon, 68 F. 811; 77 F. 2J9; Casey v. Thieviege, 48 P. 394. The allegation in an answer that there were no known deposits of sufficient value to pay is a proper plea of no known lodes and does not state a conclu- sion of law. O'Keefe v. Cannon, 52 F. 898. Known But Not Recorded. It was held in Noyes v. Mantle, 127 U. 8. 348; 15 M. R. 611, that a located claim was a known lode. But in Iron Silver Co. v. Starr Co. 143 U. S. 394; 17 M. R. 436, the Supreme Court go further and hold that it is sufficient to exclude it that it be a lode known to exist, and that where a lode has been notoriously cut in a tunnel within the claim, it was such a disclosure of the vein as to bind the patentee to a knowledge of it. And while holding (p. 404) that not every outcrop or crevice suggesting mineral would constitute a known lode within the class to be excepted, yet any vein disclosed and understood to be of value was excluded, and whether a vein was known and was of such character as to be excluded was a question of fact for nisi prius decision by jury. The mere fact that a lode record has been made over the ground now claimed as placer does not prove that there was a vein on which to record. 23 L. D. 476; Butte Co. v. Sloan, 40 P. 217. And when the fact of lode or no lode has been left on conflict- ing evidence to the jury the court will not set their finding aside. Id. A lode known to exist before, may be located after, the patent issues; . and it is known to exist PLACER CONTAINING LODE. 225 when the patentee knew of it, when it was matter of general knowledge or when an examination of the ground should have disclosed it, but lodes so low in assay as not to be workable are not excepted whether known or not. Mntclimor v. McCarty, 87 P. 85. To Whom Known. In the Mike d- Starr case it was held that it must be known to the applicant or to the community in general. If obvious to casual inspection, knowledge was chargeable to the owner. But a lode discovered, located and of record before the patent application, is a known lode whether or not the patentee had knowledge of it. Noyes v. Mantle, 15 M. R. 611; 121 U. 8. 848. In the case of Reynolds v. The Iron Silver Co. 1M U. 8. 687; 15 M. R. 591, the court ruled that the lode in or underlying the Wells & Moyer placer be ing shown to be known to the applicants,' could not be recovered by them in ejectment as against ad- joining lode owners who had worked beyond their side lines into the deposit. Date of Discovery Material. It had been held that the lode (to be an ex- 'd known lode) must be discovered before entry but the date of application is now the conceded date. Dahl v. Raunheim, 182 U. 8. 260; 16 M. R. 214; Mike d- Starr case, supra. The application referred to is the application upon which the patent ultimately issues and the date of applicaton is- the date of filing the paper "M" (post p. 4^3) in the course of proceedings to obtain patent. 226 PLACER CONTAINING LODE. Necessity of Adverse or Protest Patenting Lode Over Placer. If a known lode, -whether held by strangers, or not located at all, though known to exist, is under the express terms of the statute as recognized by many decisions excepted from the grant it would seem a necessary deduction that it need not file any adverse claim to preserve its rights. But if it be neglected either to procure an exclusion from the placer survey or to adverse and the placer patent issues, the Land Office will not as of course entertain an application to patent the lode. Before the appli- cation will be received it requires a hearing in the local Land Office after notice. to the placer patentee as to whether in fact the lode was known to exist, and unless upon such hearing the fact is affirma- tively so found, it denies the application. South Star lode, 20 L. D. 20 /,; 21 Id. 676. If the finding is that the lode was known, the placer patentee is still at liberty to contest the lode application by showing and securing a judicial de- termination upon verdict that the lode was not known to exist. Alice M. Co. v. Street, U. 8. Cir- cuit Court, Denver, unreported. The practice of the Land Office has not been uni- form upon this point, and for some years prior to the South Star case it had refused all applications to enter lode claims over placers except by consent of the placer patentee on the ground that the ex parte proof of no known lodes originally made by the ap- plicant definitely established the non-existence of known lodes. And yet, in instances a patent to both lode and placer had been granted, as in Iron S. Co. v. Campbell, 135 U. S. 286; 16 M. R. 218. In that case each party having his proof of legal title in the shape of a patent, the question of priority was held to be an extrinsic fact to be found and settled by the jury under the instructions of the court. PLACER CONTAINING LODE. 227 The patent is held conclusive evidence that the lan.l conveyed was placer ground. Dahl v. Raun- hciw. /.;.' r. 9, MO; 16 M. A'. .'/}; Huttc Co. v. Sloan, ' t n /'. .> n . There are expressions in both these opinions which, taken by themselves, would read that the i latent was conclusive proof that no lode existed, but to so decide on consideration of the whole case was evidently not the intention of the court. The practical conclusion from this vexed state of the title, arising from the unwise reservation from a government grant of a piece of land with no de- fined bounds and even without acknowledged exist- ence, is that a lode within placer lines should as- sert itself by adverse against the placer application at the OUT start, so as to avoid subsequent Depart- mental inquiry. 26- L. D. 573; 27 Id. 676. And where the application is by the lode claimant over a prior placer patent, the safe course is for the placer to adverse if tin- facts exist upon which to contest the title of the lode claimant. Proof of Known Lode by Contiguity. Running a lode survey over placer lines raises no inference that the vein enters within them. Ifnunheim v. Dahl, 9 P. 892; 132 U. S. 260; 26 L. D. Nor is it sufficient that quite a number of shafts sunk elsewhere in the district disclosed horizontal deposits which miiiht be parts of a vein of continu- extension through all that territory. Sullivan v. Iron Silver Co. US U. 8. 431. Nor does the grant- ing of a patent subsequent to the placer patent over the placer ground raise any conclusive presumption. The question in such case is then an extrinsic issue dependent on proof. Iron Silver Co. v. Campbell, 135 U. S. 286; 16 M. R. 218; 25 L. D. 460. Locating Lode Within Placer. The placer owner, or a stranger with his con- sent, may locate a lode claim within the placer sur- vey. McCarthy v. Speed, 77 N. W. 590. And doubt- less the discoverers without such owner's consent 228 PLACER CONTAINING LODE. by peaceable entry may make such location. 1 Lindley, 413. It has been held that no third party can enter within the lines of a placer location to prospect for lodes. And if he does so enter, discover and locate a lode it is a claim initiated by trespass and is void. Clipper Co. v. Eli Co. 194 U. S. 220. This practically gives all blind lodes to the placer owner and thereby defeats the intent of the Act of . Congress. But it is within the limits of judicial con- struction and is therefore a binding authority to the extent of the decision. But it does not go to the extent of preventing an entry to locate upon a visi- ble outcrop; nor can a placer location be so made as to cover the lode formations unless it is properly placer ground and has a valid existence as a bona fide placer claim. Searle Placer, 11 L. D. 4-'i1- Where the claim is a placer alleged to carry gold, it should be gold that can be "secured with profit." U. S. v. Iron S. Co. 128 U. 8. fi> /. In contest between a placer claim and an older lode title which the placer lines enclosed the burden of proof is on the placer to show that there was no such metallic vein as justified a lode location. Bevis v. Markland, ISO F. 226. Width of Such Lode Claim. Where the location of the lode is made within the bounds of the placer location, and after the date of the placer location, it has been held that the lode claimant is restricted to fifty feet in width. Mt. Rosa Co. v. Palmer, 56 P. 176. But where the lode was not only known to exist, but was a valid loca- tion prior to a placer location, the lode is entitled to its full width as staked against the placer locator or patentee. Noyes v. Mantle, 127 U. S. 848; 15 M. R. 611. See 28 L. D. 41; 32 Id. 5}S. TAILINGS. 229 TAILINGS. Each Claim Must Take Care of Its Own. K. S. <'<1<>. Sv. 4214. In no *-as<> shall any pfrson or persons be allowed to flood the property of another person with wau-r. <>r wash down tin- tailings of his or their slnuv upon the claim or property of other persons, but it shall be the duty of every miner to take care of his own tnilings. upon his own property, or become responsible for all dam- ages that may arise therefrom. effect that the upper claim cannot justify cover- ing up the lower claim on the plea of either custom, priority or necessity. Lincoln v. Rodgers, 14 M. R. 7.''. / Mont. 217; Fitzpatrick v. Montgomery, 50 P. //'<'. Upper and Lower Claim in Same Gulch. Notwithstanding the above Act or similar local legislation elsewhere, the natural invitation of the stream to utilize its current is a temptation too po- tent to be resisted. No placer, barring exceptional instances, can be conveniently worked without en- croaching more or less upon the claims below. This leads on the one side to trespass, on the other side to concessions, and their relations thus become in- volved with questions of license, contract and estoppel. The legal right of the claim to be exclusively enjoyed by its own occupant is plain with or without the aid of the Statute, subject to such considerations as courts of equity will give to the hardship of deny- ing the use of a natural outlet to a claim so situate to its neighbors on the stream below that its use of the stream is a physical necessity. The upper claim is therefore not denied the right to rush its tailings 230 TAILINGS. across the lower claim if they are no: allowed to lodge upon such claim. A claim staked and recorded below for dumping purposes would also forestall the location of the same ground for mining purposes, except subject to the prior easement of the right to deposit tailings. Slight Injury to Lower Claims. The owner is not liable for pollution of stream incidental to placer mining, or to washing iron ore. It is classed among non-actionable injuries. Nor will such use of the stream be enjoined even if an action lies, except in wilful or extreme cases. Clif ton Co. v. Dye, 6 So. 192; Hill v. King, J, M. R. 533; 8 Cal. 337; Atchison v. Peterson, 1 M. k. 583; 20 Wall. 507. But a material injury will be prevented by writ or compensated by damages. ro//////////.s- Co. v. Tm-krr. ,'i; .Y. K. ti.W; Tennessee Co. v. Hamilton. // No. nn : Drake v. \AK\\I llnsley Co. Id. ?}.'>; v. Markle, 33 Atl. 7J f . A Boom Ditch was enjoined in Carson v. <;~> P. 81',, and hydraulics in York v. Davt.'.s -/ . /,-/. 8*0, Injunctive Relief Against Deposit of. Where there is neither license nor the protection of a prior location for tailing purposes and the ground below has been taken up by other parties, it is plain that the upper cannot lawfully use tin- lower claim as a place of deposit. Fuller v. Swan River Co. 16 M. R. '^', > : l! ('<>]<>. \ >. ; Cheesman v. Hale. 7.9 P. 25'*. To do so would be an invasion of the legal rights of the lower claimant for which he might recover damages, but it does not follow that in every case the courts would interfere to re- strain the upper claimant by injunction. And if the lower claims could be shown to have been located or purchased for any purpose of annoy- ance to the upper claims, the want of equity in such case upon an application for injunction, would be manifest. Edwards v. Allouez M. Co. 7 M. R. 577; TAILINGS. i:ll 38 Mich. 46. Placer company enjoined at suit of water works against fouling stream. Travis Co. v. Mill*. !>', / i)09. At suit of the county as a public nuisance. Yuba Count)/ r. Kate Hayes Co. U f P. The incidental flow of mud and fine tailings not sufficient to accumulate as deposit, but affecting only the character of the water or causing but slight dam- age, if an injury at all, is not such as to be inter- fered with by injunction. Atchison v. Peterson, tupra; r. x v . N. Bloomfield Co. 3 F. i;.n. An injunction against tailings will not issue where there is a remedy at law and the injunction would result in the discharge of a great number ol employees. McCartliy v. Bunker Hill Co. 7)7 / .''/. Where a coal company could by reasonable out- lays prevent stream pollution a preliminaiy injunc- tion should be allowed. Roaring Creek Co. v. Anthracite Co. (Pa.) 61 Atl. >'//. Injunction refused against smelter fumes de- stroying timber and plaintiff left to its remedy at law for damages. Mountain Cop. Co. v. U. 8. 142 r. Complaint for damage from tailings and stream pollution set forth at length and held sufficient. Hill v. Standard M. Co. (Ida.) x:> r. '.>-. Injunction against smelter fumes refused if de- fendant pay actual damages. Comparative values of the investment and the property injured considered. McCleary v. Highland Boy Co. l.',0 F. 951. Where several mills or mines contribute to the common injurious result, they may be sued jointly where injunctive relief is asked, but for damages must be sued separately, and where several neigh- boring plaintiffs suffer a common injury they may join in the equity proceeding, but in an action for damages each party must sue and defend separately. Madison v. Ducktown Sulphur Co. 83 S. W. 658; Warren v. Parkhurst, 92 N. Y. S. 125; Strobel v. 232 TAILINGS. Kerr Salt Co. 58 N. E. 142; 21 M. R. 38. Watson v. Colusa-Parrot Co. 19 P. 14. Tailings Are Property of the Miner Who Made them, so long as retained on his own land or under his control and not abandoned. Jones v. Jackson, V Gal. 231 ; 14 M. R. 72. When allowed to flow upon the land of another he becomes entitled to them. Id. They belong to the lessee for the time being but not after he has ceased acts of ownership. Erwiris App. 16 M. R. 91; 12 Atl. !',:>. Location of Dump Ground. It has been held in Jones v. Jackson, supra, that a reasonable amount of ground below a mining claim proper, may be located as a dump or place of deposit for tailings. The same case holds that mere posting of notice would not be sufficient to hold such ground. We would advise as strict a location, in- cluding staking, notice and record as should be made in the case of the location of the mining or ditch claim, to which such tailings claim may be appurte- nant. In the nature of things the boundaries of swh a claim also would be strictly confined to the abso- lute needs of the upper claim; nor do we consider that such located easement would hold indefinitely without user. It is a claim not so much of express right as of necessity. The doctrine, however, that an easement may be created on public land is distinctly held in the above case, and in Lincoln v. Rodgers, supra; O'Keiffe v. Cunningham, 9 M. R. /.>/: .'/ Cal. 589. In Miser v. O'Shea, 62 P. 4*>1, such right is ex- pressly denied. A deposit of valuable tailings on public land will be protected against an attempt to locate the same as a placer. Ritter v. Lynch, 123 F. 930. The word "tailings" by usage of the parties con- strued to include "slag." Butte Co. v. Montana Co. m F. 524. . TAILINGS. 233 Mill Tailings. A mill owner, though the prior appropriator, has no right to flow tailings into a stream when at slight cost they could be so impounded as not to materially foul the water. Suffolk Co. v. San Miguel Co. 48 P. 828. A mill will not be allowed to so pol- lute the water as to render it unfit for use by prior irrigation appropriators. Montana Co. v. Gehring, 75 F. S85. 'The rights and duties of two mills using the same water, one above and one below, are fairly stated in Otaheite Co. v. Dean, 102 F. 929. Location Upon Deposits of Tailings. Vacant land upon which tailings have been de- posited may be claimed and worked the same as land containing natural deposits, and trespass maintained by the claimant against a party carrying away such tailings. Rogers v. Cooney, 14 M. R. 85. A party may take up a claim for mining pur- poses which has been and still is used as a place of deposit for tailings by another but in such case his mining right would be subservient to the prior right of deposit. O'Keiffe v. Cunningham, supra. On the other hand the right to dump may be lost by allowing the mining claimant to hold exclusive ad- verse possession. McLaughlin v. Del Re, 16 P. 881. The Debris Cases. On the plea of interference with navigable wa- ters the United States has, on the San Joaquin and Sacramento Rivers, in California, prohibited all hy- draulic mining, except under government license and regulation. The Act of 1893 (27 St. L. 501. 'Amended, 1907. 34 Stf L. 1001) makes such mining a misde- meanor unless carried on by Federal supervision. This Act and the decisions under it is the final outcome of what SAWYER, J., candidly calls "a suit between the mining counties and valley counties." 18 F. 792. There are obvious constitutional points arising out of such an act, but it has been thus 234 NUISANCE. far sustained. U. N. v. N. Bloomfield Co. 81 F. 2J t S; 88 F. 66 J,. A review of the progress of this struggle is fairly given in the opinion of H.\\\i i .y J. in the last citation. The reference to this act and to the opinion in 88 Federal Reporter, renders it unnecessary to fur- ther cite the numerous cases almost uniformly ad- verse to the miner, which led up to it. Some of them were so harsh as to suggest that judicial power had reached its limits. 9th Ed. p. !*.>. NUISANCE. Analogous to the last heading is the subject of actions against smelters for destruction of crops and other like injuries by noxious fumes; the pollution of streams, etc. The subject is fairly considered in Madison v. Ducktown Sulphur Co. 83 8. W. which goes into the matter of doing justice between all parties where the injury is substantial but prac- tically non-preventible without undue loss to the defendant. McCleary v. Highland Boy Co. I /" / 951. The Statute of Limitations does not begin to run until the injury is complete. Sterrett v. North- port Co. 10 P. .Hit;. Mine enjoined from polluting waters of stream used by distillery. Young v. Bankier Distillery. L. R. App. C. 691 (1893). The pollution of a fresh water stream by salt well was enjoined in Strobel v. Kerr 8. Co. 21 M. R. 38; 58 N. E. !',.>. MILL SITES. Extent How Patented. R. S. Sec. 2337. Where non-mineral land not con- tiguous to the vein or lode is used or occupied by the pro- M 1 1, L SITES. 235 prietor of siK-h vein or lode for raining or milling purposes, such non-adjacent BUrface-grOQltd may l>e embraced and in- cluded in an application for a patent for such vein or lode, ami the same may !M> patented therewith, subject to the same preliminary requirements as to survey ami notice as are applicable to veins or lodes; Inn no location hereafter made of such non-adjacent land shall exceed live acres, and payment fur the same must be made at the same rale as tixed by this chapter for the superlici. s of the lode. The <. \\m-r of a quart /.-mill or reduction works, not owning a mine in connection therewith, may also ivceive a patent for his mill site, us provided in this section. Bee, /"-. !/<'.'/ /'/. / Location and Record. Mill sites are located by posting notice and stak- ing l>\ a substantial post or stake at each angle, which ordinary prudence would require to be in- scribed with th<> name of the mill site and the num- ber of the corner. There are no Congressional regu- lations of the details of such location, but their >rd should conform to the requirements applicable to the record of all classes of claims, to wit, that it contain a sufficient description by reference to natural objects or permanent monuments; which terms of the statute are no more than a statement of what is required as a matter of course without such statute! In other words, where any record whatso- ever is essential to either original claim or convey- ance, it must contain a description sufficient to iden- tify the land intended to be described. In Colorado the form in use is the statutory wording prescribed for all cases of location of non- mineral lands, R. S., See. >!'',. Post location notice at some conspicuous point on the claim, in substance as follows: LOCATION KOI i' i: I claim the Corinnc mill site as staked on this ground, 466 feet square. Five acres. Date of location .Ian. 'J. 1!)08. TII.\IAS W. FlTCH, .In. And make record in the proper county of the LOCATION* CKRTIFICATE <>F MILL Sill: TO ALL WHOM THESE PKKSKMS MAY ( (N< i;i;\ ; KnOW \ ( > that 7, Thoma* W. l-'ifrh. ./>.. ,,f rittxhiinili. County of 'i]nn,u. Commonwealth of Penii!/lr Corinne mill site, beginning at corner No.- 1, from which, etc. (description continued) to the place of beginning. Together with all and singular the hereditaments and appurtenances thereunto belonging or in anywise appcr- . taining. Witness my hand and seal this 27th day of Jununrit. in the year of our Lord one thousand nine hundred and eight. THOMAS W. FITCH, Jit. [SEAL.] For form of acknowledgment see page 252. A name is not essential to a mill site, but it is convenient and preferable to style it by a name. Location and record should be accompanied or followed by substantial occupancy or valid improve- ments. The digging of a ditch is not the location of a mill site. "Land is appropriated by one character of acts, water by another." Robinson v. Imperial Co. 10 M. R. Sir; 5 Nev. 44. By the U. S. Law They Are Limited to Five Acres, but by the district regulations were sometimes re- stricted to much less extent. A square location 466.69x466.69 feet contains five acres. They Cannot Lawfully be Located on Mineral land. 8 L. D. 195; 18 Id. 105. And if so located may be contested by proceedings in the Land Office. 5 L. 0. 51. The location of a mill site not known to con- tain mineral at the time of its location will hold against a lode claim based upon a discovery after the mill site location was complete. The finding of mere nominal lode values does not make the land mineral in character at any time and the discovery of real mineral values will not destroy a mill site completely located before any such mineral value was known. Cleary v. Skijflch, 21 M. R. 284; 65 P. 59. MILL SITES. 237 In Hart man r. xmitli. 1' t P. 648, it was held that a mill site was a mining claim and as such ex- cluded from a town site patent. In Clcary v. Skifficli. the Court says "A mill site is a mining location." In the latter case the expression is a mere introductory clause. Biit to chance the exclusion from a town site patent of a mill site claim on the forced or technical meaning of one word, would be rave risk, lluna fulr prior location for ranch purposes will defeat a mill site.* Hamburg Co. v. Stephenson, /7 Nev. 450. Two Classes of Mill Sites. The latter clause of 2337 supra, provides for patenting of land actually occupied/by a mill, but the former and more important portion of the sec- tion provides a means of procuring surface area to cover such ground as may be used in any manner incidental to the mine. First Class Mill Site With Lode. Congress allows to each lode claimant the priv- ilege of taking up five acres of ground, upon "the theory that such additional surface is, or may be, needed either incidentally for the operation of the mine (storage room, boarding houses, miners' cab- ins, ore houses, etc.) or indirectly by a mill, patio, ra. or other works for treating ore. In fact, any largely operated mine does require such space, if not more. The land so needed is strictly within the in- tent of the law; and though no mill may be erected or contemplated, such area of surface is styled a mill site. The land taken under this clause must be: 1. Non-mineral. 2. Non-contiguous to the lode. 3. Used or occupied by the owner for mining or milling purposes. 7.J L. D. 175; 82 Id. 128; 34 Id. 9*5. 238 MILL SITES. 1. Non-Mineral. The test on this point, following analogous rul- ings between agricultural and mining claims, would be: has the land greater value for its mineral, or for surface use in connection with the mine? 13 L. D. 86; 517. The form of proof of such non-mineral character is by the affidavits of disinterested witnesses. 2. Non-Contiguous. The mill site must be non-contiguous to the lode. 32 L. D. 128; and a location made since January 1, 1904, must be situate some distance, and its bound- aries be wholly distinct, from the lines of a lode location. 3// L. D. MO, 3. What Is Sufficient Use. The building on the land of a pumping plant to carry water to the mine is a sufficient mining use. 11 L. D. 338. Or storing water on the same for the mine. 13 Id. 175. Use for storing ores or for tail- ings, shops or houses for workmen. 5 Id. 192. Or for houses for workmen on the mill. / ' t Id. 173. The use of a cabin on the land for storing tools was held sufficient in Hartman v. Smith, 14 P. < This case practically decides that the ordinary us*- of a prospector's cabin, wherever it may be located, if not on ground contiguous to the lode, is enough to justify the claiming of the site of the same ;i mill site. Cited and followed in Vtilralda v. Silver Peak Mines, 86 F. 90. Insufficient Use. The mill site section cannot be availed of to pat- ent water rights proper. 6 L. D. 706; 9 Id. 201; 12 Id. 624. Or for the benefit of a third party. 11 Id. 561. The benefit must be to the particular lode in question. 10 Id. 196. A lode owner has no right to attach to his pat- ent application, at the request of a third party, an MILL SITES. 239 independent piece of ground as a mill site. Ham- burg Co. v. Stephenson, 30 P. 1088. Land for its timber cannot be located as a mill site, though the timber be used and needed at the mine. 7 L. D. 5J7. Timber has always been con- sidered as a mining necessity, and the taking of it for such purpose clearly puts the land to a mining us*-.- Tartar r. Spring Creek Co. 14 M. R. 371; Id. note 9, But the Land Office rulings have always been to the contrary. A boarding house, store, saw-mill and wharf held insufficient mining use, where a group of mill sites was attempted to be patented with a group of lodes. 32 L. D. />. Second Class Mill or Reduction Works. I'ndr-r this class, where the application is for the mill site alone, there must be a mill or reduc- tion works incidental uses are not sufficient. That the site contains a dam, penstock and pipes for driv- ing works at neighboring mine will not answer. .'' L. D. 460; 29 Id. 148. And a patent w411 not issue to give additional ground to a mill site already pat ented. /..' /'/. 75. Nor on two adjoining mill sites with improvements on the line between them. 14 in. II. It will not be allowed on the strength of car- rying water to a smelter on other ground. ,5 Id. 190. Separate Application for Mill Site. It has been ruled that where a lode has gone to patent the owner may afterwards by separate appli- cation obtain a patent on a mill site used in connec- tion with the lode, and that such application need not show an actual mill on the ground. Such mill site is allowed to go to patent on the theory that every lode is entitled to a mill site, and it is a matter of indifference to the department whether the owner applies for the patent on lode and mill site together or separately.^ L. D. 496; L. 0. Reg. 62. A sepa- rate mill site for each lode in a group was disal- lowed in 32 L. D. 128. Where more than one mill 240 SEVERANCE. site is applied for, reason for its necessity must be shown. 34 L. D. 325. The $500 Improvements on the Lode are sufficient to enter both lode and mill site, if the mill site is used or occupied by the applicant for mining or mill- ing purposes. 8 L. D. 195. Proof of Improvements. The early practice of the Land Office was to pat- ent a mill site when applied for in connection with a lode, without proof of either use or improvements. This practice was taken advantage of to patent build ing lots, and all sorts of claims as mill sites, but the department now requires proof not only that it is non-mineral land, but that it is used for milling purposes or in connection with the mine instances of such use being above given. This proof of the use of the site in connection with the mine is by affidavit of the applicant and of two disinterested witnesses. Intention to use is not sufficient. 14 L. D. 544. Adverse and Protest. When a mill site application conflicts with a prior claim of another to the ground for like pur- poses it may be adversed; or it may adverse or be adversed by a lode or placer. 1 L. D. 566; Rev. Ed. 555. Where in conflict with a mineral claim it may be defeated by a protest and proof of being located on mineral land. 4 L. O. 3; 5 Id. 51. But see further on this point under Ami KM CLAIM, post p. 477. SEVERANCE. Separation of Surface and Mineral Estate. The ownership of the minerals may be vested in one, while the ownership of the surface is in an- other. This severance is often created by deed, in which case it amounts practically to a partition on a SEVERANCE. 241 horizontal plane, the two estates being entirely sepa- rated, except that from the nature of the case, the surface owner can usually claim the right of support, while the mine owner can claim such incidental use of the surface as is necessary to enable him to win the minerals. Caldwell v. Fulton, 3 M. R. 288; 31 Pa. 475; Homer v. Watson, 14 M. R. 1; 19 Pa. 242; Marvin v. Brewster Co. 13 M. R. 40; 55 N. Y. 588. When minerals are so severed they form a sepa- rate part of the freehold and the estate is not a mere easement. Bonson v. Jones, 56 N. W. 515; McCon- nrll v. Pierce, 71 N. E. 522; Plummer v. Hill- tfcfc ('<>. to f i F. 208. The right of entry on sur- face cannot be enlarged so as to allow the erection of coke ovens and its use for powder house, black- smith shop and supply stores depends upon the cir- . And the rulings have upheld this right to extreme lengths. A lease to mine "all the coal" does not give the right to deprive the surface of support. Mickle v. Douglass, 17 M. R. 137; 39 N. W. 198. But the surface owner is net entitled to lateral support. Matulys v. Philadelphia Co. 21 M. R. 745; ~><> Atl. Instances of Severance. The surface and the subjacent strata are rarely owned by separate parties on the western slope ex- cept where placer gold or lodes have been discovered in towns before entry under the Town Site Acts; or in instances where conflicting claims have been com- promised by deed, one party taking the surface and improvements, the other the veins underneath. But the subject is important in the Western States chiefly with reference to the question of whether claims located on government land and claims patented by the government take both surface and minerals in all cases, or whether in any case there is an actual or implied severance of the min- erals from the surface, either from the nature of the claim or from the language of patents confirming the claim. Patented Claims Generally. As to patented claims it has been the policy of the government to grant the entire estate, and retain no interest with the patentee. It has been so held in the case of a Mexican grant confirmed by patent, al- SBVBRANCE, 243 though under the original grant the claimant had ;ved no title to the mines of gold and silver from tlie Mexican government. It was considered that the confirmatory patent of the United States conveyed the soil, and everything under the soil, and that if the government had intended to reserve the royal metals, as the Mexican Republic had done, it should have been so expressly stated in the patent. Moore v. Smaw, 12 M. R. 418. In Patents to Lode Claims Both Surface and min- -rals are conveyed in terms. Placer Claim Patents Convey not only the placer deposits and the surface, but also all veins except those known to exist when the application for patent was filed, which are expressly excepted. As to Mill Site Patents It Is Required That such claims be located on non-mineral land. But aside from the clause referring to the rights of the proprietors of lodes dipping underneath, which is common to all classes of patents, they seem to be a general grant of the land which they enclose, which grant would cover all lodes and mineral rights. A valid lode claim overlying the ground could have protected its rights by an adverse; and not only do the general rules of construction favor the propo- sition that a mill site patent conveys all lodes ami deposits found within its lines, but the government having undertaken to decide the mineral or non- mineral character of the ground before the patent issues and thereupon to issue an absolute grant, such grant carries both the soil and what is under the soil. Or if the grant is not considered absolute, owing to the reservation of lodes which penetrate the lines of the mill site on the strike, which has been sometimes inserted, such reservation is one forced into the paper without legal authority, and is therefore void. See Davis v. Weibbold. l.W U. N 507; Gale v. Best, 18 Col 244 SEVERANCE. As to Patented Agricultural Claims Obtained in good faith, not at the time of entry known to be min- eral land, minerals afterwards discovered certainly belong to the patentee; but where land has been en- tered as agricultural upon which mineral locations existed, in defiance of the rights of mineral claim ants, such patents could be set aside as against the mineral claimants and it was held in the case of Gold Hill Co. v. Ish. 5 Or. 104; 11 M. If. 635, that such a patent was absolutely void as to the land cov- ered by the mining claim. A patent, however, howsoever procured, usually operates to pass title, and in such cases the holder should be declared a trustee for the use of the owner of the mine. Salmon v. Symonds, 30 Cal. 51 page /;:.. Lodes Dipping Under Patents. It may as well be observed under this head that all patents, agricultural as well as mineral, are sup- posed to contain a reservation of the right of lodes apexing outside their bounds, to dip underneath their lines. See page /7<>. The authority to insert this clause in agricul- tural patents is doubted in Patterson v. Oyli'n. ?/ P. W*. School Lands. Section 16 of each township, if non-mineral, since the organization of the Federal Government, and in later years, Section 36, and in some States ad- ditional sections, have been reserved from sale and granted to the respective States upon their admis- sion, such sections in the Territories being held by the government by an implied trust to that effect. 8 L. D. 495. The words of grant to the several States are not uniform but in general the title passes upon approval of the survey. 7 L. D. 459; 9 Id. 408; Cooper v. Roberts, 18 How. 173. In the meantime before State admission and un- til survey they are open to discovery of mineral and SEVERANCE. 245 location of mineral claims upon them the same as upon the rest of the public domain. When the mineral character of such reserved sections was known before survey the title to no part of the same passes to the State, and claims may be located upon them. 5 L. 0. 178; Heydenfeldt v. hancy Co. 93 U. 8. 6S4; IS M. R. 204; Ivanhoe Co. v. Keystone Co. 13 M. R. 214; 102 U. S. 7<>7 But where their mineral character has been dis- covered since they were surveyed, such subsequent discovery of mineral will not divest the title which has already passed. 7 L. D. 459; 9 Id. 408. And the States have control of their sale and disposal. Be- fore admission as a State, a Territory has not such control. 4 L. D. 390. By Act of Congress approved April 2, 1884 (Sup. p. 4%4)i Colorado Is reimbursed for school sections lost to the state by reason of their mineral charac- ter, and similar Acts apply to other States. Loca- tions may be made on indemnity sections until ap- proval. 21 L. D. 411; 29 L. D. 181. Where lands are mineral at date of the reserva- tion they do not pass to the State upon the subse- quent abandonment of the mines. Hermocilla v. iiubMi. M />. an. The determination of non-mineral character by the Land Office is not subject to collateral attack. Saunders v. La Purisima Co. 57 P. Patented Town Sites. In this case there is an express severance of the minerals. The holder of the lot takes no title to any located claims. The lot is subject to entry to get the mines of gold or silver which it may con- tain. R. S. 2386, 2392. These sections are supplemented, if not supplied by an Act approved March 3, 1891, as follows: Reservation of Mineral Rights From Town Sites. Sec. 16. That town-site entries may be made by incorporated towns and cities on the mineral lands of the 1'nlted States, but no title shall be acquired by such towns or cities to any vein of gold, silver, cinnabar, copper, or 246 SEVERANCE. lead, or to any valid raining claim or possession hold under existing law. When mineral veins are possessed within the limits of an incorporated town or city, and such possession is recognized by local authority or by the l.-iws nt the I'liiit-d States, the title to town lots shall be subject to such r- nized possession and the necessary use thereof and when entry has been made or patent issued for such town sites to such incorporated town or city, tin- possessor of such mineral vein may enter and receive patent for smh mineral vein, and the surface ground appertaining thereto: Provided, That no entry shall be made by such min- eral-vein claimant for surface ground when- the owner or occupier of the surface ground shall have had possession of the same before the inception of the title of the mineral- vein applicant. Sup. p. 9J5. A townsite entry under the above act must con- form to legal subdivision when made upon surveyed lands, as required by R. S. Sec. 2389. ,fcf L. D. f& The town patent, where valid mining locations have been made within its limits, does not grant the minerals. Moyle v. Bullene, Jj.' t P. /;/'; .'<; L. D. 1 '/'i : .!',) L. D. 89.; nor where the land was known to be mineral at time of entry. 21) L. D. !-''< ': .;/ Id. 88. Under the terms of the second paragraph of the present Act, it seems clear that lode or placer pat- ents can issue for such claims within the town lim- its. 25 L. D. 518; ;/ / lode, and not its surface, is excepted, at least under patents prior to 1872. Dower v. Richards, ?-> Cal 477. That the mine must have been a known valuable and subsisting claim. Smith v. Hill, 26 P. *;;;.- />. STATE LANDS. In Nevada and Wyoming the State Lands are by statute open to prospectors. The State Patent does not pass mines claimed under the Act. Stanley v. Mineral Union, 63 P. 59; 26 Nev. 55. By Colorado Act of 1905 (R. S. 521k) prospect- ors discovering mineral on State Lands are allowed to pre-empt a claim 1,500 by 300 feet whether lode TUNNEL SITES. 249 or placer and ultimately to obtain the State's Title to the same at a minimum price of $10 per acre. LOCATION NOTICE ON STATE LAND. I claim the Admiral lode (or placer) discovered by me on State land, 1,500 by 300 feet, 750 feet easterly and 750 feet westerly from this point, as staked on the ground this 14th day of July, I'.X'T. Louis M. PETITDIDIER. The above notice holds the claim for 90 days during which time the discoverer must do $100 as- sessment work and stake the claim and file a Loca- tion Certificate with the State Board of Land Com- missioners and within one year must apply to the Board for either Lease or Deed. The forms on pp. 75 and 218 will suffice for Location Certificates and no record at all is required in the County Recorder's office. TUNNEL SITES. Line of Tunnel Neglect to Work for Six Months. K. s. ST. 2323. Where a tunnel Is run for the de- velopment of a vein or lode, or for the discovery of mines, the owners of such tunnel shall have the right of possession of all veins or lodes within three thousand feet from the face of such tunnel on the line thereof, not previously known to exist, discovered in such tunnel, to the same ex- tent 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 pros- ecute the work on the tunnel for six months shall be con- sidered as an abandonment of the right to all undiscovered veins on the line of such tunnel. Sec. k, A. C. May 10,1872. Record. R. S. Colo. Sec. 4207. If any person or persons shall locate a tunnel claim for the purpose of discovery, he shall record the same, specifying the place of commencement and termination thereof, with the names of the parties in- terested therein. Nov. 7, 1861. 250 TUNNEL SITES. Line of Tunnel. Immediately, upon the passage of the mining Act of 1872, containing the tunnel section above printed, controversy arose as to what was meant by the words "the line thereof." The Land Office shortly published their con- struction that it meant "the width thereof and no more." This construction was adopted in the case of Corning Tunnel Co. v. Pell, 14 M. R. 612; 4 Colo. 101'. This became the generally received interpreta- tion of the act until the case of Enterprise Co. v. Rico Aspen Co. 66 F. 200, affirmed by the National Supreme Court in 1897, 167 U. 8. 10* ; followed by the case of Campbell v. Ellet, 167 U. 8. Jl<>, affirming 18 Colo. 511. The court holds that a tunnel duly located and its work diligently prosecuted has the right to all lodes not previously known to exist, on either side of the bore. That is to say, when a lode is reached the tunnel may elect to take 1,500 feet in one direc- tion or 1.500 feet on the other side or may divide the length, so much on either side. That all loca- tions on lodes not previously known, made within such area are voidable at the election of the owner of the tunnel. Location and Record of Tunnel Site. The following form has been drawn in attempted compliance with the Act of Congress, the Land Of- fice regulations and the construction given to the act by the Rico-Aspen case. It purports to claim its entire frontage of 3,000 feet as its line of tunnel, and if the Rico-Aspen case stands in its entirety, the claimant is in position to assert his full rights under such form. But the Rico- Aspen case in principle cannot be reconciled with the Erhardt-Boaro case, 15 M. R. 472; 113 U. S. 527. There the prospector by his notice had an inchoate right to his lode just discovered; such notice not specifying the extent of his claim, he was limited in his right of selection to 750 feet on each side of his point of TUNNEL SITES. - :-M discovery. This discord as to the two classes of claims still existing, we advise that it is safer for tht tuniu'l rlainuint to elect at the outstart to take 750 feet on each side, or some other definite number of feet on each side, of the bore of his proposed tunnel. iricAii: DI TI NM:I.. T.. M.I. WH..M mi ,;s MAY COKCntN: Know ye. that I. ir. /:. Henthaw. a citizen of the rnited States, .f hlaho N/H-UM/.V. <'"unty f rh;ir r ;/,-. State of Colorado, do heret.y declare and publish ns a legal notice to all the world that I have a valid right to the occupancy, possession and enjoyment of Tin: MAI: \M 'l'i \\i:i. Sin:. located .f'annaru "ml. A. I . /!'">. for the discovery of mines and th- development of lodes, and situate in Griffith Mining I>istrict. char Creek County, State of Colorado, described as follows, to \ Month of tunnel situate on north slope of l.mrrn ' h mountain; from tin month of the tuntul. rnlrirt nmhr thr mi,u *>f, bemrt \. ?.t 45' W. >/. nnnn mniintuin > .,, , \ : : :,:,' \\ Si/- of MIIIIH ' /. /.;/ 7 f < I liii/li in tin /,,//. fours.' of ttiini.-l fn.iu its month 8. 17 58' E. 3,000 fi*t to tin xoiitli i ml of * ml * //'//.. tin << nt< r linr of tin tinim I is nnirknl ' nml njHA f t fro;,, tin- month on / .mil iinirkfi t !<*.. From the > ml .s/'/A. I,'- iml.li, .1,1 mountain l /rx Y. 40 IV. . Sn.rnn mountain hrar* N. S9 V' / ' " ^'""/' ' imln* in tliannhr mark.,/ I! I J II .', imln. in iliiinn t. r mark,, I II. T. if /.'. 'I." bOfi V. J.l ,.' , mi itofttf, tei a ttofe V. 7 2..' 1 ,1 , ml tak< x. t a : ' .'.." ir. from ,,o,/f/i o/ M/IIM^ x. t a st.il:, \ ^rom month of tnnml *, t a staler 8. 7 22' W. : winch last four mentioned stakes are at the exterior corners (.f tli> claim of said tunnel site. And I claim for line of tunnel 1,500 feet on each side of the (enter of the bore or course of the tunnel, and the right to I..-.IHI feet on each and every lode which may he discovered in the due prosecution of said tunnel.* Together with all and singular the heriditaments and appurtenances thereunto Itelmiging or in anywise ap pertainini:. and all rights granted to the locator as tunnel rights under the terms of section L':: i j:: of the Revised Stat- utes of the United States. Witness my hand and seal this ^mi day of January, A. D. \v. i:. KENS HAW. [SEAL.] 252 TUNNEL SITES. STATE OP COLORADO, City and County of Denver: ss. Before me, the subscriber, a notary public in and for said county, personally appeared W. E. Renshaw, to me personally known to be the same person described in and \vho executed the within declaration of occupation ;m(> feet square as stnkMl." The actual location, of course, consists in setting the stakes as called for in such notices, and in the starting the tunnel in good faith. Location of Lodes Cut in a Tunnel. They should be staked and recorded exactly as in the case of lodes discovered at the surface, except that no discovery shaft is required the discovery in the tunnel taking its place and the location stake or notice should be set on the surface at a point midway between side lines and above the discovery in the tunnel. Such location notice, as well as the location certificate, should state the fact that the lode was discovered in the tunnel and the number of feet in from the mouth. In fixing the surface line, approximate calculations should be made for the dip. In Ellet v. Campbell, 18 Colo. 510, affirmed /<: U. 8. 116, it was held that the discovery need not be followed by location; but the U. S. Supreme Court conceded that it might be required before patent could be secured. "A Tunnel is not a Mining Claim although it has sometimes been inaccurately called one." Creede Co. v. Uinta Co. 196 U. 8. 381. In that case it is expressly held that the Tunnel is a means of explora- tion "In the hope of finding a mineral vein. When one is found he (the tunnel owner) is called upon to make a location of the ground containing that vein and thus creates a mining claim the protection of which may require adverse proceedings." We never could conceive that, as might be in- ferred from the Ellet case, a discovery In a tunnel would hold indefinitely without defining the surface lines of the claim and the ruling above cited from the Creede Case by the National Supreme Court sets the matter at rest. Under this decision as we understand it the dis- coverer by tunnel has no greater rights than one who finds the lo~>l), but without any specific rule tunnels were con- stantly driven across prior claims without much question, until the Rico-Aspen decision and its sweep- ing concessions to tunnel sites compelled miners in self defense to check their encroachments. The decis- ions are uniform that in the absence of statute or district rule, a tunnel has no implied right or li- cense to penetrate under prior patents or locations. Richards v. Dower, 64 Cal. 62; 73 Cal. 477; Ama- dor Co. v. Deioitt, 73 Cal. 482; Calhoun Co. v. Ajax Co. 182 U. 8. 499. TUNNEL SITES. 255 A party has no right to tunnel through another's patented ground to cut a vein whose apex is within his own patented lines. St. Louis Co. v. Montana Co. 113 F. 900. The Colorado Tunnel Acts Eminent Domain. A Colorado act of 1861 gave a discovery tunnel the "right of way th rough all lodes which may lie on its course." The act of 1897 enlarged this per- mission, and further provided for right of inspec- tion to the owner whose lode was cut, and placed the burden of proof on the question of lode identity on the tunnel. Both these acts, in Cone v. Roxanna Co. (HALLETT, J. MS.), were held void (1) as to tun- nel crossing prior location, because no provision was made for compensation, and (2) because not within the terms of A. C. Sec. 2.?.?N. allowing the states to legislate concerning easements. This same point (2) was rultMl in Calhoun Co. v. Ajax Co. 9 P. 617 (affd. 182 U. 8. 50!)), the case making no reference to the 1897 act, but its tenor would be against the validity of the act as a license to penetrate either a prior or a later claim. The Colorado act of 1891 (R. S. * 2461) giv- ing tunnels the right to condemn a right of way was sustained in Tanner v. Treasury Co. 83 P. .Jf>'/. so there can be no doubt of the validity of the later and more specific act <>i L907 (R S. 8 2435). The Idaho act on the same subject was held valid in HailUe v. Larson, 138 F. 111. By the Colorado act of 1907 power is given to condemn a right of way to any tunnel company of- fering itself as a common carrier of ores. It must file with the county recorder a map of its survey, allow inspection to owners of all veins which it cuts, and transport their ore and waste at fixed charges. Where the tunnel has already been driven through the claim, it seems that ejectment is the proper remedy, and not injunction. Creede Co. v. Uinta Co. HALLETT, J. MS. 256 TUNNEL SITES. Unrecorded Tunnels. Any party running a tunnel would probably hold the tunnel itself (i. e. the bore as far as actually run), without any record whatever. 8 L. 0. 71. This is done every day in the case of cross-cuts, which are simply tunnels on a small scale. But to claim any rights for its line or otherwise under the Act of Congress it must be staked and recorded. Of course, a lode discovered in a tunnel, after the lode has been duly located and recorded on the tunnel discovery is as valid upon an unrecorded as upon a recorded tunnel, its title having by such independent location become a matter wholly apart from the tun- nel location. Failure to Work. The right to blind lodes is conditioned upon prosecuting work with "reasonable diligence." In the Rico-Aspen case, 66 'F. 206, the court intimates that this clause should receive a strict construction, and that prompt and energetic prosecution of the work should be required. Failure to work for six months deprives the Tun- nel Site of its claim to blind lodes, but does not affect its right to continue its bore through claims in ad- vance of it. Fissure Co. v. Old Susan Co. 63 P. 587. Abandonment. A tunnel may, like any other kind of claim, be abandoned; but neglect to work does not operate to effect an abandonment; such neglect only operates to deprive it of tunnel rights along its line. The fact that no labor has been done for many years is evi- dence of abandonment, but not conclusive. As be- fore stated (page 00) abandonment is a question of fact, and in the case of tunnels is wholly independ- ent of the annual labor. Patent Adverse Claim. There is no provision for patenting a tunnel site. Nor does it need to protect itself by adverse against TUNNEL SITES. 257 an application for patent on a survey across its line in advance of its breast* If such Survey cover blind lodes not yet cut in the tunnel the tunnel rights to the same are saved under the ruling in the Rico- Aspen case. And as to its right to bore through such patented Survey its easement is saved without necessity of adverse or suit under the authoritative decision in Creede Co. v. Uinta Co. supra. A lode recorded on a Tunnel Discovery adverses of course on its own merits as a lode location, but its discovery would on proper facts relate back to the date of the location of the Tunnel Site. But in 29 L. D. 2S5, a tunnel having adversed a lode application, the application was held stayed until the determination of the supporting suit: and the case suggests the necessity of an adverse claim to protect its dump ground, if surveyed in. Annual Labor by Tunnel. Sec. 1. That section two thousand three hundred and twenty-four of the Revised Statutes, be, and the same is hereby, amended so that where a person or company has or may run a tunnel for the purposes of developing a lode or lodes, owned by said person or company, the money so expended in said tunnel shall be taken and considered as expended on said lode or lodes, whether located prior to or since the passage of said act ; and such person or com- pany shall not be required to perform work on the surface of said lode or lodes in order to hold the same as required by said act. Feb. 11, 1875, Sup. p. &. The annual labor of $100 on each claim may be performed under the above section by work done on a tunnel, cutting, or which is driven to cut, such claims. 5 L. 0. 5; Id. S4; 17 L. D. 190. To apply tunnel work it is no objection that the tunnel runs through -vacant ground or crosses lodes belonging to others before it reaches a point where it would tend to develop the claim. Hain v. Mattes, 84 Colo. S45; 83 P. 127. The Patent Expenditures of $500 may also be made on such tunnel. 4 L. 0. 67. A party may pat- ent one lode on the line of his tunnel for each $500 9 258 TAXATION. of labor spent in driving the tunnel. 30 L. D. 510. All claims in a group must share equally in the ex- penditure on the tunnel. 35 L. D. 361. Tunnels Over 3,000 Feet Long. The A. C. expressly limits the claim of a tunnel site to lodes not known to exist "within three thou- sand feet from the face of such tunnel." Attempts have been made to evade this limitation by filing rec- ords of a second tunnel to begin at a point 3,000 feet in from the mouth of the tunnel projected from the surface; i. e., to begin at the end of the first 3,000 feet, taking 3,000 feet more and even third and fourth extensions have been so recorded. We regard these locations as absolutely void. But we draw the distinction between the right of a tunnel to undiscovered lodes and its right to bore through the mountain. The former is granted by Act of Congress, is limited by its terms and cannot be enlarged. The latter, the right to bore, is a mere easement, exercised under district rules before the Act, and there is no limitation on the claim of a tun- nel to drive itself through the public domain as far as its owners may desire to penetrate. A tunnel in its record therefore, in our opinion, can claim a right of way to drive to any expressed number of feet, but it cannot claim the statutory tunnel right to blind lodes beyond the first 3,000 feet; and the location of a second tunnel from the breast of the first is an attempt by a self-serving act to take from the prospector's rights in the ground be- yond 3,000 feet a valuable privilege, which the Act of Congress has given him. TAXATION. By the Colorado Revenue Act, R. S. Sec. 5575, mining claims are required to be listed by the name, and number of Survey Lot, when patented or entered for patent. Mines are divided into two classes producing and non-producing. A gross output of $5,000 places TAXATIpN. 259 the mine in the first class, and it is to be assessed at one-fourth of its gross output. If the net output shows a profit of more than a fourth, such net out- put is to be the valuation. Non-producing mines are to be assessed like other real estate, at their sup- posed actual value. Special provisions are made for taxation of group claims and tunnel sites. The owner is required to make return showing the tonnage, freight and mill returns, as stated in de- tail in the Act. 5617, 5627. For construction of similar act of 1887 see Pil- grim Co. v. Teller County, 76 P. 864. Possessory Title Taxable. The estate in unpatented mining claims Is prop- erty subject to the right of taxation. Forbes v. Gracey, 94 U. 8. 762; 14 M. R. 188; Seymour v. Fisher, 16 Colo. 188. Notwithstanding the above declaration of taxable status the possessory title has not, as a rule, been assessed, though taxes have always been levied on the surface improvements when extensive. Patented Claims, or those entered for patent, are of course assessed and taxed as other classes of real ite. In Nevada, and other states, attempts, at- tended with continued litigation, have been made to tax the not output. Such tax, so plausible in theory, is unjust and grossly unequal after conceding the fact that absolutely equal taxation cannot be realized upon any theory of assessment. See Mercur Co. v. Spry, 52 P. S82, construing the Utah law of this character. Net proceeds of coal mines held taxable in Montana. Montana Co. v. Livingston, 52 P. 780. Special Instances. A mine cannot be sold for tax assessed against improvements not found on the mining ground. Knox v. Higby, 18 P. S81. Exemption as mining claim ceases when placer ground is laid out into town lots. Dyke v. Whyte, 29 P. 128. Where surface and minerals are separately owned they may be separately taxed. Cons. Coal 260 LIENS, JUDGMENTS, MORTGAGES. Co. v. Baker, 26 N. E. 651; Stuart v. Com. 23 8. W. 367. The number of the Survey Lot, in Colorado, is an essential part of the description in a Tax deed. Hammon v. Nix, 10 If F. 689. LIENS, JUDGMENTS, MORTGAGES. How Affected by Patent. R. S. Sec. 2332. * * Nothing in this chap- ter shall be deemed to impair any lien which may have at- tached in any way whatever to any mining-claim or prop- erty thereto attached prior to the issuance of a patent. Bee. 13, A. O. July 9 f 1870. Patent, although relieving claims from adverse rights, does not relieve from liens already attached against the property. On the other hand, the pat- ented title enures to the benefit of the lien holder. Butte Co. v. Frank, 65 P. 1. Judgments are liens for the period limited by statute in each State, usually six years, the time run- ning either from the date of judgment or the date of filing the transcript in the Recorder's office. A mortgage 'may be so drawn as to secure ex- penses of mining as well as the original debt. Char- ter Oak Co. v. Stephens, 15 P. 253. In exceptional instances a miner's lien has been held to cut out a prior mortgage. Atlantic Co. v. Ropes Co. 77 N. W. 938; Galloway v. Blue Spgs. Co. 37 S. W. 1016, but as a general rule the mortgage takes precedence of all debts incurred by the further working of the mine. The lien of neither mortgage, judgment nor attach- ment, prevents the operation of the mine without an injunction for the protection of the security and such injunction will be granted only in exceptional instances. Vervalen v. Older, 8 N. J. Eq. 98; 10 M. R. 540; Chung Kee v. Davidson, $6 P. 519. Such liens do not prevent the free severance and sale of the ore. Young v. Northern Co. 10 M. R. 596; 9 Biss. MINERS' LIEN. 261 300. The debtor can continue to mine after sheriff's sale, during the redemption period. Ward v. Carp River Co. 15 N. W. 889. In Macon v. Trowbridge, 87 P. 1147, an action to foreclose a trust deed on a mine, defendant was al- lowed to offset damages for failure of the note holder to keep the covenants of a lease on the same mine. By Section 1 of the chapter of the R. S. entitled "Trust Deeds and Mortgages," trust deeds in Colo- rado must run to the "Public Trustee," otherwise they can be foreclosed only as mortgages. Whatever form is followed the Statute allows nine months for re- demption. The common law mortgage, both for security to the creditor and for fairness to the debtor, is to be preferred in all cases except in secur- ing large bond issues where for reasons specially applying to the negotiation of the securities a trust company or some personal trustee other than the public trustee is usually nominated. A mining partner in certain cases seems to have a lien for his advances In excess of those of a co- partner. Duryea v. Burt, 11 M. R. S95; 28 Cal. 599; Beck v. O'Connor, 58 P. 94; Childers v. Neely, S4 8. E. 828; O. V. B. Co. v. Bank, 95 F. 55. See MINKRS* Ln:\; EXAMINATION OF TITLE. MINERS' LIEN. To Whom Allowed by Colorado Act. R. S. Sec. 4028. The provisions of this Act shall apply to all persons who shall do work or shall furnish ma- terials or mining, milling or other machinery or other fix- tures, as provided In Section 1 of this Act, for the working, preservation, prospecting or development of any mine, lode or mining claim or deposit yielding metals or minerals of any kind or for the working, preservation or development of any such mine, lode or deposit, Several Claims Worked Together. Provided, That when two or more lodes, mines or deposits owned or claimed by the same person or persons 262 MINERS' LIEN. shall be worked through a common shaft, tunnel, Incline, adit, drift or other excavation, then nil the mines, mininp claims, lodes, deposits and tunnel and mill sites so owned and worked or developed shall, for the purpose of this Act, be deemed one mine ; * * * Water Rights and Easements Included. R. S. Sec. 4031. Such liens shall likewise attach to rights of water and rights of way that may In any man- ner pertain to any kind of property hereinbefore specified and to which such liens attach. * * * Oil Wells. Section 4049 gives a lien for sinking an oil or gas well. A miner whose wages or contract money is in default, secures a Hen by filing with the County Re- corder a statement substantially as follows: FORM OP LIEN STATEMENT. KNOW ALL MEN BY THESE PRESENTS : That I. Mn.r Dagenais, do hereby give notice of my intention to hold and claim a Hen upon the Thomas a'Kempis Lode Mining Claim in Ruby Mining District, County of Gunnison, State of Col- orado. Said lien is claimed for work and labor done by me upon said lode (or materials furnished l>y me to said / 1907, and the 25th day of December, A. I>. ID" 7. l>th dates Inclusive, upon the following abstract of indebted- ness : m Total amount of indebtedness $742.00 Total amount of credits 441.00 Balance due claimant $301.00 That the owners or reputed owners of said lode are Alva Adams and J. G. Edwards. Witness my hand this second day of January, A. D. 1908. MAX DAGENAIS, Claimant. STATE OF COLORADO, County of Gunnison: ss. Before me, the subscriber, Chns. E. Whit field, a No- tary Public in and for said county, personally appeared Max Dagenais, who, being duly sworn, saith that the fore- going statement and abstract of Indebtedness, and the mat- MINERS' LIEN. 263 ters and things therein set forth, are true to the best knowledge, information and belief of affiant. MAX DAGENAIS. Sworn and subscribed before me this second day of January, A. D. 1908. Chas. E. Whitfleld, [SBAL.] Notary Public. When the claimant is a sub-contractor or em- ployed by a contractor, strike out "J. G. Edwards, one of the owners or reputed own- ers of said lode," and insert "at the special instance and request of Thomas B. Crawford, a contractor under the owners of said lode." Sub-contractors must serve a copy of such state- ment on the owner or his agent, at or before the time of filing, but if neither the owner nor agent can be found in the County, an affidavit to that effect shall be filed in lieu of service. The time to file varies from one to three months according to the class or nature of the claim. Special provision is made in the Act for instances where the names of the owners are unknown. Six Months to Sue. An action must be commenced to enforce the lien within six months after work completed or the lien is lost. Where mines are worked as a group the whole are considered as one mine for lien purposes. Tre- dinnick v. Red Cloud Co. IS P. 152. General Statutory Legislation. Miners' or mechanics' liens are pure creations of statute, but are allowed by specific legislation in all the States and Territories. They uniformly pre- scribe some such statement or notice equivalent to the above form, but the statute of the particular State must be looked to for details. Decisions. A miner has no lien upon the ore. For rule of distribution where work has been performed on 264 MINERS' LIEN. various parcels of group, see Bassick Co. v. School- field, 10 Colo. 46; Malone v. Big Flat Co. 18 P. 772. Lien allowed for pumping and sloping. Chappius v. Blankman, 60 P. 926. A party engaged in hauling ore from the mines to the quartz mill has no lien on the mine. Barnard v. McKenzie, 4 Colo. 251; 9 M. R. 403. Watchman not entitled to. Williams v. Hawley, 77 P. 702. A mining foreman or superintendent has a lien. Palmer v. Uncas Co. 70 Cal. 614; McLaren v. Byrnes, 45 N. W. 143. See Smallhouse v. Kentucky Co. 2 Mont. 443; 9 M. R. 388; Rara Avis Co. v. Bouscher, 9 Colo. 385. An expert has no lien for making a report on a mine. Lindemann v. Belden Co. 65 P. 403. A laborer working in a Quartz Mill standing on the claim held to have a lien on the entire mine. Thompson v. Wise Boy Co. 74 P. 958. Lien for mill building extended to group of mines to operate which it was built. Salt Lake Co. v. Chainman Co. 137 F. 632. Lien of Surveyor or Civil Engineer. Whether R. S. Colo 4045 giving such lien is still in force is matter of doubt, but in any event a surveyor seems to be allowed a lien under the terms of the general causes of section 4025. Mine Under Lease. The title is never bound by lien for work done for a lessee unless by Statute expressly so provid- ing. The Arizona Statute does not give a lien in such case. Griffin v. Hurley, 65 P. 147. All the decisions under the Colorado Acts pur- porting to give a lien against a mine worked under lease, have been against the validity of such lien. Wilkins v. Alell, 58 P. 612; Antlers Co. v. Cun- ningham, 68 P. 226; Williams v. El Dora Co. 83 P. 780. The language of the present Act, R. S. 4028, a compromise between those favoring the lien and those opposed to it, is simply unintelligible; MINERS' LIEN. 265 but if there is any danger from that source it may be avoided by posting notice on the mine substan- tially in the following form: NOTICE. February 27, 1908. Notice is hereby given to all persons performing labor or furnishing skill, materials, machinery or other fixtures, or supplies of any kind to or on the Gen. Cronje mine, upon which this notice is posted, that the undersigned, the owner of said mine, will not be responsible for any labor per- formed on, or any skill, materials, machinery, fixtures or supplies of any kind furnished to said mine, nor shall the interest of said owner be subject to any Hen for the same. And all persons are hereby notified that the said mine and premises have been leased to F. M. Roberts. HBNHY I. SBBMANN. By Option Holder. When a mine is worked under an option of sale the terms of such -contracts vary so widely that no general rule can be safely stated as to when liability attaches against the fee simple title. On a lease con- taining covenants for special work with privilege of purchase the owner's estate has been held liable in Eaman v. Bashford, 87 P. 24; Hines v. Miller, 55 P. 401; Colo. I. Wks. v. Taylor, Id. 942; Hendrie Co. v. Holy Cross Co. 68 P. 785. To the contrary. Maner v. Shull, 52 P. 1115; Block v. Murray, SI P. 550; Hadley Co. v. Gumming s, 64 P. 448; Reese v. Bald Mt. Co. 65 P. 578. The employe of a licensee has no lien. Jurgen- son v. Diller, 46 P. 610. Nor the employe of the claimant of a hostile title. Idaho Co. v. Winchell, 59 P. 5SS. Miner hired by party holding possession under executory contract of purchase has no lien. Williams v. Hawley, 77 P. 762. But the real owner may be estopped where he allows the option holder to assert title. Eastwood v. Standard Co. (Ida.) 81 P. 882. CONVEYANCE. CONVEYANCE. The ordinary printed forms of deeds are usually sufficient to convey mining claims, but owing to the common practice of employing conveyancers totally disconnected with the legal profession, few abstracts, when the deeds, as recorded at length, are examined from the memoranda on the abstract, can show an unbroken line of perfect conveyances. A common imposition is to present a deed in the form of a warranty purporting to convey "all - the right, title and interest of the party of the first part," which amounts to no more than a quit-claim; or to make the consideration of a warranty deed nominal, which has the same practical effect. WARRANTY DEED ON PATENTED CLAIM. THIS INDENTURE, made this tenth day of January, In the year of our Lord one thousand nine hundred and eight, between Henry P. Lowe, of the City and County of Denver, State of Colorado, party of the first part, and Willis B. Herr of Seattle, State of Washington, party of the second part: Witnesseth, that the said party of the first part, for and In consideration of the sum of ten thousand dollars, to him in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, hath granted, bar- gained and sold, and by these presents doth grant, bargain, sell and convey unto the said party of the second part, his heirs and assigns : All the following described real estate, situate in Alhambra Mining District, County of Park, State of Colo- rado, to wit: The Fickle Goddess Lode Mining Claim, known as Survey Lot No. 777, being 1.500 feet in length and 300 feet In width, situate on South Mountain. Together with all and singular the mines, minerals, lodes and veins within the lines of said claim, and their dips and spurs and all dumps, plant, fixtures, Improvements, rights, privileges and appurtenances thereunto in anywise belonging. To have and to hold the lands, tenements and hered- itaments hereby conveyed unto the said party of the second part, his heirs and assigns, forever. And the said party of the first part, for himself, his heirs, executors and administrators, doth hereby covenant and agree with the said party of the second part, his heirs and assigns, that the said premises and every part thereof, CONVEYANCE. 267 are free and clear of and from any and all liens, incum- brances. trusts and taxes, and that he, the said party of the tirst parr, his heirs, executors and administrators, unto the said party of the second part, his heirs and assigns, the said pivmisfs and every part thereof, against himself, his heirs and assigns, and every other person lawfully claiming or to claim the same or any part thereof, SHALL AND WILL WARRANT AND FOREVER DEFEND; always sav- ing ami cfcciitinij the same provisos, reservations and limi- tations contained in the patent of the United States issued for said survey lot. In witness whereof the said party of the first part hath hereunto set his hand and seal. HENRY P. LOWE. [SEAL.] STATE < F COLORADO, City and County of Denver: ss. I, Arthur R. Morrison, a Notary Public in and for said County, do hereby certify that Henry P. Lowe, who is nally known to me to be the same person described in and who executed the within indenture, personally appeared lirfure me this day and acknowledged that he signed, sealed and delivered the said indenture as his free and voluntary a.t and deed for the uses and purposes therein set forth. Witness my hand and notarial seal this tenth day of Janunrii. A. I >. 1908. Arthur R. Morrison, | SKA I,.] Notary Public. The Date of Expiration of Commission Is Re- quired to be noted on all acknowledgments and affi- davits taken before a notary public under Colorado ite.. /'. 8. fif< . Warranty of Claim Entered for Patent. the same form inserting the words "to be" before "issued" and adding the words "as entered in the Land Office" after the words "said survey lot" in the saving clause of the warranty. Warranty of Possessory Claim. Use the same form as for "Patented Claims, " omitting the words "Survey Lot No. ," and omit- ting the clause in italics. Instead of such clause in- sert "always saving and excepting the United States of America." Special Warranty. When the grantor desires to warrant his own chain of title, but not against parties claiming under 268 CONVEYANCE. other locations, insert before the words "shall and will warrant," this clause: "By, through or under the said party of the first part, or his grantors" QUIT-CLAIM DEED. THIS INDENTURE, made this thirty-first day of Janu- ary, in the year of our Lord one thousand nine hundred and eight, between J. Stanley Jones, of the City and County of Denver, State of Colorado, party of the first part, and Henry C. Beeler, of the County of Laramie, State of Wyo- ming, party of the second part : Witnesseth, that the said party of the first part, lor and in consideration of the sum of one thousand dollars, to him in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, hath remised, re- leased and quit-claimed, and by these presents doth remise, release and quit-claim unto the said party of the second part, his heirs and assigns : All the following described real estate, situate in The Consolidated Ten Mile Mining District, County of . k mit, State of Colorado, to wit : The GBACB CURRIER lode mining claim, Survey Lot No. 666, 1,500 feet in length and 150 feet in width, located on the west slope of Sheep Mountain. Together with all and singular the lodes and veins within the lines of said claim, and the dips, spurs, mines, minerals, dumps, fixtures, improvements, rights, privileges and appurtenances thereunto in anywise belonging. To have and to hold the lands, tenements and heredi- taments hereby conveyed unto the said party of the second part, his heirs and assigns, forever. In witness whereof, the said party of the flr*t part hath hereunto set his hand and seal. J. STANLEY JONES. [SEAL.] Acknowledge as on page 67. A Quit Claim Deed is commonly used where the title is possessory, and where the title is clear it passes the title as effectually as a warranty. But the grantee in a quit-claim may be chargeable with notice of equities not chargeable to a purchaser by a general or special warranty. Hannan v. Seidentopf, 86 N. W. 45. Where the grantee knows that another is in adverse possession of what he is buying, he is not an innocent purchaser. Wetzstein v. Largey, 27 Mont. 212; 10 P. 717. CONVEYANCE. 269 Mining Deeds. There has couie into use a form of deed called a Mining Deed, the blanks for which vary. They contain after the space left for description, the for- mula "Together with the Dips," etc., substantially as in the above forms. A deed to a mine does not differ from a deed to other real property in the same condition of title, except in the description, and the phrase "Together with, etc.," which is really part of the description. Most of these deeds contain in their granting clause the operative words of a warranty in connection with the operative words of a quit- claim "grant, bargain and sell," "remise, release and quit-claim." But their legal effect is more that of a quit-claim than that of a warranty, except that the words "grant, bargain, sell and convey" have the special force of passing an after acquired title, and by legislation the word "grant" in some States is made to imply a warranty against incumbrances. In examining ab- stracts they will of course be considered as transfer- ring the grantor's interest, but no lawyer or trained conveyancer would advise such deed, or any form of statutory deed where certain words are declared to have a certain talismanic charm, in preference to the known, fixed and understood grants and covenants of a common law warranty. Short Form of Deed. By Colorado Act of 1887 (Laws, p. 226) short forms of deeds were introduced. "The implied warranty which the vendor in ig- norance of its nature is made liable for by this stat- utory form, is totally inapplicable to mining claims whether patented or possessory. It would make the vendor liable, if liable for anything, for a fee simple title even to making good the exceptions on the face of the patent. If used in conveying a possessory claim there is a breach of the warranty the moment the instrument is delivered. What is conveyed by the so called short form of quit-claim deed, it is im- 270 CONVEYANCE. possible to say. The entire set of forms should be discarded." The above paragraph is the language used about these statutory forms of deeds in the sixth edition of this book. We have never qualified it and only add that the Act was repealed at the 1889 session. Description. The exact description of a located lode or placer is "The Lode Mining Claim" or "The Placer Mining Claim." If patented add the words "Survey Lot No " The number of the min- eral entry is superfluous, and to describe the prem- ises by metes and bounds is not good conveyancing, except, of course, when a fraction of a claim is con- veyed. The name is usually a sufficient description. Smith v. Sherman Co. 31 P. 72; Glacier Co. v. Willis, 127 U. 8. 472. The word "mine" is a danger- ous term and to be avoided, as often an entire group of claims are known collectively by the name of one mine, and such entire group might pass, and, in fact, might be intended to pass by the use of such sweep- ing term. Smith v. Sherman Co. 31 P. 72; Phillips v. Salmon R. Co. 72 P. 886. The word "lode" is commonly used as synonymous with lode mining claim. Buckeye Co. v. Carlson, 66 P. 168. A contract to convey a mining claim by name implies that vendor has a located claim and not a mere prospect. La Grande Co. v. Shaw, 72 P. 795. Deed Subdividing Lode Claim Dip. Owing to the relation of the dip to the strike, when a line is drawn across a lode claim at right angles to the side lines at the surface, such line be- ing intended for the division line between the part retained and the part sold, such line when carried vertically downward may cut off the vein on its dip in such a way as to divide it in an unexpected man- ner. If, for instance, at the surface, it begins at the "west end of discovery shaft," it may leave the bottom of such shaft entirely on one fraction. of the lode within a comparatively few feet of sinking. CONVEYANCE. 271 Such result or a similar result will invariably occur where the vein has a dip, unless the end lines are at an exact right angle to the strike of the vein. See Plat, p 118. Apex Eights of Irregular Fraction. Where the whole lode is conveyed there is no doubt that the deed carries the right to follow it on the dip to the full extent the grantor may have had such right. The same, if a certain number of feet off either end of the claim are conveyed, to the ex- tent of feet granted. But where a strip or Irregular fraction of the claim is carved out and sold the question of the apex- rights of such segregated parcel arises, and the tendency of the decisions is that the grantee has the right to follow on the dip whatever veins may apex on the ground. Of course such right would be lim- ited by the end lines and planes projected from the end lines of the claim. In Stinchfleld v. GilUs, SO P. 839, It was held that all voins apex ing within the surface area are conveyed although carried by the dip Into other land of the grantor. Tn Boston Co. v. Montana Co. 89 F. 529. it was held that the grantee could follow on the projection of one of the lines of the pentagonal tract described, the same as If It were an end line In a patent. This gave to one party diverging, and to the other, con- verging end planes. The contention that each party was to follow as much of the vein as apexed within his own territory both governed by parallel end line planes always seemed to us the more Just, simple and reasonable rule to apply to this class of cases. The rule contended for has been adopted by the Supreme Court of Montana, and the ruling In the Federal case disapproved. Montana Co. v. Boston Co. 70 P. 1114. In settlement of disputed title between the Nine Hour and St. Louis Lodes, The Montana Co. con- veyed to the St. Louis Co. a strip of the disputed 272 CONVEYANCE. ground 30 feet wide by 400 feet in length. The deed conveyed the strip with the dips, spurs and' angles and "all the mineral therein contained." Afterwards a vein not then known to exist was found to dip underneath this strip. The Federal Courts below al- lowed the grantor to work this vein underneath the strip, but the Supreme Court finally held that the words above quoted were a common law grant and covered the ore in this dipping vein between the ver- tical lines of the strip. And they further intimated that the grantor might have a right of way to get at its vein beyond the strip. Montana M. Co. v. St. Louis M. Co. 204 U. 8. 204, overruling 102 F. 430 and 104 F. 66f h Cross Lodes. The Stinchfleld case, supra, as reported in .',n P. 98, holds that the grantor cannot claim for his vein retained, any rights as a cross lode, without special reservation to that effect. Same Ground Covered by Conflicting Locations. The owners of the Edna, after record, changed their stakes so as to produce a conflict with the Lightning. They then sold the Edna by the recorded description and afterwards bought the Lightning. Held that they were estopped to set up the Lightning title against the ground in conflict. Khreve v. Cop- per Bell M. Co. 28 P. 315. Where the same lode or ground is covered by more than one location owned by the same grantor his deed of one may be construed to convey the title under both locations. Weill v. Lucerne Co., 11 Nev. 200; S M. R. 373; Phillpotts v. Blasdel, 4 M. R. 341; 8 Nev. 61; Lebanon Co. v. Cons. Rep. Co. 6 Colo. 372; Shoshone Co. v. Rutter, 87 F. 801. For construc- tion of conveyance in general terms after portion of a survey lot had been segregated by judgment, see Mollie Gibson Co. v. Thatcher, 57 F. 865. The locator of a lode claim afterwards secured a placer patent covering the same ground after he CONVEYANCE. 273 had conveyed a part of the lode location to third parties. Held, that his patent perfected title to his grantee for the ground conveyed. Collins v. McKay, M P. 295. Severance of Mines and Surface Reservation. Where minerals are specially granted or where surface is granted without the minerals, there should be special covenants for support of the soil and build- ings or for right of entry to get at the minerals re- served, as the case may be; although in such cases those incidents are implied to the extent necessary to enjoy each severed estate. See p. 240. KVATION. Insert after the clause "To have and to hold:" Always saving, excepting and reserving unto the said party of the first part, his heirs and assigns, all mines and minerals, lodes, veins and deposits found or to be found under or within the lines or area of the above granted prem- ises with such reasonable use of the surface ground ns may be necessary to win, work and carry nwny snid minerals so excepted and reserved. Roger*, p. 880; Dainbridge, p. 480. While the distinction between an exception and a reservation is well established the words are often used interchangeably. Moore v. Qriffln, 88 P. 395. Witnesses. No attesting witnesses are required to deed con- veying land in Colorado or the other States or Terri- tories of the Pacific slope excepting Utah and Wyo- ming, which require one attesting witness, and Alaska and Oregon which require two. A deed signed with the grantor's mark must be always wit- nessed on general principles. A deed of a mining claim in Alaska not acknowledged and not having two witnesses is void. Alaska Ex. Co. v. Northern Co. 152 F. 145. Dower Wife's Signature. In all those States where the right of dower exists the wife must of course join in the husband's deed, in order to bar her right. These States (and 274 CONVEYANCE. the Eastern States generally) are Alaska, Montana, Oregon and Utah. In Arizona the wife must join in husband's deed except for unpatented mining claims. The widow has no right of dower in a mining claim held by possessory title. Black v. Elkhorn Co. 168 U. S. 445- Otherwise as to mines owned in fee. Whittaker v. Lindley, 8 8. W. 9; Stoughton v. Leiyli. 5 M. R. 47; 1 Taunt. 402. Husband's Signature Necessary. The husband is required to join in the wife's deed in Alaska. In California and Washington, in a conveyance of community property the husband must join in the wife's deed and the wife in the husband's deed. In all cases where both are re- quired to join, it is assumed that a separate acknowl- edgment by the wife, is required. Acknowledgments. An acknowledgment before a notary public is customary and valid in any of the Pacific States or Territories, though the land lies in one state and the acknowledgment is taken in another. Where the deed conveys land in another State a commissioner of deeds for such State, if accessible, is always author- ized to take the acknowledgment. When taken be- fore this officer no certificate of his official character is required. Other officers are named in the statutes of the several States, but a notary public within the State, a commissioner or notary without the State, and a consul in foreign countries, are legalized to prove deeds by this form in all the aforesaid States and Territories. For form of acknowledgment by an individual see page 267. The following are correct forms in the case of corporations and deeds executed under Power of Attorney: CONVEYANCE. 275 ACKNOWLEDGMENT IIY CORPORATION. STATE OF COLORADO, Hinsdale County : ss. I, William L. Siegmund, a Notary Public in and for said County, do hereby certify that John E. Searles, Pres- ident of the Coldstream Mining Company, who is personally known to me to be such President, and the same person who as such President, subscribed the corporate name and caused the corporate seal of said Company to be affixed to the above Indenture, personally appeared before me this day and acknowledged the same to be the free and voluntary act and deed of the said corporation for the uses and pur- poses therein set forth. Witness my hand and Notarial Seal this third day of Jnnuam. A. D. 1908. \\ tn. L. Siegmund, [SEAL.] Notary Public. BY ATTORNEY IN FACT. i STATES OF AMERICA, DISTRICT OF COLORADO: ss. I. Charles W. Bishop. Clerk of the Circuit Court of the United States In said district, do hereby certify that .linn r. Webb, Attorney in Fact, of the within named George n /?;.../;>, \\i>. is : rsonally known to me to be such Attorney In Fact, ana the same person within described as such Attorney in Fact, and who affixed the name and seal of his said principal to the within Indenture, personally ap- <\ before me this day and acknowledged the said Inden- ture to be his free and voluntary act and r deposited to his credit in the First National Bank, Den- ido, on or before the tenth day of May, A. D. 1908, and for the further consideration that said obligee shall, before the said last mentioned date, expend the sum of at least one thousand dollars in the actual underground devel- opment of said property. Now, THEREFORE, the condition of the above obliga- tion is such that if the above bounden obligor, his heirs or assigns, on payment or deposit of the said sum of tu'cnty thousand dollars in manner aforesaid, and expressly within the time limited as aforesaid, time being of the essence of this contract, as to such payment or deposit, shall make, execute, acknowledge and deliver at his own cost and charges, good and sufficient deed or deeds of - And in mining contracts generally. Waterman v. Banks, 144 U. 8. 894. It may be made so either from the nature of the subject matter or the con- tract of the parties. Settle v. Winters, 10 P. 216. But it may be waived verbally or by allowing the vendee to work on assurances of extension. Mason v. Sieglitz, 44 P. 588; Presidio Co. v. Bullis, supra. And delay may be explained even in a specific performance case. Hosmer v. Wyoming Co. 129 F. 884. 278 CONVEYANCE. Default After Part Payment. The forfeiture of part payments as liquidated damages has been generally upheld. Clark v. Amer- ican Co. 72 P. 978; Garcin v. Penn. Co. 11 N. E. 193. WORKING CONTRACT SALE. For and in consideration of the sum of $500 to me in hand paid by Orrin F. Place, the receipt whereof is hereby acknowledged, I, Charles H. Morris, do hereby agree to place said Orrin F. Place in full and sole possession and control of the Fair Deceiver Lode Mining Claim, situate, etc., with authority to work and prospect the same as he sees fit for the term of sixty days from date, provjded only, that such work be done in good and workmanlike manner, and that any ore taken out shall be separated and left on the dump, and not removed during the lifetime of this contract. And at any time within said period, on tender to me of the fur- ther sum of $4,500, I agree to deliver a good and sufficient warranty deed to the said Orrin F. Place, his heirs and as- signs, conveying said above described premises absolutely and clear of encumbrance. In case no such tender is made, said sum of $500 is to be treated as the consideration of this option and right of testing and to be and remain my property as liquidated damages. In case my title is found defective and I fail to make it good and marketable within said period, I agree to pay said Orrin F. Place the cost of abstract and the vendee's attorney's reasonable charges for examination of title, and to refund said sum of $500. The ore taken out during said period is to be the property of the party who remains or becomes the owner at the end of said period of sixty days. Time Is of the essence of this contract in all par- ticulars. Witness my hand and seal this 10th day of Mn\i, A. D. 1907. CHARLES II. MORRIS. [SEAL.] In consideration of the delivery to me of the above option, I agree to expend at least $500 in work upon the above described property within the lifetime of said option. Witness my hand and seal the date above written. ORRIN F. PLACE. [SEAL.] A vendor cannot re-enter and at the same time collect the purchase money notes. He cannot have both remedies. Hanson v. Dayton, 158 F. 2-58. SALE SUBJECT TO EXAMINATION OF TITLE. The undersigned, James W. Swisher, of Breckenridge, State of Colorado, hath agreed to sell to Frank M. Taylor ', of Denver, in said State, and said Frank M. Taylor hath agreed to buy of and from said James W. Swisher the Corinne CONVEYANCE. 279 Rowland Lode Mining claim, situate in Gregory Mining Dis- trict, Gi/pin County, Colorado, for the consideration of $18,000 to be paid within six months from date, fee simple (or good possessory) title to be delivered and warranted clear of liens. Title subject to approval of J. W. B. SmitU. attorney for purchaser. Cost of deeds to be paid bv vendor ; of examination of title by purchaser. Vendor to deliver at his own cost certified abstracts of title within ten days to said attorney. Deeds to pass on tender of the sum above mentioned within the period of six months above limited. If no tender is made within such period the pur- chaser shall be in default unless he show the title mate- rially defective, or a prior breach of contract by vendor, or that material misrepresentations as to the mine or mineral have been made to him by the vendor or by parties in the interest of the vendor, and thereupon either party may proceed for specific performance or for damages or both or otherwise as he may be advised. Witness the hands and seals of said parties this }f/i day of April, A. D. 1907. JAMES W. SWISHBR. [SEAL.] FRANK M. TAYLOR. [SEAL.] The right to examine the abstract of title be- fore payment is a condition precedent in the nature of things. Penn. Co. v. Thomas, 54 Ail. 101. CONTRACT TO SELL AND TO BUT. I, Ji.il 1. \atte, vendor, hereby agree to sell to Charles 8. Thomas, and I, Charles S. Thomas, purchaser, agree to buy of said Joel F. Vaile, the Dream Placer Mining < Maim, situate, etc. The agreed consideration of said sale Is $1,000 cash In hand paid, the receipt whereof is hereby acknowledged ; $3,000 to be paid within sixty days from the date hereof, and $6,000 within ninety days from such date, making a total consideration of $10.000. Said vendor within ten days from date will deliver to purchaser, or bis attorney, an abstract of title duly cer- tified by the clerk and recorder of said county, or by some reputable abstract office, together with all the original title papers which are in his possession or within his power to produce. And within said time will place in escrow in the National Bank of Commerce, Denver, a good and sufficient warranty deed conveying to said Charles 8. Thomas, or such person as he shall nominate, the said premises clear of encumbrance, to be by such bank held in escrow until final payment be made under this contract or default is made under the same. Deposit in said bank to the credit of vendor shall be equivalent to payment of any of said in- stalments. Time is of the essence of this contract as to each and every instalment, and if any instalment or instalments 280 CONVEYANCE. be not paid within the time or times hereby limited there- for, all previous instalments shall be and remain the prop- erty of said vendor, the deed in escrow shall be returned to him for cancellation, and the property shall remain his own, unaffected and unencumbered by this contract. But if he fail to deliver abstract within said period, or to de- posit said deed in escrow, or if his title prove encumbered or otherwise not marketable, vendee may recover any and all instalments paid, or may sue for specific performance and for a perfect title, or for damages or otherwise as he may be advised. Witness the hands and seals of said parties this tenth day of May, A. D. 1907. JOEL F. VAILB. [SEAL.] CHARLES S. THOMAS. [SEAL.] A better because a fairer contract than the last above given, is a sale by deed, securing the unpaid instalments by note and mortgage. The terms of sale are so variant and the tempta- tions to evade become so great with the fluctatlons in value, that it Is always preferable to state the bargain fully to an attorney jointly agreed on and whose compensation is not made contingent on the sale, and to have him place the bargain in such form as will express, without fiction or verbiage, the real intention of the parties. Lease and Option. Perhaps the most usual and in most instances the preferable form of executory sale is that of Lease and Option. At the end of the lease in the usual form (p. 285), but just preceding the final or testamentary paragraph, proceed as follows: THE OPTION. And in consideration of the acceptance of the fore- going lease and the expenditures to be made thereunder and the well and faithful keeping of the covenants thereof, the said lessee shall have the right to purchase the said de- mised premises by payment of the sum of ten thousand dollars on or before the first day of May, A. D. 1908, time being of the essence of the contract as to such payment. And upon the tender of such payment the lessor will make, execute, acknowledge and deliver at his own cost and charges, good and sufficient deed or deeds of warranty to be delivered to the lessee or such person or company as he CONVEYANCE. 281 shall nominate, conveying the said premises clear of incum- brance. The forfeiture, surrender or termination of the above lease for any cause shall render this option void, and the above mentioned payment may not thereafter be tendered. In the above form the covenants of the lease make a valid consideration for the option. In the absence of a clause defeating the option on forfeiture of the lease the option may be enforced although the lease has been forfeited. Mathews Co. v. New Em- pire Co. 122 F. 972. An agreement to work a mine is good consid- eration for a promise to sell it. Clarno v. Grayson, 46 P. 426. It follows that the acceptance of a working lease is good consideration for an option on the same property, and the combination of the two contracts in the same or by distinct papers Is of common occurrence. See Form, page 280. Time, though made the essence of the contract, may be waived or relieved against in equity upon proper facts. Wheeling Co. v. Elder, 46 8. E. 557. Escrow. Where a title bond or other executory contract is delivered it is usually accompanied by a deed exe- cuted and acknowledged and placed In escrow. An escrow amounts to a deposit with a third party of an unrecorded deed to be delivered on certain con- ditions, the title bond or other executory contract being actually delivered and held in the meantime. Such escrow is usually In the shape of a deed en- closed in a sealed envelope and endorsed as follows: To WM. B. MORRISON, CASHIER, NATIONAL BANK OP COMMERCE, Denver: You are authorized to deliver the within deed to Thomas F. Walsh, his agent, or order, upon payment to me, or deposit to my order, of the sum of ten thousand dollars, on or before the first day of January, A. D. 1908. Meanwhile you will hold the same irrevocably. If payment is not made on or before said date, you will return the same to me for cancellation. Sept. SO, 1907. LUTHER M. GODDARD. An escrow is often placed on deposit without any title bond, or the agreement is delivered on con- 282 CONVEYANCE. dition of not going on record, the vendor objecting to clouding the title by recording executory agree- ments which will perhaps never result in conveyance. Such an escrow or agreement (not recorded) if on good consideration, is valid in all respects, except that of giving the purchaser record security. Wol- cott v. Johns, 7 Colo. App., 861. The deed relates back to the date of the Escrow agreement as to all who had notice of the Escrow. Whitmer v. Schenk, 83 P. 115 (Ida.). Unrecorded Claim. An incomplete location may be transferred by parol and the record completed by the purchaser. Doe v. Waterloo Co. 10 F. Jf56; Miller v. Chrisman, 18 P. 1083. A prospect on the public domain may be the subject of lease or conveyance. Weed v. Snook, 11 P. 1023. Acknowledgments to Contracts. No instrument needs acknowledgment except such as Is intended to be placed of record; if an in- strument is recorded without acknowledgment, it may be valid as notice, but the original must be pro- duced or accounted for when used in evidence a certified copy is not evidence. An acknowledgment is not a part of the instrument, but supplies a mode of proving its execution without witnesses and for obtaining a valid copy when lost or mislaid. Fraudulent Sale. Where a sale has been induced by fraud the in- jured party may either rescind or sue for damages. Byard v. Holmes, 33 N. J. L. 119; 6 M. R. 598; Smith v. Bolles, 16 M. R. 159; 132 U. S. 125. If he do neither, but continue to exercise acts of ownership over the property purchased, he may be estopped even to plead the false representations to an action on the contract. Butler v. Rockwell, 14 Colo. 126. CONVEYANCE. 2s3 The right to rescind must be exercised at once upon discovery of the fraud. Buyers of a mine can- not after such alleged discovery work the property and thereafter elect to rescind. Richardson v. Lowe, 149 F. 625; Old Colony Co. v. CarricU, 15S F. 178. The absence of prompt action to rescind is an elec- tion to affirm. Steinbeck v. Bon Homme M. Co. 152 F. SSS. Proof is admissible that defendant had attempted to salt the same mine on other persons. Mudsill Co. v. Watrous, 61 F. 163. Sale of worthless stock may be set aside on like principles as the sale of the mine. Ormsby v. Budd, S3 N. W. 451. False repre- sentations made by officer are not necessarily charge- able to the company. Watson Co. v. James, Id. 622. A party is bound^ where he assumes to know and makes assertions acordingly. Lehigh Co. v. Barn- ford, 150 U. 8. 665. Assertions of value are as a rule only expres- sions of opinion. Id. But otherwise as to state- ments that the lands sold include a certain ore bed. Chatham Co. v. Moffatt, 16 M. R. 103; 147 Mass. 403. And opinions and promises (false averments of large means and extensive operations intended) may amount to actual fraud. Rarer Co. v. Trout, 83 Va. 397. The same as to promises never intended to be performed. Lawrence v. Gayetty, 78 Cal. 126. A party cannot cover up a fraud by using his wife's name. Largey v. Bartlett, J4 P. 962. The parties will not be allowed to stand by and await the result of the adventure before suit. Blen v. Bear River Co. 3 M. R. 435; 20 Cal. 602. Delay without sufficient excuse bars the remedy. Great West Co. v. Woodmas Co. 14 Colo. 90. The right to set aside a sale for fraud does not survive against executors. Stratton's Ind. v. Dines, 126 F. 968; 135 F. 449. Where an agent buys a mine for less than he reports to his principal he is liable for the difference to his principal in assumpsit. Humbird v. Davis, 59 Atl. 1082. 284 MINING LEASE. And between associates none can secure a secret profit on the sale. Recovery in such case does not de- pend on proof of actual fraud. Sun Dance Co. v. Frost 64 P. 435; 21 M. R. 252; Upton v. Weisling, 11 P. 917; Christy v. Campbell, 87 P. 548. A purchaser is not chargeable with notice of his vendor's fraud in his original purchase. Kendrick v. Colyer, 42 80. 110. A party who by his own act prevents the completion of an act of appropriation can take no advantage of his own wrong. Wolfskill v. Smith, 89 P. 1001. MINING LEASE. Written or Verbal. The lease if for more than one year must be in writing to avoid the Statute of Frauds. (R. S. 2662.) If for a less period it is still often reduced to writing and the covenants being peculiar cannot be too particularly expressed. The actual possession taken by the lessee being notice of his rights, the lease generally is neither acknowledged nor recorded. Under an ordinary surface lease at a fixed rent the tenant has no right to sink an oil well. Isom v. Rex Oil Co. 82 P. 317. Set Work. In large mines worked on the tribute system, the lease is usually verbal between the manager and the* miner, and is more in the nature of a contract of hiring, the foreman retaining general control of the work. Dead Work. The following form is correct to the extent of the usual covenants, but there are often special- covenants added in regard to "dead work" and other matters. Dead work is a term of the popular lan- guage and means sinking shafts and running drifts, MINING LEASE. 285 adits or cross-cuts, or it may embrace everything ex- cept stoping and the timbering incidental to stoping. Its meaning being so general it should not be used at all in the instrument and the intention should be covered by more exact expressions. It is a common stipulation to require no royalty for ore extracted in sinking or in driving levels. Where dead work is to be paid for, care should be taken to express whether the compensation is to come "out of the first mill returns" or "out of the royalty." In the latter case the lessor pays for all of it. In the former he pays a share equivalent to his proportion of the proceeds. The Royalty Reserved Necessarily Varies, 20 or 25 per cent, being the usual amount, and 5 and 75 per cent, being extreme limits. FORM OF LODi: LEASE. Tins INDENTURE, made this flrst day of May, in the year of our Lord one thousand nine hundred and seven, be- tween !>' . Stilt* f \ nts hereinafter expressed, and by the said lessee to be kept and perform* d, hath granted!, demised, and let and by these presents doth grant, demise and let unto the said lessee all the : dcgejjhfld mine gfif mining propfrty. situate in ///; \lilr Minim* l>i>-rict. Bounty of /,' it: The Oir/ Binl Love Mining Claim. Nrrj/ l.nt No. Tit, together with the appurtenances. To have and to hold unto the said lessee, for the term of one year from date hereof, expiring at noon on the AV 1st day of May, 1908, unless sooner forfeited or determined through the violation of any covenant hereinafter against the said tenant reserved. And in consideration of such demise, the said lessee covenant and agree with said lessor as follows, to wit: . . 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, with due regard to the development and pres- ervatlon of the same as a workable mine, and to the special covenants hereinafter reserved. 2. To work and mine said premises as aforesaid steadily and continuously from the date of this lease with at least two persons employed underground, for at least 20 shifts to the man each calendar month. 286 MINING LEASE. 3. To well and sufficiently timber said mine at a . points where proper, In accordance with good mining; and to repair all old timbering wherever it may become neces- sary. 4. To allow said lessor and his agents from time to time, to enter upon and into all parts of said mine for purposes of inspection. 5. To not assign this lease or any interest there- under, and to not sublet the said premises o* any part thereof, without the written assent of said lessor, and to not allow any person not in privity with the parties hereto, to take or hold possession of said premises, or any part thereof, under any pretence whatever. 6. To occupy and hold all cross or parallel lodes, spurs or mineral deposits of any kind which may be dis- covered by the said lessee, or any person under him, in any manner, by working within, or from the demised ground, as the property of said lessor with privilege to said lessee of working the same as parcel of said demised premises. 7. To keep at all times the drifts, shafts, tunnels and other workings thoroughly drained and clear of loose rock and rubbish, unless prevented by extraordinary mining casualty. ?. To do no underhand stoplng, and to make all feet long by 4 feet wide in the clear, and all drifts 6 feet high by 4 feet wide In the clear. 0. To pay to snld lessor as royalty 25 per cent, of the net mill returns of all ore to .be extracted from said premises by delivery of such ore with all convenient speed In lots as mined to some mill or repulnr ore buyer In Denver or Pueblo, and leaving with such mill or ore buyer the percentage of mill returns aforesaid for delivery to the lessor. 10. To deliver to said lessor the said premises with the appurtenances, and all improvements In good order and condition, with all drifts, shafts, tunnels and other passages thoroughly clear of loose rock and rubbish, and drained, and the mine 1'eady for immediate continued working: cident not arising from negligence alone excusing) without demand or further imtico, on the said 1st day of May, A. D. 1908, at noon, or at any time previous, upon demand for forfeiture. 11. And finally, that upon violation of any covenant or covenants hereinbefore reserved, the term of this lease shall, at the option of the said lessor, expire, and the same and said premises, with the appurtenances, shall become forfeit to said lessor ; and sala lessor or his agent may thereupon, after demand of possession In writing enter upon said premises and dispossess all persons occupying the same, with or without force and with or without process of law ; or at the option of said lessor the said tenant and all persons found in occupation may be proceeded against as guilty of unlawful detainer. (Here insert option, p. 280.) MINING LEASE. 287 Each and every clause and covenant of this Inden- ture shall extend to the heirs, .executors, administrators and lawful assigns of all parties hereto. In witness whereof, the said parties have hereunto set their hands and seals. DEXTER G. GABOON. [SEAL.] FRANK H. STANWOOD. [SEAL.] .icknowledgment. if desired, see p. 267. Special Covenant Against Miners' Liens. 8 a. To promptly pay for all labor and supplies to be done for, or furnished to, the said lessee or anv person or persons under or in privity with him upon said prem- ises, and to deliver to the lessor on or before the fifteenth day of each calendar month during the term of this lease, a written statement showing that all labor and supplies have been paid for, or the amount due and owing for such labor and supplies ; and if any lien be filed or if any such . report shows any part of the pay roll, or other mine Indebtedness unpaid, or if such Indebtedness exist, whether shown by such report 'or otherwise, the lessor may, at his election, declare a forfeiture of this lease as hereinafter provided. Covenant to Keep Notice Posted. To at all times keep and maintain posted on said - :ich claim thereof a notice in substance, as \vs : For form of notice see page 265. On low grade lodes reservations of a graded royalty are common. In such case discard covenant 9 above printed and insert: Covenant for Graded Royalty. 9. To pay to said lessor as royalty 10 per cent, of the net mill returns of all ore to be extracted from said premises running 30 ounces of silver or under to the ton ; 20 per cent, on ore running over 30 and not exceeding 50 ounces to the ton : 30 per cent, on all ore running over 50 ounces by delivering all the ore in lots as mined to some mill or to some regular ore buyer in Denver or Pueblo and leaving with such mill or ore buyer the several percentages of mill returns as aforesaid for delivery to lessor. Estimate of royalty after deducting freight and mill charges is said to be based on the "net" mill returns. Where the royalty is much graded and made dependent on the amount of lead or copper as well as silver or gold, the more simple form is to reserve it on the "price per ton" paid by the ore- 288 MINING LEASE. buyer, which is 90 to 95 per cent, of the bullion and base metal value, after deducting treatment charges; but in the "price per ton" the freight has not been estimated. Royalty on Price Per Ton. 9. To pay to said lessor as royalty 10 per cent, of the net mill returns of all ore sold for $20 per ton or less, net price after deducting freight and mill charges, and 20 per cent, of the like net mill returns of all ore sold for more than $20 per ton net price as aforesaid by delivering all the ore in lots as mined to some mill or to some regular ore buyer in Denver or Pueblo, and leaving with such mill or ore buyer the several percentages aforesaid for delivery to the lessor. Net mill returns are the sums paid for the values in the ore -after deducting all charges for carriage in any form, assays and mill charges. Freight is paid on the gross weight and the ore paid for on the net weight. The mill returns, upon which settlement between lessor and lessee are made, are substantially accord- Ing to the following form: MINING LEASE. .a* ^T l.-l ^ g a> i i w 5 Si 3 s *a 3 P . 3 3 "S = I I 10 aoj, Jd eopj PPM 899 anQ 880Jf) spanoj ON ond 3 19.20 9.60 21.68 ^ fl : : o .-^13 S *SJE s :S|! I sir: o &*H ^ <-& S ^Is 55 I 111 fi ll|l J a to 00 i 0> to 9" ri D PQ 00 I, w 111 < g^ 3- a i:- 2 li 290 MINING LEASE. PLACER LKASK. Follow the above form except in the description and the numbered covenants which may be as fol- lows: Description. The Yellow Bug Placer Mining Claim, Survey Lot No. 88, and 300 inches of water in the Arapahoe ditch. Covenants. 1. To enter upon said mine or premises and work the same so as to take out the greatest possible amount of gold with due regard to the development and preservation of the unwashed ground for future continued working and to the special covenants hereinafter reserved. 2. To work and wash said premises steadily and continuously from the date of this hTTsc with a force of at least two men and with ns much of said water as can !>' obtained and used. Cessation of work for th<> total numlirr of three secular days in any one calendar month sha*ll !><> considered a violation of this covenant. Hut no work sli:\ll be required while the ground is frozen. 3. To take care of the dump and tailings so a- prevent their accumulation upon any ground >f tin* i> remaining unworked. 4 and 5. Same ns lode lease. 6. To clean up the gold not oftener than ou< < every two weeks and at least as often as once in four w.-i-ks ami to give 48 hours' notice to lessor of the date intended for clean up, and at each clean up lessor shall have th right to be personally present or to send some one person to n r resent him and be present and assist at such clean up and at the retorting of the amalgam and the weighing of the retort, and to make no clean up, partial or general, without giving such notice. 7. To pay ns royalty to the lessor 25 per cent, of the gross proceeds of working under this lease by delivery immediately after each clean up* of the whole of the retort to the lessor or to his agent present on the ground, and the said lessor covenants forthwith to cause the sarm> t ! shipped to the mint at Denver or to some regular gold buyer at Fairplay or Denver and to return to lessee 75 per cent, of the net proceeds. 8. To deliver to said lessor the said premises with the appurtenances in good order and condition and the ground and water ready for immediate continued use and working without demand or notice on said first day of May. A. D. 1000, or at any time previous upon demand for forfeiture. MINING LEASE. Second Form of Royalty Covenant. After the * proceed as follows: To the lessor or to his agent present on the ground. of one-quarter by weight of the amalgam or of the retort ;is he may elect. Third Form of Royalty Covenant. After the * proceed as follows: Of 25 per cent, of the net mint returns T proceeds of sale to some regular gold buyer at Fairplay or Denver for use of the lessor. Covenant to Work. Where royalty is reserved ia the usual form there is an implied covenant to keep at work. Rarer Co. v. Trout, 5 Am. St. /,'. 585; Aye v. Phila- delphia Co. 44 -AM- 555. Otherwise where there is a 1 rent, or a rent- based on an assumed minimum production. Mclntyre v. Mclntyre Co. 11 N. E. ''/> The ordinary covenant to "take out the greatest amount of ore possible" is enforceable as such and is not a mere condition. The measure of damages in such case would depend on the amount of ore that could have been mined with reasonable diligence. Macon v. Trowbridge. 87 P. I And for failure to comm !! work in a reason- able time the lease may be cancelled. M'lntnsh v. Robb, 8ntinumisly. Caley v. Portland. 56 P. 350. Failure to start work is same as quit- ting. Woodward v. Mitchell 39 N. E. 439. A parol agreement as to what shall be considered sufficient work is binding on lessor and his grantees. Bartley v. Phillips, 36 Atl. IfT. To recover substantial damages against a lessee failing to work, the plaintiff must show that the ore could have been mined to a profit. Colo. F. Co. v. Pryor, 57 P. 51. 292 MINING LEASE. Construction of long, formal, coal mine lease as to right to replace machinery and fixtures, change plan of approaches, abandon old workings, etc. Junction M. Co. v. Springfield M. Co. 78 N. E. 902. A lessee is not bound under covenant to return in as good condition as when received, to restore buildings accidentally destroyed by fire. Id. There are many cases which hold that breach of covenant to work is excused when the ore in the mine becomes exhausted. Brooks v. Cook, S4 So. 960; 22 M. R. 456; Wilson v. Big Joe Co. 112 N. W. 89. Right to Quit. - Under the covenant to work in the above forms, the lessee has no right to quit at discretion. If such right is to be given, as in most instances of common equity it should be given, insert after the second covenant: "The said lessee reserving the right to quit .-mil abandon after at least two months' continuous work under this covenant." or as the case may be. When the party quitting is to give notice it is not always material that it be given in the manner stipulated. McCahan v. Whnr- ton, 121 Pa. 424: 16 M. R. 239. The lessee may quit at will under a lease containing no covenant to work. Glasgow v. Chartiers Co. 25 Atl. 282; 11 M. R. 523. Co-Tenant Owners Partnership Lessees. The legal relation of co-lessees is that of part- ners. Meagher v. Reed, 14 Colo. 350; Manville v. Parks, 7 Colo. 128; 15 M. R. 565. One of such co- tenants or co-partners cannot give a lease of the whole mine technically binding on all the co-owners, but where they cannot agree as to mode of working, a majority interest must control. Dougherty v. Creary, 30 Cal. 290; 1 M. R. 36; Blackmarr v. Williamson, 50 S. E. 254. In Paul v. Cragnas, ~M P. 857; 60 P. 983, the lessee of a third interest was allowed heavy damages against the majority MINING LEASE. 293 owner disputing his right to enter and mine. We cannot gather from the opinion upon what theory this anomalous case was decided. BELKNAP, J., dis- sented. It was not based on plaintiff's right to a third of the profits. Assessments Forfeiture to Co-Partner. An assessment is defined in Shaw v. Homer, 7 Colo. App. 83, as "an apportionment among the par ties interested, of an amount of money necessary and not on hand for development purposes." It must be levied by one having authority, each partner must have notice of it and a forfeiture does not ensue for failure to pay unless there is some contract to that effect. Such a contract was enforced in Joseph v. Davenport, 89 N. W. 1081. Fixtures. Unless otherwise covenanted the fixtures belong to the lessee and are removable. Conrad v. Saginaw Co. 20 N. W. 39; 52 Am. R. 817. And this applies to a forfeited lease. Mickle v. Douglass, 89 N. W. 198. A mortgage on fixtures was held good after forfeit- ure in Alberson v. Elk Creek Co. 65 P. 979. The casing of an oil well is not a removable fix- ture. Perry v. Acme Oil Co. 80 N. E. 174. But may be made so by the contract. Churchill v. More, 88 P. t90. Letting by Agent. The agent in cliar.^* has. under his general and implied powers, the right to let short leases of the ground, in blocks or parcels. Bicknell v. Austin Co. 62 F. 432. And though unauthorized to lease, if the com- pany stand by and allow the lessee to spend money, they will be bound. Hoosac Co. v. Donat, 10 Colo. 529. Assignment. A lessee is not in general released from personal liability by assigning his lease; but remains in the 204 MINING LEASE. nature of a surety to his landlord. Pittsburg Co. v. Greenlee, 30 Atl. 489; Wilson v. Gerhardt, 9 Colo. 585. A Non-Assessable Interest in a lease is an interest chargeable with its full share of all cost of mining, as well as of freight and treatment as far as the ore proceeds will pay such cost, but not chargeable in case of working to a loss. The decision in Maloney v. Love, 11 Colo. App. 288, holding it entitled to a full share of the gross proceeds is wholly against the meaning of the term as understood by miners. In Taylor v. Thomas (Colo.), 11 P. 382, a non- assessable interest in a lease was charged with its full proportion of expenses to the extent of the ore proceeds. This decision necessarily overrules the Maloney case. Forfeiture. Unless the lease provide for forfeiture none oc- curs for non-payment of rent or breach of covenant. Plummer v. Hillside Co. W' t F 208; Wakefteld v. Sunday Lake Co. J f 9 N. W. 135. A forfeiture en- forced by collusion with employes of lessee is not lawful. 49 N. W. 135. Forfeiture cannot be en- forced by a party who is himself in default. Ingram v. Golden Co. 65 P. 5J/9. Draining and pumping is counted as labor under a covenant to keep at work. Miller v. Chester Co. t8 Atl. 565. Where parties have acted loosely in complying with the terms of lease the lessor cannot abruptly be- come strict and declare a forfeiture. Westmoreland Co. v. De Witt, IS Atl 74; Hukill v. Myers, 15 8. E. 151; Price v. Black, 101 N. W. 1056. In Montrozona Co. v. Thatcher, 15 P. 595, a lease was held forfeited for ten days' delay beyond the time limited to sink 100 feet. This seems a severe ruling. Mathews Co. v. New Empire Co. 122 F. 912; Jones v. Scott, 58 Atl. 281. When forfeiture is provided for on account of certain breaches, there is no forfeiture for other MINING LEASE. breaches; and none for breach of implied covenants. Cove v. N. Y. Co. /.: > /:. t9S; Rose v. Lain/on /. Co. 1 ' t P. Miscellaneous Decisions. An advertisement, bid and acceptance make a plete agreement for a lease. Cochrane v. Justice Co. 16 Colo. 415. And the lessor cannot after sucn proceedings insist on new and arbitrary terms. Id. Under a mining lease covenanting to pay a cer- tain royalty and that it shall amount to at least a given sum, lessees are not liable if after full testing no merchantable ore is found. Gibben v. Atki/i^ 15 M. K. \ \V. / Whether a lease has been extended is a ques- tion of fact which the Court cannot take away from the jury. lfi,l.ih- r. Mellon, M .!//. .",/. A tenant cannot take leases of two hostile titles and then compel his lessors to interplead. Standley v. Roberts, 59 F. 836. A lessee attempting to relocate the ground for- feits all rights under his lease. Silver City Co. v. Lowry, 51 P. 11; Affd. /7,'J V. -S A lease of a mining shaft means not only the shaft but the ground acessible through such shaft. Wesling v. KroU, J7 N. W. 944. The receipt of royalty admits the validity of the lease.- Bicknell v. Austin Co. 62 / / linrkhard v. Mitchell 16 Colo. 316. Waiver of conditions may be shown by parol. Equator Co. v. Guanella, 18 Col> Ilis v. Noyes. i : x. W. 397. And release of Royalty. t'nurford v. Bellevue Co. 38 Atl. 595. Changing terms of royalty in written lease by parol is valid and not within the Statute of Frauds. -Xnnamaker v. Amos, 16 N. E. 949; 13 Oh. 8t. 163. Oil and Gas Lease. Follow form on p. 285 to end of first paragraph. OIL AND fJAS I.I To ii VVK AM> TO HOLD unto the said lessee for the term of two years from date hereof and thereafter as long as oil or gas is found in paying quantities. 296 MINING LEASE. And in consideration of such demise the said lessee doth covenant and agree : To sink at least one well on the demised ground to the depth of at least 1,000 feet unless oil or gas In paying quantities is found within a shorter distance. And to complete such sinking within six months from the date of this lease. In default of the completion of the well to the doptli aforesaid or until oil or gas is found as aforesaid this l<-;is shall at the option of the lessor become null and void and the demised premises shall become forfeit to the lessor ; Provided always. That payment of $100 rent before the expiration of said six months shall allow another period of six months for such sinking. To deliver as royalty to said lessor one-eighth part of all oil or gas found in and saved from said land. As soon as oil or gas is found In paying quantities the lessee will forthwith procure and place on the premises tanks and pipes and all other necessary plants or flxtm.s to economically save the product of such well. The lessee may sink as many wells as he sees fit, paying the same royalty, and shall have the right to sub- divide the ground into lots or tracts and sun-lease ill-- whole or any part of the demised premises and all fixtures are the property of the lessee or his sub-lessees with th<> right to remove during the term or within a reasonable time thereafter. In case oil or gas is found in paying quantities the lessee will keep correct books of account snowing the pm duction of each well and the disposition of the pro< thereof, which books shall be open to the inspection of the lessor or his agent during business hours at all reasonable times. Delivery to any pipe line or responsible gas or oil buyer of the lessor's proportion of the products of the well with instructions to pay to lessor his one-eighth of the gross price shall be lull compliance with the above cove- nant to pay royalty. In case oil or gas is struck on any adjoining Innd within one hundred yards of the exterior boundary of the demised tract the lessee will on written request sink a well on the demised tract at the closest available point to such well unless a well has been already started within two hundred yards of such foreign well. The lessor on his part doth covenant and njrroo that he will not sink or sell or lease for sinking or allow wells to be sunk on any land of the lessor within one -quarter mile of the point where lessee shall sink his first well. Close with last two paragraphs on p. 287. The above form merely suggests the principal points to be covered in leases of this character. The terms necessarily vary according as it may be a pros- pecting contract or a lease in a district already cov- ered with derricks. LICENSE. 297 There is an Implied covenant in every oil and gas lease for diligent sinking and working. Parish Fork Co. v. Bridgeivater Co. 42 S. E. 655; Aye v. Phil- adelphia Co. 20 M. R. /77; ',', Ml. 555; and also to prevent drainage by hostile wells in the vicinity. Klei>i>n*-r r. Lemon. 7N M. It. ',<>',: .;:, Ml. J0<). And there are a series of decisions, based on what principle we are at a loss to know, but one following the other so as to have become established law, that the lessee has no estate in the oil or gas until actually discovered in his well. Venture Co. v. Fretts, 25 Atl. 132; 11 M. R. 543; Florence Co. v. Orman, IS P. 628; Steelsmith v. Gartlan, 19 M. R. S15; 29 8. E. 91S; Rawlings v. Armel, 79 P. 68S. LICENSE. The material distinctions between a lease and a license are that 1. A license is not exclusive. 2. It invests the licensee with no property in the mineral until it is severed from the ground. 3. It may be revoked at any time. 4. It is not transferable. The above stated differences show that a license 1 1 ractically amounts to a mere privilege to work at the owner's will. It is a permission sufficient to de- feat the charge of trespass but is not that property in the soil such as parties contracting on equal terms for permanent working naturally bargain for. On the other hand, it is usually granted without any, or for a nominal consideration. It has been held that a lease which did not bind the lessee to work was a mere license. Wheeler v. West. 11 P. 811; 20 Id. 45; Collins v. Smith, 43 80. 838. But these rulings would be inde- fensible if the party has gone into possession under the implied covenant to work. In every lease, verbal or written, reserving royalty, there is an implied 298 LICENSE. covenant to work (See p. 291) and the express obli- gation to work is not one of the distinctions between lease and license. The exclusive right to mine im- plies a lease and not a license. Cons. Coal Co. v. Peers, 87 N. E. 937; Stinson v. Hardy, 41 P. 116. An option to purchase with privilege to work is a license coupled with an interest; and after ex- penditures made is irrevocable. Hall v. Abraham. 75 P. 882. The same where there are expenditures but no option. Hosford v. Metcalf, 8J t N. W. in:, 1 ,; >\ M. R. 198. The general nature of a license as distinguished from a lease or other like grant is stated in Mu^ v. Moses, 3 8. C. 168; 8 M. R. 607 ; Doe v. Wood. '.> M. R. 182; 2 B d A. ?.'}. 1. Not Exclusive. The owner may work himself, or allow others to work upon the same ground. Johnstown Co. v. Cambria Co. 9 M. R. 226; Woodside v. Ciceroni. 93 F. 1. 2. Passes No Property or Vested Estate. A license is authority for the temporary occu- pation of land or to enter upon and do particular acts in and about it. It creates no estate. Fuhr v. Dean, 26 Mo. 116; 6 M. R. 216. After it is broken by licensee the rock in a quarry belongs to him. McKee v. Brooks, 20 Mo. .>.'<;. 3. Revocability. Although revocable the owner cannot arbitrar- ily oust the licensee without compensation for ex- penditures made. Bush v. Sullivan, 9 M. R. ,?//; 3 O. Greene, 3^4. After a proper revocation the li- censee has no title in what he continues to break and sever. Williams v. Morrison, 32 F. 117. A license once given continues till revoked. Keeler v. Green, 12 M. R. 465; 21 N. J. Eg. 27. An executed license (to build a ditch) amounts to a grant. De Graff en- reid v. Savage, 41 P. 902. After revocation further PROSPECTING CONTRACT. 299 working by licensee may be' enjoined. Clark v. Wall. 79 P. 105$. 4. Not Assignable. Being only a personal privilege any transfer rates as a forfeiture. Dark v. Johnston, 9 M. If. : 55 Pa. lGJ t . But if the license imply a grant of the ore it may be assigned. Mi'skctt r. /////. 5 Bing. Y. c. 694. By One Co-Tenant. As to whether at all or to what extent the license of one or more of several co-tenants is valid, see Job v. Potion, L. R. 20 Eg. 84; 1} M. R. 329; Tipping v. Robbins, 37 N. W. ', r, : nmalia Co. v. Tabor, 16 M. R. 184; IS Colo. 41. PROSPECTING CONTRACT. Much litigation has grown out of contracts of this kind owing to the loose manner in which they are generally undertaken and the strong induce- ments to shirk their obligations when a rich discov- has ueen made. Murley v. Ennis. 12 M. R. 360; . ' .inn; Juhustonr r. ]{nl,in.so)i. 1! M. I!. .t!H! ; .1 The following form covers the legal points necessary to be guarded in this class of contract: ;urn ST \ :ACT. hi consideration of provisions ndvnnced to me by Albert /; nd of his agreement to supply me from time to time, sis I may reasonably demand them, with tools, -ml) and mining ointii generally, :m sum <>t" lifiy 1 lars in bund paid. 1 .-i-n-e to prospect for lodes and deposits in counties, and to locate and record all discoveries which in his judgment are worth holding, in the Joint names of all parlies 1 1 oreto one-fourth interest to 'each. And that he will use no company name and make no debts against his associates. And that he will at least once each month report progress and all discoveries made, by letter to said A. 1 >. Bullis. All work done in development after record shall be considered as work done under this agreement. And said prospector agrees further not to prospect on his own account nor for any other persons durhi tln lifetime of this contract, and if at any time within one yar thereafter he shall become interested by location or pur- chase in any claims on which he may have prospected under this contract, he will allow his associates to take nn equal interest with himself on the same terms and al the same cost at which he has acquired such interest. On final settlement full wages are to be allowed as above agreed, but said prospector shall be charged with his full fourth of any expenses over and above the sums herein expressed, and shall account and pay for all tools and sup plies on hand when contract expires, if terminated on his notice ; but shall keep such tools and supplies if contract PROSPECTING CONTRACT. 301 o!, in-mined at outfitters' election, or by expiration of the full term limited, or by failure, to remit proper charges monthly on demand. And the said prospector shall have no riirht to quit <>n notice until he shall have prospected t\v<. full months under this agreement. Witness the hands and seals of said parties. s. r. McOouoH. JOHN F. TOLLY. A. D. BULLIS. C. H. PlCKETT. SKA I.. I SKA1..1 SEAL.T SKA I..] The contract does not require a seal, and is not within the Statute of Frauds, and therefore may be verbal. Murley v. Ennis, supra; Moritz v. Lavelle, 77 Cat. 10; 16 M. R. 236; Meylette v. Brennan, 88 P. 75; Raymond v. Johnson, /'' /'. /.''.?; Shea v. Nilima, 1SS '>'>: Doyle v. Burns, ',: H> Colo. S95. But he was not held in this instance to account to outfitter for any share in a lode, the float of which he discovered while prospecting, but did not find the lode till afterward. Of course, the rule in such cases must vary according to the facts and the good faith in the premises. Where an association for prospecting purposes is abandoned, the several late partners may perfect locations on discoveries made on their several ac- count. Page v. Summers. 15 M. R. 617: 70 Cal. 121. If one of the associates quit before mineral is struck he cannot claim an interest in the perfected location. 302 WORKING CONTRACTS. McLaughlin v. Thompson, 29 P. 816. Delay to as- sert an interest in the discoveries is fatal. Cisna v. Mailory, 19 M. R. 227; 84 F. 851. When the discoverer points out the place for loca- tion upon a verbal arrangement with the second party to take up the claim for their joint benefit and the sec- ond party excludes the discoverer from the location there arises a resulting trust in favor of the discov- erer. Stewart v. Douglass (Gal.), 83 P. 699. Where a defendant located a claim in his own name and sold it to a company for stock, being under prospecting contract with plaintiff, plaintiff is entitled to his share of the stock upon payment of his share of the expenses. Mack v. Mack (Wash.), 81 P. 707. As to the degree of proof necessary to establish the contract compare Rice v. Rigley. 20 M. R. 553; 61 P. 290, and Morrow v. Matthew, 7.9 P. 196. The consideration must be adequate. Fifty dollars is not enough to outfit a prospector from California to Alaska. Prince v. Lamb, 20 M. R. 419; 60 P. 689. Permission by the owner to prospect his ground must be exercised within a reasonable time. Ca- hoon v. Bayaud, 1 N. Y. Sup. 81J f . But in Woodside v. Ciceroni, 93 F. 1, the license was construed as per- petual. On contract to prospect and test land for mineral value, for what amounts to sufficient search. see Wells v. Leek, 25 Atl. 101 ; Jamestown Co. v. Eg- bert, Id. 151; Petroleum Co. v. Coal Co. 18 S. W. 65. The use of a witchhazel rod to test for ore not allowed as proof; the party agreeing to prospect is bound to sink. Berry v. Frisbie (Ky.), 86 S. W. 558. WORKING CONTRACTS. A contract to sink a shaft does not necessarily imply that the vein will be followed. Buckeye Co. v. Carlson, 66 P. 168. The contractor is not bound to timber where the contract is silent on that point. No. 5 M. Co. v. Bruce. 3 M. /?./}//; ', Colo. 293. Nor to furnish packer and tubing on contract to sink an oil well. Collier v. Munger, 89 P. 1011. EXAMINATION OF TITLE. 303 Contract to sink to bed rock is complete without disclosing bed rock along the whole bottom of the shaft. Median v. Nelson, 137 F. 131. On a contract to sink on the vein where the vein disappears the contractor is not bound to go down through the country.- - ir <>rth v. McLean, 11 S. \V. ',.:. Measure of recovery where work on shaft was ordered stopped before completion. Mooney v. York ~> Mo. 376. For breach of covenant by Lessee to furnish plant, drive tunnel, etc., see Cleopatra Co. v. Dickin- Where the mine is to furnish supplies to the con- 11 actor, on failure he may quit and sue for the work already done. Davis v. Brown County Co. 110 N. W. 1 1. 1: Dignan v. Newlin, 82 8. W. 758. EXAMINATION OF TITLE. The written title to i mining claim begins with the location < itiflcate, after which the conveyances and inrumbrances should appear on the abstract as in other classes of real estate. Inspection and Survey. In addition to the abstract of title a survey and local inspection are indispensable to security, espe- cially when the claim is not patented. This inspection and survey should result in as- certaining the depth of discovery shaft, and whether it shows a well defined crevice; whether the loca- tion notice was duly posted and what it contains (p. 36); whether the stakes were properly set; whether the claim (as far as such fact can be fairly ascertained) is laid so as to cover the apex or gen- eral course of the lode, and more especially what shafts, tunnels, prospect holes, stakes, notices and improvements, indicate the presence of hostile 304 EXAMINATION OF TITLE. claims; and if such intervening or overlapping hos- tile claims are found, their seniority or juniority should be established. The abstract (at least until patent) may show a clear chain of title, and may be based on a record senior to other records on the same vein, and still the title may be absolutely worthless. Patterson v. Hitchcock, 5 M. R. 542; 3 Colo. 533. An adverse senior discovery may exist within a few feet of the discovery of the claim under examina- tion. Every hole or stake in proximity to the claim should be examined, its history traced, and the pos- sibility of danger from that source guarded against. Whether the annual labor has been done should also be ascertained. Such inspection having been made, the course of examination will be as follows: 1. THE AB.STHA. I The abstract should be certified by the recorder or by some reputable abstract firm, to contain all deeds and instruments filed or recorded, in the of- fice of the recorder, conveying, encumbering or in any manner affecting title to the property in ques- tion. The abstract, however, amounts to nothing more than a guide or memorandum to the attorney in his examination. Each deed and other instrument should be inspected at length, either by the original, by the record or by a certified copy. The abstract should be furnished by the vendor at his own charges. 2. LOCATION CERTIFICATE. The material points to be observed in the loca- tion certificate are that it contains all that is re- quired by the terms of A. C. Section 2324 and by the statute of the particular State: ante p. 60. (EXAMINATION OF TITLE. 3. OOIH ltAN< i 9, A mine is conveyed by deed or encumbered by mortgage the same as other real estate. The description should contain 1. The name of the lode. 2. If patented the number of the survey lot. 3. Mining district, County and State. Placer claims are usually described by their names, or if patented by the names and number of the survey lot. In early locations they were usually numbered with reference to the local gulch. Deeds by Married Women. The separate acknowledgment by a married woman is not required in Colorado, but where re- quired in any State, such acknowledgment is gen- erally essential to pass the wife's title, and is not merely a mode of proof of the delivery of the deed which is the usual function of an acknowledgment. See p. 27). After Acquired Title. A warranty deed conveys to the grantee any after acquired title of his grantor, and even a quit- claim made pending application, may carry the pat- ented title to the grantee. Crane v. Salmon, 41 Cal. 63; Bradbury v. Davis, S M. R. S98; 5 Colo. 265. 4. PATENTS. Where the claim is patented the Patent should appear in the Abstract although failure to record the patent is not the same as a like failure in case of a deed, a certified copy of the patent being always procurable from the General Land Office. The pat- ent carries the title back to the entry at least. Benson Co. v. Alta Co. 145 U. 8. 428. The form of patent is quite different from that of a patent for agricultural lands, and contains specific exceptions as to easements, etc., and in the form used before 1888 and in instances since that date a plat of the survey; and excepts the surface 306 EXAMINATION OF TITLE. ground of any previous entry crossing the line of the lot conveyed. Where such exclusions occur the patentee has no claim to the vein in such excluded area. And in instances the date of application and of entry or even the discovery may continue to be material where the question of relation arises. See p. 140. Where a patent has been issued there is no necessity for a strict examination of the location certificate or of the various acts of location. It cures all defects incident to the location and in most in- stances any formal break in the chain of title prior to the application. And especially it cuts out prior hostile titles which have failed to adverse or to suc- cessfully maintain their adverse. But it does not divest the title of a co-tenant dropped in the patent application (see p. 127), or at least it may be possible for a party having a claim to an interest in the possessory title to prove an equity such as would make the patentee, trustee of the title for his use. Nor does it dispense with the importance of a surface examination to see that the corners agree with the plat and that the survey lot substantially encloses the vein. 5. PLAT OF PATH. VI. In the older form of patents was inserted a diagram in which the ground conveyed was colored. Where the patent contains no such plat a certified copy should be obtained from the Surveyor General's office, and a comparison of the plat made with the metes and bounds contained in the description and the exclusions, if any, recited in the patent. 6. LIENS. A patent does not divest liens accrued against the possessory title. They are especially saved by the terms of R. S. 2332. A judgment not becoming a lien until a tran script of the same has been recorded such lien will show on the Abstract. But there may be a lien EXAMINATION OF TITLE. which would not so show," by judgment in a Federal Court in any County where Federal Courts are held. There is also a class of possible liens which have to be the subject of parol inquiry, siu-h as me- chanics' liens, liens in favor of the state on an aud- ited account or for fine or costs or suretyship in criminal cases. R. S. Colo. Sees. 2009, 2010. 1. PARTIKS IX POSSESSION. If parties are in actual possession, claiming ad versely to the grantor, or claiming under him as lessees, their possession is an assertion of their claim, whatever it may be, of which the purchaser must take notice at his peril. Coffee v. Emigli. i:, Colo. 184. 8. CONCLUSION. DVTY OF MM \-ll. If from the abstract, or from any of the con in cates, or from inspection of any deed, instrument or record in the chain of title; or as the result of his client's inspection and survey of the premises, or from any other source, the attorney is inform. -;l <>i any adverse title, or of any outstanding trust or ad- verse interests, or of any missing conveyance in the chain of title, or of any serious defect in the body or acknowledgment of any instrument of such a nature as to invalidate the title the true condition of such title should then, with due secrecy, be ex- pressed to the client. And when the attorney has sat- isfied his own mind upon all such questions of law as may have arisen during the course of his exam- ination, the client has a right to be advised of all points which remain in doubt, and of any con- tingencies which may threaten the quiet enjoyment, or would obstruct a sale of the premises; and of all steps which if presently taken may avoid such conditions and perfect the title, so that the true value of the title in law shall be represented to the client, that is, the intending purchaser. For in ali cases of examination of title, the attorney should be selected, or at least assented to, by the purchaser, 308 ALIENS. if it be a sale; by the lender of money, if it be a mortgage; because from the necessity of the case, he acts in the interest of the purchaser and of the lender, and not in that of the grantor or of the mortgagor; the charge for his examination should be made against the same side; the charge for the convey- ance, on the other hand, is by custom made against the vendor. ALIENS. Ownership of Patented Title. The right of aliens, resident or non-resident, to acquire title to patented property, depends upon the local legislation which in general fully provides for such ownership. The Colorado Statute (R. S. Chap. 3, and art. 2, sec. 27, of the Constitution) allows ownership by either resident or non-resident aliens. A patent to the use of an alien may not be at- tacked except by direct governmental inquisition. Justice Co. v. Lee, 21 Colo. 260. Ownership of Possessory Title. The Mining Acts throw open the public domain to citizens only and to those who have declared their intentions to become citizens. A. C. 8MP. It would seem from their language that an alien could not locate a claim and if he could not locate, his holding by deed and perhaps by devise or descent might be questioned. But the matter in its practical importance is controlled by the rule laid down in opinions of the Federal Supreme Court, Manuel v. Wulff, M.' U. ft 505; McKinley Co. v. Alaska Co. 183 U. S. 563, that the question of ownership by an alien is a matter between himself and the government and that as long as the Government does not make inquisition to deprive him of his title, or become a party to proceedings to perfect the title, his title even when ALIENS. 309 he claims under his own location is good against all tbe world. Adverse Claim Cases. As the Government rarely initiates such pro- ceedings the alien in contest with a citizen has therefore the same standing as the citizen (Tornan- ses v. Melsing, m 109 F. 110) save only on application for patent and "in suits supporting adverse claims, in which proceedings the Government is an interested party and the citizenship of the parties becomes material. If the parties to such suit are citizens the fact that the locator was an alien or that one of several locators was an alien or that intermediate holders were aliens becomes wholly immaterial. North N. Co. v. Orient Co. 9 M. It. 530; 1 F. rrovidence Co. v. Burkr, j? p. 64 1 Gorman Co. v. Alexander, 51 N. W. S46; Billings v. Aspen Co. 52 F. 250; Stew- art v. Gold Co. 82 P. 475. The Citizenship of the Original Locator is ma- terial only where he continues to be the claimant to the time of the institution of the adverse suit. Declaration of Intention. One who has declared his intention to become a citizen of the United States may locate, enter and patent a claim the same as a citizen. No fixed period of previous residence is required before making such declaration. The Act of Naturalization Is Retroactive, so that if an alien has located a claim and afterwards be- came or declared his intention to become naturalized, his location is good from its original date. Osier- man v. Baldwin, 6 Wall / . .' . .".> /.. 7). Hi',; Shea v. yilima, 183 F. 209. In the last cited case a prospecting contract be- tween two parties, both aliens, was enforced. In the Manuel case a citizen had located and sold to an alien. The alien had applied for patent 310 ALIENS. and was adversed. Pending trial he became nat- uralized, he being a minor emigrant entitled to take out papers without previous declaration of inten- tion, and the Court held that the effect of naturaliza- tion was retroactive, made his claim valid and de- feated the adverse. Children of Aliens. There is a common impression that the natural- ization of the father operates to make citizens of all his children who came to the United States under twenty-one years of age; but this is the case only as to such children who were under that age at the date of the father's naturalization papers. R. N. 2172; 34 St. L. 1229. An Alien May Take Title by Descent and hold the claim against all the world except the United States. Billings v. Aspen Co. 51 F. 33*. > > / ISO; Lohmann v. Helmer, 10J t F. 178. Pleading and Proof of Citizenship. 'Except in adverse claim cases it need be neither alleged or proved. Harris v. Kellogg. ','.' r. 7 ox.- Buckley v. Fox, 67 P. 659; Oruwell v. Rocco. ? ', r. 1028. It may be proved when essential though not averred. Altoona Co. v. Integral Co. 4$ P- Wrf Where no issue is made on it, it cannot be contro- verted. Jackson v. Dines, 18 Colo. .'"/ ; Sherlock v. Leighton, 63 P. 934. Indirect proof by circumstances has been al- lowed. Strickley v. Hill, 62 P. 893, and in Jantzen v. Arizona Co. 20 P. 93, the broad view was ex- pressed, and as we have always believed correctly expressed, that (in judicial as distinguished from departmental proceedings) a presumption exists in favor of the citizenship of a resident locator. The point of alienage must be raised on the trial below. O'Reilly v. Campbell. 116 U. 8. .',>. Where a party is native born his own statement proves his citizenship. Where naturalization or dec- laration of intention is in issue the proper proof MEXICAN GRANT. 311 is the production of a certified copy of the record, but there are instances when* this strictness is not insisted on. Wood v. Aspen Co. 36 F. ^.7; Provi- Co. v. Burke, 57 P. <>}/. In the Land Office upon application for patent and upon adverse claim the proof is by affidavit and like proof is held good in the suit supporting the adverse. Hammer v. Garfield Co. 16 M. A'. 1 !~>: l.in U. 8. 201: " Citizenship of the stockholders of an American corporation need not be proved and issue cannot be taken on this point. Doe r Waterloo Co. 10 F. ' f ~><;. The Federal Alien Act of March 3, 1887, is in force in the Territories only. The Act (Sup. 556) forbids aliens who have not declared their inten- tions, to hold any. real estate patented or possessory, except by inheritance or as creditors buying to pro- tect debts. It applied also to corporations where over 20 per cent, of their stock was held by aliens; but this restriction was removed by the Act of March 2, 1897, 29 St. L. 618, so that now a corpo- ration not alien may purchase from the Govern- ment irrespective of the citizenship of its stock- holders. 28 L. D. 118. By the same amendment it allows aliens to acquire and hold by purchase, pos- sessory as well as patented mining claims. Its lan- guage is so vague that it cannot be told without ju- dicial construction whether it would allow of the original location of a mining claim by an alien. Ex- cept as affected by the Alien Act or by local statute, Chinese or other aliens can work under lease from a citizen. Ah Kle v. McLea,,. .it /'. 200. MEXICAN GRANT. The three cessions of Mexican territory to the I'n i ted States were by the treaty of Guadaloupe Hidalgo, Feb. 2, 1848, the Gadsden purchase in 185o and the grant by the State of Texas in 1850, of all 312 . MEXICAN GRANT. its claims to territory outside of its present boun- daries. It had been the policy of the Spanish and Mexican governments to allow the governors of the outlying provinces to pass title to large tracts for colonization purposes but limited to eleven square leagues. Such private cessions of land are recog- nized by all the treaties as well as by the modern law of conquest, and they have been variously con- firmed by special Acts, by patents, or by the adjudi- cation of the Court of Land Claims. Many of the so-called grants were of an inchoate character what we would call licenses or equities not ripened into grants proper. But whatever their status the U. S. is understood to be bound as fully as was the original government. In Moore v. Smaiv, U M. R. 418; 17 Cal. 199, where the subject of mineral rights in grants was fully discussed, it was held that no interest in min- erals passed by the grant of the Mexican govern- ment without express words designating them and that at the date of the cession of California to the United States they were the property of the Mexican government and passed by the cession of the United States; but that a patent from the United States, in confirmation of such grant, making no reservation of the minerals, invested the patentee with the own- ership of the minerals. In Fremont v. U. 8. 17 How. 565, it was held that the discovery of gold or silver did not, under the mining laws of Mexico, destroy the title of the in- dividual holding the grant to the surface, without passing upon the rights of the government or of the discoverer, in such minerals. The Moore case followed without qualification in Fremont v. Seals, 11 M. R. 632: 18 Cal. 433, and Ah He v. Crippen, 10 M. R. 367; 19 Cal. 492, remained for many years unquestioned, but in U. 8. v. San Pedro Co. 17 P. 337, the Supreme Court of New Mexico held that a confirmation of the grant by patent or statute did not pass the minerals. The facts in this case for the mineral claimant were very strong, as the mines on that grant had been, prior MINING CORPORATIONS, DOMESTIC. 313 to the cession, of known value and denounceable, if not actually denounced under Mexican law. A Mexican grant seems to be inadmissible as proof of title till confirmed by Act of Congress. Astiazaran v. Santa Rita Co. 20 P. ISO; 148 U. 8. 80. But confirmation may be complete without patent. shair r. Kriiogg, 170 U. . S12. And the action of Congress is not subject to judicial review. Catron v. LaughUn. 7> P. 26. A mining location may be made on an uncon- firmed Mexican grant. Such land is not reserved against entry. LockJiart v. Wills, 54 P. 336; Aff'd 181 U. 8. 516. In Gildersleeve v. New Mexico Co. a confirmed Mexican grant was upheld on the ground of laches of the complainant. 161 U. 8. 573. MINING CORPORATIONS, DOMESTIC. A Corporation is an "association of persons" within the meaning of the U. S. Mining Acts. U. 8. v. Trinidad Co. 137 U. 8. 160. *Any three or more persons are authorized to file their certificate of incorporation under the Colo- rado Incorporation Act. R. 8. 845-999, for purposes of mining or construction of ditches or flumes; to run tunnels; or in fact "for any lawful purpose," but there are special provisions in the corporation chapter which refer only to mining, ore reduction, and tunneling companies and other special provi- sions concerning ditch, flume and pipe line compa- nies. 988, 998. These details varv in the several States and Terri- tories, but each allows of incorporation upon practically the same terms and upon compliance with substantially the same forms as in Colorado. To state each instance where they vary would be beyond the plan and intended size of this work. Nor is it advisable even where the most com- plete local forms and directions are given in any book to attempt to write any such document as a corporate (barter without professional counsel. 314 MINING CORPORATIONS, DOMESTIC. The Number of Directors of a Mining Company shall not be less than three nor more than nine. R. 8. 911. Section 865 which makes the limit thirteen is generally supposed to not apply to mining corpora- tions. The Par Value of Shares cannot be less than one dollar nor exceed one hundred dollars, and the shares may be issued payable in instalments. 850. The Directors have power to sell the Stock of the Company at less than par. Mosher v. Sinnott, 19 P. 142. Rights of Stockholders. Any stockholder has a right to inspect the books of the corporation. 869. And the holders of fif- teen per cent, may demand a written statement. 8 877. But there is no Statute allowing stockholders the right to examine the mine. The Term of Existence cannot exceed twenty years. N'/7. But may be revived. 891. Stock Paid in Lands. Any such company may Issue stock in payment for mines, such stock to be treated as paid-up stock. 851. Where stock is issued upon excessive overvalua- tion the holder may be held personally liable. Kelly v. Fourth Co. 53 P. 959; compare DuPont v. Tilden, W F. 87. No personal liability is imposed upon stockhold- ers for debts, except to the extent of unpaid stock held by them. 873. Directors and officers be- come liable for failure to make and file an annual report; or for declaring fraudulent dividends. 911, 872. Sale to corporation of claims located without discoveries held to be without consideration and the stockholders personally liable. Buck v. Jones, 10 P. 951; 22 M. R. 467. MINING CORPORATIONS, DOMESTIC. 315 Annual Meetings of Stockholders are provided for by Statute, the By-Laws fixing the time and place. They cannot be lawfully held out of the State. Jones v. Pearl M. Co. 20 Colo. 417. The Colorado Act (R. 8. 865) requires no- tice to be published not less than ten days previous to the meeting, in a newspaper published where the principal office is kept, and thirty days' notice to each stockholder. Mortgage. In Colorado a mining company is forbidden to mortgage its property except by a majority vote of its Stockholders.! 865. Other States have similar limitations. Either previous assent or subsequent ratification answers the demands of such Statute. Lacy v. Qunn, 78 P. SO. Corporate Deed. The seal of the Company is prima facie evidence that it was affixed by corporate authority. Union Co. v. Bank, 2 Colo. 226. To render a conveyance of real property unimpeachable it should be author- ized by the Board of Directors, preceded by action of the stockholders at a meeting called for that pur- pose. But the deed may be valid without such minutes. Rubie Co. v. Princess Co. 71 P. 1121. Seal. A corporation may be bound by a scroll seal. G. V. B. Co. v. Bank. And may adopt new seal when its president withholds the old one. 80- corro Co. v. Preston, 40 N. Y. 8. 1040. ARTICLES OF INCORPORATION MINING COMPANY. \Vin:i:i:.\s, Franklin R. Carpenter, Elbert F. Fitzgerald and Frank W. Howbcrt, nil of the City and County of Den- State of Colorado, have associated themselves together for purposes of incorporation under the General Incorpora- tion Acts of the State of Colorado, they do therefore make, -OL'ii and acknowledge these duplicate certificates in writirig, which when filed, shall constitute the Articles of Incorpora- tion of The YcUow Bug Mining Company. 316 MINING CORPORATIONS, DOMESTIC. AETICLB 1. The name of said company shall be The Yellow Bug Mining Company. ARTICLE 2. The objects for which said Company is created are to acquire, hold, work and operate mines and lodes bearing gold, silver and other associated minerals in the County of San Miguel in said State of Colorado ; and to acquire, own and use water, water rights and mills incident to the extraction, treatment and reduction of the ores of said metals and, from time to time, to sell and convey such mines, mills, water rights and ores, and to do all things in- cident to the general business of mining and to market and treat the product of the mines. ARTICLE 3. The term of existence of said company shall be twenty years. ARTICLE 4. The capital stock of said company shall be one hundred thousand dollars divided into one hundred thousand shares of one dollar each. ARTICLE 5. The number of directors of said company shall be three, and the names of those who shall manage the affairs of the- company for the first year of its existence ;m Franklin R. Carpenter, Elbert F. Fitzgerald and Frank ir. Ilowbert. ARTICLE 6. The principal office of said company shall be kept at Placerville in said County and the prin- cipal business of said company shall be carried on in said County of San Miguel. ARTICLE 7. The stock of said company shall be non- assessable. ARTICLE 8. The board of directors shall have power to make such prudential by-laws as they may deem proper for the management of the affairs of the company, not in- consistent with the laws of this State, for the purpose of carrying on all kinds of business within the objects and purposes of such company. In witness whereof, the said Incorporators have here- unto set their hands and seals this first day of Januarii. A. D. 1908. FRANKLIN R. CARPENTER. ("SEAL.! ELBERT F. FITZGERALD. FRANK W. HOWBERT. [SEAL.] STATE OF COLORADO, City and County of Denver: ss. I, Arthur R. Morrison, a notary public in and for said County, do hereby certify that Franklin R. Carpenter. Elbert F. Fitzgerald and Frank W. Howbert, who are per- sonally known to me to be the same persons described in. and who executed the within duplicate Articles of Incor- poration, appeared before me this day and personally acknowledged that they signed, sealed and delivered the same as their free and voluntary act and deed. Witness my hand and. notarial seal this first day of January, A. D. 1908. Arthur R. Morrison, [SEAL.] Notary Public. Where it is desired to transact part of the busi- ness out of the State the certificate must so state: MIXING CORPORATIONS, DOMESTIC. 317 ARTICLE 9. A part of the business of snid Company shall be carried on in AYA/.//. County of Luzerne, Common- ntti/h-'inia. and the principal office of said Company out of the State shall be at said Eckley, at which office meetings of directors mny be held. The first seven articles in the above form con- tain all the statutory requirements. Article 8 in re- gard to the by-laws, is necessary if it is intended that the directors instead of the stockholders, shall make the by-laws. /'. N. 858. One of the said duplicates is to be filed with the Recorder of the proper county, and one with the Secretary of State, and if the business is to be car- ried on in more than one county, the word dupli- cate should not be used, as there must be an orig- inal for each county as well as for the Secretary of State. Assessable or Non-Assessable. The 'statute provides for assessments upon shares, where, by the charter the stock is made as- sessable, and requires that whether the stock shall be assessable or non-assessable shall be stated in the articles; and each certificate of stock "shall have plainly printed on the face thereof the word 'assessable' or 'non-assessable* as the case may be." Where, after organization complete, a company desires to extend its business into other counties, it may do so without amending charter, by filing cer- tified copy from the Secretary of State's office with the Recorder of the new county. On filing the articles a copy certified by the Sec- retary of State should be procured and preserved as the legal voucher for corporate existence: at the same time the Secretary of State issues his "Certifi- cate of Authority" under the Act of 1901, and, there- upon should be called the organization meeting, to be attended by a majority of the original Board of Directors (by custom the same persons as the in- corporators, though not necessarily so). This or- ganization meeting, so-called, is really the first reg- ular meeting of the Board of Directors, and at such 318 MINING CORPORATIONS, DOMESTIC. meeting the articles filed should be formally ac- cepted. ORGANIZATION MEETING. Record of first meeting of the Board of Directors of The bellow Bug Mining Company, at PlacerviUe, Colo- rado, January T, 1908. At a meeting of the persons named in the articles of said Company, there being present Franklin R. Carpenter, Elbcrt F. Fitzgerald ami I 'rank IF. Howbert. On motion Franklin R. Carpenter was elected chair- man and Frank W. Howbert, secretary pro tern. On motion the Articles of Incorporation as filed in the office of the Secretary of State and in the office of the County Clerk of San Miguel County, were accepted as the articles of incorporation, or charter of said company. On ballot taken Franklin R. Carpenter was elected president of the" company, Elbert F. Fitzgerald was elected vice-president, Frank W. Hotcbert was elected treasurer. \Un,-t /.'. iftH-ii, r was elected secretary, and Elias Stephan was elected superintendent. On motion the following by-laws were adopted : * BY-LAWS. I OFFICERS. The officers of this company shall consist of a President, Vice-President, Secretary, Treasurer, and Super- intendent, who shall be chosen by the Directors at their first meeting following the annual meeting of the stock- holders in each year. They shall be elected from the Board of Directors, except the Secretary and Superintendent, who may or may not be Directors. Said '"officers shall hold their respective offices until their successors are appointed nnd enter upon the duties of their offices. Vacancies among the Directors may be filled at any meeting of the Board of Directors, by ballot. II DUTIES OF PRESIDENT. It shall be the duty of the President to preside at all meetings of the Directors, and to sign all bonds, deeds, M^'I -cements or other instruments in writing, made or entered into by or on behalf of the corporation; to sign all certifi- cates of stock, and all orders for money on the Treasurer, and in general, perform all acts incident to his office. Ill DUTY OF VICE-PRESIDENT. It shall be the duty of the Vice-President to perform all such functions as belong to the office of President in the absence of the President. *The above by-laws will be found, in general, suffi- cient ; but each by-law should be reviewed and such changes made as may be needed to cover special plans of the incorporators. MINING CORPORATIONS, DOMESTIC. 319 iv DUTIES OP 'SECRETARY. The Secretary shall give due notice of all meetings of stockholders, and of the Board of Directors; shall pre- pare and keep proper books of record and of account for the business of the company, and such other books as may be required by law o'clock A. M., on the second Tuesday In January, A. D. 1900, and on the same Tuesday of each succeeding year. Tf omitted, the Directors shall hold over until their successors are appointed. Special meetings may be called by the Board of Directors, or by one-tenth in amount of all the stock held. Such published notice and personal notice by mail as may be required by law, shall be given of meeting (except adjourned meetings) and the object of the meeting shall be stated in the notice. Stockholders may be represented by proxies, which must be exhibited for inspection to the meeting. See 865. XI CERTIFICATE OP SHARES. The subscribers to the capital stock of this company shall be entitled to certificates of their shares, duly signed by the President and countersigned by the Secretary. The certificates of stock shall bfc numbered and registered as they are issued. Transfers of stock shall only bo in:xl- mi the books of the company, either in person or by attorney, and the possession of stock shall not be regarded as evi- dence of ownership of the same,' unless it appears upon the stock books of the company that said certificate was issued or duly transferred to the holder of the same. XII DEBTS. No debt shall be contracted against the company except by order of the Board of Directors. XIII DIVIDENDS. Dividends shall be. made not In excess of the net earnings of the company at the close of every fiscal year, which shall be on the thirty-first day of December of every year ; or oftener as the Board of Directors may see fit. XIV CORPORATE SEAL. This company adopts as its corporate seal, the device described as follows : A pick and shovel crossed, surrounded by the name of the company. XV AMENDMENTS. These by-laws may be changed, amended or revoked at any time, by a two-thirds vote of the Board of Directors. The charter and by-laws being adopted, and the officers elected, the organization of the corporation MINING CORPORATIONS, DOMESTIC. 321 is complete, and the minutes proceed to note busi- ness as it may be transacted. Reports and Certificates Required. After payment of the last instalment of capital stock the President ai?d a majority of the Board of Directors are required by 875 to record a certifi- cate in the office of the Secretary of State as follows: CERTIFICATE OF FULL PAID STOCK. STATE OF COLORADO, County of San Miym-l: ss. The undersigned, Franklin 1'. carpenter, President, and /:/& rt 1. lii:i rectors of said company: that they have Heard said ! and know the contents thereof, and that tin- . matters and things therein stated are correct and true. FRANKLIN R. CABPEMKI:. ELBERT F. FITZGERALD. Sworn and subscribed before me this fifth day of February, A. D. 1908. <'nrti* L. Greenwood, [SEAL.] Notary Public. A copy of said certificate is also to be filed and recorded in the Recorder's office of each county where business is done. It is held that when the capital stock is fully paid up it is the duty of the officers to make and record such certificate. Austin v. Berlin, 13 Colo. 200. Annual Report. By Colorado Revised Statutes 911, an annual report is required to be filed in the office of the Secre- 11 322 MINING CORPORATIONS, DOMESTIC. tary of State within 60 days from January 1st. The Penalty for failure is personal liability of all offi- cers and directors. The Act requires information and items in detail never previously exacted and while the following form is for its own facts in strict com- pliance with the Statute, the Act is so worded that its terms must be studied with reference to the status of each corporation when about to comply or at- tempt to comply with its obscure and inquisitorial demands. ANNUAL REFOKT "T MINING < '< Kr< HJATI" \ . In compliance with the terms of Section '.HI of the Revised Statutes of the State of Colorado, Tin Ifmijilt / Mining Company makes and files this annual report. :mr business address of such officers and Directors, are as follows : 1'rosident and Director, George C. Buell, of Pitts- burg, Pennsylvania. Vice-President and Iintnr. <; t -o. \V. Kret/ini:er, of 1 <:;; Monadnork Ulo.-k. Chicago, III. Treasurer and Director. Thomas I.amMe. of _'"]_' Larimer street, Denver, Colorado. Secretary. Win. llyrd Page, of NO. '.'."._' i:iuital)le Building, Denver. Colorado. Superintendent or Mana^ r Thomas K Crawford. of No. MS Marion Street, Dearer, c,io. 2. The amount of Its rapital stork as fixed and determined by its Articles of Incorporation land amend ments thereto) is $100,000. 3. The proportion of such capital stock actually paid in is $100,000, of which $25,000 was paid in cash, and $75,000 was paid by purchase of mining property. 4. The amount of the indebtedness of said corpora tion at the date of filing this report is $5,000. 5. Said Corporation is now engaged in the active operation of its business within the State of Colorado. 6. It has no personal property except tools supplies and office furniture. It has twenty men on pay-roll, and is working a producing mine with no lien encumbrance. 7. The property of said Corporation within this State is located in the County of Park, and consists of two Lode Mining Claims, of which the Roosevelt is held under letters patent of the United States, and the Colonel Wood is held by possessory right on the public domain. 8. The amount of work done and improvements made on said property since the time of filing its last annual report is $20,000, expended in new hoisting plant and the development and working of its mines. .MINING CORPORATIONS, DOMESTIC. 323 Witness the corporate name and seal of said Company, a I tin- liaiul of its President, this 4th day of .lanuary. A. D. |SI:AI..] Tm: Kin;n Kn>i:i: MINING COMPANY. Hy C,I:M. C. P.n:i.i.. President. At'. WM. }\\ i;i> PALI:. Seeivtary. STAI - !;AI>M. City and County nf Ihunr: ss. Mr in.-, the snl.srril.er. a Notary Public, in and for said County. personally appear. ! Qeorgi <'. i:n'/ 1908. Arthur if. i/or [SEAL.] Notary Pill. lie. Other details are required for ditch companies and still others for coal mining corporations. Such report must be signed by the President and verified by the President and Secretary and the corporate seal attached. In either form where the stock has been paid up by purchase of the mine, the certificate must so state. AKTICI.I:S ., i- [NCOBPOBATIOV PITCH C"\I^\^^. Preamble same ici i: i. The name of said company shall he "The Ih-lnjn- I>iteh Company." ici .1: L' The ol.jeets for which said company Is created are to construct a ditch nnd keep and maintain the samo from th< s1i-un kmurn /* lfi l'>l: nf th< Uruml. tii]tl>it\i) such Stream <- I CUtJ. t i>in< t< hhf.nl />. /' . tin Iin> nf xni'l ilitrli ninniiKj tin /< uml flistnnn- f s,irr,i/ if /,,.v.x //,/,. .v., /x to dCSCHbi "/lii Inn nf xnitl ilitch a* inii>- us muit n< ." i The wat-r of said ditch to be used and sold for placer mining. AI;TI i.i: 7. The stock of said company shall be as- sessnhle. upon majority vote at stockholders' meeting, as required by law. ARTICLES 3, 4, f>, 0, 8 and 9 and acknowledgment same form as on />. The stream tapped, head of ditch, line of ditch and intended use of water must always be stated; 324 MINING CORPORATIONS, DOMESTIC. also the location of the reservoir if a reservoir is to be constructed. Any surplus water they are compelled to keep for sale, at rates fixed by County Commissioners. SMKLTINCJ AND OHK-SA M IM.I \ (i COM I'A XIES. The following Articles stating the purposes of organization are taken from records filed by operat- ing companies. The other Articles for such or other like companies should be substantially in the above form, always observing that the article (No. 7) refer- ring to assessability of stock, and the requirement to print "Assessable" or "Non-Assessable" on the face of the stock certificate is confined to ore-reducing, mining and tunneling companies. 975. (The Pueblo Smelting and Refining ARTICLE 2. The objects for which the said company hereby formed is created shall l>e : To buy and sell ores, metals and other furnace products; to smelt ami redm < lead, gold, silver, copper ami other ores. :mrodiH-ts and proceeds thereof. Filing Fees Domestic Corporations. On filing its Articles in the office of the Sec- retary of State each domestic corporation is re- quired to pay $20 for the first $50,000 of its capital stock and 20 cents for each additional $1,000 of stock. For Certificate of Authority, $5. Filing impression of seal, $2.50. On filing of certificate of paid up stock, $2.50, plus 5 cents for each $1,000 of stock in excess -of $50,000. On increase of capitalization, 20 cents for each $1,000. Amendment of articles, $5. Change of name, $25. Filing Fees Foreign Corporations. $30 for the first $50,000 of its capital stock, and 30 cents for each additional $1,000 of stock. Certificate of Authority, $5. Filing impression of seal, $2.50. Copy of law under which organized, $5. Designation of agency, $5. Filing certificate of paid up stock; same as for domestic corporation, supra. On increase of capitalization, 30 cents for each $1,000. Amendment of Articles, $5. Change of name, $25. license Tax. By the Revenue Act of 1907 all corporations, do- mestic or foreign, are charged an annual license tax of two cents upon each $1,000 of their capital stock. The tax is payable to the Secretary of State on or before May 1st. The penalty for failure to pay the tax is a forfeiture of the right to do business in 326 MINING CORPORATIONS, DOMESTIC. the State, besides an addition of one-tenth to the tax for each six months' default. This tax, as originally imposed in 1902, discriminated against foreign cor- porations by assessing them at a greater percentage, and was declared void by Am. 8m. Co. v. Lindsley, ,W'i U. 8. 103, whereupon the act was amended as above, taxing both sorts equally, so that it is now doubtless valid as to both classes. 34 Colo. 2J f O; 82 P. 531. Assessments on Stock. By R. S. ina-nx.' provisions are enacted for the assessment of shares of companies \vhose stock is made assessable under the charter or "by the laws of this State." The assessment is to be made by action of the Board of Directors by a majority vote, notice of meeting being first given to ciu-h Director. No greater assessment than 10 per r.-ni. can be made at one time, and a second assessment must not be within thirty days after date of sales under the previous assessment. The assessment is made payable 'iininc liatHy" and if unpaid after thirty days, is < -onsideivd delin- quent, and may be advertised for thirty days in a daily paper published at the place of the chief office of the company, and also in a daily paper published where the mine is located (with provisions for cases where daily papers are not published). If not paid within twenty days "from the date the same became delinquent," the secretary is em- powered to sell the shares at public auction in front of the chief office of the company to the highest bid- der for cash. The Act read literally, makes the sale to nmn 1 off within the period of publication; but it must mean, if it mean anything, that the sale is to take place not less than twenty days after the expiration of the thirty days' publication. The Act further requires notice to be sent to each stockholder, informing him of the assessment. MINING (CORPORATIONS. DOMESTIC. 87 F.KM ! K]:s"i.rTiN T, . ASS: Resolved, That an assessment of five per cent, is hereby levied and made up -riim-nt Mining Company. Equitable Building. Ih nr> /-. r, /.... ./,/;/. /. 7908. To H. /;. liriili'Hinii. Sio.-khohler : You are hereby notified that :it a regular meeting of the Hoard of Directors of Tlie Kxperiment Mining Company this day held at the otli< <>f said company. l>y a majority vote of all the directors, each and < \. i \ share of the cap- ital stock of said company wafl uaeSBed /ire per cent, on the par value, such per cent, amounting to 15.00 on your 100 shares of stock, payable immediately to Qcorgc M\ Kn,u . th- Treasurer, at this otli..-. address above given, and that such assessment, if not paid on or before the 3d day of an/. /.'>x, will le delinquent, and your stock will there upon he advertised i<>r sale, the sale to take place on the 28th day of \lnn-h. /I'fiS. a-coi-d:nj; to the terms of Se.'tiou - atutt s of 'olorado. C. S. WALLACE, Secretary. It does not seem that this Act can refer to com- panies by whose articles the stock is made non- assessable. Nor does it apply to assessments for in- stalments of the original purchase price of the shares, sale of which on default is provided for by /,'. G Irregular Action. A company which lias habitually neglected all formalities cannot plead the want of them to escape lialiility.-r;. I. /;. Co. v. Bank, 93 F. 23. So held whore it allowed one director to assume entire man- agement. Robinson Co. v. Johnson. 50 P. 21~). A resolution of the Board is not necessary to bind the company where it has had value received with knowl- edge. McKcn:;> , doorman Mines, 88 F. 112. Fraudulent Organization. A company may sue its organizers where the real priro paid is less than that represented to the kholders. Pittfburg Co. v. Spooner, 42 N. W. .''''. n t// 8t. if. l','.i. Acts of directors distin- guished from acts of the company. SummerUn v. 328 MINING CORPORATIONS, DOMESTIC. Fronteriza Co. J t l F. 2J9. Bona fide holder of stock issued on over valuation not liable to creditors. Du Pont v. Tilden, J,2 F. 87. Where mining property is located or purchased by an officer of the corporation his liability to the company depends upon whether or not he has been guilty of a breach of trust. Calumet Co. v. Phillips, 12 P. 106.'!; Lagarde v. Anniston Co. 20 M. R. ~>',~>: 28 So. 199. The Manager's knowledge of value of ore shoots discovered in the mine is the property of his com- pany. Clark v. Buffalo Hump Co. 122 F. 248. A corporation may be held in equity to refund price of stock sold on fraudulent prospectus and fraud of its promoters. Cox v. National Oil Co. 56 8. E. /''/- Inexperienced persons buying stock have a right to rely upon the statements of the promoters, and a purchaser has his action where they falsely as- serted that the mine was free from debt. Tinker v. Kier, 94 8. W. 501. Reorganization. Where a new company is formed with same stockholders or other like suspicious incidents it is but a successor and liable for the debts and cove- nants of the old one. Higgins v. California Co. ~>~> P. 155. Agent Manager Officers. The President and Secretary alone have no right to appoint a general agent. Johnson v. Sage, 44 P- 641. Parties dealing with general agents of foreign cor- poration have the right to assume that he has full powers. Rathbun v. Snow, 123 N. Y. 843; 25 N. E. 319. Superintendent has right to buy current sup- plies. Stuart v. Adams. 89 Cal. 367; 26 P. 970. The Secretary of the Company has no power, by virtue of that office, to contract for the company, but the Secretary may be made the company's agent, and MINING CORPORATIONS, DOMESTIC. 329 his acts then bind it. Ross Oil Co. v. Eastham, 85 r. "i31. The same as to its president. Wood v. Sagi- iiaw Co. 105 N. W. 101. Complaint held good where a stockholder charged the company with attempt to depress the value of the stock and of intention to not perform the annual labor and relocate the com- pany's claims. Glover v. Manila M. Co. J04 N. W. 261. An agent acting in bad faith forfeits commis- sions. Williams v. McKinley, 65 F. .'/. Company 1> resumed to know the fraud of its agents. Argentine Co. v. Betf-lii-t. /s Utah, 183; 55 P. 559. May offset collection against wages. Hood v. Hampton Co. Wit / [08. Principal cannot accept benefits and repudiate agency. Oenter v. Conglom- erate Co. 23 Utah, 165; 6') P. 362. Barnard v. Roane Co. 11 M. R. 94; 2 S. W. 21. No authority to sell the future product of the mine; agent had contracted for more than the mine could produce. Blackmer v. Summit Co. 187 III. 32; 58 N. E. 289. Persons dealing with an agent when agent's authority is in writing are bound to take no- tice thereof. Id. Mine* manager has no power to bind the corpora- tion for medical services to injured employees. Rpel- inmi v. Gold Co. '.< ' P. 597. But see Mt. Wilson Co. v. Burbridge, 11 Colo. App. 487; 53 P. 826. A mine manager cannot in general borrow money or pledge the credit of his company. Hawtayne v. rne, 1 M. R. 285; 7 M . d W. 595; Breed v. Bank, 1 M. J{ /';:: / <'!<>. ;*l; Cons. Gregory Co. v. Raber, 1 M. R. J f 05; 1 Colo. 511. An agent of two companies has the right to -exchange supplies. Adams Co. v. Senter, 1 M. R. 241; 26 Mich. 73. An agency for the care of property may be both created and proved by parol. Hardenbergh v. Bacon, 1 M. R. 352; 38 Cal. The appointment of an agent for a corporation to make a contract for work and labor need not be made under seal or by resolution of the board. Crow- ley v.Genesee Co. 4 M. R. 11; 55 Cal. 213. Agent can- 330 MINING CORPORATIONS, DOMESTIC. not act for both parties without their consent. Fin- erty v. Fritz, 1 M. R. 437; 5 Colo. /?//. General powers of superintendents, or general agents in charge of mine, will be recognized without proof, as covering all the ordinary local business of the concern; and persons dealing with them have a right to assume this, unless otherwise notified. Adams Co. v. Senter, 1 M. R. 2J t l; 26 Mich. 13. Gen- eral power of attorney implies no power to make promissory note. Washlurn v. Alden, 1 M. R. 320; 5 Cal. 'ft!.!. Where directors deal with and make profit out of their corporation the burden is on them to show that the transaction was fair and open. Baker v. Montana Co. 89 P. 66. Where a corporation allows its president and gen- eral manager to practically control its business it is liable on a note given by such officer. McKinley v. Mineral Hill Co. 89 P. ','> > Miscellaneous Rulings. Incorporators are liable for preliminary ex- penses. Hersey v. TI///V. // />. N.I ; ; Nee Hecla Co. v. O'Neill J9 N. Y. Sup. 592; Winters v. Hub Co. 57 F. 281. And the company may be held for the contracts of its promoters without formal adoption of the same by resolution of the Board. Possell v. Smith, 88 P. 1064- Distinction between de facto and de jure di- rector. Rozecrans Co. v. Morey, 43 P. ." Corporate officers may recover on a quantum meruit for services in excess of their official duties. Gumaer v. Cripple Creek Co. 90' P. 81; Severson v. Bimetallic Co. 44 P. 7.0; Felton v. West Co. 40 P. 10; Ruby Co. v. Prentice, 52 P. 210. Amendment of Articles. This subject in Colorado is regulated by the Act of 1907. R. S. 878-886. A meeting of stockholders must be called for on 30 days' notice, and two-thirds must assent to the amendment. FORKK'.N tt 'KI'oKATK >NS. Dissolution. Provision is made for the dissolution of solvent corporations desiring to go out of business by pub- lication and filing of notices, without judicial action thereon. R. S. - For consideration of the rights of stockholders when the company has quit business and has no known Board of Directors, see 7V;/ <>. v. Aye, FOREIGN CORPORATIONS. A corporation has no recognized existence except by comity outside of the State of its organization. It is, however, always allowed to do business else- where by complying with certain statutory conditions for the protection of local creditors, such conditions usually including that it file a copy of its Articles \\ith the Secretary of State and with the County Recorder of the place where it is intended to carry on its mining operations or other principal business, and that it designate a local agent upon whom : ess may be served. Such conditions for Colorado are: That it file a copy of its charter in the office of the Secretary of State; or if "incorporated by certificate under any general incorporation law. a copy of such certificate and ot such general incorporation law duly certified and authorized by the proper authority of such for- eign State, Kingdom or Territory." That it file with the Secretary of State and in the office of the County Recorder a certificate desig- nating its principal place of business and designat- ing an agent residing at such principal pla^e of Imsi ness upon whom process may be served. 916, .'>/?. A failure to comply with either of the above re- quirements imposes personal liability on its officers, agenis and stockholders for the debts of the company. It must also file an impression of its corporate 332 FOREIGN CORPORATIONS. It must receive from the Secretary of State a certificate that all the filing fees and taxes have been paid; commonly called a certificate of authority. 910. DESIGNATION OF PROCESS AGENT. STATE OP NEW YORK, County of New York: ss. It is hereby certified, That the Mohawk Alininu Company, a corporation organized under the laws of said state, doth hereby designate that the "principal place where* the business of such corporation shall be carried on in the State of Colorado," is Central City, County of Oil inn. State of Colorado, and that Henry C. Becker, residing at said principal place of business, Js the authorized agent of said company, upon whom process may be served. Witness the corporate name and seal of said com- pany, and the signatures of its President and Secretary, this 3d day of February, A. D. 1907. MOHAWK MINING COMPANY, [SEAL.] J. it it i SHIN WALKER, President. CLARENCE CART, Secretary. STATE OF NEW YORK, County of New York: ss. I, Herbert E. Dickson (195 Broadway), Commissioner of Deeds of the State of Colorado, duly commissioned and sworn, in and for said County, do hereby certify that J. Brisbin Walker, President, and Clarence Gary, Secretary, of the within named Corporation, who are personally known to me to be such President and Secretary of said Corpora- tion, personally appeared before me this day, and acknowl- edged the within Instrument (in duplicate) to be their free and voluntary act and deed, and the free and voluntary act and deed of said Corporation. Witness my hand and official seal this Sd day of r<-i,i'nnrn. A. I >. 1907. Herbert E. Dickson, | SKAL.] Commissioner of Colorado. One copy of the above instrument must be filed with the Secretary of State, and one in the office of the Recorder of the proper county. A similar form, not naming the agent, but desig- nating him in general terms, was held sufficient In Goodwin v. Colorado Co. 110 U. 8. 1. Discriminations Against Foreign Corporations. Besides the above special requirements it is de- clared that they "shall be subjected to all the lia- bilities, restrictions and duties which are or may be imposed on" domestic corporations. Where they mortgage their property they must give public no- tice so that prior creditors may protect themselves. TENANTS IN COMMON. 333 They must file annual reports the same as domestic companies. And the re-organization or liquidation of foreign companies to the prejudice of local share- holders is attempted to be prohibited. R. 8. 911, ."//. . Domestic Charter Preferable. The provisions of the above and like statutes in other states, together with the fact that a foreign oration is liable to attachment for debt as a non- resident, and must file special security for costs where a plaintiff, renders a domestic organization prefer- able in most cases. Domestic Organization by Non-Residents. The Corporation Law of Colorado does not in terms require the organizing associates to be citi- zens or residents; and although a domestic organiza- tion composed entirely or substantially of non-resi- dents would be practically in some respects a foreign 'oration, yet its validity, at least when collaterally attacked, seems to be conceded. Humphreys v. Mooney, 4 M. R. 16; 5 CV TENANTS IN COMMON. Right to Work the Mine. Two or more persons owning undivided inter- ests in mining Around are tenants in common, but unless working it together by agreement are not part- ners. At Common Law each could work without ac- counting to the other. This was changed by the Statute of 4 Anne Oh. Most States have adopted the tenor of that Statute to wit: That the excluded co-tenant may have his proper action for his share of the proceeds of the working. When any such statute has been enacted giving the right to an account and taking away the Com- 334 TENANTS IN COMMON. mon Law right of each to work at his own risk but to his own exclusive profit,, the law seems to be: That any Co-tenant may work the common prop- erty, at his own risk, if he works to a loss but must account to his Co-tenants if he works to a profit. A co-tenant may lawfully here for oil. If he finds it he must account to co-tenants, and if he does not, must stand the expense alone. Lone Acre Co. v. Swayne (Tex.), 78 8. W. .Mi. The owner of the majority interest may, by Statute in Idaho, work the mine, but may not ex elude the minority from access to the property. Sweeney v. Hanley, 126 F. in. Where the minority works the majority may di- rect the management. Hawkins r. N/m/.a//r Co. '^ P. 433; 33 t P. ',n. Measure of Damages on Accounting. The Measure of Damages adopted has not been uniform. The rental value of the premises was al- lowed in the leading case of Karly r. l-'rii-in!. m Grat. 21; 14 M. R. r, I. The value of the coal in place was allowed in McGoivan v. Bailey, 179 Pa. ,'/7". "What is just and equitably due" is the measure of accounting under Pennsylvania Statute.- Fulmefs App. 128 Pa. 24. See full note to the case as n- ported in 17 M. R. .>',>'>. Another line of cases allow full share of the profits which is not a just rule where a plaintiff has assumed none of the risks. U'/7/m///.so// r. ./<>/; r.s. '/.? Va. 562: 19 M. R. 19; Job v. Putin,,. L. n. >. /;,,. 84; 14 M. R. 329. Where the entire property is leased by one Co- owner at a fixed royalty the measure of damages is plaintiff's proportion of the Royalty. Cicil v. Clark. 49 W. Va. ','>!>. The co-tenant is entitled to his share of the profits but where defendant has worked to a loss plaintiff is not entitled to any recovery. Edsall v. TENANTS IN CS M.M< >N Merrill, ->'7 .V. /. Eq. //}; .WrCo/v/ y. Oakland Co. M. R. 734; <;.' /'. 0o, v. Montana Co. 60 P. 1039; Laesch v. Morton, -: P. 336 INDIAN RESERVATION. INDIAN RESERVATION. - An Indian reservation is not a part of the public domain open to exploration, or occupation, and a valid mining location cannot be made upon it. French v. Lancaster, 47 N. W. 395; Gibson v. Ander- son, 131 F. 39. Nor can both parties waive the point. 47 N. W. 395. An attempted location made before the extinguishment of the Indian title must yield to one made after its purchase. Kendall v. San Juan M. Co. 9 Colo. 349. But in Noonan v. Caledonia M. Co. 121 U. 8. 393, the Supreme Court of the United States have ruled that on the cession of the reservation the claim becomes valid. This case was followed by the affirm- ance of the Kendall case above cited (144 U. 8. 658) where the court adjudged that the original location, although not valid, might have been made good by record in the nature of a relocation within the same period of time after the opening of the reserve, as is allowed to record from the date of discovery. This not having been done an intervening locator who entered after the opening of the reservation was held to have the elder and better title. A claim within the reservation cannot be pat- ented. Copp, M. L. 253. And the location of scrip thereon is void. U. 8. v. Carpenter, HI U. 8. 547, The court will protect a right to mine by license from the Indian Nation. Oolagah Co. v. McCaleb, 68 F. 86. When a reservation is opened it is not necessary for mineral prospectors to await the issue of the proclamation. McFadden v. Mt. View Co. 87 F. !'>]. FOREST RESERVES. By Act of Congress March 3, 1901, 26 Stat. 1095, the President is authorized to create, by proclama- tion, forest reserves in any part of the public lands. FOREST RESERVE. 337 Certain particular Reservations have by special act been opened to the location of mining claims, but by Act of June 4, 1897, 30 St. L. 36, mineral lands in all forest reservations are especially excepted from the reserve and are open to location and entry under the mineral laws. 32 L. D. SOI. And all mining Rights of Way are allowed across them. 83 St. L. The discovery and location of a claim on the Reserve is made exactly as if it were on non-reserved land, but the Forest Ranger is authorized to examine and report as to its being a bona fide claim. His duties in the premises and the restrictions as to ditches and timber cutting are set out in a publica- tion l>\ the department (1907) called the USE BOOK. The regulationa of the Department permit own- of mining claims to cut timber for actual mining purposes in connection with the particular claim for which the timber is cut Par. 20, SO L. D. 28. ORE CONTRACTS. An ore purchase contract between mine and smelter for the sale of ore is not assignable, as the mine contracts for the skill and integrity of that par- ticular smelter. Arkansas Val. 8m. Co. v. Belden 127 U. 8. 379; Winchester v. Davis Co. 61 F. 45; Wheeler v. Walton Co. 64 F. 664. Failure to receive pay justifies failure to make future deliveries. Cherry Val. Co. v. Florence Co. >: / /'. 569. Delivery of ore to a reduction company, to be paid for after assay, is a sale and not a bailment of each lot of ore. Chisholm v. Eagle Ore Co. 144 F. 670. A promise to pay a debt out of the proceeds of ore is not an equitable assignment of such proceeds. Silent Friend Co. v. Abbott, 42 P. 318. 338 ORE CONTRACTS. Action for conspiracy between officers of the mine and mill owners to obtain bonus for treating the ore presumptions and evidence in such case. Fox v. Hale Co. Jjl P. 308. A, in Michigan, agreed to sell to plaintiff, graph- ite ore to be delivered on cars in Mexico; held that cause of action for non-delivery accrued in Mexico. U. 8. Co. v. Pacific Co. 68 F. >,','. Construction of ore contracts calling for certain percentages of mineral and for special assay values with deductions for moisture. Trotter v. Hech-sdirr. ', Ml. 85V 7 Atl. .;./>'; Lehigh Co. v. Trotter, JO Atl. 608; Anvil Co. v. Humble, 153 U. 8. 540: Martinez v. Earnshaw, 22 Atl. 608. Measure of damages for failure to deliver ore. Patrick v. Colo. 8m. Co. P. 236. Amount of moisture is determinable by tests of like ore from same mine. Vietti v. Nesbitt. '// P. l~>l. The smelter is not liable for mineral left in the tailings, there being no proof of negligence. Guild Co. v. Mason, J,6 P. 901. Where an average of a certain assay is to be ac- counted for, one month may make up for another. Fox v. Mackay, 51 P. f>7 1. Construction of contract for delivery of ore "free from foreign substance." Worthington v. Given . 1} So. 739. Of ore breaking contract terminable when prejudicial to' the development of the mine. Anvil Co. v. Humble. 153 U. 8. 5J f O. A contract or promise to pay out of the pro ceeds of a mine becomes an absolute promise after the lapse of a reasonable time. Mclntyre v. Ajax Co. IIP. 615; White v. Century Co. 78 P. 868; Busby v. Century Co. (Utah), 15 P. 125. When the buyer refuses to receive the seller has the right to store the ore and sue for the price; or to sell the ore and recover the difference in price. Habeler v. Rogers, 131 F. ',.;. Contract construed to bind the seller to furnish the ore of its own mines. Shackelford v. Sloss Co. 36 80. 1005. ORE BUYERS. 339 A contract for the ore of a certain mine entitles the buyer to the run of the mine although the ore ten- dered from another mine was not below the agreed assay. Globe Co. v. Tennessee Co. 85 S. U. //77. A contract to furnish coal from a particular mine is not fulfilled by tender of coal from other mines though equally good. Hesser v. Chicago Co. 151 F. ORE BUYERS. Ore Book to Be Kept. Every company or individual "engaged in the business of milling, sampling, concentrating, reduc- ing, shipping or purchasing ores in the State of Colorado," is required to keep a book in which shall be entered at the time of the delivery of each lot of ore if.- Tin- name of the party on whose behalf sin -h as stated. ml. The name of the teamster. packer, or i.ili.-r h on. ami tin- name f the In- team or pad ir.-iin oVHverini: such ore, /. The u.-iirlit . r amount of .-very such lot of Tin- name ami location of the mine or claim from which it shall he *iate| ihat tin- same has lie, MI mineol or proCOl rh. -'I'll.- d livery of any and all 1m parcc-ls of ore. K. 8. 4255. The succeeding sections provide that parties claiming an interest in ore delivered shall have the privilege of examining such books and for penalties in case of failure to keep the same. And that neglect to make proper inquiries from parties bringing ore to the mill shall not excuse failure to comply. They also attempt to make the purchaser criminally liable for ore bought from mines held "contrary to any penal law now in force," which was intended to in- clude cases where possession had been taken by vio- lence, contrary to the provisions of the Jumping Act. If. 8. WZO, 4239. 340 ORE BUYERS. Bullion and Specimen Buyers. A similar Act refers to buyers of gold dust, amalgam, bullion and gold specimens, the intent be- ing to produce means to trace such property when stolen. R. S. 4252-.',.,'.". Ore Bought of Wrongful Mine Claimant. In 1889 the question of the responsibility of the ore buyer for ore taken by trespass having often arisen and a case of some importance involving the question then pending in the Supreme Court, an Act was passed providing for the case of ore taken from mines, the title to which was in dispute. It provides that a party in peaceable possession under claim and color of title is to be deemed the owner, and the buyer of ore, in good faith is to t:iU- title to the ore, but that the party out of possession may protect himself by notice to the ore buyer, the following form containing the substance required: Ihnnr, Colo., .linninnj it, 1908. To The Taylor <& ttrunton Kami>lin//, Take notice that I .-mi the claimant ami owner ;m.]< Minim; Claim, situate in Creede Mining I>islrict. Coimiy of Mineral, Slate of Colorado : Tli;it Ifirliuril .1. /'(///./ and Tlnnn- Cruirfuril :iml persons under them art- mining and shipping gold ore whirls is my property. I'mm said claim under the name of tin- ri<///,< Lode, or uml.-r some other name. And you are hm-by imtiticd nndrr the terms of the Statute in sn<-li case made and provided that you will ! held responsible fr all ..ns purchased and delivered from said mine by said /,/r either of them, or by any person for them. subsequent to the service of this notice. 1' I:\.\K II. \V.i The person serving this notice must within five days thereafter follow it up with suit for injunction, and provision is made to limit the liability in case the injunction is not heard within thirty days, and to avoid its effect if the writ is denied or afterwards discharged, although the plaintiff may ultimately prove title. If such notice is served and followed by obtaining the writ and the party warned persists in PENAL PROVISIONS. 341 buying the ores in dispute, he is to be held respon- sible to the person ultimately adjudged the owner. If suit has been already brought when the notice is served, add to the above form: ( 4238.) "Suit is pending in the District Court of Mineral County to enjoin the further shipping or sale of ores by said I'.uties from said claim." A proviso is contained in the Act that it shall not protect against liability for the purchase of ores taken by persons holding claims under the Mine- Jumping Act, or ore stolen by lessees. Ore Mined Under Claim of Right. The suit above referred to, Omaha Co. v. Tabor, 16 M. R. 184; IS Colo. 41, was decided later, holding the ore buyers liable as trespassers the decision making no reference to the point really involved or the line of authorities relative to the point that, where personal property is produced from real, by the labor of a party in possession with claim and color of title, it becomes marketable without regard to tin' ultimate decision on the question of who was the owner of the realty. Brown v. Caldwell, 12 M. R. 674; 10 S. & R. ///. xmith v. Idaho Q. M. Co. II P. 878; Mather v. Trinity Church, 14 M. R. 472; 3 S. 4 / <>high Co. v. N. J. Co. 26 Atl. B llnrhin r. Harhiu. /.I I'd. Anderson v. Hap- !4 III. 4S6; Page v. Fowler, 28 Cal. 605; National Co. v. Weston, 15 Atl. 569; Giffln v. Pipe Lines, S3 Atl. 578. PENAL PROVISIONS. False Weights and Assays. There are in all the mining States penal Stat- utes more or less alike in wording and intent pre- scribing punishment for such self-evident offenses as the using of fraudulent gold dust scales (1351) or false ore-buyers' weights and scales or the certify- 342 PENAL PROVISIONS. ing to false assays or making false return of ore weight or value. R. 8. Colo. 'i.'.'jO. Debased Gold Dust. Sections /TON, a make it penal to knowingly have or pass debased gold dust. In Peo. v. Page, 1 Ida. 102. the defendant was convicted on in- dictment for having in possession instruments for manufacturing bogus gold dust. In Peo. v. Sloper. 1 Ida. 158 and Peo. v. Page. Id. 189, the offense of ut- . tering such material is discussed. Salting Ore. That every person who shall mingle or cause to be mingled with any sample of gold or silver-bearing ore, any valuable metal or substance whatever tli.it will increase or In any way change the value of said ore. with the intent to deceive, cheat or defraud any pi -rson or persons, shall on conviction thereof, be punished b\ ;i line of not less than five hundred nor more than one thousand dollars, or by confinement in the penitentiary Tor ;i t-rm not less than one nor more that fourteen years, or by both such line and imprisonment. /,'. N. OolO. 1863. Ore Stealing From the Mine. If any person shall break, sever or leparatf with intent to steal, ore or mineral from any mine, lode, ledge or deposit in this State, or shall take, remove or conceal ore or mineral from any mine, lode, ledge, deposit or dump with intent to defraud the owner or owners, lessee 01 licensee, or any tenant in possession of any mine. lode, ledge, deposit or dump, or any person in possession and claiming under color of title any mine, lode, led^c. or dump. such person shall be deemed guilty of grand larceny, and upon conviction shall be punished as for grand larceny. R. 8. Colo. 1680. The above section amends the act of 1903 which was limited to ore of the value of $20. Trespass Not Larceny. Except as modified by such statutes as said sec- tion 1680, the taking of ore by severing it from the realty accompanied by its immediate asportation, can in no case be considered larceny. Peo. v. Wil- liams. 4 M. R. 185; State v. Berryman. 1<1. Wit: Mate v. Burt, Id. 190. PENAL PROVISIONS. 343 This distinction is in some of the cases referred to as unsubstantial and technical, although its force as decided law is not questioned. On the contrary, it is a distinction necessary to check the constant tendency to seek a criminal remedy where the civil remedy is ample-. Kxcepting the instance of what is known as "high grading" the severance is wholly \\ithout felonious intent. The malicious removal of location marks is made a misdemeanor by the terms of section />/'/'. I'nder a statute on this subject it was held that there must be proof of a lawful stake on a valid min- ing claim and that where the only proof of discov- ery was that the stake was posted after finding quart/ and vein matter," there was no proof of a valid location stake, such as the law was intended to protect. Territory v. J/< AV,/. /.'' P. .IH'. Malicious Mischief. By R. S. Colo 1900. it is made a misdemeanor to unlawfully destroy any shaft-guard" or remove the timbers from any shaft, incline or tunnel. Cutting Timber or Removing Buildings. Besides the section as to malicious mischief there are two sections harsh and cruel, in defining mere trespass into crime, by leaving out entirely the ele ment of malice or other criminal intent, making the cutting of timber or removing of buildings a misde- meanor. .J222, 4223. The strictest construction against it has been heretofore given to a statute of like character. Bradley v. Peo. 8 Colo., 599. Jumping Claims by Stealth or Violence. R. S. Coin. ',>>. passed "in 1874, prohibits acts of this character. The Act consists of a single para- graph of interminable length. It makes the associa- tion of two or more persons for the purpose of taking possession of a claim in possession of another, by stealth or violence, a misdemeanor. The section is intended to prevent what has commonly been termed "jumping," which word is met with in some of the 344 EJECTMENT. old statutes as well as in the district rules, and oc- casionally in law reports. Arnold v. Baker, 7 M. R. Ill; 6 Neb. 134; Murphy v. CoW, 5 M. R. 330; 5 Colo. 281. As a penal statute it is awkwardly framed, and the substantial remedy is by a section passed at the same time, by which possession is restored to the party forcibly dispossessed See p. 369. Coal Mines. There are also Acts. R. S. Colo. 638-660, regulating coal mines, specially providing for inspection of same and guarding against spontaneous combustion, gob- fires, open pits, fire damp and other dangers. The Federal Acts of 1891 and 1902 (26 St. L. 1104; 32 St. L. 631) provide for the inspection and regula- tion of coal mines in the Territories and prohibit em- ployment of children in the same. Oil Wells are required to keep their products from emptying into any natural water course. R. S. Colo. 1818. Ventilation Children. The Constitution, Art. 16, 2, requires the pas- sage of laws securing safety escapes and ventilation in mines. The acts on these subjects are cited under INSPEC- TOR, p. 376. The employment of children under fourteen years of age is forbidden by R. S. 547. The eight hour law applies to underground miners, to smelters and other ore-treating processes. EJECTMENT. Pleadings. Under Code practice the names of the various actions are abolished, but the distinctions being in- KJIT^TMENT. 345 herent, the term Ejectment has its specific applica- tion the same as formerly. Section 286 Colo. Code requires a concise state- ment in the complaint of the nature of the title when possessory. Supporting Adverse Claims. It is the proper action to bring, and the one in fact generally brought in support of an adverse claim. Becker v.. Pugh, 15 M. R. 304; 9 Colo. 589; Burke v. Mrlh,nal'l. M P. 351. In such suit it is immaterial which party is in actual .possession at the time when the action was brought. Id. And no proof of an ouster is required. Golden Fleece Co. v. Cable Co. 1 M. B, /.'".- 12 Nev. 312. Or each party may be in possession of a part of the contested premises. Rose v. Richmond Co'. 21 P. 1105. Notifying defendant not to work is an ouster. Bramlett v. Flick, 57 P. N;. Colo. J/17; Altoona Co. v. Integral Co. 4~> P. 10'^: Pennsylvania Co. v. Bales, in P. 444; Ham v. Mattes, .x.f P. l7. No Second Suit. If suit be dismissed a second suit cannot be brought after the expiration of the thirty days. Steves v. Carson, 16 M. R. ].>; \& / 821; and if not filed in time the suit cannot be supported as an ordinary ejectment. Hunt r. Eureka Gulch Co. // Colo. 451. Second Trial. The right, as of course, to a second trial in eject- ment in Colorado is abolished since 1899. Possession Without Location Location Without Discovery. The Congressional Act, 2320, says that "no location of a mining claim shall be made until the discovery of the vein." And in 'sequence to this it has been ruled that if there is no valid location there can be no rightful possession. Belk v. Meagher. I M. R. 510; 104 U. S. 219; Sweet v. Webber, 1 Colo. 450. A prospector, at least after he has discovered mineral, has the right to be undisturbed in whatever shaft or other work he is prosecuting. Faxon v. Barnard, 2 McCr. 44; 9 M. R. 515. But only by com- pliance with the Statute (by a valid location) can he prevent other prospectors from entering upon any ground except that in his actual occupation. Becker v. Pugh, 15 M. R. 304; 9 Colo. 5S9. The posting of notice without discovery or indications of mineral KJhX'TMKNT. 347 cannor warn otT other prospectors. 1\ rha nl t v. Boaro, //.; U. flf, 557; l~> M. /'. //7. He may protect him- self in his pedis possessio (the ground in actual as distinguished from constructive possession), while in the search for, before he has discovered, mineral. And as auainst another miner, where neither has discovered a vein, he has the better right. Field v. The question which these citations lead up to is i his: Can a prospector, before discovering mineral, stake off a full claim and keep off all other pros- pectors while he is engaged in hunting for mineral? In other words, can he set up his stakes first and make his discovery afterward on the supposition that when he does strike the vein his stakes al- ready set will be -found to cover the legal width on each side? Can he, in spite of the law which says he can not, make a valid location before discovery; or, which is the same thing, have all the practical benefits of a 1 cation, before such discovery? The cases go to the length of protecting his actual work- ings and this would prevent encroachment so close as to hinder work or threaten a breach of the peace. The Hn',',: ~>~> P. 829; Lockhart v. Johnxi.,1. 181 U. 8. 527; Cop- per Globe Co. v. Allman. 21 M. If. 996; <'>', P. 1019; Gregory v. PersJibaker. 13 M. R. 6(fc; 7.; Cal. 109. 348 EJECTMENT. Prior possession is better title than an invalid location. Connolly v. Hughes, 11 P. 681. Possession How Proved. A person who has purchased a mining claim which had been properly located and marked out upon the ground, and who is personally or by his agents upon the claim, working and developing it, and keeping up the boundary stakes and marks thereof, is not merely in the constructive possession of such claim by virtue of mining laws, but is in the actual possession of the whole claim: such posses- sion is a possessio pedis, extending to the boundary lines of the claim. North Noonday Co. v. Orient Co. 1 F. 522; 9 M. R. 531. Digging a shaft, building a cabin, etc., held proof of possession. Koons v. Bry- son, 69 F. 297. Actual occupation of a part of the claim under papers calling for the entire tract by metes and bounds, or by the name of the claim, gives construct- ive possession, of the entire tract. Harris v. Equa- tor Co. 12 M. R. US; 8 F. 863; Attwood v. Fricot, 17 Cal. 38; 2 M. R. 305; Hess r. Winder, /..' .17. if. 217; 30 Cal. 349. Possession is a question of law. Jordan v. Duke, 36 P. 896. A witness must testify to facts, and it is for the Court to say whether these facts aniouni to possession. Thistle v. Frosfburg Co. 10 Md. I W. But the uniform holding of the United States Court, at Denver, has been that the question as to posses- sion may be asked directly, leaving it to the cross- examination to bring out whether the facts stated amount to possession, and this is the more sensible practice. The possession of the surface enclosing the apex is the possession of the vein wherever the dip may carry it. Montana Co. v. St. Louis Co. 102 F. .f.,7. A prospector drilling for oil is in possession and ejectment is the remedy to test his right of posses- sion. Cosmos Co. v. Gray Eagle Co. 112 F. 4- EJECTMENT. 349 Where a Statute speaks of parties in possession, it means that constructive possession which the law attaches to the title. Heinze v. Butte Co. 126 F. 1. A mine claimant is in possession to his boundaries, although he may not know where his boundaries are. Molina r. Luce (Ariz.), 76 P. 602. A party may l>e in lful possession, though not personally on the land at the time of a stranger's entry. Davis v. Dennis (Wash.), 85 P. 1079. Surreptitious running of a drift under the lines of the claim of another does not constitute posses- sion of such claim. Badger Co. v. Stockton Co. 139 F. 838. Sinking an old shaft a few feet deeper and no other work done during a period of seven years does not amount to possession. Costello v. Muheim :.), 84 P. 906. Living in a tent on the claim and working on the same constitutes actual possession of mining ground. Lange v. Robinson. / An Equitable Defense may be set up in eject- in mt. South End Co. v. Tinney, 35 P. 89. Such defense must be specially pleaded. Brady v. Husby, 33 P. 801. Title in Third Party. The rule that plaintiff must recover on the st ivngth of his own title does not prevail in an ac- tion between possessory claimants. Strepey v. Stark, 7 Colo. 622; 17 M. R. 28; Murray Co. v. Havenor, 66 P. 762. Otherwise, as to parties claiming under patent, or in ordinary contests as to legal title. Dyke v. Whyte, 17 Colo. 296. A patentee has no right to disturb any person in possession of ground under, but excluded from, his patent. Reynolds v. Iron Sil- ver Co. 15 M. R. 591; 116 U. S. 687. The Location Certificate as Evidence Presump- tion of location. Where a plaintiff has been in actual possession of his claim for the full period of the Statute of 350 EJECTMENT. Limitations a presumption may be indulged as against a wrongdoer at least, that his location was regularly made, without putting him to proof of its successive steps. Harris v. Equator Co. supra: Cited and approved in Vogel v. Warsing. L f f6 F. .'>/.''. When the location has been made for a considerable time and is held by bona fide purchasers the location certificate is prima facie evidence of discovery and location. Cheesman v. Hart, 16 M. R. &5; / .' /'. 98; Yreka Co. v. Knight, 65 P. 1092. In Cheesman v. Shreeve, 40 F. 791; n M. If. nw, it was held pre- sumptive evidence of discovery. It is evidence of the performance of all things which the Statute re- quires it to recite. Strepey v. Stark, 7 Colo. 619. Exact evidence of all details is not to be ex- pected in prcof of discovery and location made many years before the time af trial. Becker v. Piifjh. /: Colo. W; YrcL'd 00. r. A' ///l r. I't.l. FORCIBLE ENTRY. The acts concerning forcible entry and unlaw- ful detainer apply to possessory as well as other claims; but those acts are so involved, and so ab- rupt and cruel in their attempt to substitute haste for deliberation, that they result in driving to ap- prals ami in the end to more lengthy and costly litigation than where ejectment is resorted to in the first instance. Like Acts in other States the repeated at- tempts by summary process to deprive a defendant of his day in court under pretense of doing speedy justice are open to the same comment. Except as against a teuant holding over in defiance of bis lease or refusing the payment of royalty or rent, this action will always be found a dangerous substi- tute for the ordinary action of ejectment. Espe- cially is this the case where actions are commenced before Justices of the Peace, before whom proceed- ings are so vexatious, oppressive, and attended with so much heavier costs than such as accrue in Courts of Record, that it is rarely advisable to seek the ivmedy for any wrong, in any form of action, be- fore MEASURE OF DAMAGES. Trespass for Ore Taken. The true measure of damages depends upon cir- cumstances of aggravation, ranging from the profits 352 MEASURE OF DAMAGES. of working to the gross value of the ore after break- ing from the stope. Empire Co. v. Bonanza Co. 61 Cal. 406; In re United Merthyr Co. 10 M. R. 153; L. R. 15 Eq. 46; Ege v. Kille, 84 Pa. 333; 10 M. R. lit'. The cost of mining should be deducted from the value of the ore in all cases where neither fraud nor culpable negligence constitute any element of the case. Waters v. Stevenson, 10 M. R. 2J t O; 29 Am. Rep. 293; Durant Co. v. Percy Co. 93 F. 166; Hall v. Abraham, 75 P. 882; Lewis v. Virginia Co. 48 8. E. 280. When coal was taken under bona fide claim of right a reasonable royalty should be the measure of damages. Sandy R. Co. v. White House Co. 101 8. W. 319. Under ordinary circumstances the just rule of compensation is the value of the rock, coal, ore or oil before the mining or quarrying began the value in place. Dougherty v. Chesnutt, 5 8. W. 444,' Coal Creek Co. v. Moses, 15 M. R..544; 15 Lea (Term.), 300; Ege v. Kille, supra; Dyke v. Nat. Tr. Co. 49 N. Y. 8. 180. And where the ore has been taken by defendant's lessee, the royalty may be taken as the net profit. Colo. Cent. Co. v. Turck, 10 F. 294; New Dunderberg Co. v. Old, .97 F. 150; Moragne v. Doe, 39 So. 161. In wilful trespass, or where the defendant has mingled the ore or taken any steps to prevent ulti- mate proof of its value, these acts are to be taken against the defendant. Cheesman v. Shreeve, 40 F. 788; even so far as to throw the burden of proving the value upon the defendant. Little Pgh. Co.*v. Little Chief Co. 15 M. R. 655; 11 Colo. 228; St. Clair v. Cash (7o. 47 P. 466; and in cases of fraud a co- tenant may even be denied plaintiff's share of legiti- mate expenses. Foster v. Weaver, 15 M. R. 551; 118 Pa. 42. A wrongdoer is not entitled to cost of mining. Benson Co. v. Alta Co. 145 U. 8. 428; Sunny side Co. v. Reitz, 39 N. E. 541. A lessee holding over under claim of right is not a wilful trespasser and is to be allowed the cost of mining. Montrozona Co. v. Thatcher, 15 P. )/'>. MEASURE OF DAMAG I :s 353 Negligence to ascertain boundaries does not make necessarily a wilful trespasser but a deliberate in- tention to remain ignorant of boundaries does so. tion Co. v. Fortune Co. /."' /'. tt68. Plaintiff may prove assays of ore left standing and computations of what was taken from the stopes but an averaging estimate of how much each miner might have broken is too remote. Golden R. Co. v. In Omaha Co. r. Tabor, in M. /. />}. /.? Colo. 41, the Court adopted the value of the 'ore when it be- a me a chattel by severance from the realty. That is the rule where there was no bona fide claim of liuht. and under th- circumstances of that case was an extreme ruling and against the almost unbroken weight of authority Confusion. Mixture of ore got by trespass with ore rUrht fully mined does not necessarily bring the caseVithin the rule as to confusion of goods. Maloney v. Kin>i. '. ',. Natural Gas Company held to extreme measure of damages where it had fraudulently mingled lessors' gas without keeping any account of it. /e v. Marshnll Co. SI All. t8S; Great S. Co. v. Logan Co. /J-i /'. ///. Where the Mine is Under Lease and ore is taken by trespass, the lessee can recover in* trover or tres- pass. Hartford Co. v. Cambria Co. 53 N. W. 4; At- oll v. Stevens, 10 M. If. !. The same as to an oil lease to the full value of the leasehold interest. Duflield v. Rosenz- weig, 23 Atl. 4. 12 354 MEASURE OF DAMAGES. No Deduction for Developments. By Section 291 of the Code, in suits for mesne profits after recovery in ejectment (which does not necessarily include every trespass suit) "offsets" are not to be allowed for "timbering, cribbing, improve- ments or developments." Special Injury to the Mine cannot, in trespass, be proved as damages, unless specially declared for. Patchen v. Keeley, 1' t P. 3'j7. Mesne Profits. At common law a plaintiff out of possession could not recover for the ore taken until he had recovered possession by ejectment. Hugunin v. Alcl'iinniff. 1 '/ M. R. .'/tf.f; .> Colo. 381. This is changed by statute in Colorado. R. S. Sec. 4219. The Plaintiff may recover the land and damages in a single action or by separate suits. Code, 291. The case of Ghost v. Shuman, J t Colo. Ap. 88, which holds that they must be recovered in the original action, entirely overlooks this section. In Miscellaneous Cases. For the measure of damages on refusal to ac- cept deed, see Gilpin M. Co. v. Drake, 8 Colo. On breach of contract to lease. Chambers v. Brown, > .V. W. 561. In cases of negligence. Moody v. McDonald, J t Cal. 291 ; 2 M. R. 181'. On tunnel con- tract. Monroe v. Northern P. Co. 5 Or. 509; 2 M. If. n~>.!. Against lessor for mining the ground leased. Chamberlain v. Collinson, 9 M. R. 37; .',:> la. /.'.''. Against lessee for breach of covenants to mine. Cleopatra Co. v. Dickinson, 68 P. 156; Colo. Fuel Co. v. Pryor, 20 Colo. 5.'/0; Macon v. Trowbridge, 87 P. 1147. Measure of damages on fraudulent sale of mine or stock is the difference between the value received and the value parted with. Smith v. Bolles, 132 U. 8. 125 ; 16 M. R. 159 ; Warner v. Benjamin, 62 X. W. 179; ^t ration's Ind. v. Dines, l.i't /'. ',.',9. NEGLIGENCE. ACCIDENTS. 355 Conversion of stock of no fixed market value. Mui/nahan v. Prentiss. 31 P. .''/. On sale of coal. Osgood v. Bander. 39 N. W. 887. For stoppage of work on contract to sink, before shaft complete. Mooney v. York Co. 46 N. W. 316. Heavy verdict sustained for breach of contract to drive drainage tunnel. Occidental M. Co. v. Corn- stock T. Co. /.'> /'. !',',. NEGLIGENCE. ACCIDENTS. The same rule governs the liabilities of owners, lessees and contractors in case of accident to em- ployes, as controls jn other cases where the relation of master and servant exists and negligence is the foundation of the action. "Personal Injuries in Mines" by E. J. "\Vimi: i 1905) t passim; Quincy Co. v. Hood, n M. 1!. 148; 77 ///. 89; xtxthlendorf v. Rosen- thai. in M. /;. >;:>;: .\n The Degree of Care required of the master is fully stated in Southwest Co. v. Smilli. 85 \'~>: Donnelly v. Booth Co. 31 Atl. .S7.'/. Or for scales, the fall of which should have been fore- seen. Buckley v. Port Henry Co. 2 N. Y. S. 1.1.1 : U. P. Ry. v. Jarvi. 53 F. 6%7; Wilson v. Alpine Co. 81 S. U 578; Mmtnn r. La Follette Co. 101 S. W. 356 NEGLIGENCE. ACCIDENTS. 778. For a preventable cave. James v. Emmett Go. 21 N. W. 361; Pantzar v. Tilly Co. 99 N. Y. 368. For rotten ladder. Reese v. Morgan Co. 5% P. 759. For sending men into a blind upraise known to be filled with bad air. Portland Co. v. Flaherty, /// F. 312. The mine owner must look to the proper support of his gangways and to the timbering and to the ma- chinery above. Quincy Co. v. Hood, supra; Strahlen- dorf v. Rosenthal, supra; Ardesco Co. v. Gilson, 63 Pa. 146; 10 M. R. 669; Soyer v. Great Falls Co. P. 838. Failure to examine gangways. Ashland Co. v. Wallace, 42 8. W. 1',',. The miner has a right to assume that the roof is safe. Vanesse v. Catsourg Co. 28 Atl. 200. The same as to the machinery. Myers v. Hudson Co. 150 Mass. 123; 15 Am. St. R. 176. '~~ He is responsible when the accident can be traced directly to his own fault or the fault of his partner. Mellors v. Shaw, 9 M. R. 678; 1 B. d 8. 431. And gen- erally where traceable to. the fault of the superin- tendent or foreman. He is liable for overspeeding the cage. Jos. Taylor Co. v. Dawse, 77 N. E. 131. And for failure to lag where lagging was customary and necessary. Friel v. Kimberly-Montana Co.. 85 P. 734. It is the duty of the employer to inform an inexperienced miner of dangers known or which ought to be known. Low Moor Iron Co. v. La Bianca, 58 S. E. 532; Pocahontas Co. v. Williams, 54 S. /:. 868. Defendant held for allowing green hand to pick missed shot. Peters v. George, 154 F. Blasting 1 . Explosions. It is the absolute duty of the master to give warning of a blast. Hjelm v. Western Or. Co. 102 N. W. 384; Bellevue Co. v. Mooney, 39 Atl. 764; 19 M. R. 264. The owner is liable for accidents resulting from experimenting with new and untried fuse or explo- sives. Smith v. Oxford Co. 42 N. J. L. 467; 2 M. R. NEGLIGENCK. A<< IDENTS. 357 208; Chambers v. Chester, 12 S. W. .'"<): Helium v. I Inly Terror Co. 92 N. W. &/. Or for setting new employes at work fitting caps. RiUston v. Mather, ',' f /'. :/.;; /.36 U. 8. 391. Or storing magazines too close to works. Bean v. Pioneer Co. 56 Am. R. 106; Asbestos Co. v. Durand, 20 M. R. 452; 30 Can. He must use all appliances readily obtainable known to science to prevent gas explosions. Western Co. v. Berberich, 9} F. 329. Furnishing a steel bar to tamp powder is gross negligence. Pitts v. Wells, 101 S. W. //.''.' Misfire. Consideration of what is reasonable time to wait for blast. /:///< ka Co. v. Bass, 8 So. 216. Full case on. Anderson v. Daly Co. 50 /'. 815, Examination should be made and new shift noti- fied of missed shot. Lane Co. v. Bauserman, 48 S. E. Harris v. Balfour Co. 49 N Allen v. Bell, 79 /'. 582. The Lessor is not liable for the lessee's negligence. Smith v. Belslt'iir. :,; 7*. N.fJ Otherwise, when he N'ts IIKK liiiMMv already out of condition. / Thorny. .117. Under Contractor. The mine owner is not in general liable for ac- cidents o( -run-ins under a contractor. Lendberg v. nrr>tl\cri> > ^. \V . 075; Welsh v. Lehigh (' .\tl. J t 8. But is liable where contractor known to be incompetent. Hunt v. M'Namee, 7/7 7'. 293. Contributory Negligence Co-Employee. The mine owner, as a general rule, is not liable when the accident was in whole or in part attributa- ble to the negligence of the party injured or to the carelessness of a fellow workman not occupying a directing or superior position to the party injured. Kevern v. Prov. Co. 10 Col. S9t; Ardesco Co. v. (Mi- son. 63 Pa. l.'/6; 10 M. R. 669; Berea Co. v. Kraft, .11 Oh. St. 287; 10 M. R. 16; Trihay v. Brooklyn Co. 358 REPLEVIN. /.7 M. R. 535; 4 Utah, 468; Colo. Midland Ry. v. O'Brien, 16 Colo. 220. It is not necessarily contribu- tory negligence to use fire for comfort when dyna mite is being thawed. Bertha Co. v. Martin. 22 8. E. 869. Contributory negligence is no defense to acci- dent caused by wilful neglect of staiucory duty. Chicago Co. v. Fidelity Co. 130 F. 951: Fulton Co. v. Wilmington Co. J33 F. 193. Miners working under different superintendents are not fellow-servants. Uren v. Golden T. Co. 21 M. R. 243; 64 P. II',. Negligence of fellow servant is no defense if the master knew of the danger. Hancock v. Keene, .;.' Y /;. 929. That the accident was chargeable to a co-employe is no longer a defense in Colorado. R. ,S. g Remaining in Employ After Danger Known is held in instances to be a defense. It is sometimes classed as contributory negligence, though this is a mere abuse of terms; it is only acquiescence per- haps from moral necessity, in the negligence of Ihe master, perhaps criminal in degree. Lord v. Pueblo Co. 12 Colo. 390; Davis v. Graham, 2 Colo. App. tlO. It is hard for the reasoning powers of man to con- clude that this does not amount to a premium on negligence. If the master promise to repair, the workman may rely on the promise and remain. highland Boy Co. v. Pouch, J24 F. 154. REPLEVIN. Ore Taken Under Claim of Title. Where a party is in possession of a mine under a oona fide claim of title, the party out of possession cannot maintain replevin, or an action under the code in the nature of replevin, for the ore taken I N. I r NOTION. 359 from the same; because the trial of the right of property in the ore in such case would necessarily involve the trial of the title to real estate. The cases sustaining this proposition are cited ante p. .;;/. In a case of replevin for ore in Montana which brought up the question of apex right, the Court took the novel position that it involved no dispute as to title and was only a matter of boundaries. /Jn'.s-ro// r. Diuunnnlii. n; /'. : Defendant cannot re-replevin ore. A/orris v. EteWitt, a M. if. 680; ' Wend. :i. INJUNCTION. At some stage of its progress a contest over a working mine is almost sure to suggest this sort of relief. It is true that i he prayer for an injunction is always to a certain extent addressed to the dis- cretion of the Court, but the exercise of this discre- tion does not imply the total absence of principles applicable to the exercise of this discretion. The Ground for the Application of Injunctive relief is that the property may be preserved pend- ing litigation for the ultimate use of the rightful T and may not in the meanwhile be destroyed by a trespasser. But the pendency of litigation is not ^of itself sufficient; the complainant must i;<> farther 'and show that his -as. is based upon substantial facts, and that there is a probability of a decision ill his favor when the cause is tried on its merits. As he asks relief in advance of the trial, it is only just that he make it appear that the trial when had will show that he was in fact entitled to this protection; and especially so when a decree of this sort, wrong- fully issued, may be and often is as great an injury to the defendant as the conversion of some of the ore is to a rightful complainant. Capner v. Flemington Co. 7 M. R. 268; .; \ ./. /;//. }/;?; Wavering v. Claver- 360 INJUNCTION. ing, J4 M. R. 358; 2 P. Wms. 388; Irwin v. David- son, 1 M. R. 231; 3 Ir. Eg. 311. Parties. One who has a contract to sink an oil well en- tered into before the suit, is not bound by an in- junction against his employer. Dunham v. Seiber- ling, 39 N. E. 1044- Lessees should be made parties. High Inj. 690. A lessee or licensee may be entitled to the pro- tection of the writ even against the owner. Lytle v. James, 98 Mo. App. 337; 13 8. W. 281; Jack Har- vard Co. v. Continental Co. 80 8. W. /.'. Laches. Further, to entitle him* to injunctive relief the complainant must not have been guilty of unreason- able delay nor have allowed the defendant to pro- ceed without objection to expend money in good faith upon the property. Klein v. Davis, 21 P. '> 1 1 : Parrott v. Palmer, 3 M. & K. 632; Real del Monte Co. v. Pond Co. 1 M. R. 452; 23 Cal. 82; Emma Mine case, 1 M. R. 493; Field v. Beaumont, 1 8wanst. 204; 1 M. R. 251; Mammoth Co.'s Appeal, '', I> /' 5o&; ers' Co. v. American Co. (Ind.) f;,s' .V. /;. The Solvency or Insolvency of the defendant, as well as many other circumstances applicable to par- ticular cases, may be taken into account, but is not a controlling consideration when the -case is otherwise. clear. Lockwood v. Lunsford, 1 M. R. 532; 56 Mo. 68; Hamilton v. Ely. 4 Gill 34: Sierra Co. v. Sears, 1 M. R. 549: JO Nev. 346; Moore v. Ferrell, J Oa. ? ; 1 M. R. 281; Invin v. Davidson. .; //-. AVy. .{//; Parker v. Furlong, 02 P. WO. Discretion. The granting of the writ is so largely in the dis- cretion of the lower court that only in an extreme case will the appellate court, interfere with the order allowing or refusing it. Parrot S. Co. v. Heinze, '.', INJUNCTION. 361 Mont. -JN.7: 21 M. R. 98: Cardelli v. Comstock Co. J/ M.R.699;.26Ker. .- / / l '/>'/ r. \Varxinti. l',t> F. : Bl/s/i r. /'/o/Mvr Co. /.', ) /'. The court has power to withhold the writ when the Plaintiff refuses to do equity or where it would place one party in the power of the other. Strobel rr Xalt <'. 11 M. R. .W : Hi', \. V. Title in Issue. In cases where a determination of the legal title is necessary to finally decide the rights of the par- ties, the complaint should be framed to procure an issue of that sort; or a previous suit must be pend- ing which will result in determining the title; or a separate action must be brought for such purpose. In the United States Courts where law and equity distinctions are strictly maintained, separate issues must always be made. If no suit be pending to try title the court may order such suit to be brought as a condition precedent to the granting of the writ. U. S. v. Parrott, McAU. 211; 7 M. R. 335; Grey v. North- umberland, 13 V< Af. R. 250; Old Telegraph n Co. 1 Ut. 331; 7 M. R. 555. And such has been the common practice in the Federal Court. Stevens v. William*. :> M. i: A plaintiff in possession is not required to bring his action at law. Allen v. Dunlap, 33 /'. 075, The writ may issue to preserve the property when the i.-sue is between contestants in an equity case. St. Louis Co. v. Montana Co. 58 F. />.'>. The writ will not go when the plaintiff's title is not clear and the legal remedy is adequate. tfmitli v. Jamison. 3 S. W. 211. Where there is one case pending which brings up all questions of apex rights between the parties the filing of future actions raising such issues will be enjoined. Maloney r. King. 76 /' Preservation of the Property. The gist of the case and the foundation of equity jurisdiction is to save the property from destruction :;<;:.> ixjr NOTION. pending the litigation. Thomas v. Oakley, 7 M. If. >.~>'i: 18 Ves. 184; Hess v. Winder. .1', Cal 270; West Point Co. v. Reymert, 45 N. Y. 703; 7 M. If. .^N; Chapman v. Toy Long, 1 M. K. ; /.'/7 ; ' f Ncrir. Hoy v. Altoona Co. 136 F. J.s.f. Case Sufficient to Warrant Injunction. To reduce the matter to terms it may be stated as a proposition, supported everywhere by author- ity, that a temporary injunction, pending suit to try title, will issue as of right, to restrain the working of a mine, upon a case which shows, after hearing on bill, answer and testimony: 1. That the complainant has the legal title or the elder :ni(l better possessory title; or at least such showing of title as would, if proved as stated in the hill, support the verdict of a jury in an action of ejectment : and where the defense Mii. r .i:< >i-ositions are made upon the sun position of an application for injunction after noti <>. appearance and answer. Insufficient Case. An injunction should not issue where defendant \\ill suffer greater injury by the writ than plaintiff by the wrong. Lloyd r. CatUn Co. 77 .V. /;. \Vhere defendants are solvent and injury slight or capable of redress at law, injunction should be denied. King v. Mnllins. ?./ /'. /."."; llarh'ii r. Mnn- * Co. 77 /'. /"7 ; UK h-s r. .1 : ,\ti. :,:,. 1 1 is an abuse of discretion to enjoin the work ing of a vein on the mere chance that it may apex outside defendant's ground. Muntanu Co. v. Boston !.">. The court will not enjoin a mere prospect. Spotts r ted in Morrison's Colo. Dia. i>. Nor forbid working for exploration purposes. st. Lotftil < " V. Montana Co. > /'. /.'.'/. And a writ will not be allowed against "working any vein having its apex in complainant's claim." This would require defendants to ascertain fiom what acts they lljoilled. /'/. Injuries Other than Mining Ore. In a proper case an injunction will issue to re- st r, tin deposit of tailings, l-'ullrr r. Stran River Co. i'. Col<>. i .' : !> M. R Or the destruction of flumes or ditches. Power r. Klein. .'7 /'. ~,l-'>: Mio- cene D. Co. v. Jacobsen. ///; /'. 680. Or to stay the running ui an incline drift to cut off an adversary's tunnel. Mnntnna Co. V. Clark. Hi M. If. BO; ', ' F. <;j';. Against assaulting workmen and threats to blow up the mine. Nankin'* App, /; Ml. * i. Against salt- of milling stock on the ground of its fluctuating value. MrLi : rr P. Sfcermon, 7'/ /'. /.'///; Carrie V. ./ours. ~>n B. i Kefused against cutting timber on claim where defendant solvent and the timber of no special need to the mine. Heaney v. Butte '. Refused against use of adits underly- 364 INJUNCTION. ing plaintiff's ground. Boston Co. v. Montana Co. 59 P. 919. Refused against upper mill where it is using all possible effort to restrain its tailings. Otaheite Co. v. Dean, 102 F. 929. It may be allowed against an option holder in default on his instalments. Williams v. Long, 61 P. 1081. A defendant can- not be enjoined from "entering or trespassing upon" ground of which he is already in possession. Id. Defendant enjoined from dumping with election to remove the deposited waste or pay damages. White v. Lansing, 103 N. Y. 8. 104. Courts will not enjoin in cases charged with doubt or where, on the plaintiff's showing, final re- lief would not be granted. Crescent Co. v. Silver King Co. 45 P. 1093. Though to enjoin they will not require so strong a case as on final hearing. Buskirk v. King, 12 F. 22. And it may be allowed although the proving up is not yet complete. Maloney v. King, 64 P. 351. The distinction between the class of cases where Injunction will issue to restrain timber cutting and where it will be treated as a mere trespass remedia- ble only at law is well stated in Gray Lumber Co. v. Oarkins (Ga.), 50 8. E. 164. The diversion of water previously appropriated for power purposes should be enjoined: decree quiet- ing complainant's title is not adequate relief. Trade Dollar M. Co. v. Fraser, 148 F. 585. Practice Answer Not Conclusive. As a rule, in equity pleadings where the defend- ant denies the allegations of the bill in terms, the writ will not issue; but where the bill is supported by affidavits, and is filed to restrain irreparable mis- chief by the working of a mine, and the bill, answer and supporting affidavits being considered together, the case appears as stated for the preservation of the subject matter of controversy and as a rule lim- ited in its application to mining cases and others standing on analogous facts, where the substance and INJUNCTION. 365 not merely the use is in jeopardy the answer is not to be taken as conclusive, if there remain to the com- plainant such a showing as is above stated. Plaintiff held entitled to injunction against vio- lence, although all allegations of complaint denied by the answer. The practice in mining litigation is liberal to enjoin to prevent either from getting un- fair advantage. Safford r. ricnnning (Ida.), 89 P. The Venue is usually fixed by the code and com- monly in the county where the land lies. When not so fixed, the court having jurisdiction over the per- son may enjoin the working of a mine in another county. Jennings r. Beale, J? Atl. #.}N. But not in another State. Lindsley v. Union Co. 66 P. . Johnstown Co. v. -Butte Co. 10 N. Y. Sup. 257. Com pare ButtcrfieM v. Nogalez Co. 80 P. 3' t ~>. Notice. The usual period of notice to defendant is five days, but the statute merely requires a notice "in ]>i< 'portion to the urgency of the case." (Code 164.) And where the defendant prays further time to an swer, it is usual, on slight showing, to grant a re- straining order or preliminary writ In many States the writ of injunction issues at once upon complainant's showing, and the issue comes before the court upon motion to dissolve. In Colorado a reasonable notice is required to be given before the writ can issue, which allows the de- fendant opportunity to file his answer; so that the argument is heard usually upon the original rnotion for an injunction and not upon the motion to dis- solve. FOBM OP INJUNCTION NOTICE. STATE OF COLORADO, County of Lake: SB. In the District Court of snid County. >imin S. Phillips, Plaintiff, v. Frank M. Taylor and 77,/,M/.v I . Wood, Defendants Injunction. '!'> Ni:s. Attorney for Plaintiff. Ex Parte Writs to enjoin the working of a mine are forbidden by statute. Code, Jd',. It has been ruled that to enjoin the sale or re- moval of the ore is not an injunction against mining. Benton v. Hopkins, ?'/ P. 891. But it is obvious that in most cases such an order would be in viola- tion of the spirit of the Act. Practice on Hearing. The notice having been served, the complainant presents his bill or complaint to the court, or judge at chambers. If the complaint has not been filed or a copy served with the notice, it is usual to allow defendant a reasonable time to answer. A demurrer is rarely interposed to a bill stating fully the complainant's case. And if interposed and not sustained, the defendant is not in position to ask for time to answer over. The complainant with his bill, and the defendant with his answer, may file affidavits in support of the bill and answer respectively, and this is usually ad- visable. The answer being presented, and denying fully the merits of the bill, the court may either hear the case on bill and answer with their supporting affi- davits, or refer the matter to a master or referee to take testimony. INJUNCTION. Consideration of Rights of lessee losing part of term by injunction against work. Stahl v. Van Vlcck. ',1 \. /: .;.-.- ts M. if. .'.;/. Working Under View of Court. Where the defendant is solvent and working in miiu-rlike manner and the case of plaintiff not free from doubt, it is not unusual for the court to allow the defendant to keep at work under conditions of accounting to the court at monthly intervals, and of submitting to the inspection of some person on be- half of plaintiff and paying the net or gross pro- ceeds into court according to the nature of the case and tbi' framing of the order. Injunction After Appeal Taken. The practice is, where the defendant in the suit or issue at law obtains judgment, to dissolve the writ; on final verdict for plaintiff to make the writ perpetual. Boston Co. v. Montana Co. 66 P. But the lower court has the power (though it will only be exercised in a case where the appeal has great merit or doubt) to continue the injunction after appeal taken by the plaintiff. Bullion Co. v. >'ka Co. I.' r '.'.". Maloney v. King. 11 P. And in such case the Supreme Court will not interfere with it.Sheaffer's App. 100 Pa. St. But the appeal itself does not stay the writ or the suspension of the writ. Bullion Co. v. Eureka Co. 15 M. R. ',',:>: 5 Ut. 151 The appellate Court on remanding, may direct the lower court to order the property preserved by injunction. Erhanlt v. Boaro. 113 V. K. 697; 1~> M. If. ;/7. Lockhart v. Leeds, 195 U. 8. ', : The appellate Court may enjoin. Ajax Co.v. Tn- umph Co. 60 P. 523. But will generally leave the matter to the discretion of the Court below. Steams- Roger Co. v. Brown, I1.' t F. <)',. On appeal from an order dissolving an injunction a supersedeas continues the writ in force. Neiv River Co. v. Seeley, in F. 981. 368 INJUNCTION. Malicious Prosecution will lie for suing out the writ without probable cause, and damages, even to the loss of anticipated profits may be allowed. New- ark Co. v. Upson, 40 Oh. St. 77. But it will not lie where there was probable cause. Wright v. Ascheim, 17 P. 125. Abuse of the Writ. Where plaintiff, having obtained injunction against defendant's mining, entered upon and took possession of the defendant's works, restoration was ordered, on motion. Van Zandt v. Argentine Co. 48 F. 110. Verification. Both bill and answer should be verified, and the answer must be sworn to even where the oath ot defendant is waived by the proper clause to that effect in the bill. In the latter case the oath has not, indeed, the technical effect of a sworn answer, but the answer has its proper effect as a plea and the further effect of an affidavit of the defendant. As to verification by corporation, see Butte Co. v. Boston Co. 24 Mont. !.''>. Bond. The fact of a bond being filed for the relief of the defendant, if injured, is a protection to him only in theory. A bond is seldom available to the ulti- mate vindication of the right; it is no lien; the measure of damages is vexed and unsettled. Dona- hue v. Johnson, 37 P. 322; Coosaw Co. v. Carolina Co. 75 F. 860. In the Federal Courts the damages may be assessed upon dissolution of the writ. Coo- saw Co. v. Farmers Co. 51 F. 107. There can be no recovery on the bond where the writ was rightfully issued. Yarwood v. Cedar Canon Co. 7.9 P. 483. Only counsel fees for obtaining the dissolution, not for defending the suit, are recoverable. Donahue v. Johnson, 9 Wash. 187: 37 P. 322; Montgomery v. Gilbert, 24 Mont. 121; 60 P. 1038; Quinn v. SiUca. 76 P. 555. INJTNVTK >X. 369 Measure of damage where coal mining had been 1. V it inn r. Haiti win Co. 16 P. 552. Mandatory Writ. Section 175 of the Colorado Code provides that \\heiv possession of a mine is taken by violence or during intervals of labor, a mandatory writ restor- ing possession shall issue. This Act, passed orig- inally in 1874, has been found effective to accomplish the object intended, and the forcible dispossession of parties working a mine is now almost unheard of. It was construed and enforced in Sprague v. Locke, 28 P. J'i .'. A similar Act has been sustained by the Supreme Court of Dakota. Cole v. Cady, 3 N. W. A hearing under this Act goes only to the mat- ter of the unlawful dispossession of the plaintiff and the writ leaves the parties to their legal rights on all other questions as though no such writ had is sued. An injunction mandatory in effect and implying affirmative acts from the defendants or the surrender of possession of premises is an unusual sort of re- lief, to he- ^ranted with great caution, but is not with- out prec < i n as the result of an interlocutory decree, ami \vitlmut the aid of any such statute. Cole Co. v. Virginia Co. 7 M. R. 516; 1 Saw. 685; Lehigh Co. v. Trotter, 10 Atl. 608; Horsky v. Heir mi Co. 83 P. 689. The object of the Act is to allow the court or judge to grant speedy and practical relief whenever a party, in peaceable possession, has been ousted by force or fraud, without regard to any question, ex- cept the fact and manner of dispossession, and for this object it has been held valid and not unconsti- tutional by all or nearly all the judges at nisi priiis, and has remedied one of the greatest evils ever com- plained of in the mining counties. The Federal Court of Colorado District, shortly after the admission of the State, declined to accept jurisdiction under this Act. But under the principle 370 INSPECTION AND SURVEY. laid down in the later case of Aspen Co. v. Rftcfcer, J.s F<><1. 2>.>.. as to United States Courts exercising equity powers where conferred by State Statute it is likely that its jurisdiction in a case with proper parties would not be at this time questioned. The practice under the statute Is peculiar. As soon as the complaint is filed the court is directed ipso facto to grant a temporary writ restraining the working of the claim. Such mandatory legislative dictation to the judiciary is of very doubtful valid- ity, seeming to take away all judicial discretion, but whatever be its proper construction the other pro- visions of the section are not hurt by this isolated provision; they refer merely to the division of time between the parties for taking testimony and for a speedy adjudication, and forbid the use of such a writ in favor of a party who procured his own possession by violation of the spirit of the Act. In framing bills under this Act it is not ad- visable to pray any relief further than the prelim- inary writ and the restoration of possession. At least five days' notice of application must be given; the form on page 365 is sufficient to the words "Writ of Injunction," after which conclude as follows: Having tin- force and effect of n writ of Restitution. ivstoring plaintifT to the possession of the l-'ntnlitii Lode Mining <'laim. situated in Urum! Ixhiml Mining IMstrict. <'onnty of H'mlihr. ami for :i T.-mporary Injunction M straining tho working of said claim in accordance with tlu terms of Section 17.". of tlio Code, and that plaintiff will support the application l.y the complaint and affidavits. Boulder, J INSPECTION AND SURVEY. Under section 398 of the Colorado Code (see also R. 8. 4218, 4230), either party, after suit is com- INSPECTION AND SURVEY. ::T1 menced, is allowed the privilege of a survey and in- tion of the premises held by the adverse party, after demand and refusal, and after certain awkward and useless notices and affidavits the sections cited being probably the most complete instance of in- volved and turgid composition ever found on a statute book. After analysis of its clauses and throwing out such portions as must be discarded in order to give grammatical sense to the paragraph, it seems that the procedure is as follows: 1. A demand in writing is made for permission to survey and inspect some certain portion of the premises. i'. The opposite party lias three days in which to consent to or refuse this demand. 3. A refusal being had and the three days elapsed, the party presents to the court or judge a petition under oath in whirh he must set forth his interest in the premises and "the reason why it is necessary" that he should have such survey and in- spection; stating the demand made and the refusal, and praying u tor survey and inspection. 4. The court or judge then ftxes a time and place for hearing this petition and orders notice thereof to be served at least three days before the hearing. 5. On the day set ihe petition is argued and may be aided or resisted by affidavits. 6. The court or judge, if satisfied that the "facts stated in the petition are true." makes the order. Three inspectors are allowed to accompany the surveyors, an interference with them is made con- tempt and the costs are taxed against the losing party. This right of inspection always existed, in courts of equity at least, and has been frequently exercised. Knnor r. Banrrll. \t M. If. I'H : 1 DeO. F. & J. 5P; Lonsdale r. >' Bligh O. X. MX; 7 M. R. >;.'U ; Thornburgh v. Savage Co. 7 M. R. 667; Dugdale v. Robertson, IS M. R. fit; >. .- .? K>.:. It is now the recognized practice in mining con- tests, on the application of the party out of possession. to direct a survey of the mine. Penny v. Central Coal Co. 138 F. 769. Cost of pumping compelled by court to aid in- spection, allowed to defendant in suit on injunction bond. Tyler Co. v. Last Chance Co. 90 F. 16. Inspection should be allowed to keep pace with development: and it may be allowed through oppos- ing parties' shaft. State v. District Court, 74 P. 1S2. Defendants to prove that their discovery was on a vein formation gave evidence of the formation and conditions at the Hercules Lode, a vein in the same locality in their exclusive possession, but refused permission to plaintiff to inspect the Hercules. The case was reversed for such manifest unfairness of the trial. Ambergris M..Co. v. Day. 85 P. i Survey Without Suit. A statute of Montana authorizes a survey by or- der of Court without institution of suit and it has been held that this is due process of law. .Vo// Co. v. St. Louis Co. 152 U. S. 160. But it requ an express statute to allow of any such unusual pro- cedure. State v. Dist. Court. 68 P. 570. And the Colorado Statute cannot be construed to allow it without a supporting suit already begun. Peo. v. De France, 68 P. 267. In later cases from Montana, the Court defines the essential limitations and condi- tions which should be imposed on petitions of this kind. State v. District Court. 73 P. 230; 76 P. 206. It may be allowed when defendant's secret work- ings are approaching plaintiff's. State v. District Court, 68 P. 861. STATUTE OF LIMITATIONS. 373 View by Jury. Under the Colorado Code, 206, either party may demand that the jury view the mine. The better practice of the Federal Court in the same State is never to permit it. The arguments in favor of a jury view in such cases are plausible, but not enough to offset the inconvenience and often the unfairness of such view. Barring exceptional instances, unless by the compulsion of a Statute it ought never to be allowed. But where such view has been had an ap- pellate court may consider it conclusive as to what the jury saw on the ground. Ormond v. Granite Mt. Co. 28 P. 289; McCormick v. Parriott (Colo.), 80 P. 1044- A party to the suit may be appointed a guide to show the jury the mine. Wilson v. Harnette (Co/o.), 75 P. 395. In Golden v. Murphy, 75 P: 625, the trial judge personally inspected the mine along with the jury, and the jury finding for the defendants the judge granted a new trial. The defendants, very justly as it seems to us. contended that this took the facts from the jury, but the appellate Court sustained the judgment on other grounds. STATUTE OF LIMITATIONS. Suit to Annul Patent. 8. That suits by the United States to vacate and Minnil any patent heretofore issued shall only be brought within five years from the passage of this act, and suits to vacate and annul patentR hereafter Issued shall only be brought within six years after the date of the issuance of such patents. * * * .4. C. March S f 1K)1. >"/>. it. 9S9. The above Section is construed in Peabody Co. v. Gold Hill Co. 106 F. 941. Section 2332 of the United States Statutes ex- pressly recognizes possession of a mining claim dur- ing the periol fixed by the State Act as sufficient to 374 STATUTE OF LIMITATIONS. establish a right thereto. 420 Mining Co. v. Bullion Co. 9 Nev. 240; 1 M. R. 114. And a claim may be sued for under the title so developed. Glacier Mt. Co. v. Willis, J21 U. 8. \lt; /? .17. /,*. in. Such title by continued possession is equivalent to location. Altoona Co. v. Integral Co. 45 P. 1041. Adverse possession for the statutory period gives title. Cox v. Clough, 10 Cal. 343: Harriman Co. v. Butterfield Co. 51 P. 531': Lavagnino v. Uhlig, II P. 1046. The apparently clear construction of Sec. 2332 is that in ex parte cases an applicant for patent may rely on his continued possession without producing abstract of title, and that a party in like position could adverse on the same ground. 29 L. D. 401- And that if an adverse claim was filed, in the suit supporting such adverse either party could rely on such possession until defeated by the production of some superior title. And such is the import of all the above citations. But in Montana and Colorado the section has been construed as a mere permission to support patent applications on possession, in non- contested cases. McCowan v. Mcl.au. /o P. 602; Cleary v. Skifflch, il .17. I!, ts',. Seven years complete the bar of the Statute in Colorado, ( R. . 4084-4093). and all taxes must be paid. Eberville v. Leadville Co. /;; 7' inn. The period varies in every state, in Nevada being as low as two years. South End Co. v. Tiiuici/. .i.l P. 8.9; 38 P. 401- And in Montana only one year as to possessory claims. Horst v. Shea. .}.'> /'. .'>>>',. The possession of the claim must be open and notorious. Hamilton v. S. Nevada Co. J5 M. R. 3 1 / ; 33 F. 562. And exclusive and hostile. Tyee M. Co. v. Langstedt. 121 F. 110. Secret underground mining will not start the bar. Pierce v. Barney. 58 Atl. l~ii. The continuous working of a mine, or even its working during successive seasons with intervening seasons during which the mine is left idle, accord- ing to the custom of the country, is as complete an adverse possession as could be gained by agricultural STATUTE <>F LIMITATIONS. 375 opt 'rations or other acts of possession. titephenson v. U'/;.s'o//. .;: \r/s. J83; /.; M. /,'. \08; \\'ilson v. Henri/. 1 M. If. l.-.t: .<:, \yis. I'll: I M. I!. 151; ',<> U'/.v. 594; ' M. Co. v. HHllinn Oo. II M. If. 608; > 8otO, <;>'/: Bell v. Benson. ~>ti Ahi. ', ', ',. In the case of Harris v. Equator Co.. cited p. 350, it vas intimated in the opinion of the court, HAL- ii n, J., that where a party had been in possession mining claim for the period of the statute of limitations, such fact raised a presumption, at least imain.-t a wrongdoer, that he held under a valid loca- lion. without proof of the various acts of location, and Bach murt from the nature of things be the ulti- mate >!<<. sioi. of all courts upon this point. As to the running of the statute where money Is to out >f the proceeds of the mines, see <'o. v. Stephens. 15 P. The statin. <>i limitations does not begin to run \\hilt the title is in the United States, except as betvcen parties both of whom claim by possessory litlr only. -King v. Thorn r $65; Weibold v. Doris. /; /. 965. Nor until the patent actually is- sues. No*//;/ /;//'/ Co. v. Tinney. 3.S /'. /^/: Clark v. nnf, ///. S To make adverse possession available there must be: 1. The occupation or use of the land. 2. Claim and color of title. It lias been ruled that a party following a pat- ented vein on its strike bevond its side lines has not sufficient color of title to maintain such defense. Lebanon Co. v. Rogers. 8 Co7o. 3 f t . And that min- ing on a vein apexing outside the party's claim is not adverse possession. Davis v. Shepherd. 72 P. 57. Possession under title bond gives claim and color after payment of purchase money. Woods r. MnntrraUn Co. s ', Ala. ~,i; Uisch v. Wiseman, 59 P. HI I. 376 BUREAU OF MINES INSPECTOR. As to actions of trespass for coal or ore 'taken but the fact not ascertained by plaintiff within the statutory period see Lewey v. Frick Co. 31 Atl. 261; 18 M. R. 179; Williams v. Pomeroy Co. 6 M. R. 195; 31 OU. St. 583. And as to that class of cases (ac in secret under- mining) where a long interval may elapse before the resulting injury, see Hall v. Duke of Norfolk, L. R. (1900), 2 Ch. 493; Slerrett v. Northport Co. 10 P. 266; Noonan v. Par dee, 21 M. R. 517; 200 Pa. ;?f. In Pennsylvania it was held that the statute began to run "when the support of the surface was so weakened that it might fall." Tischle v. Penn. C. Co. 66 Atl. 988. BUREAU OF MINES COMMISSIONER- INSPECTOR. By R. 8. Colo., section 4259-4306, are pre- srribed the duties of the Bureau of Mines, of the Commissioner of Mines and three Inspectors of metalliferous mines with strict provisions for safe- guarding. They regulate the storage of explosives, escape- ways, compartment shafts, signals and ventilators, and forbid the use of iron tamping bars. They require all serious accidents to be reported and investigated and provide penalties for failure to comply with the provisions of the act. ASSAYS. Gold, silver and platinum are assayed for the number of ounces per ton of ore; lead, copper, zinc and the base metals generally for the per cent, of the minerals in the ore. An assay is the test of the value of a specimen or quantity of ore by the extraction of the amount ASSAYS. 377 of silver, gold or other metal, contained in a minute but exact fraction, which amount is supposed to be proportionate to the whole amount found in the quantity from which the fraction was obtained. Sup- posing the assay to be correct its importance in determining the quantity of metal in the ore of the mine, or the value of the mine as deduced from its ore product, depends on the size of the lot from which it was obtained, and the manner in which such lot was selected. What are called specimen :ire of no value whatever, further than to show the contents of the identical specimen from which made, but are often used to deceive persons ignorant in such matters. While the assay shows only the contents of that portion of ore that has been assayed, its importance lies in its acceptance as indicating the contents of other ore. of which the portion assayed was a .-ample." Between buyer and seller ore is usually sampled by the I'oniK T. under supervision of the latter, if he choose to be present. The sample taken (pulver- ized > is divided into portions one for the buyer, one for the seller, and one to be kept for reference in case of difference between the other two. After division, each portion is in itself a sample. Both buyer and seller have a control assay (assay in du- plicate) made of their respective samples. The sale is customarily made on the assay of the buyer, and the sample of the seller is intended for a check on the assay of the buyer. The results of carefully made assays, should not differ more than two oz. silver or two tenths oz. gold except where the ore contains much free gold, native silver or silver glance, the particles of which cannot be ic-dnced to exact evenness, and make assays of these classes of ore treacherous. In case of dis- agreement, the third portion of the original sample, called the umpire, is tested by a third party for a control, and this assay is final unless there be such unusual and excessive variation as to suggest the necessity of resampling. 378 ASSAYS. The intent of an assay is to show the true value of the ore, and if it is so taken as not to show such value, proof of assays otherwise taken may be given in evidence. Phipps v. Hully, 1,~> M. R. ,l')0 ; 18 Nev. 133. Difference in results of wet and fire assays. In re Puget Co. 96 F. 90. Sales based on assay are not bound by the assay in case of gross error. Cox v. Prentice, 3 M. tt- N. 344- As to the custom of assayers, and of which party, if of either, he is the agent, see this case and Trotter v. Heckscher, J t O N. J. Eg. 612; 42 Id. 251. As to deductions for moisture see this litigation con tinned in Lehigh Co. v. Trotter, J t > N. J. Eg. d',1. Sufficient proof by assay that samples were salted with powdered silver. Mudsill Co. v. Watrnus. HI F. 163. By assay with litharge, a trace of silver may be shown in any kind of rock. Ormond v. Gran- ite Mt. Co. 28 P. 289. An assay of two lots is no proof of the value of a series of shipments. Pitts burg Co. v. Olick, J t 2 P. 188. Method of sampling and assay on ore sales described. Chisholm v. Eagle Ore Co. l.'i', /'. tiln. A purchaser of phosphate rock is entitled to de- ductions for its falling below agreed assay, and is not bound to accept at all if materially short. Stone Mines v. Southern Co. 56 S. E. .'' Mill samples control car samples. Vietti v. Nes- bitt, J f l P. 151; Fox v. Hale Co. J t l P. 308. The "Assay value" of gold means its universal standard value and not the value of local gold bullion. Id. But a contract to pay 95 per cent, of the silver con- tents of the "product of said ore" does not mean 95 per cent, of the assay value of the raw ore. Silver Co. v. N. C. Sm. Co. 29 S. E. <)',<>. An assay is material proof on an issue as to whether certain rock is mineral bearing. Healey v. Rupp, 63 P. 319. SCHOOL OF .MIXES. 379 SCHOOL OF MINES. The General Assembly may provide that the Sci- ence of Mining and Metallurgy be taught in one or more of the institutions of learning under the pat- ronage of the State. Colo. Const. Art. 16, /Set. /. 1'nder the above provision the "School of Mines" at Gul'lrn is especially incorporated, and is supported by the State. Its declared object is to furnish "such instruc- tion as is provided for in like technical schools of a high grade," and it is authorized to confer de- grees. The course includes four years of two terms each. These are divided, after the second year, into Mining and Metallurgical Engineering Similar State schools are established at Rolla, Missouri; Houghton, Michigan; Rapid City, South Dakota. Butte. Montana; Moscow, Idaho; Blake, I tab, and Socorro, New Mexico. The Universities of Arizona, California, Nevada, North Dakota and Wyoming have special depart- ni< -ins )\ ting the same ground 380 LAND OFFICE RULES LAND OFFICE REGULATIONS. Re-Issued by the General Land Office, May 21, 1907. NATURE AND EXTENT OF MINING CLAIMS. 1. Mining claims are of two distinct classes: Lode claims and placers. LODE CLAIMS. 2. The status of lode claims located or patented previous to the 10th day of May, .1872, is not changed with regard to their extent along the lode or width of surface: but tin- claim is enlarged by sections 2322 and 2328, l.y investing the locator, his heirs or assigns, with the right to follow. upon the conditions stated therein, all veins, lodes, or !<'< the top or apex of which lies inside of the surface lines of his claim. 3. It is to be distinctly understood, however, that the law limits the possessory right to veins, lodes, or ledges, // than the one named in the original locaTion, to such MS were not adversely claimed on May 10, 1872, and that where such other vein or ledge was so adyersely claimed at that date the right of the party so adversely claiming is in no way Impaired by the provisions of the Revised Statutes. 4. From and after the 10th May, 1872, any person who is a citizen of the United States, or who has de< -In red his in- tention to become a citizen, may locate, record, and hold .1 mining claim of flftci a Inunlrcd linear feet along the course of any mineral vein or lode subject to location: r an as sociation of persons, severally qualified as above, may make joint location of such claim of fifteen hinif prior claims but 100 feet can be taken on one side, the locator will not be restricted to less than 300 feet on the other side; and when the locator does not determine by exploration ichcre the middle of the vein at the surface is. his discovery shaft must be assumed to mark such point. 6. Size of Claim. By the foregoing it will be per- ceived that no lode claim located after the loth May. isT'J. ran exceed a parallelogram fifteen hundred feet in length" by six hundred feet in width, but whether surface ground of that width can be taken depends upon the loral regulations or Territorial laws in force in the several mininu districts: and that no such local regulations or Si a Territorial laws shall limit a vein or lode claim to less than fifteen hundred feet along the course thereof, whether ''cation is made by one or more persons, nor can sur face rights be limit. ; feet in width unless rse claims ..u the Huh day of May. IST'J. render such lateral limitation necessary. 7 Location Certificate. Locators can not exercise too much care In defining their locations at the outset, inasmuch he law requires that all records of mining locations made v 10. 1872, shall contain the name "i- names of the locators, the date of the location, and such 'inn ,,f th, nn\ nr furnished, and f lie claimant must : that the delinquent coowner failed to contribute his proper proportion within the period tix.d by the statute. Tf\ ' 16. The effect of section 2323. Revised Statutes, is to give the proprietor! of a mining tunnel run in good faith the ->ory right to fifteen hundred feet of any blind lodes cut. discovered, or intersected by such tunnel, which were not previously known to exist, within three thousand fee! from the 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 and within said distance of three thousand feet, unless such lodes appear upon the surface or w. re previously known to exist. The term ised in isid section. Is construed and held to mean the first working face formed in the tunnel, and to signify the point at which the turriel actually enters cover; it being from this point that the three thousand feet are to be counted upon which prospecting is prohibited as aforesaid. 17. Tunnel Notice Staking. To avail themselves of the benefits of this provision of law. the proprietors of :i mining tunnel will be requhed. at the time i hey enter cover :oresaid. to give proper notice of their tunnel location by erect in- a substantial ;n the tunnel is being prosecuted with reasonable diligence. 384 LAND OFFICE RULTCS. 18. Record of Tunnel. A full and correct copy of such notice of location defining the tunnel claim must be filed for record with the mining recorder of the district, to which 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 expended by themselves and tbeir predecessors in interest in prosecuting work thereon; the extent of the work performed, and that it Is bona fide their intention to prosecute work on the tunnel so located and described with reasonable diligence for the development of a vein or lode, or for the discovery of mines, or both, as the may lie. This notice of location must be duly recorded. and, with the said sworn statement attached, kept ,,n the recorder's files for future reference. IT. ACER CLAIMS.* 19. But one discovery of mineral is required to support a . placer location, whether it be of twenty acres by an iudi virtual, or of one hundred and sixty acres or less i.\ an association of persons. 20. Building Stone School Lands The act of Augi 1 is'.tL'. extends the mineral land laws SO as to lu-iiiir lands chirtly valuable for building stone within the provisions >f said law l.y authorising a placer entry of such lands. Ro- isters and receivers should make a refer* id Ad m the entry papers in the case of all placer entries made- for lands containing stone chiefly valuable for building puri" Lands reserved for the hen. -fit of public schools or d<>i to any State are not subject to entry under said act. 21. Petroleum Oils The act of February 11. I8fl7, provides f.r the location and entry of public lands chiefly valuable for petroleum or other mineral oils, an 1 entries of that nature made prior to the passage of said act are to be considered as though made tluVeunder. 22. Ten-acre Tracts. liy section I'.",::" :n:t hm-it.. given for subdividing t<-rt\ acre legal subdivisions into acre tracts. These ten aere tracts should lie considered and dealt with as legal subdivisions, and an applicant havi: placer claim which conforms to one or more of such ten acre tracts, contiguous in case of two or mor.- tracts. M;I\ make entry thereof after the usual proceedings, without further survey or plat. 23. Must be in Square Form In subdividing forty- acre legal subdivisions, the tn-a OFFICE KfLES. 385 '4 of the NK. V' of the section. <>r, in like manner. tuated : lui. in - addition to this description. ii r . notice- innsi i:ive all the other data ired in a minci-il application, hy which parties may he pui on inquiry as to Mir land Bought to he patented. 'The pf"" iJh applications nnist show clearly the ! of tin* improvements upon tlu 1 prem ises. 25. The proof of improvements must show their value to . >iil>-tll ns lode claims. 26. Lode in Placer.- Applicants for patent to a plncer Hah. of a known vein or lode included therein, m in their application that the The published and posted noti \9o iiuludt- such statement. If veins or lodes fl by other parties. fact sh.iiii.i idly stated in the" application for pMii-ni. and in all the n,.ii,,s Hut in all <-as.-s. whether the lod.- is elf !. it must he surveyed and m. 1 upon tin- |>lat. I and platffiTUIf the a real of .lie claim i. r claims and the area of the placer sepa- ;ion wliiHi omits to claim such known vein or lode n d as a conclusive declaration that the applicant has no riuht of possession to the vein or n lode or v. in. tin- fact must appear by the atlida\ or more witnesses. 27. Size of Claim. T.y | 'are.l that no location of a pla made after July 9. 1870. shall - i -1 .my one person or ns. which location shall conform to the 1 "ni ' 28. Conform to Public Survey. Section _'.",:;! provides that all placer mining claim I located after May H. 1872. shall <-on: l-racticahle with the I'nited stem of public-land surveys and the rectangular !i surveys, and such locations shall not include mure than twenty .-ach individual claimant. 29. Location by an Association. The foregoing pro- visions of law are construed to mean that after the 9th day of .inly. IN?", no location of a placer claim can be made to d one hundred and sixty acres, whatever may he the numher of locators associated together, or whatever the local regulations of the district may allow; and that from and after May 10. 1872, no location can exceed twenty acres Individual participating therein; that is, a location o persons -an not exceed forty acres, and one by three persons can not <'\<-eed sixty acres. 30. How Located. The regulations hereinbefore given the manner of marking locations on the ground, and 13 386 LAND OFFICE RULES. placing the same on record, must be observed in the case of placer locations so far as the same are applicable, the law requiring, however, that all placer mining claims located after May 10, 1872, shall conform as near as practicable with the United States system of public land surveys and the rectangular subdivisions of such surveys, whether the locations are upon surveyed or unsurveyed lands. REGULATIONS UNDER SALlNE ACT. 31. Only One Location Allowed to Same Person. Tinder the act approved January 31, 1901, extending the mining la\\s to saline lands, the provisions of the law relating to placer-mining claims are extended to all States and Terri tories and the district of Alaska, so as to permit the loca- tion and purchase thereunder of all unoccupied public lands containing salt springs, or deposits of salt in any form, and chiefly valuable therefor, with the proviso, "That the same lei son shall not locate or enter more than one claim here- nnder." 32. Rights obtained by location under the placer-mining laws are assignable, and the assignee may make the entry in his own name: so. under this act a person holdin assignee mav make entry in his own name: /Vor/roi>i register, to be finally transmitted by that officer, with other papers in the case, to this office, and one plat to be sent by the urreyor-general to the register or the proper laud district, to be retained on his files for fu tu re reference. As there is no resident surveyor-general for the of Arkansas, applications for the survey of mineral claims in said State should be made to the Commissioner of this office, who. mid- r the law. is ex offlclo the I". S. or-general. 35. Idem None Before Record The survey ami plat of mineral claims r. quired to he filed in the proper land office with application for patent must be made subsequent to the recording of the loi-.-ition of the claim (if the laws of tin- Staff or Territory or the regulations of the mining dis- triet require the notice of location to be recorded), and when the original location is made by survey of a Tinted States mineral surveyor such location survey can not be ituted for that" required by the statute, as above imli. 36. Numbering 'Surveys Tiei to Government Corners The surveyors-general should designate "nil surveyed mineral .laims by a progressive series' of numbers, beginning with survey No. 37, Irrespective as to \\h.ih,r they are situated on surveyed or unsurveyed lands, the claim to be so desig- nated at d -uing tl rder therefor, in addition to the local designation of the claim : it being requir.-d in all that th- pint and field notes of the survey of a claim must, in addition to the reference to permanent objects in the neighborhood, d, scribe tin- locus of the claim with to the lines of public surveys by a line connect- ing a corner of the claim with the nearest' public corner of tcs surveys, unless sin-h claim be on unsur- veyed lands at a distance of more than two miles from such public corner, in \\hich latter case It should be connected with a 1'nited States mineral monument. Such conn*- line must not be more than t , Mttei in length, and should be measured on the ground direct between the points, or Calculated from actually surveyed traverse lines if the na nire of the country should DOJ permit direet measurement . If a regularly established survey corner is within two miles of a claim situated on unsurveycd lands, the connection should be made with such < orner in preference to a connec- tion with a !'i i mineral monument. The connect- ing line or traverse line must be surveyed by the mineral surveyor at the time of his making the particular survey, and be made a part thereof. 37. (a) Promptly upon the approval of a mineral survey the surveyor-general will advise both this office and the appropriate local land office, by letter (Form 4-280), of tin- date of approval, number of the surviy. name and area of the claim, name and survey number of each approved min- eral survey with which actually in conflict, name and ad- dress of the applicant for survey, and name of the mineral 388 LAND OFFICE RULES. surveyor who made the survey; and will also briefly de- scribe therein the locus of the claim, specifying each legal subdivision or portion thereof, when upon surveyed lands, covered in whole or in part by the survey ; but hereafter no segregation of any such claim upon the official township- survey records will be made until mineral entry has been made and approved for patent, unless otherwise directed by this office. (b)* Upon application to make agricultural entry of the residue of any original lot or legal subdivision of forty acres, reduced by mining claims for which patent ap plications have been filed and which residue has been already relotted in accordance therewith, the l&cal officers will ac- cept and approve the application as usual, if found to be regular. When such an application is filed for any such original lot or subdivision, reduced in available area l>y duly asserted mining claims but not yet relotted accordingly, tM local officers will promptly advise this office thereof; ariYl will also report and identify any pending application for mineral patent, affecting such subdivision, which the agri- cultural applicant does not desire to contest. The surveyor- genoral will thereupon be advised by this office of such mining claims, or portions thereof, as are proper to be segregated and directed to at once prepare, upon the usual drawing-paper township blank, diagram of amended township survey or such original lot or legal forty-acre subdivision so made fractional by such mineral segregation, designating the agricultural portion by appropriate Tot number, beginning with No. 1 in each section apd giving the area of each lot. and will forthwith transmit one approved copy to the local land office and one to this office. In the meantime the local officers will accept the agricultural application (if no other objection appears), suspend it with KS. rvaiion of all rights of the applicant if continuously asserted by him, and upon receipt of amended township diagram will approve th% appli- ration (if then otherwise satisfactory) as of the date of lilini:. corrected to describe the tract as designated in the amended survey. (c) The register and receiver will allow no agricul- tural claim for any portion of an original lot or legal forty- acre subdivision, where the reduced area Is made to appear by reason of approved survevs of mining claims and for which applications for patent nave not been filed, until there is submitted by such agricultural applicant a satisfactory showing that such surveyed claims are in fact mineral in character ; and applications to have lands asserted to be mineral, or mining locations, segregated by survey, with the view to agricultural appropriation of the remainder, will he made to the register and receiver for submission to the Commissioner of the General Land Office, for his considera- tion and direction, and must be supported by the affidavit of the party in interest, duly corroborated by two or more disinterested persons, or by such other or further evidence as may be required in any case, that the lands sought to be segregated as mineral are in fact mineral in character : otherwise, in the absence of satisfactory showing in any LAND OFFICE RULES. ;M> such case, such original lot or legal subdivision will be sub- to agricultural appropriation only. When any such showing shall be found to be satisfactory and the necessary survey is had, amended township diagram will be required and made as prescribed in the preceding section. 38. The following particulars should be observed in the survey of every mining claim : 1 i The exterior boundaries of the claim, the num- ber of feet claimed along the vein, and, as nearly as can be ;ained. the direction of the vein, and the number of feet claimed on the vein in each direction from the point of discovery or other well-defined place on the claim should be represented on the plat of survey and In the field n (2) The intersection of the lines of the survey with the lines of conflicting prior surveys should be noted in the iie!d notes and represented upon the plat. (3) Conflict* with unsurveyrd claims, where the applicant for survey does not claim th' area in conilict. sin iild ln> shown l>y actual BOJ (4) The total area of the claim embraced by the ex- : boundaries should be stated, and also tfce area in con- tlict with each int. is. , ting survey, substantially as follows: Acres. Total area of claim 10.50 Area in conflict with Survey No. 302.. 1.56 in conflict with Survey \ 2.33 Area in conflict with Mountain Maid lode mining claim, unsurveyed Ms It dors not follow that because mining surveys are required to exhibit all conflict! with prior surveys the areas of con Mi. t are to be excluded. The field notes and plat an- made a pan of the application for patent, and care should ! taken that th> description does not Inadvertent!/ exclude portions intended to be retained. The application for patent tumid stair the portions to be excluded in express terms. 39. The claimant is then required to post a copy of the plat of such survey in a conspicuous place upon the claim, together with notice of his intention to apply for a patent therefor, which notice will give the date of posting, the name of the claimant, the name of the claim, the number of tiir surv.-y. the mining district and county, and the names of adjoining and conflicting claims as shown by the plat of survey. Too much care can not be exercised in the preparation of this notice, inasmuch as the data therein are repeated in the other notices required by the statute, and upon the accuracy and completeness of these notices will depend, in a great measure, the regularity and validity of the proceedings for patent. 40. Proof of Posting After posting the said plat and upon the premises, the claimant will file with the proper register and receiver a copy of such plat and the field notes of'survey of the claim, accompanied by th'e affi- davit of at least two credible witnesses that such plat and notice are posted conspicuously upon the claim, giving the 390 LAND OFFICE RULES. date and place of such posting ; a copy of the notice so posted to be attached to and form a part of said affidavit. 41. Application for Patent. Accompanying the field notes so filed must be the sworn statement of the claimant that he has the possessory right to the premises therein described, in virtue of a compliance by himself (and by his grantors, if he claims by purchase) with the mining rules, regulations, and customs of the mining district, State, or Territory in which the claim lies, and with the mining laws of Congress ; such sworn statement to narrate briefly, but as clearly as possible, the facts constituting such compli ance the origin of his possession, and the basis of his claim to a patent. 42. Abstract of Title This sworn" statement must be supported by a copy of the location notice, certified by th< v officer in charge of the records where the same is recorded, and where the applicant for patent claims the interests of others associated with him in making the location, or as a purchaser, in addition to the copy of the location notice, must be furnished a complete abstract of title as shown by the record in the office where the transfers are by law required to be recorded, certified to by the officer in charge of the record under his official seal. The officer should also certify that no conveyances affecting the title to the claim in question appear of record other than those set forth in the abstract, which abstract shall be brought down to the date of the application for patent. Wlu-n- the applicant claims as sole locator and does not furnish an abstract of title, his affidavit should be furnished to the effect that he has disposed of no interest In the land located. 43. Lost Records. In the event of the mining records in any case having been destroyed by fire or otherwise lost, affidavit of the fact should be made, and secondary evi- dence of possessory title will be received, which may con- sist of the affidavit of the claimant, supported by those of any other parties cognizant of the facts relative to his location, occupancy, possession, improvements, &c. : and in such case of lost records, any deeds, certificates of location >r purchase, or other evidence which may lit- in ilu claim- ant's possession and tend to establish his claim, should be tiled. 44. Two Applications for Same Land. Before receiving and lilinir an application finbrnce8 any portion of an odd- anmbered section of surveyed lands within the primary lim- its of a railroad land irrant. and of every such application embracing // portion of unsurveyed lands within such lim- its to any such application which embraces a portion or portions of those ascertained or prospective odd- numbered sections only, within the limits of the grant in Montana and Idaho to the Northern Pacific Railroad Coin pany. which have been classified as mineral under the act of February _';. 1 s:r,. without protest hy the company within the time limited l>y the statute or the mineral class- ification whereof has been approved). Should the railroad grantee tile protest and apply for a h.-arinir to determine the character of the land in' volved in any such application for mineral patent, proceed hereiinder will he had in the usual manner Any application for mineral patent, however, which emhraces lands previously li- .ted hy a railroad company will he disposed of as provided by the first sec- tion of this paragraph, ami the applicant afforded oppor- tunity to protest and apply for a hearing or to appeal. Notice should he irivli to the duly authori/ed repre- live <.f th*> railroad m accordance with Kule 1.7 of Practice. When the claims applied for are upon mi surveyed land, the hurden of proving that they are situate within prospective odd-numbered sections will rest upon the railroad. l.vidence of service of notice should be filed with the record in each case. 45. Publication Publisher's Agreement I'pon the f ceipt of these papers, if no reason appears for rejecting the application, th< will, at the expense of the claimant who must furnish the am cement of the publisher to hold applicant for patent alone responsible for charges of pub- lication i. publish a notice of such application for the period of sixty days in a newspaper published nearest to the claim, and will post a copy of such notice in his office for the same period. When the notice is published in a trrr/./v newspaper, nine consecutive insertions are necessary; when in a iiiiiii/ newspaper, the notice must appear in each issue for sixty one consecutive issues. In both cases the first day of issue must he excluded in estimating the period of Mxty days. 46. The notices so published and posted must embrace all the data given in the notice posted upon the claim. In addition to such data the published notice must further indicate the locus of the claim by giving the connecting line, as shown by the field notes and plat, between a corner of the claim and a United States mineral monument or a < orner of the public survey, and thence the boundaries of the claim by courses and distances. 392 LAND OFFICE RULES 47. The register shall publish the notice of application for patent in a paper of established character and general cir- culation, to be by him designated as being the newspaper published nearest the land. 48. Surveyor-General's Certificate of $500 Improvements. The claimant at the time of filing the application for patent, or at any time within the sixty days of publication, is re- quired to file with the register, a certificate of the surveyor- general that not less than five hundred dollars' worth of labo~r has been expended or improvements made, by the ap- plicant or his grantors, upon each location embraced in the application, or if the application embraces several contimi ous locations held in common, that an amount equal t<> live hundred dollars for each location, has been so expended upon, and for the benefit of, the entire group; that the plat filed by the claimant is correct; that the field notes of tin- survey, as filed, furnish su-h an a ecu rat*' description of tin- claim as will if incorporated in a patent serve to fully identify the premises and that such r-'iVn-nrr is made therein to natural objects or permanent monuments as will perpetuate and fix the locus thereof: Pmriihti. That a- to all applications for patent made and passed t<> entry in- fore July 1, 1898, or which arc by prmcsts or ah claims prevented from being passed to entry before that "time, where the application embraces several locations held in common, proof of an expenditure of five hundred dollars upon the group will be sufficient and an expenditure of that amount need not be shown to have been made upon, or r<-r the bej eiit >f. each location embraced in the appli cation. 49. The surveyor-general may derive his information upon which to base his certificate as to the value of labor pended or improvements made from the mineral surveyor who makes the actual survey and examination upon tin- premises, and such mineral surveyor should specify with particularity and full- detail the character and extent of such improvements, but further or other evidence may be re- quired in any case. 50. It will be convenient to have this certificate in- dorsed by the surveyor-general, both upon the pl.it and field notes of survey filed by the claimant as aforesaid. 51. Proof of Publication and of Plat Remaining Posted. After the sixty days' period of newspaper publication has expired, the claimant will furnish from the office of pub lication a sworn statement that the notice was published for the statutory period, giving the first and last day of such publication, and his own affidavit showing that the plat and notice aforesaid remained conspicuously posted upon the claim sought to be patented during said sixty days' publication, giving the dates. ' 62. Entry Price Proof of Sums Paid. Upon the filing of this affidavit the register will, if no adverse claim was filed in his office during the period of publication and no other objection appears, permit the claimant to pay for LAND OFFICE RULES. 393 the land to which he is entitled at the rate of five dollars for each acre and five dollars for each fractional part of an acre, except as otherwise provided by law. the receiver i!g tin- usual duplicate receipt therefor. The claimant will also make n sworn statement of all charges and fees paid by him for publication and surveys, together with all fees and money paid the register and receiver of the land after which tin- complete record will be forward*-.! to the Commissioner of tin- <;e made the in. ; us of pi's-iving a surface conflict lost by failure to adverse or lost ly th- judgment of the court in an adv.isc sr.it. (Hie holding a pre.^-nt joint interest in a ininer-il location in. -hided in an application for patent who ..hided fn.in the appl i.-ni' n. so that his interest would not l>e pn.tect"d I'.v th- issue of patent thereon, may pro- . -gal nst the issuance of a patent as applied for, setting in such pr.-t.st the nature and extent of his interest in Mieh loe.-nion. and Mich a protestant will be deemed a ! to app.al. This results from the holding that a coowner excluded from au application for nt does not have an "adverse" claim within the mean- ing of sections 2325 and 2326 of the Revised Statutes, sawyer, 150 U. 8. 578-586. 64. Any party applying for patent as trustee must disclose fully the nature of the trust and the name of the rcntui <> upon surveyed lands, and conforms to legal subdivisions, no further survey or plat will be required. Where placer claims can not be conformed to legal subdivisions, survey and plat shall be made as on unsurveyed lands. 69. Two Dollars and Fifty Cents Per Acre. The proceed- ings for obtaining patents for veins or lodes having already been fully given, it will not be necessary to repeat them here, it being thought that careful attention thereto by ap- plicants and the local officers will enable them to act under standingly in the matter, and make such slight modifications in the notice, or otherwise, as may be necessary in view of the different nature <.f the t\v< classes <>f claims : til-- price of placer claims 'being fixed, however, at two dollars and fifty cents per jinv. or 1'ractional part of an acre. CO. Classification of the Land Descriptive Report. In placer applications for patent caro must he exercised to de- termine the proper classification of the lands claimed. T this end the clearest evidence of which the case is capable should be presented. (1) If the claim be all placer ground, that fact must be stated in the application and corroborated by ac companying proofs; If of mixed placers and lodes, it should ho so set out, with a description of all known lodes situated within the boundaries of the claim. A specific declaration, such as is required by section 2333, Revised Statutes, must he furnished as to each lode intended to be claimed. All other known lodes are, by the silence of the applicant. excluded by law from all claim by him, of whatsoever na- ture, possessory or other v. (2) Mineral surveyors shall at the expense of the parties make full examination of all placer claims surveyed by them, and duly note the facts as specified in the law. stating the quality and composition of the soil, the kind and amount of timber and other vegetation, the locus and size of streams, and such other matters ns may appear upon the surface of the claim. This examination should include the character and extent of all surface and underground workings, whether placer or lode, for mining purposes. (3) In addition to these data, which the law re- quires to be shown in all cases, the mineral surveyor should report with reference to the proximity of centers of trade or residence ; also of well-known systems of lode deposit or *See, also, Regulations 19-30. LAND OFFICE RULES. 395 t" individual lodes. He should also report as to the use or adaptability of the claim for placer mining : whether n lii-ought upon it in sufficient quantity to mine the same, or whether it can be procured for that pur : and. finally, what works or expenditures have been made by the claimant or his grantors for the development of the claim, and their situation and location with respect to the same as applied for. i -4 1 This examination should be reported by the mineral survyor under oath to the surveyor-general, and duly corroborated; and a copy of the same should be fur- nished with the application for patent to the claim, consti- tuting a part thereof, and included in the oath of the ;.| pi i( ant. (5) Applications awaiting entry, whether published or not, must be made to conform to these regulations, with ruination as to the character of the land. ies already mad.' will be suspended for such additional proofs as may be deemed necessary in each case. MILL SITES. 61. Land entered as a mill site must be shown to be non- mineral. Mill sites are simply auxiliary to the working of mineral claims, and as section I 1 :;::?, which provides for the Ming of mill Bite*, is embraced in the chapter of the at ing to mineral lands, they are there- fore included in this circular. 62. Noncontiguous to Lode Independent Application. To avail themselves of this provision of law parties holding the possessory right to a vein or lode, and to a piece of Qonmineral land not contiguous thereto for mining or mill ing purposes, not exceeding the quantity allowed for sm-h purpose by sen ion j:;:;7, or prior laws, under which the lana was appropriated, the proprietors of such vein or lode may tile in the proper land office their application for a patent, under oath, in manner already set forth herein, which application, together with the plat and field notes, may in- clude, embrace, ami n addition to the vein or lode claim, such QOncofltlfUOai mill site, and after due proceed- ings as to noti< patent will be issued conveying the same as one claim The owner of a patented lode may. b\ an ind.-pcndent application, secure a mill site if good fa'th is manifest in its use or Occupation in connect ion with the lode and m> .idvt rse claim exists. 63. Lots "A" and "B." Where the original survey includes a lode claim and also a mill site the lode claim should lie described in the plat and field notes as "Sur. No. 87, A. ' and the mill site as "Sur. No. .".7. \\." or whatever may be its appropriate numerical designation; the course and distance from a corner of the mill site to a corner of the lode claim to be invariably given in such plat and field notes, and a copy of the plat and notice of application for patent must be conspicuously posted upon the mill site as well as upon the vein or lode claim for the statutory period 396 LAND OFFICE RULES of sixty days. In making the entry no separate receipt or certificate need be issued for the mill site, but the whofle area of both lode and mill site will be embraced in one entry, the price being five dollars for each acre and frac- tional part of an acre embraced by such lode and mill-site claim. 64. Mill Site Without Lode In case the owner of a quartz mill or reduction works is not the owner or claim- ant of a vein or lode claim the law permits him to make application therefor in the same manner prescribed herein for raining claims, and after due notice and proceedings, in the absence of a valid adverse filing, to enter and receive a patent for his mill site at said price per acre. 65. In every case there must he satisfactory proof that the land claimed as a mill site is not mineral in character, which proof may, where the matter is unquestioned, consist of the sworn statement of two or more persons cap;ibl' from acquaintance with the land, to testify understandingly. CITIZENSHIP. 66. The proof necessary to establish the citizenship of ap- plicants for mining patents must be made in the following manner : In case of an incorporated company, a certified copy of their charter or certificate of incorporation must be filed. In case of an association of persons unincorporated, the affidavit of their duly authorized agent, made upon his own knowledge or upon information and belief, setting forth the residence of each person forming such association, must be submitted. This affidavit must be accompanied by a power of attorney from the parties forming such association, authorizing the person who makes the affidavit of citizenship to act for them in the matter of their application for patent. 67. In case of an individual or an association of individuals who do not appear by their duly authorized agent, the affi- davit of each applicant, shewing whether he is a native or naturalized citi/en, when and where born, and his resi dence, will be required. 68. In case an applicant has declared his intention to be- come a citizen or has been naturalized, his affidavit must show the date, place, and the court before which he declared his intention, or from which his certificate of citizenship issued, and present residence. 69. The affidavit of the claimant as to his citizenship may be taken before the register or receiver, or any other officer authorized to administer oaths within the land district ; or, if the claimant is residing beyond the limits of the district, the affidavit may be taken before the clerk of any court of record or before any notary public of any State or Territory. 70. Proof by Disinterested Witnesses. If citizenship is established by the testimony of disinterested persons, such testimony may be taken at any place before any person authorized to administer oaths, and whose official character is duly verified. LAND OFFICE RULES. 397 71. Scrutiny of Proofs. No entry will be allowed until the regis; istied hiurself, by careful examination, that proper proofs have been filed upon the points indicated in tin- law ami ofh. -ial regulations. Transfers made subse- quent to th filing of the application for patent will not ntry will be allowed and patent issued in all casrs in the name of the applicant for patent, the l>y the patent, of course, in each instance inuring to the transferee of such applicant where a transfer has been made pending the application for patent. 72. The consecutive series of numbers of mineral entries must be continual, whether the same are of lode or placer claims or mill > 78. Register's Certificate of Posting in Land Office Plat. In s. nding up the papers in a case the register must not -in it : to the fact that the notice was posted in his oMi< -e !..r th' full period of sixty days, such certificate to State distinctly when sm-h post in- \\as done and how long continued. Tin* plat forwarded as part of the proof *hpuld rn '. hut ntllftl. so as to prevent creasing. -mined in a separate package or so enclosed with the other papers that it may pass through the mails without ' mutilation. If forwarded separately. the letter transmitting the papers should state the fact. POSSESSORY KIi;i!T. 74. Chain of Title Broken, but Possession Clear. The pro- visions of section 2332, Revised Statutes, will greatly lessen the l.urden of proof, more especially in the case of old claims located many y liieh. In many cases, have been destroyed by fire, or lost in other e lapse of time, but concerning the possessory riirht to which all controversy or litigation has long been srttled. 75. Details of Proof in Such Case When an applicant s to make his proof of possessory right In accordance with this provision of law, he will not be required to produce evidence of location, copies of conveyances, or abstracts of title, as in other cases, but will be required to furnish a duly certified copy of the statute of limitation of mining claims for the State or Territory, together with his sworn statement giving a clear and succinct narration of the facts as to the origin of his title, and likewise as to the contin- uation of his possession of the mining ground covered by his application : the : .iv >\ thereof: the nature and extent of the mining that has been done thereon; \\hether there has opposition to his possession, or litigation with re- im and, if so. when the same ceased: whefher cessation was caused by compromise or by judicial de :md any additional facts within the claimant's knowl- having a direct bearing upon his possession and bona which lie may desire to submit In support of his claim. 76. There should likewise be filed a certificate, under seal of the court having jurisdiction of mining cases within 398 LAND OFFICE RULES. the judicial district embracing the claim, that no suit or action of any character whatever involving the right ot pos- session to any portion of the claim applied for is pending, and that there has been no litigation before said court affecting the title to said claim or any part thereof for a period equal to the time fixed by the statute of limitations for mining claims in the State or Territory as aforesaid, other than that which has been finally decided in favor of the claimant. 77. The claimant should support his narrative of facts rela- tive to his possession, occupancy, and improvements by cor- roborative testimony of any disinterested person or persons of credibility who may be cognizant of the facts in the case and are capable of testifying understandingly in the prem- ises. ADVERSE CLAIMS. 78. An adverse claim must be filed with the register and receiver of the land office where the application for patent is filed, or with the register and receiver of the district in which the land is situated at the time of filing the :nl verse claim. It must be on the oath of the adverse claim ;mt, or it may be verified by the oath of any duly author- ized agent or attorney in fact of the adverse claimant cog- nixnnt of the facts stated. 79. Where an agent or attorney in fact verifies the adverse claim, he must distinctly swear that he is such agent or at- torney, and accompany nis affidavit by proof thereof. 80. The agent or attorney in fact must make the affidavit in verification of the adverse claim within the land district where the claim is situated. 81. The adverse claim so filed must fully set forth the nature and extent of the interference or conflict: whether the adverse party claims as :i pun -haser f<>r valuahle con- sideration or as a locator; if the former, a certified copy of the original location, the original conveyance, a duly certi tied copy thereof, or an abstract of title from the office of the proper recorder should be furnished, or if the trans action was a merely verbal one he will narrate the circum- stances attending the purchase, the date thereof, and the amount paid, which facts should be supported by the affi- davit of one- or more witnesses, if any were present at the time, and if he claims as a locator he must file a duly certified copy of the location from the office of the proper recorder. 82. Plat of Conflict Legal Subdivisions In order that the "boundaries" and "extent" of the claim may be shown, it will be incumbent upon the adverse claimant to file a plat showing his entire claim, its relative situation or position with the one against which he claims, and the extent of the conflict : Provided, however, That if the application for pat- ent describes the claim, by legal subdivisions, the adverse claimant, if also claiming by legal subdivisions, may de- scribe his adverse claim in the same manner without fur- LAND OFFICE RI'LES. 399 ther survey up plat. If the claim is not described by legal subdivisions, it will generally he more satisfactory if the plat thereof is iii-Hle from an actual survey ny a' mineral surveyor, and its eorrectu. ss officially certified thereon by him. 83. Notice of Filing Adverse. Upon the foregoing being liled within tin- sixty days' period of publication, the reg- iir in in- r, will Immediately give notice in writing to /// /n/7iY.x- to the contest thai such ad- claim has l.c.-n tiled, informing them that the party wh, tiled tin- advert- claim \\ill he lequired within thirty from th" date of such tiling to commence proceedings In court of compel. -:n jurisdiction to determine the qurs lion of right of possession, and to prosecute the same with nal'le diligence to tinai judgment, and that, should MI : it fail to do so, his adverse claim will . .nsidered waived, and the application for patent be allowed to pro c.ed upon its merits. . M. Adverse Stays Proceeding* When an adverse claim is tiled as aforesaid, the register or receiver will indorse upon the same the precise date of tiling, and preserve a onl of the date of notiti thereon: and there all proceedings on the application for patent will be sta\i-d. with i imi of tin- completion of the pub lic.it ion ami posting of notices and plat, and the tiling of the proof thereof, until the controversy shall [en finally adjudhated in court, or the adverse claim . 'I Of \\ U : l:-a\\ n. 85. Copy of Judgment. Where an adverse claim has -uit thereon commenced within the statutory period, and final Judgment refl mining the right of it will p. i.-nt to tile with t he certi : the court, setting forth the facts .judgment, but the successful party must, before ho is allow,. 1 to Mi.ike i-ntrv. t:l- a certified copy of the aient roll, p.ir.-ther wi'l> the other evidence required by 2828, !: ;utes. 86. Where such suit has been dismissed, a certificate of the ci.rk of the court to that effect or a certified copy of ler of dismissal will be sufficient. 87. Relinquishment After Adverse. After nn adverse claim has been til -d and suit commenced, a relinquishment or other evidence of abandonment of the adverse claim will not be accepted, but the cnse must be terminated and proof thereof furnished as required by the last two paragraphs. 88. Certificate of No Suit Brought Where an adverse claim has been filed, but no suit commenced against the ap plicant for patent within the statutory period, a certificate to that effect by the clerk of the Stfcte court having Juris- diction in the case, and also by the clerk of the circuit court of the inited states for the district in which the claim is situated, will be required. 400 " LAND OFFICE RULES. APPOINTMENT OF SURVEYORS FOR SURVEY OF MINING CLAIMS CHARGES FOR SURVEYS AND PUBLICATIONS FEES Of REGISTERS AND RECEIVERS, ETC. 89. Newspaper Charges. Section 2334 provides for the appointment of surveyors to survey mining claims, and au- thorizes the Commissioner of the General Land Office to es- tablish the rates to be charged for surveys and for news- paper publications. Under this authority of law the fol- lowing rates have been established as the maximum charges for newspaper publications in mining cases : i 1 i Where a daily newspaper is designated the charge shall not exceed seven dollars for each ten lines of space occupied, and where a weekly newspaper is designated ;is the medium of publication five dollars for the same space will be allowed. Such charge shall be accepted as full pay- ment for publication in each issue of the newspaper for the entire period required by hiw. It is expected that these notices shall not be so abbreviated as to curtail the description essential to a per feet notice and the said rates established upon the under standing that they are to be in the usual body i fr advertisements. (2) For the publication of citations In contests or hearings involving the character of lands the charges shall not exceed eight dollars for five publications in weekly newspapers or ten dollars for publications in daily news- papers for thirty days. 0. Appointment of Mineral Surveyor! Bond. The sur- veyors-general of the several districts will, in pursuance of said law, appoint in each land district as many competent surveyors for the survey of mining claims as may seek such appointment, it being distinctly undei -sii.oii that .-ill exp. of these notices and surveys are to be borne by the mining claimants and not by tin- 1'nit.d stairs. Tin- statute pn, vides that the claimant shall also be nt liberty to employ any United States mineral surveyor to make the survey. Each surveyor appointed to survey mining claims before entering upon the duties of his office or appointment shall he required to enter into a bond of not less than $1,000 for the faithful performance of his dutfes. 91. Surveyor-General's Fees. With regard to the /;/"/ thin of the claim and other office work in the surveyor-gen- eral's office, that officer will make an estimate of the cost thereof, which amount the claimant will deposit with any assistant United States treasurer or designated depository in favor of the United States Treasurer, to be passed to the credit of the fund created by "individual depositors for sur veys of the public lands," and file with the surveyor-gen- eral duplicate certificates of such deposit in the usual manner. 92. Surveyors for Each District. The surveyors-general will endeavor to appoint surveyors to survey mining claims, so that one or more may be located in each mining district for the greater convenience of miners. LAND OFFICE Rl 401 93. The usual oaths will be required of these surveyors and their assistants as to the correctness of each survey exe- lu'in. 'l he duty <>f tl r ceases when he has exe- cuted the survey and returned the field notes and prelim inary plat thereof with his report to the surveyor-general. lie \\ill not in- allowed to prepare for the mining claimant the papers in support of an application for patent, or ;he duties of an attorney In-fore the land ntl're in connection with a mining claim. The - il and local land ollirers a re any infringement of this regulation to 94. Should it appear that excessive or exorbitant charges have I.een made ! y any < of the Interior will, so far as applicable, govern in all ad proceedings arising* In contests and hear- ings to determine the character of lands. 100. Agricultural Entry of Lands Returned as Mineral. Public land returned I.y the surveyor-general as mineral shall he withhold from entry as agricultural land until the 402 LAND OFFICE RULES. presumption arising from such a return shall be overcome by testimony taken in the manner hereinafter described. 101. Hearings to determine the character of lands are prac- tically of two kinds, as follows : (1) Lands returned as mineral by the surveyor- general. When such lands are sought to be entered as agri- cultural under laws which require the submission of final proof after due notice by publication and posting, the filing of the proper nonmineral affidavit in the absence of allega- tions that the land is mineral will be deemed sufficient as a preliminary requirement. A satisfactory showing as to character of land must be made when final proof is sub- mitted. In case of application to enter, locate, or select siu-h lands as agricultural, under laws in which the submission nf final proof after due publication and posting is not re- ? uired, notice thereof must first be given by publication or sixty days and posting in the local office during the same period, and affirmative proof as to the character of the land submitted. In the absence of allegations that the land is mineral, and upon compliance with this requirement, the entry, location, or selection will be allowed, If otherwise re^nla r. (2) Lands returned as agricultural and alleged to be mineral in character. Where as against the claimed right to enter such lands as agricultural it is alleged that the same are mineral, or are applied for as mineral lands, the proceedings in this class of cases will lie in the nature of a contest, and the practice will be governed by the rules in force in contest cases. (Paragraphs 102 to 104, inclusive, are omitted from this revision of the regulations, as appropriate instructions relative to nonmineral proofs in railro.ul. state and forest lieu selections are contained in separate circulars.) 105. Examination of Witnesses. At hearings to deter miti" the chara--ter of lards, th- claimants and witnesses will be thoroughly examined with regard to the character of the land; whether the same has been thoroughly pros- pected ; whether or not there exists within the tract or tracts claimed any lode or vein of quartz or other rock in place, hearing gold, silver, cinnabar, lead, tin, or copper, or other valuable deposit which has ever been claimed, located, n corded, or worked ; whether such work is entirely abandoned, or whether occasionally resumed ; if such lode does exist, by whom claimed, under what designation, and in which subdi- vision of the land it lies ; whether any placer mine or mines exist upon the land : if so, what is the character thereof whether of the shallow-surface description, or of the deep cement, blue lead, or gravel deposits ; to what extent mining is carried on when water can be obtained, and what the facilities are for obtaining water for mining purposes : upon what particular ten-acre subdivisions mining has been done, LAND OFFICE RULES !<>:. and at what time the land was abandoned for mining pur- poses, if abandoned at nil. 106. The testimony should also show the agricultural capac- ities of the land, what kind of crops are raised thereon. and tin* value thereof; the number of acres actually culti- vated for crops of cereals or vegetables, and within which particular ten-acre subdivision such crops are raised: also which of these subdivisions embrace the improvements, giv- ing in detail the extent and value of the Improvements, such as house, barn, vineyard, orchard, fencing, etc., and mining improvements. 107. The testimony should be as full and complete as pos- Mi-le; and in addition to the leading points indicated above. where an attempt is made to prove the mineral character of lands \vhi-h have been entered under the agricultural laws. it should show at what date, if at all, valuable deposits of minerals were first known to exist on the lands. 108. Segregating Mineral from Agricultural Land When ase comes before this office, such decision will be made lie law and the facts may justify. In cases where a to set apart the mineral from the agri- cultural land, the proper party, nt his <,,, MgMUMt. will be lequired to have the work don,, by a reliable and compe be designated by the surveyor-genera 1. Ap plication therefor must be made to i ; : and re celvt anied by description of the land to be seg- regated and tl upon the opposite party of notice of his intention to have such segregation made. Tl'e register B] will I'orv. ..me to thb- of- fice, when th? necessary instructions f..r the survey will be glTCl in sueh CMC, \\hen- the claims to be segregated are vein or lode claims, must be executed in such manner as will conform to the requirements in section 2820, I'nit.- led Statutes, as to length and width and parallel end lines. 109. Such survey when executed must be properly sworn to b> the surveyor, either before a notary public, officer of a i ouri of record, or twffMTC th- i-^istt-r or re.-civer. ihe <|e ponent's character and credibility to be properly certified to by the officer administering the oath. 110. Verified Plat by Surveyor-General. Upon the Tiling of the plat and field notes of such survey with the register and receiver, duly sworn to as aforesaid, they will transmit the same to the surveyor-general for his' verification and approval : who. if he tinds the work correctly performed, will furnish authenticated copies of such plat and descrip- tion both To the proper local land oiiice and to this office, upon the usual drawinu paper township blank. The copy of plat furnished the local office and this otJice must be a diagram verified by the surveyor-general, showing the claim or claims segregated, and designating the separate fractional agricultural tracts in each 40-acre leual subdivision by the proper lot number, beginning with V 1 in each section, and giving the area in each lot, the 404 LAND OFFICE RULES same as provided in paragraph 37 in the survey of mining claims on surveyed lands. 111. Proceedings if Land Decided to Be Mineral. The fact that a certain tract of land is decided upon testimony to be mineral in character is by no means equivalent to an award of the land to a miner. In order to secure a pat- ent for such land, he must proceed as in other cases, in accordance with the foregoing regulations. Blank forms for proofs in mineral cases are not fur- nished by the General Land Office. DISTRICT OF ALASKA. 112. Section 13, ar.t of May 14, 1898, according to native- horn citizens of Canada "the same mining rights and priv ileges" in the district of Alaska as are accorded to citi/cns of the United States in British^Columbia and the Northwest Territory by 1h<> laws of the Dominion of Canada, is not now and never has been operative, for the reason that the only mining rights and privileges granted to any person by the laws nt the Dominion of Canada are those of lousing mineral lands upon the payment of a stated royalty, and th- mining laws of the United States make no provision for such b 113. For the sections of the act of June 6. 1900, making further provision for a civil government for Alaska, which provide for the establishment of recording districts and tb- recording of mining locations: for the making of rules and regulations by the miners and for the legalisation of min inir records; for the extension of the fninfng laws to tin- district of Alaska, and for the exploration and mining of tide lands and lands below low tide; and relating to the ritrhts of Indians and i>ersons conducting schools or mis sinus, see page 21 of this circular i.ii I. I>. j>. MINK UAL L.\NIS W IT II I X FOREST RESERY 114. The act of June 4, 1897, provides that "any mineral lands in any forest reservation which have been or which may be shown to ho such, and subject to entry under tip 1st ing mining laws of the United States and the rules and regulations applying thereto, shall continue to be subject to such location and entry," notwithstanding the reservat ion This makes mineral lands in the forest reserve* subject to location and entry under the general mining laws in Un- usual manner. The act also provides that, "The Secretary of the Interior may permit, under regulations to be prescribed by him, the use of timber and stone found upon such reserva- tions, free of charge, by bona fide settlers, miners, residents, and prospectors for minerals, for firewood, fencing, build ings, mining, prospecting, and other domestic purposes may be needed by such persons for such purposes; such timber to be used within the State or Territory, respectively, where such reservations may be located." LAND OFFICE RULES. 4>r, For further instruct ions under this act see circular of April 4, 1! SO I.. 1' 88, _s-30). BURYBY8 OF MINING CLAIMS. M:I:AL PROVISIONS. 115. Appointment of Surveyors. Under section ":'.".. U. S. Rev. Siats.. the I". S. Surveyor-general "may appoint in each land district containing mineral lands as many comp s as shall apply for appointment to \ minim: . -laims." 116. Persons desiring: such appointments should therefore file their applications with the surveyor-general for the dis trict wherein appointment is asked, who will furnish all information necessary. 117. All appointments of mineral surveyors must be sub- mit tod to the Commissioner of the General Land Office for approval. 118. Suspension of Surveyors. Tli neral authority to suspend or revoke the commissions of mineral surveyors /or cause. Before final action, however. rh- matter should be submitted to the Commissioner of the General Land Office for approval. 119. Such surveyors will be allowed the right of appeal from the action of the surveyor-general in the usual man- ner. Such appeal should be filed with the surveyor-general, who will at once transmit the same, with a full report, to the Ceneral Land Office. 120. Investigation of Surveyor's Charges Neither th- surve 1 nor the Commissioner of the General I. a ml Office has juri-di tion to settle differences, relative to the paymeni Q| charges for field work. between mineral sur veyors and claimants. 1 private con and must ! enforced in !!: ordinary manner. > in the loet irtmrnt has. li.\v.-v.-r. author- it v to in liaises affecting the official actions of mineral surveyors, and will, on sufficient cause shown, suspend or revoke their appointment. 121. The surveyors-general should appoint as many compe- tent mineral surveyors, as apply for appointment. In order that claimants may have a choice of surveyors, and be enabled to have their work clone on the most advantageous terms. 122. The schedule of charges for office work should le as low as is possihle. No additional rharjji s should be made 1 for amended surveys, unless the necessity there- arly the fault of the claimant, or considerable additional office work results therefrom. 123. In cases where the error in the original survey is due to tl or neglect of the surveyor who made it. liould be required to make the necessary corrections in the field at his own md the surveyor-general should advise him that the penalty for failure to comply with 406 LAND OFFICE RULES. instructions within a specified time will be the suspension or revocation of his commission. 124. Mineral surveyors will address all official communica- tions to the surveyor-general. They will, when a mining claim is the subject of correspondence, give the name and survey number. In replying to letters they will give the subject-matter and date of the letter. They will promptly notify the surveyor-general of any change in post-office ad- dress. 125. Mineral surveyors should keep a complete record of each survey made by them and the facts coming to their knowledge at the time, as well as copies of all their field notes, reports, and official correspondence, in order that surh evidence may be readily produced when railed for nt any future time. Field notes and other reports must be written in a clear and legibile hand or typewritten, in non- copying ink, and upon the proper blanks furnished grain iiously by the surveyor-general's office upon application therefor. No interlineations or erasures will be allowed 126. No return by a mineral surveyor will be recognized as official unless it is over his signature as a United States mineral surveyor, and made in pursuance of a special order from the surveyor-general's office. After he has received an order for survey he is required to make the survey and return correct field notes thereof to the surveyor-general's office without delay. 127. Claimant Contracts With Deputy. The claimant is required, in all cases, to make satisfactory arrangements with the surveyor for the payment for his services and those of his assistants in making the survey, as the I'nited States will not be held responsible for the same. 128. Surveyor Not Act as Attorney. A mineral surveyor is precluded from acting, either directly or indirectly, as attorney in mineral claims. His duty in any particular case ceases when lie has executed the survey and returned the field notes and preliminary plat, with' his report, to the surveyor-general. He will not be allowed to prepare for the mining claimant the papers in support of his appli- cation for patent, or otherwise perform the dutie of an attorney before the land office in connection with a mining claim. lie is not permitted to combine the duties of sur- veyor and notary public in the same case by administering ot.ths to the parties in interest. It is preferable that both preliminary and tin.il o.-iths of assistants should ! t-iken before some officer duly authorized to administer oaths. other than the mineral surveyor. In cases, however, where great delay, expense, or inconvenience would result from a strict compliance with this rule the mineral surveyor is an thorlzed to administer the necessary oaths to his assist ants, but in each case where this is done, he will submit to the proper surveyor-general a full written report of the circumstances which required his stated action: otherwise he must have absolutely nothfng to do with the case, except in his official capacity as surveyor. He will make no sur- LAND OFFICE RULES. 407 mineral claim in which he holds an imprest, nor will he employ chainmen interest-.'d therein in any manner. SIUVKV -now MAPI:. * 129.* Survey Must Be Actual. The survey made and re- turned must, in every case. he an actual survey on the irroiiml in full detail, made hy the mineral surveyor In per- son after the receipt of the order, and without reference MI any knowledge he may have previously acquired hy rea- son of having made the location survey or otherwise, and must slx.w the actual facts existing at the time. This pre eludes him from calculating the connections to corners of th- puhli* .ml location monuments, or any other lines of his survey through prior surveys made by others and substituting the same for connections or lines of the survey returned hy him. The term survey in this para- graph applhs not onl\ to the usual field work, but also MI the examinations required fn- the preparation of affi- davits of the hundred dollars expenditure, descriptive re- on placer claims, and all other reports. 130. The survey of a mining claim may consist of sevoral eontl| it ions, hut such survey must, in conformity with statutory requirements, dist in^iiish the several loca- tions. and exhibit the boundaries of each. The survey will . 1-11 but one number. 131. The survey must be made in strict conformity with, or be embraced within, the lines, of the location upon which the order : If the survey and location are identical. that fart must be clearly and distinctly stated in the field notes. If not identical, a bearing and distance must be iriven M iblished corner of survey to the cor- nding corner of the location, and the location corner must be fully d. serihed. so that it can be identified. The of the 1" found upon the ground, must he laid down upon the preliminary plat in such a manner as to contrast and show their relation to the lines of survey. 132. Comers Not to Be Changed -- In view of the princi- ple that coonei and distance must give way when in conflict with fixed objects and monuments, the surveyor will not. under any circumstances, change the corners of the location for the purpose of making them conform to the description in the record. If the difference from the location be slight, it may be explained in the field notes. 133. Not Exceed Statutory Length and Width -- No min- ing claim located subsequent to May 10. 1872. should exceed the statutory limit in width on each side of the center of vein or 1,500 feet in length, and all surveys must close wirhin ."M-IIMI feet in 1,000 feet, and the error must not be such as to make the location exceed the statutory limit, and in absence of other proof the discovery point Is held to be the renter of the vein on the surface. The course and N'Mirth of the vein should be marked upon the plat. 131. Instrument True Meridian. All mineral surveys must he made with a transit, provided with a solar attach- 408 LAND OFFICE RULES ment, by which the meridian can be determined independ- ently of the magnetic needle, and all courses must be re- ferred ty> the true meridian. The variation should be noted at each corner of the survey. The true course of at least one line of each survey must be ascertained by astronom- ical observations made at the time of the survey ; the data for determining the same and details as to how these data were arrived at must be given. Or, in lieu of the foregoing the survey must be connected with some line the true course of which has been previously established beyond question, and in a similar manner, and, when such lines exist, it is desirable in all cases that they should be used as a proof of the accuracy of subsequent work. 135. Ties to Public Survey. Corner No. 1 of each loca- tion embraced in a survey must be connected by course and distance with nearest corner of the public survey or with a United States location monument-, if the claim lies within two miles of such corner or monument. If both MIC within the required distance the connection must be with the cor- ner of tlio public survey. 136. Mineral Monuments in Suspended Townships. Sur- veys and connections of mineral claims may be made in suspended townships in the same m;innrr ai though the claims were upon unsurveycd land, except as hereinafter specified, by connecting them with independent mineral monuments. At the same time, the position of any public land corner which may be found in the neighborhood of the claim should be noted, so endangered by snow, 'rock, or landslides, or other natural c:i 141. Dimensions and Marking. The monument should one not 1 o inches long, 20 inches wide, and ; inches thick, set halfway in the ground, with a conical mound of stone 4 feet high and 6 feet base along- side. The let; U M.. followed by the consecutive nuinlii T of the monument in the district, must be plainly .- (1 upon the stone. If impracticable to obtain a stone of required dimensions, then a post 8 feet long, 6 inches in the ground, scribed as for a stone monument. pn-tec -t.d by a well-built conical mound of stone f not liss than 3 feet high and 6 feet base around it. may !. us.d The exact point for connec^on must be Indicated on the monument by an x chiseled thereon; if a post is ili. n a taek muM be driven into the post to indicate the point. 142. Ties to Mineral Monument. i'm.n the monument, connections by course and distance must be taken to two "i- H s, and to any well-known and Permanent objects in the vit-inity, such as the confluence of stream^, prominent ro-ks. buildings, shafts, or mouths of s iniisi be properly scribed it. T. and '! r. i:.. together with the number of the num. in : the exact point on the tree or stone to which ken should be indicated by a ;her unmistakable mark. Hearings should also be ak. n to prominent mountain peaks, and the approximate listanr minim: camp. A detailed description of the locating nonunu-nt. \vhh a topographical map of its location, should Mnish.-d the office of the surveyor-general by the sur 143. Comers may consist of I'irst. A stone at least 24 inches long set 12 inches in the Around, with a <>nial mound of stone 1% feet high, 2 feet has.-, alons i least 3 feet long by 4 inches square, set 18 inches in the ground and surrounded by a substantial mound of stone or earth. in place. A si. me should always be used for a corner when -o used the kind should be stated. 144. Marking Corners. All corners must be established in a permam-ut and workmanlike manner, and the corner and suiv.-v numb r must I neatly chiseled or scribed on th- !< i the claim. The exact corner point must be permanently indicated on the corner. When a rock in place is used its" dimensions above ground must be stated and a the exact corner point. 145. In case the point for the comer he inaccessible or un- suitable a witness corner, which must be marked with the 410 LAND OFFICE RULES. letters W. C. in addition to the corner and survey number, should be established. The witness corner should be located upon a line of the survey, and as near as possible to the true corner, with which it must be connected by course and distance. The reason why it is impossible or impracticable to establish the true corner must always be stated in the field notes, and in running the next course it should be stated whether the start is made from the true place for corner or from witness corner. 146. The identity of all corners should le perpetuated by taking courses and distances to bearing trees, rocks, and other objects, as prescribed in the establishment of location monuments, and when no bearings are given it should be stated that no bearings are available. Permanent objects should be selected for bearings whenever pOMlbie. 147. Tying to Official Survey If an official mineral survey has been made in the vicinity, within a reasonable distance, a further connecting Jine should he run to some corner thereof: and in like manner all conflicting sm\.\> and locations should In- so connected, and the corner with which connection is made in each case described. Such <-n nections will be made and conflicts shown according to the boundaries of the neighboring or conflicting claims a> each is marked, defined, and actually established upon the ground The mineral surveyor will fully and specifically state in his return lunr and by what risible rri/r;rr.v he' was able to identify on the ground the several conflicting surveys and those which appear according to their returned tie or hound ary lines to conflict, if they were so identified, and report errors or discrepancies found by him in any such sin \ In the survey of contiguous claims wjiich constitute a c.m solidated group, where corners are common, hearings should be mentioned but once. 148. Topography. The mineral surveyor should note carefully all topographical features of the claim, taking dis tances on his lines to intersections with all streams, gulches. ditches, ravines, mountain ridges, roads, trails, etc.. with their widths, courses, and other data that may be required to map them correctly. All municipal or private improve ments. such as blocks, streets, and buildings, should be located. 149. Conflict With Other Surveys. If, in running the exterior lines of a claim, the survey is found to conflict with the survey of another claim, the distances to the points of intersection, and the courses and distances along the line intersected from an established corner of such conflicting claim to such points of intersection, should be described in the field notes : Provided, That where a corner of the con- flicting survey falls within the claim being surveyed, such corner should be selected from which to give the bearing, otherwise the corner nearest the intersection should be taken. The same rule should govern in the survey of claims embracing two or more locations the lines of which intersect. LAND OFFICE RULES. 411 150. A lode and mill-site claim in one survey will be dis- tinguished by the letters A and B following the number of i In- survey. The corners of the mill site will be numbered independently of those of the lode. Corner No. 1 of the mill site must be connected with a corner of the lode claim as well as with a corner of the public survey or United I location monument. 151. When a placer claim includes lodes, or when several contiguous placer or lode locations are included as one rlaim in >MC survey, there must be given to the corners of each location constituting the same a separate consecutive numerical designation, beginning with corner No. 1 in each me. 152. Conflicting: Surveys Named. Throughout the desorip- tion of the ran each reference to the lines or cor- ni-rs of a location, the name thereof must he given, and if unsnrveyed. the fact stated. If reference is made to a lo- cation included in a prior omVial survey, the survey number must I iriven. foih.u.d by the name of the location. Oor Ben ihooN :i-ed once only. 153. The total area of each location and also the area in conflict with each intersecting survey or claim should be d; also the total area claimed. Hut when locations embraced in om- -urvey conflict with each other such con- i should only be stated in connection with the location from which the < o.iilictiug area is excluded. 154. Section, Township and Range to Be Shown.- It should be stated particularly wh.-th.M' the claim is upon survey,! or unsurveyed public lands, giving in the former case the quarter section, township, and range in which it is located. and the section lines xhonld he indicated lv full lines and th.- quarter -sect ion lines by dotted lines. 155. The title-page of the field notes must contain the HMress of the claimant or his authorized agent. 156. In the mineral surveyor's report of the value of the iniprov.-m-nts all nrtnnl expenditures and ininiini improve ments matle by the claimant or his -ranters, having a direct relation to the development of the claim, must be lnclude/1 in the estimate 157. What Improvements Excluded. The expenditures re.|uirer order unless satisfactory reasons are submitted, under oath, for a postponement. The field work must in every sense of the term be a joint and not a separate survey, and the ob- servations and measurements taken with tin* same instru- ment and chain, previously tested and agreed upon. 163. The mineral surveyor found in error, or, if both are in error, the one who reported the same, will mak- out tin- field notes of the joint survey, which, after l>'ing duly signed and sworn to hy both parties, must !> t ransinii te\ stems of lode de- posits or of individual lodes. (f) The use !>allty of the claim for pla< er mining, and \\li.-tln-r \\ater has h.-en l>roiii;ht upon it in ity tn miii" th- Ban : her it can be procured for that purpose. (U) What works .r expenditure have i.een made by th. claimant or his grantors for the development of ih-> !ai> ii and location with respect to the same as applied for. fh) The mi- situation of all mines, salt li.-ks. salt -print's, and mill sites which come to the surveyor's knowl- or a report by him that none exist on the claim, as the may warrant. ort must be made under oath and duly corroborated by one or more disinterested persons. 168. The employing of claimants, their attorneys, or i-ar- in interest, as assistants in making surveys of mineral claims, will not be allo\\ 169. Accuracy Required Threat of Revocation. The field work must be accurately and properly performed and re- turns ma-! rmhy with the foregoing instructions. :s in tho survey must be corrected at the surveyor's own t-xpens.'. and if the time required in the examination of the returns is increased by reason of neglect or carelessness, he will he required to make an additional deposit for office work. Ho will be held to a strict accountability for the faithful discharge of his duties, and will be required to ve fully the requirements and regulations in force as to making mineral surveys. If found incompetent as a sur- 414 CIRCULAR TO APPLICANTS. veyor, careless in the discharge of his duties, or guilty of a violation of said regulations, his appointment will be promptly revoked. R. A. BALLiNf;i:u. Commit** Approved, May 21, 1907. JAMES RUDOLPH GARFIELD., Secretary. ^CIRCULAR TO APPLICANTS. To Applicants for Mineral Survey Orders: You will observe the following requirements in the conduct of your business with the Surveyor General's Office, the same being based upon the United States mining laws and circular and special instructions from the Commissioner of the General Land Office : 1. All applications for survey orders, descriptive reports on placer claims, or certificates of five hundred dol- lars expenditure, should be addressed to the Surveyor Gen- eral and be signed by the claimants, their agent or attorney. 2. Each application should contain : in) The name of the claimanl in full, and as it is desired to appear in the application for patent. (b) The name of each location embraced in the claim. fo) The name of the land and mining districts in which the claim is located. (d) The name of the United States mineral surveyor to whom it is desired the order shall be issued. 'I. You are required to file with each application for survey order, a copy of the record of location of the claim. pnp "These provisions of the law must be strictly com- plied with in each case to entitle n claimant to a survey and patent, and therefore should a claimant under a location ma the : the mining act of May l<>. is?!*, who has not complied with-said reguirements in regard to marking the location upon the ground, and record- in- the same, apply for a survey, you will decline to make "The only relief for a party under such circumstances, will be to make a new location in conformity to law and ations. as i ill he approved l.y this otlico. unless these and all other provisions of law are substant ially complied with < s. . deneral Land Office circular dated Norember - 5. Par. 00 (mn>- '.n). General Land Office circular, of :i)U-r in. IXJH. edition hecemlier 1. 1^'.M. relating to the expense of office work connected \\ith the survey of mineral clain, "With r he iilnttimi of the claim and other office irurk in tin* Surveyor General's office, that officer will make an estimate of the cost thereof, which amount the claimant will deposit with any assistant United States treasurer, or d. depository, in favor of the rnited u> passed to the credit of the fund < n ated l.y 'individual deiMMtton for surveys of the public lands.' and file with the Surv-vr General duplicate cer- tiiir h deposits In the usual manner." i So,- iiule 91, P 6. The various Sur\ ra! have adopted gchcd for office work, and an estimate of the I any particular case may ho had upon application. Should an applicant de.-m an estimat- . h' will ho allowed the rijrht of appeal to the General Land Office in the usual manner. In transmitting such an appeal the Surveyor General should transmit therewith a full r. : 7 Should the office work in any case amount to more than the estimate, or if an amended older is issued, an additio It will he required. 8. In districts when- there are no T'nited states ou should deposit with the nearest assistant I nited States treasurer, or depository, and in all cases im- mediately forward the original certificate to the Serr.-tary of the Treasury and the duplicate to the Surveyor General's office, retaining the triplicate for your own use and secur- ity. Under no circumstances will the deposit ho made by the Surveyor <;en*ral. (See paragraph 5. preceding.) '.. An application for an amended survey order must be accompanied with a statement setting forth fully the reasons for the proposed amendment and all the material facts in the matter. 10. If, after having obtained a survey order, you should abandon your purpose of having a survey made, you can apply the deposit, less the amount estimated for office expenses already incurred, on a new survey if one is desired. 416 CIRCULAR TO APPLICANTS. 11. Upon discovery of any error or defect in an order you are requested to return it to the Surveyor <;-n eral's Office for correction or amendment. 12. If, after having obtained an order for sur you should find that the record of location does not prac tically describe the location as staked upon the irround. you should file a certified copy of nn amended location cer- tificate, correctly describing the claim, and obtain :m amended unit r for survey. If a relocation of the claim is made embracing ground not included in the original order, or other material change is made, you will abandon the original number of the order for survey, and a new order will lu> issued iu whirl) a number in the current series will be substituted. I.'!. Tln i.nb r of appr-'val of surveys of mineral claims is prescribed by.Ceneral Land Office circular dated March 3, follows : "The mining survey first applied for shall have the priority of action in all its stages In tho office of tin- Sur veyor General, including tbe delivery the: any other survey of the same ground or any portion thereof. "Tbe Surveyor General should not order or author i/e a survey of a claim which contlicts with one previously applied for until tbe survey 'first applied for lias been COO) pleted. examined, approved and platted, and tbe plats d" li vered. "When the conflict does not appear until tbe Held notes of the respective surveys are returned, then the survey first applied for should be first examined, approved, and platted, and the plats delivered I efore tbo Held notes of survey last applied for are taken up for examination or plats constructed. "When the survey first authorized is not returned within a reasonable period, and the applicant for a contlict ing survey makes affidavit that he believes (statin- the r. -a sons for his beliet *i that such first applicant has abandoned bis purpose of bavin.- a survey made, or is deferring it for vexatious purposes, to wit. to postpone the subsequent ap plicant, the Surveyor (General shall give notice of such charges to such first applicant, and call upon him for an explanation under oath of the delay. He shall als. quire the mineral surveyor to make a 'full statement in writ ing, explanatory of the delay; and if the Surveyor General shall conclude that good and sufficient reasons for such delay do not exist, he shall authorize the applicant for the conflicting survey to proceed with the same: otherwise the order of proceedings shall not be changed. "Whenever an applicant for a survey shall have n-a son to suppose that a conflicting claimant will also apply for a survey for patent, he may give a notice in writing to the Surveyor General particularly describing such con- flicting claim, and file a copy of the notice of location of such conflicting claim. In such case the Surveyor General will not order or authorize any survey of such conflicting claim until the survey first applied for has been examined. completed, approved and platted, and the olats delivered." TO APPLICANTS. 417 1 4. You have the option of employing any United states mineral surveyor in the district to execute the order irvey. and must make satisfactory arrangements with such surveyor for the payment of his services and those of his assistants in making the survey, as the United States will not be held responsible for the payment of the same. The duty of the mineral surveyor in any particular case - \vh.-n he lias .-xecuted the survey and returned the same to this office. lie is not allowed to prepare for the mining Haimaiit the papers in support of an application for patent, being precluded from acting either directly or in- directly as attorney in mineral claims. (Sec. 2334.) l."i. You are advised of your right to appeal to the Commissioner of the General Lund Office from the approval or disapproval of the survey of your claim. The appeal must lie in writing or in print, should set forth in brief and clear terms th. sp. , irtc points of exception to the ruling appealed from and should be transmitted through the Sur- ileneral's 14 418 SURVEYOR GENERAL'S CIRCULAR. SURVEYOR GENERAL'S CIRCULAR. The following circular relating to expense of of- fice work in the Surveyor General's Office in Colorado, dated June 21, 1902, is still in force. In accordance with paragraph 91, General Land Office Circular of the United States Mining Laws, approved July 20, 1901, relating to the expense of office work connected with the survey of mineral claims, which autlmri/<>s the Surveyor General in each district to require a deposit for platting and other office work for mineral surveys : it is directed, the same having been approved June 18/1002, by the General Land oilirr. that m and after July 1. 1902, the estimated cost of platting and other office work in con- nection with the survey of mineral claims, he computed as follows : Charges in Surveyor General's Office. For lode claim $30.00 For placer claim For mill-site 30.00 For mill-site included in one survey with a lode claim 20.00 For each lode claim within and included in the survey of a placer claim. . . . 20.00 For several lode locations included in one survey, the first location named. 80.00 All other locations Included, each.... L'.~i.nn For several placer locations included in one survey, the first location named. 35.00 All other locations included, each.... 30.00 For affidavit of $500 expenditure of im- provements, after approval of survey. 5.00 Should an amended order issue, an additional depo will be required. W. G. LEWIS, Surveyor General. 'APPLICATION FOR PATENT. The following pages are intended to contain the forms of application and proceedings to obtain pat- ent, in the order of time in which the several papers should be made and filed. *For many valuable suggestions upon points covered by this book, especially in this chapter, we are under obligations to E. E. Chase, U. S. Mineral Surveyor, Denver, and Milton E. Blake, Chief of Mineral Division in the Sur- veyor General's office ; upon geological points to Kirby Thomas and Franklin R. Carpenter, Ph. D. Al'l'LlCATlON FOR PATENT. 419 Request for Official Survey. itizen of the United States, or one who has declared his intention to become such, or a corpora- tion chartered within the Tinted States, being the holder of the possessory title to a lode claim, causes plication for an official survey to be made by an **A. AIMM.K A I K.\ KM; M];|.| |; 1'oK -I U\ I V. rij I>i.\\i:i:. November 1. r.n7. mining claim of C. A. \\'<>t<-tt. upon the in cr//>/>/<- ('rt-fk minim: district, county. ruihln land district. Colorado. I hrivwith transmit certified cony of the location (! i iid claim, and have deposited for office fees* on saint- .<:;<> t. the credit ..f the t reasurc-r of the Tnitcd National Hank (U. S. I icjn.siturv i with *1 that dupli.-atc ci-rt ilicatc !> t"m-\\ ardcd to you. 1 order Min. Snr.. at l)cnc( i, Colorado. Yonrs r ; sj>i-ct fully. ('. A. \Yi.i.. -IITT, Claimant. I'.y i:n. /' SalOj I tt> -in it. ddrc.vs iof Claimant i Itnuhli-r. r,,lthl< />'///*/.. Dfm I h. piiyiiuMit nuMitioned in the application is not by draft to the Surveyor General but by a deposit -In a bank recognized as a United States Depository. I pon payiu'iit to such bank the claimant receives triplicate certificates of deposit, of which he mails i he ori'iinnl to the secretary of the treasury at Wash- ington, the Duplicate he mails with the letter (A) to the Surveyor General (or the bank forwards it) and the Triplimfc he retains. This certificate is a mere receipt for money and has no farther value, except where the application is withdrawn, in which case the unexpended balance will be allowed to apply on another survey. **The forms for placer and mill site applications are substantially the- same *Fr costs in Surveyor General's office, sec p. }18. 420 APPLICATION FOR PATENT. In reply to the application (A) the Surveyor General mails to the U. S. deputy mineral surveyor designated therein the B. OIJDKI: nui SIKVKV. DEPARTMENT <>r TIM-: INTI:KH>K. OFFICE OF U. S. SURVEYS: <;I:M:K.\T DENVER, COLO., November 3, E. E. Chase, U. 8. Mineral Knrrcynr for the Di*1ri< ( of Colorado. SIR: You are hereby dir survey the claim of C. A. Wolcott, upon the Bear 1<><1<>. in Cripple Creek mining district, Teller County, < '<>!(. r;i I'm hid \-.\i\<] district," ami inn- made in strict conformity with the location certificate amended location certificate) dated Jvty 28, 1902. \\. 0. LEWIS, U. S. Surveyor General for Colorado. With the order 3 is enclosed a copy of the loca- tion certificate made in the Surveyor General's office from the certified copy filed by applicant. The numbers of the survey lots were formerly consecutive in each mineral district, but since the abolition of mineral districts they are consecutive throughout the State, beginning with No. 4,501, with which number the new series was commenced No- vember 30, 1886. Survey to Conform to the Record. This order of survey "B" being received by the U. S. mineral surveyor designated in "A," he must proceed in person to the premises, make an actual survey, and mark each post with the number of the survey and the number of the corner. The copy of location certificate mentioned as in- closed in "A" must be certified by the recorder. The surveyor, in making his official survey, must follow the lines as staked upon the ground. Changing Lines After Order Received. The Surveyor General will not allow a serious departure from the lines called for in the location certificate, without insisting upon the filing of an APPLICATION FOR PATENT. 421 amended or -elocation certificate in the office of the recorder of the proper county, and the deposit of a itird ropy of such amended record in the Sur- r General's office, and when such certified copy has been filed an amended order of survey issues, in which, if r\ii>iile Creek mining district. I, ll>,- r.mnty. < 'ulo! unship ir South, Range 69 West. Sur\ >. 1. Identical with Cor, N. 1 of the location. A spruce post. 5 ft. long, 4 ins. square, set 2 ft. In the ground, with mound of stone, marked in:; in whence Tin- \\ V4 cor. Sec. 22, T. ir. s K. 69 W. of tin- <;th rrin.-ii.al Mt-ridian, bears S. 79 34' W. 2 ft < 'or. No. 1, Gottenburg lode (unsurveyed), ; .ttson, claimant, bears S 40 -'' W. A pine 12 ins. dia. blazed and marked \\. T. 1-11310 bears S. 7 25' E. 22 ft. Mt. IMsgnh IM'.-H-S S. 80 l. r >' W. 424 APPLICATION FOR PATENT. Bull Hill bears N. 80 W. Thence S. 24 45' W. Va. 15 12' E. 1242. To trail, course N. W. and S. E. 1440.28 Intersect line 1-4, Sur. No. 2560, at N. 38 52' W. 76.6 ft. from Cor. No. 1. 1500. To Cor. No. 2. Identical with Cor. No. 2 of the location. A granite stone 25x9x6 ins. set 18 ins. in the ground chiseled 2-11310, whence Cor. No. I, Sur. No. 2560, Carnarvon lode, David Davis, r>' W. 285.13 ft. from Cor. No. 1. 300 To Cor. No. 1, the place of beginning.* The identity of the claims conflicting with the Bear Lode as herein described, was determined by finding corners 1, 2 and 3 of Survey No. 2560, and corners 1 and 2 of the Gottenburg lode upon the ground. *Adjoining claimants are mentioned as they are reached in the notes, as they ambit the claim. Rule 149 APPLICATION FOR PATENT. Area. Total area of Bear lode 10.33 acres Less area in conflict with Sur. No. 2560 956 acre Gottenburg lode 1.363 acre 2.319 acres Net area Bear lode claimed 8.011 acres Location. This claim is located in the W. % Se< -. _'_'. T. 15 S. K. '! W. Expenditure of Five Hundred Dollars. I certify that the value of the labor and improve- ments upon this claim placnl !ln>n><>n by the claimant and his grantors, is not less than five hundred dollars, and that said improvements consist of The discovery shaft of the Bear lode, 6x3 ft. 10 ft. deep in earth and rock, which bears from Cor. No. 2 N. 4 _' ft. Value $80. An incline 7x5 ft. 45 ft. deep in coarse gravel and rock, timbered, course N. 58 15' W. dip 62, the mouth of which bears from Cor. No. 2 N. 19 37' E. 1025 ft. Value $550. A log shaft-house 14 ft. square, over the discovery shaft. Value $100. Two-thirds interest in a tunnel 6.5x5 ft. running due west 835 ft., timbered, the mouth of which bears from Cor. _' N. 51 15' E. 837 ft. This tunnel is in course of construction for the de- velopment of the Bear lode and also for the Carnarvon lode, Survey No. 2560, David Davis, et a/., claimants, the rem.iiu ing one-third interest therein having already been included in the estimate of five hundred dollars expenditure upon the latter claim. Total value of tunnel, $13,000. A drift 6.5x4 ft. on the Bear lode, beginning at a P<,iin in tunnel 550 ft. from the mouth, and running N. 20 _"' i:. 195 ft. thence N. 54 15' E. 40 ft. to breast. Value $2,800. Other Improvements. A log cabin 35x28 ft., the S. W. corner of which bears from Cor. No. 3 N. 30 44' E. 650 ft. Said cabin belongs to the claimant herein. An adit 6x4 ft. running N. 70 50' W. 100 ft., the mouth of which bears from Cor. No. 1 S. 58 12' W. 323 ft., belonging to Neals Mattson, claimant of the Gottenburg lode. 426 APPLICATION FOR PATENT. Instrument. The survey was made with a Buff d Bcrger transit with Smith's solar attachment. The courses were deflected from the true meridian as determined by solar observations. The distances were measured with 500 and 100 ft. steel tapes. MEMORANDA AS TO CHAINMEN, ETC. (PART OF "D".) A list of the names of the individuals employed by E. E. Chase, United States Mineral Surveyor, to assist in running, measuring, and marking the lines, corners ;md boundaries described in the foregoing field notes of tli<- survey of the mining claim of C. A. Wolcott, known as the Bear lode, and showing the respective capacities in which they acted. L. E. Lemen, Chainman. Otto Shatz, Axman. AFFIDAVIT OF ASSISTANTS. STATE OF COLORADO, County of Teller: ss. We, L. E. Lemen and Otto Shatz, do solemnly s\v-;ir that we assisted E. E. Chase, United States Mineral Sur- veyor, in marking the corners and surveying the boundaries of the mining claim of C. A. Wolcott, known as the H< nr lode, represented in the foregoing field notes as having been surveyed by said Mineral Surveyor and under his direction and that said survey has been in all respects, to the best of our knowledge and belief, faithfully and correctly executed, and the corner and boundary monuments established accord ing to law and the instructions furnished by the United States Surveyor General for Colorado. L. K. I.EMIIN. Chainman. OTTO SHATZ, Axman. Subscribed and sworn to by the- above named p. i before me this 8th day of November. I'.HI? ll< nrii //. Clurk. I SEAL.] Notary Public. FINAL AFFIDAVIT OF U. 8. MINERAL SURVEYOR. Part of ' /'.' I, Edwin E. Chase, U. S. mineral surveyor, do solemnly swear that, in pursuance of instructions received from the United States Surveyor General for Colorado, dated November 3, 1907, I have, in strict conformity to the laws of the United States, the official regulations and instructions thereunder, and the instructions of said sur- veyor general, faithfully and correctly executed the survey of the mining claim of C. A. Wolcott, known as the Bear lode, situate in Cripple Creek Mining District, Teller County, Colorado, in Section t%, Township ]S T o. 15, S. Range No. 69 IV., designated as Survey No. 11,310, as represented in the fore- going field notes, which accurately show the boundaries of APPLICATION FOR PATENT. 1-7 said mining claim as distinctly marked by monuments on the irround. ami described in the attached copy of the location certificate, which was received by me from the surveyor ;al with said instructions, and that all the corners of said survey have been established and perpetuated in strict accordance' with the law. official regulations and instructions thereunder: and 1 d<> further solemnly swear that the fore- U"in.u r are the true and original field notes of said survey and my report therein, and that the lahor expended and improvements made upon said mining claim by claimant or his -rantors are as therein fully stated, and that the char acter. extent, location ami itemixed value thereof are speci- fied therein with particularity and full detail, and that no portion of said labor or improvements so credited to this claim has been included in the estimate of expenditure upon any other claim. EDWIN K. ( 'ii AST. U. S. Mineral Surveyor. Subscribed and sworn to by the said Etlirin / r I s. mineral surveyor, before me. a notary public, this mil, member, ii>07. //< CERTIFICATE OF $500 IMPROV! MI Rite of (amended) location, July 28, 1902. Mineral Snrv.-y NM. ii::m. 1'in'Un land district. Plat of the claim of C. A. Wolcott, known as the Bear lode, <'>-ii>i>h r/rrA mining district. Teller County, Colorado, containing an aiva of S.IIM acres. Scale of 200 feet to th.- inch. Variation 1 r, -jo' east. Surveyed by / /'. chase. TT. S. Mineral Surveyor. \<. ;. /907. The original liHd notes of the survey of tho minim: claim of C. A. U <>!<>,( t. known as the Bear lode, from which this plat has been made under my direction, have been ex amined and approved, and are on file in this offlcr. :m<1 I hereby certify that they furnish such an accurate descrip- tion of said mining claim as will, if incorporated into o patent, serve fully to identify the premises, and that such reference is made therein to natural objects or permanent monuments as will perpetuate and fix the locus theivnf. I further certify that five hundred dollars' worth of laboi has been expended or improvements made upon said mining claim by claimant or his grantors and that said improve ments consist of 1h< J/.vro/vr// .thnft. an incline, a shaft house, an interest in a tunnel, and a drift, as appears by the affidavit of the mineral surveyor; that the location of said improvements is correctly shown upon this plat, and that no portion of said labor or improvements has been included in the estimate of expenditures upon any othei claim. *This is the copy mailed to the surveyor with the or- der B, and has now been returned attached to the field notes. APPLICATION FOR PATENT. And I lurth. i- certify that this is a correct plat of said minin.i: claim made in conformity with said original ti.-ld notes of thf survey thereof, and the same is herehy approved w. <;. LKWIS. U. S. Surveyor General for Colorado. ! B Surveyor Oueral's Office, Denver, Colorado. Dee, 11, 1907. When the improvements are completed, pending publication, the Surveyor General makes a separate certificate. fiec P. /'/;. The amount of improvements is to be found by the Surveyor General cr his deputy, or from the tes- timony of witnesses. U. A. Along with two copies of the diagram "F," with ndorsement "G" the Surveyor General forwards to the surveyor for claimant the H. U:\NM i;in or MMM NOTKS, otherwise called "APPROM P MUD No IKS." This instrument "H" is verbatim the same as I) including all its exhibits, but not the Surveyor General's certificate "G." Instead of the certificate <; such transcript is certified as follows: I. SUKVETOI ,IMI:\I'- MI:IIM<\II: TO TRAN- SCRIPT "H." OF THI: INTKKIOR. Office of the U. S. Surveyor General. Denver, Colorado, Dec. //, 1907. I. H ' S. Surveyor General for Colorado, du hrrel.y entity th.it the foregoing transcript of the field B, n-nirn and approval of the survey of the mining d.-iiin "t C. L }\'ni,-itt. kn>\vn as the Bear lode, situate in /'/// niiiiini: lisiri-t. 'l>l!>r c.Miniy. ('(.lorado, in /.-.. > It'iiu/e A T o. 69 irrx/ nth r. M. MMS in-. -n (.ii.>. t!\ rnpiiMl from the originals on file in this n!!ir- : that <:\'n\ ti.-ld notes furnish such an accurate descrip- tion ..r said niinin.ir rlaim as will, if incorporated into a pan-in. s-rv* to t'nily iilciitit'v tho premises, and that such i fft I't-nr*- is made therein to natural objects or permanent momum-nts as will p<-rprt nate nnd fix the locus tlx-n'of. And I further certify that five hundred dollars' worth of lalmr has heen expended or improvements made upon said mining claim l.y claimant or his grantors, and that said improvements consist of the discovery shaft, an 430 APPLICATION FOR PATENT. incline, a shaft house, an interest in a tunnel, and a drift. and that no portion of said labor or improvements has IM -n included in the estimate of expenditures upon any other claim. I further certify that the plat thereof, filed in th. r. S. land office at Pueblo, is correct and In conformity with the foregoing field notes. W. G. LEWIS. United States Surveyor General for Colorado. These matters are all preliminary to the appli- cation for patent proper which is made to the local land office, these proceedings in the Surveyor Gen- eral's office being necessary because each lode claim must be separately surveyed, whereas in case of agricultural land a party simply enters upon a par- ticular quarter section which has been already sur- veyed and platted. Delivery of Papers to the Attorney. The above transcript "H" received from the Surveyor General which is generally termed the "Ap- proved Field Notes," the surveyor then delivers, along with the plats or diagrams received from the same office, to the attorney for the claimant, who is supposed to supervise the signing and filing of all the subsequent papers, and takes charge of the ap- plication from this point, although in fact the fur- ther papers and the superintendence of the posting, etc., are frequently left in charge of the Surveyor. Respective Duties of Surveyor and Attorney. The U. S. Mineral surveyors are not allowed to act as attorneys. Rule 1>$. The surveyor's services seem properly to end with the preparation of papers for the Surveyor General's office and the reception of papers from that office. These latter he turns over to the attorney, who makes out or supervises all pa- pers intended for the land office. The surveyor's aid should not, however, be discarded pending the application, as with many of the forms he is mere familiar than attorneys generally are. The profes- sion ought not to object to surveyors filling out the ordinary blanks, especially in cases where no adverse APPLICATION FOR PATENT. 431 claim Is expected, nor to their attending to posting, publication, proofs of citizenship, etc., if they will not attempt to make out the location and relocation rt'rtMiratfs which are strictly legal papers the in- terference of the surveyors in these matters gener- ally leaving applicants in a position where they (.usly need an attorney's advice, if not already late to be of service. And in case of land office test any intrrt'nviMv by the surveyor would be rflicious and reprehensible. The claimant or his attorney then prepares four copies of K:" one for posting on the claim, one to : u ached to proof of posting, one for publication in newspaper and one for posting in Land Office. K. NOTICE OF APPLICATION FOR V. 8. PAT1 \ I. Survey No. 11310. U. S. LAND OFFICK. /'//<>,/. is?'- 1 . U. .\ . \\'nimtt f whose postoffice is H> ha* made application for a nt for 1500 linear feet on the Bear lode, bearing gold same i.c-in;: :;;:, tv,-t southwesterly and 1135 northeasterly from \V. U cor. f the 6th Principal Meridian, ;' \\ . 1878*2 fpt. Cor. No. i. i Jot t.-nl.uru lnd> i uiisui-v.-ycd i Neals aininnt. l \V. 187.67 ft. Thence S. 24 C :,' \v. 1600 ft to tor. No. '_'. whence i narvon lode, bears N. 88 E. 81.6 ft Tn> n i.V W. 300 ft. to cor. No. 3. Thence _4 45' E. 1500 ft. to cor. No. 4. Thence S. 65 15' "0 ft. to cor. No. 1, the place of beginning; containing 8.011 acres (exclusive of survey No. 2560 and the Gotten- hurg lode), and forming n portion of the west % section n Township ir, s Ranee 69 \v. of the Sixth Principal Meridian. The names of the adjoining and conflicting claims as shown by the plat of survey are the Gottenburg on the northwest and the Carnarvon lode on the south. Witness: C. A. WOLCOTT. John C. ClurJ:. &. F. Pinson. 432 APPLICATION FOR PATENT. Naming Adjoining Claims. The Regulations (Rule 39) require the notice to give "the names of adjoining and conflicting claims as shown by the Plat of Survey" 29 L. D. 250 and by Rules 38 and 149, all conflicts with surveyed claims, and with unsurveyed claims intended to be excluded, are required to be shown in the field notes. One of the notices "K" should be at once posted on the claim, along with one of the certified dia- grams received from the Surveyor General, the two papers being loosely attached, or, as more usual, placed side by side, in some conspicuous place on the claim (usually at the discovery shaft) in presence of two persons who attach their signatures as shown upon form "K." Another of the notices "K" is attached to L. PROOF OF POSTING NOTICE AND DIAGRAM o\ illi CLAIM. Si MI; OP COLORADO, Teller County : ss. John C.Clark and B. F. Pinxn.> year*, :nil \\.MS pi-. on the 15th day of December. A. I >. WFL \\hen a plat repre- senting the claim of C. A. \\l,,:tt. .-mil rtitied MS rorrert by the United States Surveyor (ienernl of Colorado, and designated by him us lot N. 11. .".!<> together with a notice of the intention of said (/. A. \\'nin,it i<> :ppl.v for a patent for the mining claim and premises so platted was posted in a conspicuous place upon said mining claim, to wit : upon the outside of the door of the shaft house at the discovery, where the same could be easily seen and ex- amined. A copy of the notice so posted upon said claim is herewith attached and made a part of this affidavit. Jony C. CLARK. B. F. PINSON. Subscribed and sworn to before me this 15th day of December, A. D. 1907, and I hereby certify that I consider the above deponents credible and reliable witnesses, and that the foregoing affidavit and notice were read by each of them before their signatures were affixed thereto, and the oath made by them. [SEAL.] Henry Moody, Notary Public. APPLICATION FOR PATENT. 433 The form "L" is subscribed by at least two post- ing witnesses. The applicant does not sign it, and should not be one of the two witnesses. The third notice "K," signed by the applicant, but not by the witnesses, goes with the second of the plats received from the Surveyor General (page . when it is sent with the firfct set of papers to the land office, where the register attaches his at- testing signature, and it will remain posted in the land office, while its fellow notice and plat are stand- ing on the claim during the period of publication. The next -paper to be prepared is the M. APPI.M \rin\ FOR PATENT. i: OF COLORADO, Teller County : ss. . Application for patent for the Bear Lode Mining < l.iiin. To the K.^ist.-r and Receiver of the U. S. Land Office at Pueblo, Colorado : C. A. \\oh-ntt. whose postofflce address is Boulder, Colorado, being duly sworn, according to law, deposes and says : that in virtue of a compliance with the mining rules, regulations and customs, by himself (nnd his grantors) be. the applicant for patent herein. h:is !>.. .m th owner of and is in the actual, quiet and undisturbed possession of 1500 linear feet of tli' H< nr vein, lode or deposit, bearing gold and silver, together with surface ground 300 feet in width, for the convenient working thereof as allowed by local rules and customs of miners, said mineral claim, vein, lode or deposit nnd surface ground being situate in Cripple /; mining district. County of Teller, and State of Colo- rado, as more particularly set forth and described in the official field notes of survey thereof, hereto attached, dated December 11, 1007, and in the official plat of said survey, now posted conspicuously upon said mining claim or prem- ises, a copy of which is filed herewith. Deponent further states that the facts relative to the right or possession of himself to said mining claim, vein, lode, or deposit and surface ground so surveyed and platted, are substantially as follows, to wit : The Bear lode was discovered on or about the fourth day of July, A. D. 1897, by James A. McFadden, who afterwards, and before the twenty-eighth day of July, A. D. 1897, completed a location of the same as a mining claim of the length and width aforesaid, having substantially located the same and otherwise complied with all local rules and regulations, the laws of the State of Colorado and of the United States relating to mining claims. The said discoverer and locator conveyed all his interest in the claim to Chas. O. Baxter and Frank M. Taylor, who by divers intermediate conveyances transferred the same to applicant, who thereupon took possession and 434 APPLICATION FOR PATENT. is the sole present owner, all of which will more fully ap- pear by reference to the copy of the original record of location and the abstract of title herewith filed ; the value of the labor done and improvements made upon said /;// lode mining claim by the applicant (and his grantors) being equal to the sum of five hundred dollars. Said improve- ments consist 'of discovery shaft, an incline, shaft house, a drift and two-thirds interest in tunnel (but expressly excepting and excluding from this application all that por- tion of the ground embraced in mining claim or survey designated as lot No. 2560 and the claim of Ncals Mattsm on the Gottenburg lode) in consideration of which facts and in conformity with the provisions of Chapter VI. Title 32 of the Revised Statutes of the United States, application is hereby made for and in behalf of said C. A. \\'l<-,,tt t>r a patent from the United States for the said -Bear lode min- ing claim, vein, lode or deposit and the surface ground so officially surveyed and platted. C. A. WOLCOTT. Subscribed and sworn to before me this 16th day of December, A. D. 1907, and I hereby certify that I consider the above deponent a credible and reliable person, and the foregoing affidavit, to which was attached the field notes of survey of the Bear lode mining claim, was read and exam- ined by him before his signature was affixed thereto and the oath made by him. llcnrii Mnntlii. [SEAL.] Notary Public. Where an application is filed in the land office without proof that the plat and notice have teen posted on the claim as required by R. S. 2325, such application has been held void. / L. D. 557; Rev. Ed. 545; 34 L. D. 583. This application "M" is attached to the tran- script "H," commonly styled "The Approved Field Notes." At the same time there should be prepared: N. The abstract of title. O. The proof of citizenship. P. The publisher's agreement. Q. The publication notice which, with those already referred to, complete the first set of papers, to wit: N. ABSTRACT OF TITLE. STATE OF COLORADO, County of Teller: ss. I, Alex. W. Grant, Clerk and ex-officio Recorder of said County, do hereby certify that the foregoing is a true, APPLICATION FOR PATENT. 435 full and correct abstract of title of the Hear lode tluMvin ibed. .-is tin- same appears of record In my otlice. ami shows all location certificates, deeds or other instruments appearini: of iv ( -..rl purport in^ to convey or nflVrt the saint-. \Yiimss my hand and the seal of said County, this Itith f /.'i < > ml,- r. A. I >. /.'"<:. - ' AI.I:\. \v. GRANT, I County S -il.] rder. It should contain a memorandum of the location certificate, including any amended location certiti- s. and the usual memoranda of the deeds and other instruments appealing of record in his office, and should be brought up to and include the date of application, and should be certified to by the Re- The abstract often contains a copy of the loca- tion certificate, and in such case the recorder's cer- tificate should.be varied to state that it contains a true ropy thereof; but the better practice is to mail with the application papers a certified copy of the location certificate (or certificates if there be more than one), separately, and after the filing of the application papers" but during the period of pub- lication to send the abstract proper, which in such .'ain only the memorandum of the loca- tion certificate with names, dates, etc., in the same manner as .he memoranda of the separate de< This precaution is to make the abstract certainly '/' the date of the filing of the application. When the- applicant for patent is the original locator himself (and there have been no transfers of i it lei. he should file as his abstract, a copy of his location certificate certified as follows: STA i i. Of OOl "i:' 1-". County of '\\ lit r: SS. I. Lie*, u. a runt, clerk and ex-offielo Recorder of :y. do In !!> ormy that the foregoing is a full. true :ind correct .-ilstract of tin- title to the Bear lode therein desci -jl ., -d. ,is th*> same appears of record in said otlice. ;md that there are no deeds or other instruments aiipearinir of reconl purporting '" convey or affect the same iticate of location of which the fore^oin^ is a true Witness my hand. etc.. 1 I I I/I N -II II'. STATI: <>r COLORADO, County of T/. / ry M'HHin. [SEAL.] Notary Public. When the applicant is not a native citizen the form after the * will proceed: That he is a naturalized citizen of thr United took out his final naturalization papers in tho <'i,-<-nU cnurt of ilic United States at Denver, Colorado, on ib- fi>-*t d:iy of Mail, /s>'". niul is now .M resident of Knlcnnm. St:i' Colorado. If the applicant has not taken out his final pa- pers, it will show, as required by Rule tftf, when, APPLICATION FOR PATENT. 437 where and in what Court he took out his first pa- pei s : That he d.M lured his intention of becoming a citizen he United States in the Circuit Court of the United > s, at Denver, Colorado, on the first day of May, 1899, ami is now a resident of Cheyenne, State of Wyoming. If the applicant claims under his father's nat- uralization, it will proceed: That he is a naturalized citizen of the United States, born in the /fcpub/ir of /Yru. and that he came to the United States a minor, under the age of 21 years, and has ever since resided in the United States, and that his father took out his final papers and became a naturalized citizen of the United States during the minority of affiant, whereby affiant became a naturalized citizen under the terms of Sec- tion 2172 of the Revised Statin. s of the United States, and is now a resident of A*pcn, County of Pitkin, State of Colorado. Serving in the army or navy does not complete citizenship of itself. Soldiers must comply with 2166 and sailors with 2174 of the R. S. or 28 Stat. L. p. 124. Where there are several applicants each makes his own affidavit of citizenship. Affidavit, Where Made. By Act of April 26, 1882, the affidavit of citizen- ship, where the applicant resides outside of the land district, may be made anywhere in the United States, before any notary or Clerk of Court of Record where the applicant may reside or happen to be found. Proof by Two Witnesses. When the affidavit of the applicant cannot be procured the land office will allow proof of his citi- zenship by the affidavits of two disinterested wit- nesses. Rule 7". Citizenship of Corporation. A corporation must file a copy of its charter or articles of association, certified to by the Secretary of State of the State within which it is operating, whether it be a domestic corporation or a corpora- -MS APPLICATION FOR PATENT. tion of some other State doing business in that State. Rule 66; 21 L. D. 351. Or it may file a "Certificate of Incorporation" and the Land Office will not pass on the point that it is not by its articles a corporation which could lawfully take title to mineral lands. 20 L. D. lid L. D. 83. Entry secured by fraudulently suppressing the fact that it was for the benefit of an alien corpora- tion will be cancelled and purchase price will not be refunded. 20 L. D. .111). Proof of Non-Abandonment. By circular of the General Land Office of March 24, 1887, 8 L. D. 505, it was ruled that the register should require upon each application satisfactory proof of compliance with the annual labor law; but by the Revision of 1901 such proof is no longer re- quired and the question is left by the Department to be settled by adverse claimants in the courts. Rule 55; 29 L. D. 302, 401; 31 Id. 69. But a delay to make entry until beyond the end of the calendar year after publication, held fatal to the entry, where relocation for failure to do annual labor is alleged by protest. 31 L. D. M. P. PUBLISHER'S CONTRACT. I, the undersigned, publisher and proprietor of the Cripple Creek Star, a weekly newspaper published in Cn>/>/ A . Teller County, State of Colorado, hereby agree to publish a, notice dated 1. s. Land Office, Pueblo, Colo., December i~>. 1907, required by Act of Congress, approved May 10th, 1872, of the intention of C. A. \Vnlmtt to apply for a patent for his claim on the Dear Lode, situate in Cripple Creek Mining District, County of Tetter, State aforesaid, and to hold the said C. A. Wolcott alone re- sponsible for the amount of our bill for publishing the same. And it is hereby expressly stipulated and agreed that no claim shall be made against the government of the United States, or its officers or agents, for such publication. \Vitness my hand this 16th day of December, A. I> 1M7. P. H. KNOWLTON, Publisher. In What Newspaper. The notice must be published in a newspaper to be by the Register designated as published near- APPLICATION FOR PATENT. 439 10 the claim. /' fi // L. D. 138. When there are two or more in the nearest town, either may be designated. Camcrun r. Seaman. I.I M. l\. 2 L. D. 158. The practice of the Register, where two or more local papers in the same town are pub- lished is to designate that one which the attorney may suggest. The distance is to be calculated not by an air line, but by the most usually traveled route. The language of the Act allows much discretion in the designation of the newspaper. -/: />. D. 560; .'<; I'!. !',:>: .;; hi. l&f. Hut this discretionary power is subject to review by the department. 32 L. D. $59, 611. The notice must be continued in the same paper and cannot be shifted from the daily to the weekly edition. 3 L. 0. 18. What Constitutes a Newspaper. It must be a reputable newspaper of general circulation. .> /.. D, '" : 758. The Register has a discretion in deciding what constitutes such a news- paper. 10 L. D. 655; 2C> Id. !',->. Q. ITIM H \ I |n\ NM| K | . This is verbatim the same as "K" and amounts to a fourth copy of "K," except that it is not signed by the applicant but is forwarded in blank to the land office where it receives the application number, is signed by the Register and returned by him to the attorney for claimant or direct to the printer. It usually contains at the foot the dates of the first and last publications; but erroneous statement of last date will not excuse failure to file adverse within statutory period. 25 L. D. 550. Manner and Period of Publication. The notice "Q" must be published for 61 days in a daily, or nine consecutive times in a weekly paper. 29 L. D. 230; Rule '/J; and while the notice is going through its newspaper publication, it also stands posted on the claim, and tacked to the bulle- 440 APPLICATION FOR PATENT. tin of the land office. Each of these methods of publication is mandatory and essential. See p. 445. First Set or "Application" Papers. The above mentioned papers, constituting the following list, to wit: F. The final plat one copy. H. The approved field notes. K. The- copy intended for posting in land office. K. Second copy with "L" proof of posting at- tached. M. Application for patent. N. Abstract of title. O. Proof of citizenship. P. Publisher's agreement. Q. Publication notice which complete the first set of papers commonly called the "application pa- pers," are all forwarded at one time by the attorney to the local land office. Upon receipt of the application papers, accom- panied by the filing fee of ten dollars, the register gives the papers an application number, makes a rec- ord of the application in the nature of an index, at- tests the posting of notice "K" in his office, affix- ing the date, and returns to the attorney for claim- ant the notice for publication "Q" headed with the application number, or sends it direct to the proper paper for publication. The return of the publica- tion notice to the attorney or paper is an implied approval of the publisher's contract and a sufficient designation of that paper. RECAPITULATION. It may be convenient to review the proceedings at this point. The papers A to I, inclusive, have performed their office. A, the request for survey; C, the preliminary plat; D, the field notes, and F, the final plat, remain with the Surveyor General. APPLICATION FOR PATENT. 441 B, the order for survey, remains in the hands of the surveyor, being his voucher against the applicant for the work done under it. E, G and I are mere certificates endorsed on other pai The transcript H (the approved field notes), has been attached to the application M, and both mailed to the local land office. One copy of the plat F has been forwarded by the Surveyor General to the local land office to be kept on file; one copy has been posted on the claim, and one copy forwarded to the local land office as one of the application papers. One of the notices K has been posted on the claim; one has been attached to the proof of post- ing; one has been posted in the land office, and one, Q, remains to be. published or is being published. L, the proof of posting; M, the application; and I*, the publisher's agreement, have been filed in the land office. N, the abstract, and O, the proof of citizenship, have luH-n lih' \oTHK KKMAI\M> I'nx n.;i) ON CLAIM Drill N. TIME OF PUBLICATION. Si MI: ..r COLORADO, County of Teller: ss. C. .1. \\'nlri,tt, being first duly sworn according to law. deposes and says, that he Is the claimant, of the /;*'// lnl mining claim. Cripple Creek Mining District, 7V//./ <'. unity. State of Colorado, the official plat of which prem- ises together with the notice of his intention to apply for 442 APPLICATION FOR PATENT. a patent therefor was posted thereon, on the 15th day of December, A. D. 1907, as fully set forth and described in the affidavit of John C. Clark and B. F. Pinson, dated the 15th day of December, 1907, which affidavit was duly filed in the office of the register, at Pueblo, in this States and that the plat and notice so mentioned and described, re- mained continuously and conspicuously posted upon said mining claim from the 15th day of December, A. D. 1907, until and including the 19th day of 1'ihninnj, A. D. 1908, including the sixty days' period during which notice of said application for patent was published in the newspaper. C. A. WOLCOTT. Subscribed and sworn to before me this 20th day of February, A. D. 1908, and I hereby certify that the fore- going affidavit was read to the said C. A. Wolcott, previous to his name being subscribed thereto. /'. C. Crawford, [SEAL.] Notary Public. This affidavit of continuous posting the claimant may make from information derived from hearsay. 9 L. D. 503. S. CERTIFICATE OF PUHI.H ATH >\. (Copy of publication notice cut Jrom heiv. . i. (1 I, P. H. Knowlton, do certify that I am Publisher of the Cripple Creek Star, a weekly newspaper published in Cr ///. 1907, and the last publi- cation being on the 12th day of February, A. D. 1908. P. H. KNOWLTON. The publisher's re- Subscribed and sworn to before ceipted bill is com-me this 20th day of February, A. D. monly attached to this 1908. Henr;/ Moody, blank. [SEAL.I Notary Public. Together with these proofs of publication and posting, the claimant forwards, under one of the in- structions of the department, the following: T. PROOF OF SUMS PAID. STATE OF COLORADO, County of Teller: ss. C. A. Wolcott, having been first duly sworn according to law, deposes and says that he is a citizen of the United States, over the age of twenty-one years; that he is th<> APPLICATION FOR PATENT. Itf applicant for patent to I.'HMI feet upon the Hear Lode, In r, //,/,/, Greek Mining District. Tetter county. Colorado; that in the prose -in ion of such application he has paid the following sums of money. vi/.. : Tor i. Hit.' work in the Surveyor Ceneral's office ...... $ .30 To /:. /'. c/niA, . Mineral Surveyor, for surveying and planinir .................................. 50 To Register and Receiver, for filing application in I. .-111(1 Mtlic... ................. 10 the cripple cr.-ek Star, for publishing notice of application .......... ............ 20 he Receiver of the local L.iml < nii *. for land.... 45 $155 A \VOLCOTT. Subscribed and sworn to b<>fon> in.- this SOth day of \ D. I'.UIS. D. C. Crawford, AL.] Notary Public. These are the official costs only; it does not in- clude attorney's fees, notary's charges. nor cost of abstract. The total expense of patenting one lode, without mill site, varies from $150 to $250. The filing of this paper, T, completes the pre- ivquisites of entry and payment except the formal application to purchase, U, and the register's proofs, V and W. U. APPI.K A I IMN to i'i i: HAM . P th, Bfffttor ';>' /;'/., t nitt-d States Land Offlw. nt Pitt I. ' >i,((, nfturg lode, and also all that portion of any vein or lode, the top or apex of which lies inside of said excluded irmund. said lode mining claim emtr:icing 8.011 acres in the Cripitl* <')>< k Mining District, in the County of Teller, and of Colorado. MS shown by the survey thereof, and hereby atrn-i-s t.. pay therefor forty-live dollars, being the legal price thereof. Dated Pueblo, February fO, 1908. C. A. WOLCOTT. 444 APPLICATION FOR PATENT. I, 8. A. Abbey, Register of the land office at Pueblo, Colorado, do hereby certify that the aforesaid mining claim or lot No. 11310 as applied for above, is subject to entry by the above named applicant ; the area of said lode mining claim being 8.011 acres and the legal price thereof forty-five dollars. February 20, 1908. S. A. ABBEY, Register. U does not need to be verified. Excluded Areas. The notice and the application must show what areas are excluded and if the entry be of any such excluded areas a republication and posting will be ordered. 22 L. D. Ill; 28 Id. .',.W. Entry may embrace land excluded from applica- tion, but which, on adverse proceedings, was awarded to the applicant. 29 L. D. 11. May be amended to in- clude a tract at first excluded on account of defective title. 29 Id. 281. Will not be allowed for land em- braced in a prior subsisting entry. 29 Id. 62. Entry Cancellation Relinquishment. Entry cancelled without notice must be rein- stated. 23 L. D. 113; 31 Id. 51. Cancellation does not subject claim to relocation. 23 Id. 118; but re- publication and posting is required. 29 Id. JflO; 31 Id. 37. Reinstatement will not be made when entry- man has filed adverse against subsequent application. 26 Id. 608. Entry may stand on proper proof where title is subsequently acquired. 29 Id. 208. Entry allowed by mistake pending adverse, will be can- celled. 30 Id. 298. A relinquishment during publi- cation and before adverse claim is filed runs to the government though in terms made for the benefit of another claimant and the ground relinquished can- not thereafter be made the basis of an adverse. 27 Id. 369. The Land Office has the right to cancel mineral entries for non-compliance with Statute or rule, al- though no adverse claim has been filed. Mineral Farm Co. v. Barrick, 80 P. 1055. APPLICATION FOR PATENT. I ir, The rejection of an application for patent or the cancellation of his receiver's receipt by the land office does not destroy the applicant's original title by location. Pcoria Co. v. Turner, 79 P. 915; >/ant. 77 /'. II l'>. Register's Proof Completes Application. Upon receipt of the final entry papers (R U) accompanied by the purchase money (all other pa- iring regular) the Register makes his certificate that the notice "K" remained posted on his bulletin during the period that its duplicates were being >'d on the claim and published, and makes his final certificate of entry. V. !- '8 Cl IM in. \ i i 0] POSTING WOTH i: FOB n [Attached to Bull* tin co/>// of A'.] LSM I \M> OFFICE, At I'm'.io. Colorado. i-uary 21, 1906. r.Ttlfy that the official pint of the Bear lode, designated by the surveyor general as lot N<>. n:;n> was filed in this office on the i>;th r. A. I . 1907, and that a noti.-.-, ,f \\hidi ihr attarii.-i is a copy. of th- intention of C. A. Wnlmtt to :i|ply for a patent for the claim or premls* <1 by said pl.-it. :md de- in the field notes of survey tlu-n-nf til.>! publication as required h\ law : and that said plat remained in this office during that time subject to examination and that no adverse claim thereto has been filed. S. A. ABBEY, Register. It is important that this bulletin notice, "K," should have been properly posted. The land office holds that it is essential that the three notices, to wit: by newspaper, by posting and by the bulletin should be concurrent, and in a case where the bulle- tin was not posted till the third day of advertise- ment they allowed an adverse on the 63rd day, hold- ing that the double and contemporaneous publica- tion was not until such day complete. The bulletin 446 APPLICATION FOR PATENT. must be posted 60 days, and the newspaper notice does not begin to run until the bulletin is posted. J L. D. 510; 11 L. D. 282. If any one of the three notices is insufficient they are all rendered valueless. 29 L. D. Jin. W. REGISTER'S FINAL CERTIFICATE OF IMUY. Mineral Entry No. 2,000. UNITED STATES LAND OFFKI..) Lot No. 11,310. At Pueblo, Colorado. February 21, 1908. ) It is hereby certified that in pursuance of the pro visions of the Revised Statutes of the 1'nited states. Chap- ter VI, Title 32, and legislation supplemental thereto, C. A. \\nlcott, whose postoffice address is BonUlcr, Colorado, on this day purchased that mining claim known as the ltm>- lode, in the west % of section 22. in township No. 1.".. s. Range No. 69 W. of the sixth principal meridian, designated as lot No. 11,310, said lot No. ll.:;i< extending !.." tv.-t in length along said Bear vein or lode, expressly excepting and excluding from said purchase all that portion of the ground embraced in mining claim or survey designated as lot No. 2560, Carnarvon lode : f \< *//* MiittHon, on tlie Oottenburg lode, and also all that portion of any vein or lode, the top or apex of which lies inside of said excluded ground; said lode mining claim, as m' embracing s.nii acres in the Cripple Creek mining district in the County of Teller and State of Colorado, as shown by the plat and field notes of survey thereof, for which tin- said party first above named this day made payment to tin- receiver in full, amounting to the sum of forty-flvc dollars. Now. therefore, be it known that upon the presenta tion of this certificate to the Commissioner of the KM i irr. RADO, County of Teller: ss. In the /';/ hlo Land District, Colorado. Before me, the subscriber, register of said land office. nally appeared John i:> xt. who,' being duly sworn, saith that he is tin* applicant for a patent on the Brclau lode mining claim survey lot No. 7000 in Cripple Creek mining district, County of Teller, State of Colorado, and the same n who as such applicant made entry of said survey lot in the said land office on or about the first day of Jinn . .\ I . 1906. That on tin- dat.- of said rntry he received the duplicate receiver's receipt ih>n'i<>r That said duplicate ipt is lost or mislaid That deponent has mad* -.-arch ainoiij: his papers and can not 'find the same, and can not th'r>for> surrender the same. That he or purpom-d to assign said receiver's receipt and still remains the owner and in possession of the land therein described and is the party entitled to receive the patent therefor.* Wherefore affiant asks that the patent to said survey lot be delivered to him without the surrender of said re< < *>ipt upon this his affidavit of loss. JOHN Bi Sworn and subscribed to before me this eighth day of January, A. D. me. g. A . ABBBT , Register. If the title has been transferred insert between the * * "Owner by pur. -ha ^ of the Brclau lode, etc. (descrip tion i. That he purchased the same since the same was en- patent by deed frm tin- party who made the entry. That he never received the duplicate receiver's receipt from his vendor, and does not knw where the same can be found. That he has made diligent in.piiry of the attorney and sur- r employed in the application for patent to said lode, who declare that th.v n \, r had the same in their posses MOM. and that th. whereabouts of affiant's vendor are unknown to affiant." Wherefore, etc. After Entry. All proceedings after entry are ministerial. The papers in the local land office, except the copy of plat F, furnished by the Surveyor General, are for- warded to the General Land Office at Washington and the patent issues in due course usually arriving within one year, the department being behind in its office work; but this is upon the supposition that all the preliminary steps have been regular, and that the land was in fact open to entry if material errors 448 APPLICATION FOR PATENT. or defects are discovered after the receiver's receipt issues, it may be, and often is, recalled and cancelled, and if land entered as agricultural is shown to be mineral at any time before patent issues, the same result follows. 7 L. O. 23. Corrections and Additional Proofs. The entire series of papers are reviewed at Washington and if irregularities, such as errors in survey, insufficient proof of improvements, errors in affidavits, etc., are discovered, the local land office is notified from the General Land Office, and (unless the mistake is a fatal one) the claimant or his at- torney is, by letter from the local land office, notified to supply the defect by further affidavit or certificate, as the case may be. Government Price $5 Per Acre. The application papers (p. 440) are accompanied by the money to be paid on the land, being $5 for each acre or fractional part of an acre of the surface ground. The extreme limit of claim in Colorado be- ing 1,500 feet long by 300 feet broad, such claim contains 10 and 33-100 acres; the fractional acre be- ing paid for as one acre, makes the claim equivalent to 11 acres. The amount paid will therefore vary between $5 and $55 for a single lode location with no mill site. The price of placer ground is $2.50 per acre, or fraction of an acre. Acreage of Lode Claims. In computing this acreage all interfering surveys which have been deducted, are excluded. The pay- ment is based on the amount of claimed surface ground covered by the survey and not excluded in favor of prior applications. Claim 1500 x 600 feet contains 20,66 acres. 1500x300 " 10.33 1500x150 " " 5.16 " 3000 x 50 " 3.44 1400 x 50 " " 1.60 " 1600 x 50 " " 1.83 " APPLICATION FOR PATENT. 449 Affidavits Where Made. All affidavits made in support of the application must be made within the land district. R. 8. 2335; 34 L. D. 314; 35 Id. 455. A possible exception to this is the publisher's affidavit (S) where the pa- per "nearest the claim" happens to be a newspaper in another land district. Another . exception is the affidavit of citizenship. See page -$36*. Before What Officer. They may be made before a disinterested notary public or any officer authorized to administer oaths. Among such officers are the register and receiver of the proper district. Where allowed outside the dis- trict they should be taken before a notary or the rk of a court of record. In all cases the official seal should be attached. A'// le 69. It has been ruled that any officer, as for instance the Clerk of the U. S. Court, whose jurisdiction ex- tends over the territory of the land district, may administer the oath anywhere within his jurisdic- tion. >i L. 0. 195. Where the Application Is Joint, any one co- owner may make all the affidavits required, on behalf of his co-owners as well as on his own behalf, except the affidavit of citizenship. See p. 43T. When a claim is owned in common, it is some- times convenient to have a quit-claim executed by the others to one of their number, placing the title for the time being, in his name, the grantors secur- ing themselves by title bond or otherwise. Application by Agent. "Provided, That where the claimant for a patent is not a resident of or within the land district wherein the vein, lode, ledge, or deposit sought to be patented is located, the application for patent and the affidavits required to he made in this section by the claimant for such patent may be made by his, her, or its authorized agent, where said agent is conversant with the facts sought to be established by said affidavits : * * A. C. Jan. &, 1880. 15 450 APPLICATION FOR PATENT. It does not seem that under the above Act a resident owner can apply at all by agent unless at least temporarily absent. 8 L. D. 223; 35 L. D. 434. And the fact of absence should be recited in the power of attorney. In other words, he cannot dele- gate the power while he is present, by mere caprice or desire to avoid personal attention to the matter. Where an application is by agency there must be a written power of attorney, the original of which is filed in the Land Office. Y. vniiM or I'nxvi i; 01 \ i K>BH > KNOW ALL MI:N i:v EHBM PKB8BNT8, That I. John ti It-ii n, of Baltimore, State of Maryland, a citizen of the Tinted States, do hereby constitute and appoint J. W. B. Hmitfi. of lilnhu N/>n/'//.v. County of Clear Creek, State of fnlnriiiin, my attorney-in-fact, for me and in inv name, to make application for patent of the United States, in the proper land ollice. upon the Itmunn lode mining claim, l.fiun feet in length ly 150 feet in width, situate on Krimhlirnn M nun tni a in diifjith mining district. <'oiinfy of ('/ Slate of Colorado, and to make or cause to be made, any and all surveys, relocations, affidavits, and all necessary papers which may be required in the prosecution of such" applica- tion, or to perfect or protect the title thereto, and to do all acts and things in and about the premises which I myself, if present, could do, until patent is finally delivered. Also in case of adverse claim, I authorize him to employ counsel and take all measures necessary to defend against said .idverse claim or suit in support thereof, either In the land office or in judicial proceedings, and in such judicial pro e< -dings, to execute any bonds or other papers, and verify all proceedings, to and including appeal or writ of error. Witness my hand and seal this third day of / A. D. 1908. JOHN QLBNN. | SI:AL.] Acknowledge according to form on i>. The deputy surveyor cannot accept such power nor act directly or indirectly as agent. Rule 93. In Each Affidavit Signed by Agent should be in- serted, by way of precaution, the following clause: "Affiant further saith that the said claimant is not a resident in the land district in which said claim is situate, but resides at Tallahassee, State of Florida, and that ailiant is the duly authorized agent of said claimant, and is con- versant with the facts sought to be established by said affidavit." APPLICATION Ken: PATENT. Where a Corporation Applies all papers are signed by the president, or other officer designated as stated in the next paragraph; but more usually (and advisably), it executes the form Y to some resi- dent person or agent. Sec ;>. / >'7. Where it does not adopt the latter plan the land office practice requires proof that the officer purport- ing to act for the company was authorized to make the application. Such proof may consist of a copy of the resolution of the board of directors instructing some designated officer to apply for patent to the claim or claims mentioned, certified by the secretary under the corporate seal. Mill Site Application. Where a mill site is applied for separately it must be upon land occupied by mill or reduction works (p. 239). In such case the forms herein given, are sufficient, changing the word lode to mill site, and adding the two forms next following. The price acre is also the same (p. 235). The applications for mill sites alone are rare, they being usually applied for in connection with a lode. But the Land Office has ruled that the owner of a lode already gone to patent, who then held or afterwards secured title to a mill site which he uses as appurtenant to his mine, may apply for a patent to the mill site later by independent application, upon showing the use of the mill site in connection with the lode, the same as if he had originally joined both in one application. 22 L. D. 496. 7. NM\ -MINI KM Al I 1I>\\ IT. STATE OF COLORADO, County of Clear Creek: ss. Clarence Jarbeau and Benj. C. Catri: MI If I NO MM: MILL- ING) PURPOSES. STATE OP COLORADO, County of Garfleld: ss. Before me, the subscriber, a notary public in and for said County, personally appeared C. N. Qreiy (claimant), and Harry Evans and James IK. Ross (witnesses), who being duly sworn each for himself and not one for the other, saith that he is a citizen of the United States and resides in said County. That he is familiar with the Oagool mill site, survey lot No. 7666 B, for which the said C. N. Orcig has applied for patent in the United States land office at Qlenicood Springs, Colorado. That the ground embraced in said survey is used or occupied by said claimant for mining purposes, to wit: as a dump for the Ouartermain lode; ami contains an ore house used in the working of said lode; also a boarding house used bu miners engaged in working said lode; also a tramway and Cornish jig used in operating said lode (etc., as the case may be). And the said Harry Evans and James W. Ross sev- erally, say that they have no interest whatever in said mill site or in the application for patent therefor. C. N. GREIG. HARRY EVANS. JAMES W. Ross. Verification as in form BB. The improvements must be in the nature of mills, flumes, ditches, or other things incidental to APPLICATION FOR PATENT. 453 milling or mining. Buildings and roads not used for such purposes cannot be considered; otherwise if they are so used. Trails off the claim, used for carry- Ing ore have been accepted as part of the improve- ments. L. D. 220. See p. 240. It is generally advisable to apply for a mill site in connection with a lode claim; and in applying for a lode patent a mill site can be included and surface for building purposes readily acquired, at a cost of $50 less than if separate applications are made. See PP. 234, The lode is always distinguished as survey lot "A" the mill site by the same number with the addition of "B." The mill site may be in another mining district or in a section different from that containing the lode. In such application there must be a plat, and no- tice K posted on both lode and mill site; if not posted on the latter, republication will be required. 25 L. D. 165; 21 Id. 373; Rule 63. The department has ruled that a lode inter- sected by a mill site or placer may be patented only to the edge of the intersecting claim. 13 L. D. 146; in Id. 186; 26 Id. 615; 2S /:> bis knowledge of said land is such as to enable him to ;i regard thereto, and that there is to his knowledge, within th> limits thereof, any known or lode of quartz or other rock in place, bearing gold. silver, cinnabar, lead, tin or copper, upon said claim or any part t hereof, and further, that he has no interest whatever In the said placer claim. .7<>r R THOMAS H. TOTTER. sworn to before me, this second day of f- \ 1> 1908, and I hereby certify that the fore- <> the above named John C. Jenkins r<'tttr. previous to their names being sub- 1 that deponents are reputable persons, to whom full faith and credit should be given. Jforrfe H<; Notary Public. This affidavit must be made by two or more \vit- >s (Rule 26) and filed in the Land Office, to- gether wit lit transcript FF, with the first set of pa- pers. The descriptive report the surveyor makes out without sjMM-ial instruct ions on receipt of "B" the order for survey, and forwards it, with the field notes of the survey, to the Surveyor General. CC. i in IM RKPORT. Surrey \o. *7000. neral Land Office Circular "X." of September 1882, upon the placer mining claim known as the limed by 8. O. Shaw situate, in Spanish Har mining district. Clear Creek County, Colorado, embracing 160 acres, in section 8, township 3 8. range 7? n. >,rfi /' \! . Examination made / ' ' ruary 5, 1908, by Frank A. Jfari" i s. Mineral (a) The soil is a black loam, varying from 3 to 6 inches in depth, underlaid with auriferous gravel. The timber consists of a scattering growth of.spruce and yellow pine trees, and along the banks of the creek there is a dense growth of small willows. Beaver Creek, a small stream about 10 feet wide, runs in a northeasterly direction through the claim. ; kings upon the claim consist of an open nit '.'" fiM-t l.-iiK. _> feet wide and 10 feet deep. Course N. 80 E. The center of the westerly end bears N. 5 W. 30 *If on surveyed lands and conforming to legal sub- ions no survey number is given and no survey is required. 456 APPLICATION FOR PATENT. feet from corner No. 4. A ditch 850 feet long, 2 feet wide and 18 inches deep, course northeasterly, the head of which bears N. 3 E. 120 feet from corner No. 6. A shaft 3x6 feet, 10 feet deep, which bears from corner No. 4. N. 2 W. 75 feet, and a drift 3x6 feet, 18 feet long, which bears from corner No. 4, N. 37 E. 420 feet. ( Shaic. kii"\\n :<> ti.-- placer, situate in Spanish lint mining district, C/ unty, Colorado, embracing 160 acres. >/(/// Wo, 3 8. ranu< and also with the character of all. the land included in sain claim, and has been so acquainted for two years last past : that his knowledge of said claim and land is derived from personal observation, and is such as to enable him to testily rstandlngly with regard thereto; that he has carefully i the foregoing report of Frank A. Mrt DD endorsed or attached, the Surveyor Gen- eral approves in the following form: EE. AI'IM:<-\ < IMPI I\l K! .PORT. DEPARTMENT OF THK 1 Office of U. 8. Surveyor General. Denver, Colorado, /'/. No rules have been since published directing how much inquiry should be made, but doubtless it would be required to give notice to the holder of the placer patent, who would be allowed to appear and contest the petition for the order. 27 L. D. 676. See p. 22S. APPLICATION FOR PATENT. 461 If the application is allowed, the placer claim- ant, if he contests the fact that there was any valid known lode on the proper date, should file his ad- verse claim or doubtless he could allow the patent to proceed and still contest, in ejectment brought by either side, the validity of the later lode patent, as in the case of Iron 8. Co. v. Campbell, 16 M. R. J/v Instance where patentee of placer was not permit- ted to subsequently patent a lode within the patented placer. 27 L. D. 661. As to What Constitutes a Known lode, the rul- ings are that there must be mineral worth work- ing disclosed at the time of the placer entry. 10 L. D. 156; IS Id. 86. And the general test on this class of points seems to be that the land as a lode claim must have been of greater value than for the ; cultural, mill site, placer or other use, under which it was applied for and granted. 12 L. D. 612; 1 1 I 'I. ~>',. See p. 224. Necessity to Adverse. Although not bound as in the case of lode against lode or placer against placer by failure to adverse, the lode claimant is under the practical necessity to file and maintain his adverse, in order to place his rights beyond cavil and secure an express excep- tion of his lode, or a patent under the same proceed- ings. See p. 226. Group Claims. In the case of the St. Louis Co. v. Kemp, decided in 1881 (11 M. R. 673), a placer ha'd been patented irf excess of 160 acres. The Supreme Court sustained the patent, and in support of their decision asserted that a miner's claim might consist of several loca- tions; that several contiguous locations being pur- chased by one man became his claim. They say: "Such is the general understanding of miners and the meaning they attach to the term." Even what seem to us the erroneous impressions of our court of last resort command respect and its decisions 462 APPLICATION FOR PATENT. are none the less law, even though they compel us to accept new meanings to the words of our language. In fact where claims under district rules were lim- ited to 100 feet square or other small dimensions, it has been very common to buy up many such claims and record them as one location. The interpreta- tion was, nevertheless, strictly within the province and range bf judicial construction. Prior to the Kemp case, supra, the Land Office had treated each lode location as a single mining claim and the practice was to allow but one to be applied for in one proceeding. After the Kemp case, the Department began to allow applications for groups of lodes, permitting any number of full lode claims to be patented as one claim, and requiring only $500 expenditure on the entire group. The only restriction imposed was that the several claims should be contiguous; i. e., should overlap or touch, not merely corner with each other. So L. D. 485. This manifestly wrong construction was adhered to until the publication of what is now Rule ^8 of the regulations requiring $500 on each location or for the group the aggregate of $500 multiplied by the number of locations. In his official letter of June 21, 1898, 27 L. D. 91, the Hon. Secretary considers the whole matter and comes to a correct definition of the term "claim," as being the equivalent of the word "location." Although we have always believed that the in- tent of the Act of Congress was to require every lode location to make a separate application, it has now become the settled practice of the Land Office to allow group applications and when perfected by pat- ent the patent would doubtless be upheld. Where several lodes are thus applied for, or where a placer includes lodes, they receive only one survey-lot number, but the corners of each are given a separate consecutive numerical designation, begin- ning with Cor. No. 1 in each case, which must be connected with a government corner or U. S. monu- ment. Rules 135, 151. The survey and plat should AFPLJCATIOF F84; Rev. Ed. 512; 5 L. D. 510. Posting notice inside an open shaft house or on the shaft house held to be in a "conspicuous place." .9 L. O. 113; 22 L. D. 624; enclosing notice and plat in oil-cloth envelope appropriately marked and tacked to post held sufficient. 33 L. D. 238; but placing no- tice in a box on the ground among large boulders ami not near shaft, held not a conspicuous .place..'/ L. D. 336. Allowing Application to Sleep. Failure to prosecute application to completion within a reasonable time after termination of pro- ceedings constitutes waiver of rights secured under the application. 29 L. D. 62, 301, 308, 359. /'//; 95 Id. &7; Unit* 56. A delay beyond the end of the cal- endar year after publication held fatal, where a hos- til' relocation had been made. 31 L. D. 69; 32 Id. An excusable delay must be one caused by ad- verse proceedings under the mining laws. 34 L. D. Miscellaneous Rulings on Patent Application. Where application is begun in the wrong land district proceedings must be de novo, after error dis- covered. 11 L. D. 282. 468 ADVERSE CLAIM. In the case of the Alaska Placer, which was partly in one land district and partly in another, the Secretary ruled that posting on the claim and in the Land Office, and the newspaper publication must be made in both districts. 34 L. D. 40. This ruling necessitates practically a separate and complete ap- plication in each district. When the land office is closed during a part of the period of 60 days the time of closing should not be counted as part of the advertising period. 1 L. D. 584; Rev. Ed. 572. A claim already patented cannot be made the basis of a second application for more surface. 9 L. 0. 113. A co-owner omitted from application cannot by subsequent forfeiture proceedings against the appli- cant, acquire right in himself to make entry. 32 L. I). M. A discovery on the dip of a lode whose apex is inside a prior valid location is void, and on protest alleging that fact the department will determine the question. 33 L. D. 142. Surveyors General and Deputy Mineral Sur- veyors are disqualified as applicants for mineral land. '.9 L. D. 333. Limitation of Entries. The A. C. of 1889 (1 Sup. 192) limiting the total acreage of the aggregate of entries under all the land laws to 320 acres to one individual, is construed by Act of 1891 (1 Sup. 946) to not apply to mineral en- tries. ADVERSE CLAIM. Sixty Days to File. R. S. Sec. 2325. * * * If no adverse claim shall have been filed with the register and the receiver of the R roper land-office at the expiration of the sixty days of pub- cation, it shall be assumed that the applicant is entitled to a patent, upon the payment to the proper officer of five dollars per acre, and that no adverse claim exists ; and ADVERSE CLAIM. 469 thereafter no objection from third parties to the Issuance of a patent shall be heard, except It be shown that the appli- cant has failed to comply with the terms of this chapter. Extent Boundaries Stays Proceedings. R. S. Sec. 2326. Where an adverse claim is filed dur- ing the period of publication, it shall be upon oath of the person or persons making the same, and shall show the nature, boundaries, and extent of such adverse claim, and all proceedings, except the publication of notice and making and filing of the affidavit thereof, shall be stayed until the controversy shall have been settled or decided by a court of competent jurisdiction, or the adverse claim waived. Thirty Days to Bring Suit. It shall be the duty of the adverse claimant, within thirty days after filing his claim, to commence proceedings in a court of competent jurisdiction, to determine the ques- tion of the right of possession, and i>n>st < ut<> the same with reasonable diligence to final judgment : and a failure so to do shall be a waiver of his adverse claim. An adverse claim must be made during the period of sixty days publication, which is construed to mean or on before the sixtieth day after the date of first newspaper publication, such date being ex- cluded in the calculation. l.l L. l> The proceedings are as follows: the adverse claimant subscribes and verifies his HH. ADV! 1^1 ( I AIM. United States Land Office at Pueblo, Colorado : In the matter of the application of C. A. \\'<>tf a certain lode, together with his application for a limed States patent for said lode, naming and calling the said lode in said plat and application the Bear Lode situate in r /;/,/,/, r,-r, A- mining district. County of Teller, State of Colorado : said survey and plat being designated as mineral survey No. H.:iH. and consisting of 1500 linear feet, to- gether with surface ground 300 feet in width ; and the said Wolcolt did, at the same time and place, give notice 470 ADVERSE CLAIM. that he would apply for a United States patent for the above described lode and premises in substance as follows : [Here attach copy of neicspaper publication.] AND WHEREAS, The first publication of said notice of said application appeared in the Cripple Creek Star, a weekly newspaper published at Cripple Creek, in said County and State on the 18th day of December, A. D. 1007. Now THEREFORE, I, Edward F. Bishop, a citizen of the United States over the age of twenty-one years, residing in and my postofflce address being I>< >n >>-. in the County <>t Denver, in said State, do, on this third day <>f / '< hntr>/. A. D. 1908, enter this, my protest, and adverse claim against the issuing of a patent to the said C. A. Wolcott, for his pretended claim upon the so-called Bear Ll> . as s. i forth in his said plat and field notes as aforesaid, for the follow ing reasons, to wit : 1. The surface ground and veins or lodes contained therein as set forth and described in the plat and field notes of the said C. A. Wolcott, or a great portion thereof, are not the property of the said applicant, neither is he entitled to hold the same under or by virtue* of the local laws, rules and customs of miners in said mining district. the la\\ the State of Colorado, or the Statutes of the Unit.-d states relating to mining claims. I'. Because a great portion of the premises described in said plat and notice of said applicant. :md claimed i.y him as the so-called Bear Lode, is claimed adversely, and is owned by this protestant, and is in fact a portion of the premises claimed and owned by this protestant as the Elephant Lode, as will appear by reference to an abstract of title herewith filed, made a part of this protest and marked Exhibit A. 3. Because this protestant (and his grantors) have held, occupied and possessed a great portion of the premises set forth and described by the said C. A. it <>/< "// in his plat and notice of the so-called Bear Lode, long prior to the pre- tended discovery and location of the so-called itt-nr Lode; such occupation and possession of this protestant (and his grantors) having been under and by virtue of a full com- pliance with the local laws, rules and customs of said min- ing district, and the laws of said State, and of the United States, pertaining to mineral lands. 4. Because this protestant (and his grantors) have held, occupied and possessed all that portion of the so called Bear Lode, as represented on the plat of a survey made by Thomas L. Darby, United States mineral surveyor, and colored red, said plat of said survey being herewith filed, marked Exhibit B, and made a part of this protest, and have held, occupied and possessed the same long prior to the pretended discovery and location of the so-called Bear Lode. And this protestant is the original discoverer and locator of said Elephant Lode (or is a bona fide purchaser for a valuable consideration, from or through the original discoverer and locator of said F.lcphunt Lode, by convey- ances), as shown on said abstract. Nr* Jtuh Bl. ADVERSE CLAIM 171 fcUM ;i valid discovery. location and record of hunt Lode was made by this protestant (or his gTftllton), in strict compliance w'ith saia local laws, rules and customs, and the laws of .the State of Colorado and of thf rutted States, and while the same was vat-ant min eral land of the United States open to occupation ions prior to any pretended discovery or location thereof !>y said c. \. "tt (or his grantors) and said i:ifm>it l.ode hath been occupied and possessed as aforesaid. -ver since its dis vy as aforesaid. ly this protista nt "and his i;rantors), under and ly virtue of such .! location nml r- 6. Because the discovery shaft of the so-called I. .H|.- was not of the legal depth of ten feet from the lowest part of the rim at the surfa< lired by law at the of the pretended record of the same, and has never I.een vjn, -e sunk to that depth. 7. etc.. s. . Wi i This pf'testant enters this his protest and aim against the issuance of a patent to the -:iid ' .1 \\'>,i<-',tt for his claim upon the so-called />'< Lode. ED. F. STATE OF COLORADO, County of /.//<;: ss. On this 3d day of / ' -fore me. the subscriber, a Notary 1'uMic in and for said county, person- he above named /:/!// n/ /'. /;-\//o/>. who heim; duly sworn, saiih that he is the adverse claimant named in the foregoing protest and. adverse claim a rihed hy him. Tli.it be lias read the same and knows the Meroof : i Hat the same is true in suhs and in fact; and that the said adverse claim Is made in good faith and to protect his better and prior title. ' s worn and subscribed before me, this 3d day or /. A. I l'.)Q8. / B [SEAL.] y Public. To the above reasons others may be added where specific facts are known going to the invalidity of the claim sought to be patented, but in every case allege that the claims conflict and that the adverse claimant is owner of the conflicting area and veins, as in paragraph No. 2 of the above form. The first five paragraphs constitute a good statement of an adverse right, according to the various land office rulings and others are added only as precautionary. Exhibit "A" Is an Abstract of Title certified as in form "N" and should contain a copy of the Lo- cation Certificate. But failure to file the abstract 472 ADVERSE CLAIM. within the period of publication (15 L. D. 45) as well as failure to furnish the certified copy, have been held not fatal. 1J, L. 0. 237. Exhibit "B" Is a Plat made by a U. S. mineral surveyor, showing the interference of the two claims certified as follows: I hereby certify that the above diagram correctly shows the Elephant Lode in its entirety, its relative situa- tion or position to the Bear Lode and the extent of the conflict claimed to exist between said Bear Lode and said Elephant Lode as actually surveyed by me. Thomas L. Darby, U. S. Mineral Surv<-\"i When it is impossible to procure an actual sur- vey, as of a snow-bound claim, an adverse claim showing the nature, extent and boundaries of the conflict, stating the reasons why the claim could not be reached for survey, will be sufficient. 1 L. D. 592; Rev. Ed. 582; Hoffman v. Beecher, 81 P. 92. The plat need not be made by a U. S. surveyor. fj L. D. 358; 29 Id. 460; Anchor v. Howe, 50 F. 366. No plat required where claimant and adverse claimant hold by legal subdivisions. Rule 82. Improvements. The amount, of improvements on the ad versing claim is immaterial, and though formerly required, need not, under the present rules, be shown, or their value stated. Rule 82. Separate Adverse Claims. Where there are several Applications to be ad versed by a single lode, a separate Adverse Claim with its Plat and Abstract must be filed in each case. Where the adverse claimant has several lodes with which he intends to adverse a single applica- tion, the practice is to combine them in a single Ad- verse Claim. ADVERSE CLAIM. 473 Where and by Whom Verified. An adverse claim is usually verified by the ad- verse claimant or one of the adverse claimants and within the land district. But by act of April 26, 1882 (post p. 512), it may be verified by the adverse claimant beyond the land district, or by an agent or attorney in fact cognizant of the facts stated, who must swear to his agency and furnish proof thereof. Rules 78, ^9. Such agent must make his verification in the land district. Rule 80; 84 L. D. 814. A corporation verifies either by its executive officer (president) or its agent there- to authorized. And if the adverse claimant is a non- resident or absent from the district and verifies it personally he may make such verification wherever he may be, before the clerk of any court of record or a notary public, anywhere within the United States. In cases of emergency it is a legitimate expe- dient to have the intending adverse claimant convey to a third party within the district, who then makes and verifies the adverse claim precisely as if he were the real, as he becomes in fact the legal, owner of the adversing claim. But since the Act allowing verification by the adverse claimant beyond the dis- trict, or the filing by an agent, this course need sel- dom be resorted to. Form of Adverse and Verification by Agent. Proceed as in form "HH" to the last paragraph and insert: Wherefore this protestant, by Charles T. Limberg, his duly authorized agent and attorney in fact, who Is person- ally cognizant of the facts herein stated, enters this his protest and adverse claim against the issuance of a patent to the said C. A. Wolcott for bis claim upon the so-called Bear Lode. EDWARD F. BISHOP, By Charles T. Limberg, His agent and attorney in fact. I-E OF COLORADO, County of Teller: ss. On this third day of February , A. D. 1908, before me, the subscriber, a Notary Public in and for said county, per- sonally appeared the above named Charles T. Limberg, who 474 ADVERSE CLAIM. being first duly sworn, saith that he is the duly authorized agent and attorney in fact of the above named Edward F. Bishop, adverse claimant named in the foregoing protest and adverse claim above subscribed by affiant as will further appear by the copy of his power of attorney hereto attached marked Exhibit C ; that affiant has i'ead the foregoing pro- test and adverse claim, and is cognizant of the facts therein stated, and that the same Is true in substance and in fact, and is made in good faith to protect the prior and better title of his said principal. CHARLES T. LIMBERG. Sworn and sul. scribed before me this tfiinl day ef /'. An adverse based on a claim located after the publication began not containing allegations deny- ing the validity of the prior claim adversed, will be rejected. 7 L. 0. 50; Contra, 2 L. D. 699. Suit in Support of Adverse. After the adverse claim is fried, the adverse claimant must bring suit for the premises in dis- pute, within 30 days, under the terms of R. 8. t See p. Jj69. If his suit is not brought within the thirty days the adverse claimant has no standing in the Land Office except as a mere prctestant; and the applicant may proceed to enter, notwithstanding the adverse. 14 L. D. 180; 35 Id. 550. ADVERSE CLAIM 479 It has been held that failure to bring suit within the 30-day period must be specially pleaded and cannot be availed of for the first time on e Co. v. Marks, 60 P. 938. A suit in Nevada is commenced when complaint is filed and summons issued. The adverse claimant filed his complaint within the 30 days, but summons did not issue or at least was not placed in the Sher- iff's hands until sometime thereafter. But the de- fendant entered a general appearance and filed a de- murrer which was held a waiver of any right to ob- ject to the failure to issue summons. Harris v. >ia M. Co. 92 P. /. The Proper Court is usually the District Court of the County where the mine is situate, except in those cases where the facts of value and citizenship IK h that the U: S. Circuit Court may have juris diction. It has been authoritatively held that an adverse i suit presents no Federal question and that the U. S. Courts have no jurhdi-M..n on that ground. - lilti.-L-i.nrn v. Portland Co. 115 U. 8. 571; Mt. View Co. v. McFadden, 180 U. 8. 533. Even when the courts of the United States have undoubted jurisdiction the State Court is not ousted, but the suit may be commenced in the State Court, subject to defendant's right of removal. Proof of Commencing Suit. After the complaint is filed a certificate should he made and signed by the clerk of the court and filed in the local Land Office in substance as follows: JJ. CERTIFICATE OF Sill. COLORADO, County of Teller: ss. I. l u. 0nw*. rierk of the District Court of snid ;ity, do hereby certify that Ed. F. Bishop did on the 10th day nf February, \. I. 1908, commence an action in said Court against C/. l. \\olcott, to sustain an adverse claim ust the Hear Lode, survey lot No. 11,310, situate in Mineral distrfct. Teller County, State of Colo- rado, and to recover possession of all that parcel of the 480 ADVERSE CLAIM. Elephant Lode, embraced within the lines of said survey lot, and that said action is now pending and undetermined in said Court. Attest my hand and the seal of said Court at CrippJc Creek this 10th day of February, A. D. 1908. [SEAL OF COURT.] A. W. GRANT. Clerk. But the failure to file this certificate is not fatal under Rule 88, which requires the applicant to file certificate showing affirmatively that no suit has been brought. When a Suit Is Already Pending between the same parties for the recovery of the ground in conflict at the time of the filing of the adverse, it has been ruled that such suit may stand as the suit to support the adverse and no new suit need be brought. 8 L. D. .'/37; 29 Id. 194. In such case the plaintiff cannot dis- miss so as to leave the adverse without suit support- ing it. Axiom Co. v. Little, 61 N. W. 441. If no ad- verse is filed, a pending suit will not stay patent pro- ceedings. 83 L. D. 187. The Suit in Support of an Adverse is ordinarily at law by ejectment and such suit is certainly con- templated in the statute above printed by the use of the clause "the jury shall so find." Such is un- doubtedly the form of action where the plaintiff, as is usually the case, is out of possession. But where the plaintiff is already in possession he may proceed in equity by bill to quiet title. This view making the form of action depend upon whether plaintiff is in or out of possession is that which is clearly expressed by the final authority in such cases. Perego v. Dodge, 163 U. 8. 165. There had been decisions holding in general terms that ejectment was the proper remedy: Becker v. Pugh, 15 M. R. 304; Manning v. Strehlow, 11 Colo. 451; Burke v. McDonald, 13 P. 851; and others asserting it to be an equitable action: Doe v. Waterloo Co. 43 F. 219; Shoshone Co. v. Rutter, 87 F. 801; Providence Co. v. Burke, 57 P. 641; Me- ADVERSE CLAIM. 481 ten v. Mt. View Co. 97 F. 670; Butte Co. v. Marker, 89 P. 30 >; but the Perego case states the ob- vious test of possession as determining the form of action. If neither party is in actual exclusive possession or if the facts render the point doubtful the claim- ant can treat the application as an ouster and pro- ceed at law. Becker r. Pugh, 15 M. R. 304. See p. .;,.-,. In agreement with the Perego case and with ihese views are the cases of Durgan v. Redding, 108 / 914; Johnson v. Munday. 104 F> 594; Young v. / . 303; Book r. Justice Co. 58 F. 827. The cases whk-h hold that it is an equitable action lose siirht of tl; fact that the adverse and th suit are independent proceedings. The adverse be- ing filed in the Land Office, the Government, the Trustee of the title directs the contestants to ad- judicate their cor.tn>\ CLAIM. The court recognizes the relation of the suit to the land office proceedings and looks to an adjudi- cation of title not to a technical question of proper parties. Wolverton v. Nichols, 15 M. R. 309; 119 U. 8. 485. Complaint. The complaint should, of course, describe the area in conflict following the lines of plat B. in the ad- verse. If it declare for the whole claim it would necessitate a disclaimer as to parcel of the premises. But to the holding that the complaint is so inti- mately associated with the adverse claim that a fail- ure to describe the exact area in conflict would render it fatally defective we cannot assent, though such has been the ruling in two "cases. Cronin v. Bear Creek Co. 32 P. 204; Smith v. Imperial Co. 89 P. 510. KK. FORM OF COMPLAINT. STATK >i ('MLOKADO, County of Teller: ss. In the District Court of said Cofanty. /;.'?. and ever since hithrrio he was, and is, the owner and in actual occupation of the HhjtJinnt Lode Mining Claim, l.'.no feet in length l.y ::<><> tv.-t in width, situate in Crii>i>l> Creek Mining District, County and State aforesaid. _'. That the plaintiff is, and at all times mentioned in this complaint hath been, a citizen of the United States, (or) 2. That at and before the date last aforesaid the plaintiff had declared his intention to become a citizen of the United States before a court of record, to wit : The Court of Common Pleas of the County of Allegheny, Com- monwealth of Pennsylvania. 3. That he has and claims the legal right to occupy and possess said premises and is entitled to the possession thereof by virtue of full compliance with the local laws and rules of miners in said mininir district, the laws of the I'nited States, and of said State of Colorado, by pre- emption (and purchase) and by actual prior possession, as :i Lode Mining Claim, located on the public domain of the United States. See Code, Sec. 286. ADVERSE CLAIM. 483 4. That on, to wit: the first day of November, A. I >. 1907, the defendant wrongfully entered upon parcel of said claim, to wit : All that part of said claim which is inter- sected by the exterior lines of Survey Lot No. 11,310, known ode Mining Claim, as shown by pint marked Exhibit !.. tiled <>n the third day of February, A. D. 1908. in the land office of the United States, at /';/< >'/<>. in the said State, with the adverse claim of the plaintiff against the entry of said survey lot for patent, such ground so inter- sected being described as follows: i //*; intt-rfi n n< shnuhl / tnmnilf<\ and that defendant hath ever since hitherto wrongfully withheld the possession of said parcel of said rhj>J\<;nt \. <>'< in the occupation, actual or otherwise, of the Klrphtmt Lode Mining Claim described in said complaint. 2. He admits (or denies) that the plaintiff is a riti/en of the United States. 3. Defendant denies that plaintiff has or claims the legal right to occupy and possess said premises or is enti- tled to the possession thereof, and denies that he hath com th plied with the local laws or rules of miners in said Oreek Mining iM'sirirt. the laws of the United States, or of said State of Colorado, in the pre-emption, discovery, or loration of said so-called Elephant Lu'd in said paragraph or any part thereof, or that he hath ever since, hitherto, or at any time, wrongfully withhold posses- sion of said premises from the plaintiff and denies that the plaintiff is damaged in the sum of $100 or in any sum, or at all. a. Defendant admits the allegations of paragraphs five and six of complaint. For a second defense, defendant says : ADVERSK CLAIM. 1x7 1. That he is M citizen of the United States, and that ever MII, -I-, to wit : the first day of January, 1900, he was and is th*- owner and in actual occupation of the Ht-nr Lode Mining Claim. 1 : feel in length l.y :5iM) feet in width, sit- uate in said Cr//>/ sion as a lode mining claim located on the public mineral domain of the I'nitrd States. 3. And that the premises sued for in said complaint are parcel of said />' I. ode Mining claim, the property of this defendant. /*,,// r. lt''>. It should of course comply with all n laudatory requirements of the code of the State where tried. But as it has been very rightly held that neither party is required in the adverse suit to \\ that he has done everything entitling to patent (Doe v. Waterloo Co. 10 F. 456), and the National Supreme Court upholds a general verdict for either party (Bennett v. Harkrader, 158 U. 8. 441), it would seem that such strictness as was insisted on in Me- (finnis v. Egbert, 15 M. R. S29, and Manning v. Streh- low, 11 Colo. 451, ought not now to be required. A general verdict of guilty in ejectment is sufficient. Upton v. Santa Rita Co. 89 P. 275. MM. VERDICT FOR PLA I \ 1111 flfa the jury, find the issues in favor of the plaintiff. :unl that he Is the owner by discovery (or purchase) and location and has established his right to the possession and occupancy of the premises described and claimed in the complaint, to wit: All that part of the Elephant L<><1< ]///i in;/ Claim covered by the surrey of the Bear /.'/ Mining Lot No. 11S10; and that he, the plaintiff, is :id entitled to recover said premises of and from the defendant by virtue of full compliance with the statutes of the United States and of the State of Colorado 490 ADVERSE CLAIM. in the discovery and location of said Elephant Lode Mining Claim. And that he expended and should recover from the defendant the sum of seventy-five dollars expenses and counsel fee as charged for in complaint. NN. VERDICT FOR DEFENDANT. We, the jury, find the issues in favor of the defend ant, and that he is the owner by discovery (or purchase) and location and has established his right to the possession and occupancy of the premises described and claimed in the answer, to wit : The Bear Lode Mining Claim, Survey Lot No. 11,310, and that he, the defendant, is such owner by virtue of full compliance with the statutes of the United States and of the State of Colorado in the discovery and location of said Bear Lode Miming Claim. The above forms comply with Section 288 of the Code and with other points peculiar to an adverse suit, as suggested in ^ said decisions of the Supreme Court of Colorado. Rulings in Ejectment Supporting Adverse. Declarations of a locator may be given in evi- dence to dispute his title. Harrington v. Chambers, supra; Muldoon v. Brown, 59 P. 120. But not ad- missions made after he has parted with his title. McOinnis v. Egbert, 15 M. R. 329; 8 Colo. .}/. A post marked as a center post may be shown in adverse suit to have been intended for a corner post. Sharkey v. Candiani (Or.), 85 P. 219. An adverse claimant may show that the location adversed is invalid by reason of the existence of a third claim in which neither party has any interest. Harrington v. Chambers, 1 P. 362. Affirmed, 111 U. 8. 350, but with only a general reference to this point in the last paragraph. To the contrary seems Strepey v. Stark, 7 Colo. 614; 17 M. R. 28. See EJECTMENT, p. .i'j.l. The Uhlig-Lavagnino Case. This case has been cited at pages 38 and 108; we recur to it on account of its recent review, learn- edly and at length, in Nash v. McNamara, 93 P. 405, by the Supreme Court of Nevada. That court holds that it is not authority except in suits presenting exactly the same facts; there must have been three A I VERSE CLAIM 491 successive locations, the second made while the first was still vivant, and the third made after the de- fault of the first to perform its annual labor, with the lapse of a period longer than the statute of limitations between the making of the second and third, followed by an adverse claim suit between the second and third locations. The opinion is a labored attempt to show loyalty to federal construction, while at the same time demonstrating that that construc- tion is not loyal to its own precedents. Mont Ah: ',. says: It is binding only "within its own limited circle of ex- ional facts," and is followed by Dufresne v. Northern Light Co. 2 Alaska, 592, to the same effect. \\v idben to our own construction (p. 38) that no practical distinction can be drawn between this de- rision and the later and contrary holding in the Brown-Gurney case, which calls back to the original T ruction in the leading case of Belk v. Meager, where the point first arose. Diligent Prosecution. The Land Office cannot adjudicate upon the question whether the suit is being prosecuted with due . 1C,; Richmond Co. v. Rose, Hi U. 8. 5~r,; n /'. //"'. In Mars. v. Oro Fino Co. />;'">. the suit was dismissed for delay in se- curing service. Dismissal and Reinstatement. Jurisdiction once attached remains and where default was had, but the cause reinstated, the ad- verse holds, notwithstanding the certificate of no suit iim had been filed during the interval. / L. D. 539. Nor will a Receiver's receipt ob- tained in such interval be allowed in evidence. Mc- Evoy v. Hyman. 15 M. R. 300; 25 F. 539; Deeney v. Mineral Co. 67 P. 7 .'/. Waiver Withdrawal or Failure to Support! An adverse claim may be withdrawn either be- fore or after bringing the suit thereby waiving all 492 ADVERSE CLAIM. rights claimed. 4 L. D. Ill; 29 L. D. 89. Or by vo> untarily dismissing the suit. 4 L. D. 273. And when suit is dismissed certificate to that effect must be filed. Upon failure to issue summons within the period required by the code the complaint may be dismissed. Steves v. Carson, 21 Colo. 280; and a second suit cannot afterwards be brought. Id. 42 F. 821. See Rules 86, 87. The Court Trying the Adverse Suit may give full relief and if necessary restore the successful party to possession. Silver City Co. v. Lowry, 51 P. 11. Defects in the Adverse Claim are not material to the issue at law between the parties, and are for departmental consideration only. Rose v. Richmond Co. 11 Nev. 25; Quigley v. Gillett, 35 P. 1040. The practice after suit commenced is under state law and the proceedings in the Land Office are imma- terial to the trial. Bernard v. Parmelee, 92 P. 658. Title in Neither Party. That if, in any action brought pursuant to section twenty-three hundred and twenty-six of the Revised Stat- utes, title to the ground in controversy shall not be estab- lished by either party, the jury shall so find, and judgment shall be entered according to the verdict. In such case costs shall not be allowed to either party, and the claimant shall not proceed in the land-office or be entitled to a patent for the* ground in controversy until he shall have perfected his title. A. C. March 8, 1881. The rulings under the above Act are, that each party is practically a plaintiff, and must show his title. Slothower v. Hunter, 88 P. 36; but that if neither show title the verdict must be special which is an assertion that the title remains in the United States, so far, at least, as the litigating parties are concerned. Jackson v. Roby, 109 U. S. 440; Rosen- thai v. Ives, 15 M. R. 324; 1% P. 904. See p. 489. The effect of the Act is to prevent a recovery upon possession alone in ejectment supporting ad- verse. Becker v. Pugh, 15 M. R. 304; Upton v. Santa Rita Co. 88 P. 275. ADVERSE CLAIM. 493 After judgment of title in neither party the Land Office will not allow the application to be perfected. Xeicman v. Barnes, 23 L. D. 257. Non-SuitDefendant's Proof of Title. It has been held that plaintiff may be nonsuited as in an ordinary ejectment. Kirk v. Meldrum, 28 Colo. 459; McWilliams v. Winslow, 82 P. 538. But if the defendant be content with such judg- ment and fail to prove his own title he runs the risk of rejection of his application in the Land Office. 28 Colo. 460. Plaintiff at this point is out of court and can- not demand a jury view or cross examine or other- wise attack the title of the defendant who is now proceeding ex parte to secure a judgment upon which to predicate his right to a patent. Moffatt v. Blue Kit* P. 139; Connolly v. Hughes, 11 P. 681; McMillen v. Ferrum Co. 74 P. 462; Benton v. Hop- kins, 74 P. 891. Entry of the Area Not in Dispute. The Department has ruled that where the ad- verse covers only parcel of the applying claim the applicant may go to entry and patent on the area not in controversy and without waiver of any rights, de- fend against the contest of the adverse claimant in the suit supporting adverse. 2 L. D. 744 > %% L. D. $43. Where the discovery shaft is upon the ground excluded in favor of a prior Survey, such fact does not invalidate the application where the applicant makes good his adverse for the excluded area. 28 / D. sax Proceedings After Determination of Suit. The Land Office requirements in such case are 1 in Rule 85. If the judgment is in favor of the defendant (the applicant) he files a certified copy of the judgment roll (14 L. D. 308), and is allowed to pay for and en- 494 ADVERSE CLAIM. ter the claim or so much thereof as has been awarded to him. If the judgment is in favor of the adversing party, he files certified copy of the judgment roll, and must obtain and file plat and survey, and file full set of final entry papers; in fact, he must perform what- ever is required of an applicant, except, of course, the posting and publication. The adverse claimant in such proceeding enters only the area in conflict recovered by his judgment. 27 L. D. 375. If he desires to patent his full claim he must apply in all respects, including posting and publication, as an original applicant. In such case where he has already begun his ap- plication and excluded defendant's prior survey, the judgment roll shows him entitled to and he is allowed to enter such ground, although originally excluded. If he does not begin his application until after he has obtained judgment, liis application will include the areas formerly in conflict. Where the suit is compromised, if there is only one adverse, it is more convenient to dismiss the suit, taking deed or bond for deed from the applicant. In such case, upon filing certificate of dismissal, the original survey goes to patent without further com- plications, and the defendant can convey after entry according to the terms of settlement. But in all this class of cases, and especially where there are two or more adverses, legal counsel should be taken. A settlement between the applicant and one adversor cannot bind a second adversor; there may be questions of retaining end lines, or the discovery shaft, or patent improvements; and it may be very material as affecting extralateral rights or on the issue of priority, as to which lode had best take the patented title. An adjudication of priority in favor of part of a lode seems to be an adjudication of priority on -the questions arising in any later form of controversy between the same lodes. Last Chance v. Tyler Co. 157 U. 8. 683; Bunker Hill Co. v. Empire Co. 109 F. Al'VKKSK CLAIM. i:u / / / F. 420. But see U. S. M. Co. v. Lawson as cited ante, p. 143. Annual Labor Pending the Trial. In the matter of the Marburg Lode, 30 L. D. ..'".'. the department held that where entry has been stayed by the operation of a protest or adverse, a delay not chargeable to the applicant, the annual labor need not be kept up. That it will not recognize as protest- ant a relocation made during such interval, based on non-performance of labor. If such be the correct ruling we cannot see why it should not also apply to the adversing claim. Questions of procedure in the Land Office are for that office to decide. Con- st nut ion of statutes defining conditions of title are for the courts. The question is so nearly one of the latter class that in the absence of judicial decision to the same effect it is wholly unsafe to neglect the annual labor in reliance on this case. See Rule 55; XI L. D. In Willitt r. US F. 937, the peculiar rul- ing was made that both plaintiff and defendant must show that they had respectively performed their an- . nual labor during the preceding year. Agreement to Not Adverse. When contesting claimant s agree with the appli- cants to file no adverse in consideration of the appli- cants undertaking to convey the title to the ground in conflict or some other interest in the claim when entry is made or patent issues such agreement should be formally reduced to writing under signa- ture and seal. Such a contract is not against public policy and will be enforced. St. Louis Co. v. Montana Co. 171 U. S. 650. In Dude v. Ford, 138 U. S. 587, a case of this kind but the contract verbal, it was held to be within the Statute of Frauds, i. e.. a contract void unless written, and the plaintiff went without relief. The decision, however, is largely based on asserted defects in the pleadings and can hardly be considered as holding that so gross an instance of wrong would be in all cases shielded by that statute. 496 PROTEST. PROTEST. The office of a protest is to show that no patent, such as applied for, should issue as where a mill site patent is asked for on mineral ground. Or that it should not issue to the particular appli- cant by reason of some defect of person, as that the applicant is an alien corporation; or for failure to comply with the practice of the department in some serious particular. It is not safe to rely on the pre- sumption that the Land Office will of its own motion observe every departure from its own rules. The protestant can never by his protest acquire title. He can at most defeat the efforts of the appli- cant. But if the protest be sustained and the appli- cant be compelled to begin de novo, as for instance where the irregularity pointed out to the department is a short publication and he is required to go back to that point and republish upon the new proceed- ings or the republication the protestant has the op- portunity to file his adverse claim. Any stranger to the original application would have the same right. 23 L. D. 895. The fact that the protestant is or claims to be the real owner, or to have the better title, has its place in an adverse and is not a ground of protest. ..'..' L. I). *;._'; ; but it should be averred to give stand- ing to the protestant. A protestant claiming an interest is allowed the right of appeal. 8 L. D. 122; 16 Id. 532; 29 Id. 280. But if he has no such interest he is regarded as a mere amicus curiae and has no such right. 8 L. D. 'i-W. A party having no surface conflict is not such a party in interest as to have the right to appeal. 6 L. D. 318; 19 Id. 356. Nor has a party whose only claim is by location made after the protest was filed. 19 L. D. 356. The department will entertain a protest as pro- vided in R. S. Sec. 2325, showing that "the applicant has failed to comply with the terms of this chapter" that is, has made a substantially irregular step in PROTEST. 497 his location or in his proceedings to obtain patent, as for instance that he has not disclosed mineral in his discovery shaft or elsewhere within the lines of the < laim (2 L. D. ? }>' ; /? 1,1. 112; 27 Id. 396), or that the publication was defective, the $500 improvements not made f /.-' /.. it. 356; , ; 7 Id. 396), or any other serious want of conformity to the law or to the Land Office regulations. 16 L. D. 532. But the fact that the discovery is not upon the public domain because upon location of the pro- testant's of alleged earlier date and other like points, which if availed of by adverse would have shown better title in the protestant, will not be considered as mds of protest. 22 L. D. 624; W Id. 191; 26 Id. .: hi. >;:. The Test Between the Two Classes of Cases Is: That where a defect exists which is a matter of pub- lic interest, and which shows that the applicant has not proceeded regularly as to the United States or as to the entire body of prospectors who are entitled to see that all are required to proceed under like restrictions, a protest will be considered; but where the point is one of interest only as between the ap- plicant and the protestant, or as between the appli- cant and a third party who is not complaining < .'/ L. D. SO; Mod. on Review, Id. 544), the protestant cannot by his protest claim the right to litigate in this form what he should have contested by adverse. FORM OF PROTEST. In th mutter of the Application of The Anaconda Mininn /M/NJ/ for patent on the Martha Becker Mill Site. Sniv. v ! /o Land Office, Colorado. To the Register and Receiver of said United States Land Office: r protestant, C. If. Al Lode for mining or milling purposes. 2. It is not and never was used or occupied by the applicant or its grantors in connection with any lode or by itself for mining or milling purposes. 3. There are no improvements and never have been any improvements upon said mill site except the improve- ments made by your protestant. 4. The said mill site is below the mill nnd below the tailrace of the mill of the said applicant company and lias never been and is not now parcel of nor appurtenant to said mill, nor included within the mill site on which said mill stands. , r >. Said so-called mill site or a great part thereof, the conflicting area being shown by the plat hereto at tarhcd duly cert hied (see p. -J?.. i . was in good faith located as the Lion Mill Site by your protostant in the year and long prior to the said application and is now bring used for mining purposes in connection with the Linn Lode, lying immediately above the said mill site, owned nnd ln-in^ worked by your protestnnt. (6, etc.; 7, etc.) Add or substitute other reasons ac- cording to th- farts. . ft. the publication was not posted on the Land iMlice Bulletin during the period of newspaper publication- the local i<>n of said mill site Is on mineral land and land more valuable for mineral than for mill site pur poses etc. Wherefore for thes< causes as verified by the affidavit of your protestant attached hereto, and as well for the want of proper proof that the said so-called Martha />' Mill Site is being "used or occupied bv the proprietor of the said Mnrlfni H< . .*.%'; Shively v. Boivlby, 152 U. S. I. The boring for oil may be enjoined at the suit of the frontage owner as an invasion of his right of access to the ocean. San Francisco Union v. R. O. R. Co. 77 P. 823. By the Alaska Act (p. 501) the tide lands of Bering Sea are opened to exploration and mining to \vit: the lands between high and low tide, under miners' rules, and the lands below low tide under rules to be prescribed by the Secretary of War. Such latter rules are limited to "the preservation of order and the protection of the interest of commerce" and we see no reason why the rules generally of a dis- trict on the beach should not extend to ground be- low the tide on all points not covered by the Secre- tary's rules. The Act contemplates only the temporary work- ing of this class of claims, not providing for patent to issue at any period. Except as to patenting, the U. S. Mining Acts are extended to them, so far as applicable, but the mining districts are especially empowered to make rules as to record, and impliedly as to notice, staking, size of placer claims, labor, representation and all other points not controlled by the Acts of Congress. This doubtless includes the right to restrain or control the location and repre- sentation of claims by agency. At other points, on shore of either State or Ter- ritory, mining by the first occupant is a trespass as against the Government, but no third party has the right to complain. 500 ALASKA. The rights of parties mining on such premises depend on priority of possession, and those rules of law which govern that class of cases where the real owner is not asserting his title but allows to third parties the present enjoyment of the use, by suf- ferance. ALASKA. The following are the clauses of the Alaska Act of June 6, 1900, 31 Stat. L. 321, material to. mining claimants. All the special clauses as to aliens were rejected, and the status of mining titles is left the same as in other States and Territories where there are few or no statutory prescriptions, the Act evi- dently contemplating control by district rules when necessary or desired by the miners to supplement the general terms of the mining Acts. Section 13, Title I, provides for the division of the Territory into three "recording divisions," the bounds of which were fixed by an act approved June 13, 1902.-^2 St. L. 385. The first division includes all the territory East of the 141st degree of Longitude. The second includes all territory W., N. W. and N. of a line commencing at mouth of Colville River; follow up the river to where it crosses the 154th meridian line the second time; follow said meridian S. to west side of Tohtankella Mtn. and the Yukon River; thence southeasterly to western side of Mt. McKinley; thence southwesterly to most northern point of Lake Clark; thence along N. W. side of Lake Clark to the 60th degree latitude; thence West along said degree to Kuskokwim Bay, including the main- land West of said Bay and all islands N. of 59th de- gree. The third division includes the rest of the Terri- tory. These are to be subdivided into "recording dis- tricts," and for each district a recorder has been or is to be appointed. ALASKA. 501 The clerk of the court is ex officio recorder of all that part of any recording division not set off into recording districts. Record of Claims. Sec. i.'i. * * * Notices of location of mining claims shall be filed for record within ninety days from the late of the discovery of the claim described in the notice, and all instruments shall be recorded in the recording dis- trict in which the property or subject-matter affected by the instrument is situated, and where the property or sub- ject-matter is not situated in any established recording dis- trict the instrument affecting the same shall be recorded in th> office of the clerk of the division of the court having supervision over the recording division in which such pti> erty or subject-matter is situated. District Rules Old Records. * Miners in any organized mining district may make rules and regulations governing the re- . 'i>r 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 Art of May fourteenth, eighteen burning and ninety-eight, entitled "An Art extending the homestead laws and providing I'm- right of way for railroads in the IMstrin Of Alaska, and for other purposes," shall not apply tn min eral lands or town sites. Approved June 6, 1900. Proof of Annual Labor. That during each year and until patent has Item issued therefor, at least one hundred dollars' worth of labor shall be performed or improvements made on, or for the benefit or development of. In accordance with existing law, each mining claim in the district of Alaska heretofore or hereafter located. And the locator or owner of such claim or some other person having knowledge of the facts may also make and file with the said recorder of the district In which the claims shall be situate an affidavit showing tin- performance of labor or making of Improvements to the amount of one hundred dollars as aforesaid and specifying the character and extent of such work. Snrh affidavit shall set forth the following: First, the name or number of tin- mining claims and where situated; second, the number of days work done and the character and value of the im provements placed thereon: third, the date of the perform ance of such labor and of making improvements: fourth. at whose instance the work was done or the Improvements made ; fifth, the actual amount paid for work and improve- ments, and by whom paid when the same was not done by the owner. Such affidavit shall be prima facie evidence of the performance of such work or making of such improve- ments, but if such affidavits be not filed within the tim> fixed by this Act the burden of proof shall be upon the claimant to establish the performance of such annual work and improvements. And upon failure of the locator or i'HlLll'l'lNK ISLANDS. 503 i i' any such claim to comply with the provisions of this Act. ns to performance of work and improvements, such claim shall become forfeited and open to location hy others : no locution ..f the sain* 1 had ever been made. The aMid.-ivits required h r* by may be made before any officer authori/rd to administer' oath's, ami the provisions of sec- tion* lifty three hundred and ninety two and fifty-three hun- dred .-inti ninety three of the Revised Statutes' are hereby nded to such affidavits. Said affidavits shall be filed not later than ninety days after the close of the year in which such work is performed. Sec. 1, Mar. 2, 19(ff. 5f st. I The last section above printed provides especially for proof of annual labor. In Section 15 there is a clause allowing the record of "Notice and declaration of wairr riuhts" and the obvious intent of the act thai all details of location not inconsistent with the U. % S. Mining Acts are left to the regulation of organized mining districts. The coal land laws are extended to embrace Alaska by A < June 6. 1900. 31 St. L. 658. A special Act for location and patenting of coal lands in Alaska was approved April 28, 1904. SS 8t. L. 525; S3 L. D. 11',. Titles Prior to 1900. From 1884 to 1900 (23 St. L. 24) the Laws of Oregon so far as they covered the subject were in force. Those statutes only required a location no- tice and record and forbade more than one location by the same person on the same lode. The universal MS of Sec. 2324 of course applied. And all posses- sory claims prior to the Act of 1884 were validated i.y the Act of that year. Bennett v. Harkrader, 158 U. 8. 443. PHILIPPINE ISLANDS. An extremely detailed and complicated mining code for the Philippines is contained in the Act of July 1, 1902, providing a temporary government for those islands. 32 St. L. 697. Materially amended Feb. 6, 1905. 33 St. L. 692. 504 TEXT OF U. S. STATUTES REPEALED. TEXT OF U. S. STATUTES REPEALED. Sections of Act of July 26, 1866, Repealed by Act of May 10, 1872, and Not Found in the Revised Statutes. Original license to Explore. Sec. I. That the mineral lands of the public domain, I mill surveyed and unsurveyed. are hereby declared to be free and often to exploration and occupation by all citizens of the United States, and those who have declared their in tent ion to hecome citi/ens. subject to such regulations as may be prescribed by law, and subject also to the local cus- toms or rules of miners in the several mining districts, so far MS the same may not be in conflict with the laws of the United States. Improvements Dip Patent. Sec. 2. That whenever any person or association of persons claim a vein or lode of quartz, or other rock in place, bearing gold, silver, cinnabar, or copper, ha vim: previously occupied and improved the same according to the local cus- tom or rules of miners in the district where the same is situated, and having expended in actual labor and improve- ments thereon an amount of not less than one thousand dollars, and in regard to whose possession there Is no con trovorsy or opposing claim, it shall and may be lawful for said claimant or association of claimants to file in the local land office a diagram of the same, so extended laterally or otherwise as to conform to the local laws, customs, and rules of miners, and to enter such tract and receive a patent therefor, granting such mino. together with the ri^lu to follow such vein or lode with its dips, angles, and vari- ations, to any depth, although it may enter the land ad- joining, which land adjoining shall be sold subject to this condition. Application for Patent. Sec. 3. That upon the filing of the diagram as pro- vided in the second section of this act, and posting the same in a conspicuous place on the claim, together with a notice of intention to apply for a patent, the register of the land ollice shall publish a notice of the same in a newspaper pub- lished nearest to the location of said claim, and shall also post such notice in his office for the period of ninety days : and after the expiration of said period, if no adverse claim shall have been filed, it shall be the duty of the surveyor- general, upon application of the party, to survey the prem- TKXT OF U. S. STATUTES REPEALED. 505 ises and make a plat thereof, indorsed with his approval, -nating the number and 'description of the location, the value of the labor and improvements, and the character of ill.- vein exposed ; and upon the payment to the proper officer of live dollars per acre, together with the cost of such sur- vey, plat, and notice, and giving satisfactory evidence that said diagram and notice have been posted on the claim dur- i id period of ninety days, the register of the land office shall transmit to the general land office said plat, survey, and description : and a patent shall issue for the same there- upon. P.ut s.i id plat, survey, or description shall In no case cover more than one vein or lode, and no patent shall issue for more than one vein or lode, which shall be expressed in the patent issued. Form of Survey Length of Claim. 4. That when such location and entry of a mine shall be upon tuwarreyed lands, it shall and may be lawful, after tin- extension thereto of the public surveys, to adjust ih- surveys ! tin- limits of the premises according to the l<>c.-ni..n and ] -ss ssion and plat aforesaid, and the surveyor- -urveys, vary the same from ilar fornr to suit the circumstances of the country and the Im-al rules, laws, and customs of miners: Provided. no location hereafter made shall exceed two hundred in length along the fein for each locator, with an add! ti.'pal claim for discovery to the discoverer of the lode, with the right to follow such vein to any depth, with all its 1 1 ions, and angles, together with a reasonable quan- tity of surface for the convenient working of the same as fixed by local rules: in// /.ror/./rr/ further, That no person may than one location on the same lode, and not" more than three thousand feet shall be taken In any ofle claim by any association of persons. See paycs 12, 15. Adverse Claims. ; That whenever any adverse claimants to any mine located and claimed as aforesaid shall appear before the approval of the survey, as provided In the third section of this act, all proceedings shall be stayed until a final set- tlement and adjudication In the courts of competent Jurls- di.tion of the rights of possession to such claim, when a patent may Issue as in other cases. H 8t. L. 251. 506 TEXT OP U. S. LAWS IN FORCE. FULL TEXT OF UNITED STATES LAWS NOW IN FORCE. The text is taken from the last edition "Revised Statutes of the United States," and the Supplement and Statutes at Large to the Second Session of 59th Congress, 1907. This revision includes the unrepealed sections of An act granting the right of way to ditch and canal owners over the public lands, and for other purposes. Ap proved July 26, 1866. An Act to amend .in Act granting the right of way to ditch and canal owners over the public lands, and for other purposes. Apprnml .////;/ ;. /870. An net to promote the development of the mining re- sources of the 1'nited States. Approved May 10, fffl Commonly called the "Mining Acts," with all their amendments, and miscellaneous sections from other Acts. The sections of the Act of 18G6, repealed by the Act of 1872, are printed, ante p. 504. TITLE XIII. CHAI-rr.l: M:\KVI i Possessory Actions. Sec. '.i Ki. No possessory action bet ween persons, in any court of the I'nited States, for the recovery t any mining title, or for damages to any such title, shall l><> ai fected by the fact that the paramount title to tin- land in which such mines lie is in the I Hiid States: but ea< h case shall be adjudged by the law of possession. f<< < < / , /, /:. IMf, Nee p. 7. TITLK XXXII. ril.M'TKH SIX. KNTITI.KI) "MINKim. I. \\I-S AND MINING Kr.Snri:- ! Reserved from Sale Under the Pre-Emption Acts. Sec. 2318. In all cases lands valuable for minerals shall be reserved from sale, except as otherwise expressly directed by law. 8cc. 5, -lulu ',. / General License. Sec. 2319. All valuable mineral deposits in lands be- longing to the United States, both surveyed and unsurveyed, NOTE. Each Statute, State or Federal, printed in this book, has been compared with the official original pub- lication so as to have its exact wording and punctuation. TEXT OF U. S. LAWS IN FORCE. 507 are hereby declared to be free and open to exploration and purchase, and the lands in which they are found to occupa- tion and purchase, bv citizens of the United District ml those who have declared their Rules. Intention to become such, under regulations scribed by law, and according to the loeal customs or rules of miners in the several mining-dis- tricts, so far as the same are applicable and not inconsistent with the laws of the United States. Sec. 1, May 10, 1872. length of Claims. iins upon veins or lodes of quart/, or other r..ck in place I. earing gold, silver, cinnabar. lead, tin. copper. .! other valuable deposits, heretofore 1" !. shall te ^o\- rned as to length along the vein or lode iy the cm filiations, Mn to* at ion of a mining-claim shall be Width of made until the discovery of the vein or PI lode within the limits of the claim located. *" ta Ins ' No claim shall extend more than three bun- ilr.-d I'e.-t on earh side of the middle of the vein at the MM fare, nor shall any claim be limited by any mining regulation to less than twenty live feet on each side of t "f the vein at the surface, except where ad M rights existing ou the tenth day of May, eighteen bun dn-il and seventy-two, render such limitation necessary. The end lines of aeh claim shall be parallel to each other. Proof of Citizenship. _'l. Proof of citi/enship. under this chapter. may consist, in the case of an individual, of his own affidavit thereof; in tb- itlon .f p.-rsons unincor- d. of the ntlidavit of their authorized agent, made on his ,,wu knowledge, or upon Information Citizenship of and belief; and In the case of a corporation CorDorations organized under the laws of the United ns ' states, or of any State or Territory thereof, by the filing of a certified copy of their charter or certificate of incorporation ft , /,. jjff. Surface Dip and Side Veins. - The locator! of all mining locations here- tofore made or which shall hereafter be made, on any mln eral vein. lod. or ledge, situated on the public domain, their heirs and assigns, where no adverse claim exists on the tenth day of May, eighteen hundred and seventy-two, so long as 508 TEXT OF U. S. LAWS IN FORCE. they comply with the laws of the United States, and wit!) State, territorial, and local regulations not in conflict with the laws of the United States governing their possessory title, shall have the exclusive right of possession and enjoy- ment of all the surface included within the lines of their lo- cations, and of all veins, lodes, and ledges Top or Apex throughout their entire depth, the top or Controls apex of which lies inside of such surface- lines extended downward vertically, al- though such veins, lodes, or ledges may so far depart from a perpendicular in their course downward as to extend outside the vertical side-lines of such surface locations. But their right of possession to such outside parts of such veins or ledges shall be confined to such portions thereof as lie be- tween vertical planes drawn downward as above described, through the end-lines of their locations, so Qii fa P continued in their own direction that such ourrace. planes will intersect such exterior parts of such veins or ledges. And nothing in this section shall authorize the locator or possessor of M v. in or lode which extends in its downward course beyond the ver- tical lines of his claim to enter upon the surface of a claim owned or possessed by another. Sec. 3, May 10, 1872. l>l>. I.'>7. J(>7. Tunnels. Sec. 2323. AVh.-n- a tunnel is run for the develop- ment of a vein or lode, or for the discovery of mines, tin owners of such tunnel shall have the right of possession of all veins or lodes within three thousand feet from th. of such tunnel on the line thereof, not previously known to exist, discovered in such tunnel, to the same exten If discovered from the surface: and locations on the line of such tunnel of veins or lodes not appearing on the sur face, made by other parties Mfter the commencement of the tunnel, and while the same is being prosecuted with reas.m able diligence, shall lie invalid: hut failure to prosecute tin- 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 N ;. May 10, 1872. See p. fcJ9. District Rules. Sec. 2324. The miners of each mining-district may make regulations not in conflict with the laws of the United States, or with the laws of the State or Territory in which the district is situated, governing the location, manner pf recording, amount of work necessary to hold possession of a mining-claim, subject to the following i Location, quirements : The location must be dis- Record. tinctly niarked on the ground so that its boundaries can be readily traced. All n-<- ords of mining-claims hereafter made shall contain the name or names of the locators, the date of the location, and such a description of the claim or claims located by reference to TEXT OF U. S. LAWS IN FORCE. 509 s.me natural object or permanent monument as will identify i he claim. On each claim located after the tenth day of May, eighteen hundred and seventy-two, Annual and until a patent has been Issued therefor, Labor not less than one hundred dollars' worth of labor shall be performed or improvements made during each year. On all claims located prior to the tenth day of May, eighteen hundred and seventy-two, ten dollars' worth of labor shall be performed or improvements made by the * tenth day of June, eighteen hundred and seventy-four, and each year thereafter, for each one hundred feet in length along the vein until a patent has been issued therefor; but where such claims are held in common, such expenditure may be made upon any one claim ; and upon a failure to comply with these conditions, the claim or niin- upon which such failure occurred shall be open to relocation in the same manner as if no location of the same had ever !' n made, provided that the original locators, their heirs, assigns, or legal representatives, have not ivsmmd work upon the claim after failure and before Forfeiture 8ucn location. Upon the failure of any one of several co-owners to contribute his proportion of the expenditures required hereby, the co-owners who have performed the labor or made th- improvements may, at the expiration of the year, give such delinquent co-owner personal notice in writing or notice by pui .lira ti in in the newspaper published nearest the claim, for at least once a week for ninety days, and if at the ex- piration of ninety days after such notice in writing or by publication such delinquent should fail or refuse to con- trihute liis proportion of the expenditure required by this i<>n, his interest in the claim shall become the property ..t his co-owners who have made th required expenditures. Sec. 5, Jfoy 10, Iffft. Sec pp. 69, 94, u Amendment of 1875 Labor by Tunnel. That srrtion t\v thousand thiv- hundred and twenty- four of the Revised Statutes be, and the same is hereby, amended so that where a person or company has or may run a tunnel for the purposes of developing a lode or lodes'. owned by said person or company, the money so expended in said tunni'l shall be taken ana considered as expended on said lode or lodes, whether located prior to or since the passage of said act ; and such person or company shall not be required to perform work on the surface of said lode or lodes in order to hold the same as required by said act. //. 1871, >',//,. 62. See p. 257. Amendment of 1880 Annual Labor Period Fixed. That section twenty-three hundred and twenty-four of the Revised Statutes of the United States be amended by Instead of June 10, 1874, the date ultimately fixed was January 1, 1875. See note, p. 94. 610 TEXT OF U. S. LAWS IN FORCE. adding the following words : "Provided, That the period within which the work required to be done annually on all unpatented mineral claims shall commence on the first day of January succeeding the date of location of such claim, and this section shall apply to all claims located since the tenth day of May, anno Domini eighteen hundred and sev- enty-two." Sec. 2, January 22, 1880. Sup. 276. See p. 95. Application For Patent. Sec. 2325. A patent for any land claimed and located for valuable deposits mny be obtained in the following man- ner : Any person, association, or corporation authorized 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, together with a plat and field-notes of the claim or claims in common, made by or under the direction <>f the United States surveyor-general, showing accurately the boundaries of the claim or claims, which shall be dis tinctly marked by monuments on the ground, and shall post a copy of such plat, together with a notice of such application for a patent, in a conspicuous pla< <>n the lanfl embraced in such plat previous to the filing of the applica- tion for a patent, and shall file an affidavit of at least two persons that such notice has been duly posted. :m. $18. Application by Non-Residents. That section twenty three hundred and twenty-five of tin- I -;atutes of the United* States be amended by adding thereto the following words: "Tnn-iilnl. That where the claimant for a patent is not a resident of or within the land district wher. in tin- vein, lode, ledge, or deposit sought ti I'e patented is Un-ated. the ajtpl icat i>n for patent and the affidavits required to be made in this section by the claim ant for such patent may he made by his. her. or its author agent. whore said agent is conversant with the facts s.niu'h' said affida .!'/ ;>', nr the ing in 30 adverse claim wralYed, It shall he the duty Days. the adverse claimant, within thirty days after filing his claim, to commence proceedings in a court of competent Jurisdiction, to determine the question of the right of possession, and prosecute the same with reasonable Proceedings '' tln:l1 Judgment; and a failure Aftar BO to d 8n aH be a waiver of his adverse claim. After such Judgment shall have Judgment. ..... n r.-nd. i- d. the party entitled to the pos- session of the claim, or any portion thereof, may, without -i\iiiL r further notice, file a certified copy of the Judgment- roll with the register of the land-office, together with the iticate of the surveyor general that the requisite amount of iah.r has Uen expended or Improvements made tlnreon. and the description required In other cases, and shall pay to the receiver five dollars per acre for his claim, together with the proper fees, whereupon the whole proceedings and the judgment roll shall he certified l.y the register to the < 'oinmissioin -r <>i" the (Ji-neral Land-Office, and a patent shall thereon for the claim, or such portion thereof as the applicant shall appear, from the decision of the court, to 512 TETXT OF U. S. LAWS IN FORCE. rightly possess. If it appears from the decision of the court that several parties are entitled to separate and differ- ent portions of the claim, each party may pay for his por- tion of the claim, with the proper fees, and file the certificate and description by the surveyor-general, whereupon the reg- ister shall certify the proceedings and judgment-roll to the Commissioner of the General Land-Office, as in the preced- ing case, and patents shall issue to the several parties ac- cording to their respective rights. Nothing herein -contained shall be construed to prevent the alienation of the title conveyed by a patent for a mining-claim to any person whatever. flee. 7. .!///./ i<>. />: ',68. Title in Neither Party. That if, in any action brought pursuant to section twenty-three hundred and twenty-six of. the Revised Stat- utes, title to the ground in controversy shall not !> i-siali lished by either party, tin- jury shall so find, and judgment shall be entered according to the verdict. In surh C8M QOStfl 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 bis title.- Mnrrli .;. /NX/. *,<},. /,. 324. Adverse by Agent for Non-Residents. That the adverse claim required by section twenty three hundred and twenty-six of the Revised Statutes may be verified by the oath of any duly-authorized agent <>r .it torney-in-fact of the adverse claimant cognizant of the facts stated: and the adverse claimant. If residing or at ;li" time being beyond the limits of the district wherein Hu- rl aim is situated, may make oath to the adverse claim tit- fore the clerk of any court of record of the I'nited Sfates or of the State or Territory where the adverse claimant may then be, or before any notary public of such State or Ter ritory. Sec. 1, April 26 f 1882. Sup. p. 338. Affidavits Out of Land District. That applicants for mineral patents, If residing be yond the limits of the district wherein the claim is situated, may make any oath or affidavit required for proof of citi zenship before the clerk of any court of record or before any notary public of any State or Territory. Sec. 2, Id. Survey Amendment of 1904. *"Sec. 2327. The description of vein or lode claims upon surveyed lands shall designate the location of the claims with reference to the lines of the public survey. Section 2327 Prior to Amendment. *Sec. 2327. The description of vein or lode claims, upon surveyed lands, shall designate the location of the claim with reference to the lines of the public surveys, but TEXT !* IV S. I.AXVS IN FORCE. 513 but need not conform therewith ; but where patents have l-een or shall be issued for claims upon unsurveyed lands. ~ irveyors-genernl. in extending the public survey, shall adjust the same t.i the l-niindaries of said patented claims B t<> interfi re with or change the true location i.-h claims as thcv are oflicially established upon the :d. Where patents have issued for mineral lands, those - only shall I- .1 and shall lie deemed to be ubii-h are ho-.MHh d by the lines actually marked. defined, and established upon tin- ground by the monuments of i he oiticial survey upon which the patent grant is based. and surv. uiinj: subsequent patent sur veys, whether upon surveyed or unsurveyed lands, shall be in d accni-dini;i\ . 'i h.- Miiii mooomenti shall at all I constitute ih.. highest authority as to what land is ited. :ind in case of any conflict between the said nionu nients of such patented claims and the description! of said the pat. -ins issued tlfi-efor tln iiKMiuineii t s on -round shall govern. :md erroneous or ltx>nsisteni de -. i-ii.t ions .r rails in the patent descriptions shall give away theret // 8, ./POJ. 33 xt i Previous Applications. Sec. 2328. Applications for patents for mining-claims under former laws n..\\ peiidin- may I.e prosecuted to a final derision in the General Land-Office; but in such cases wliere adverse rights are n.-t affected thereby, patents may in pursuance ..; MM- provisions of this chapter; and Adverse M " I''>i''"' s ''"' mining claims upon veins or T?irrfcfo- lo i>. .'//. Annual Labor on oil Claims *M i>. II.'. Saline Placer Act. That all unoccupied public lands of the United Stairs containing salt springs, or deposits of salt in any form, and Chiefly valuable therefor, are hereby declared to he subject to location and purchase under fcbe provisions of the law relating to placer-mining claims: rmriilftl. That the same Person shall not locate or enter more than one claim here under. Jan. SI, 1901. 31 8t. L. 7.}5. Sec p. 212. Legal Subdivision of Placers. 2330. Legal subdivisions of forty acres may be subdivided into ten-acre tracts: and two or more persons, or associations of persons, having contiguous claims of any sixc. although such claims may be less than ten acres each, may make joint entry thereof'; but no location of a placer- claim, made after the ninth day of July. 100 Acre eighteen hundred and seventy, shall exceed Placers one hundred and sixty acres for any one person or association of persons, which location shall conform to the United States surveys ; and nothing in this section contained shall defeat or impair any bona-flde pre-emption or homestead claim upon agricultural lands, or authorize the sale of the improvements of any bona-flde settler to any purchaser. Sec. 12, July 9, 1870. See p. 209. Placers on Surveyed Lands. Sec. 2331. Where placer claims are upon surveyed lands, and conform to legal subdivisions, no further survey or plat shall be required, and all placer-mining claims lo- cated after the tenth day of May, eighteen hundred and seventy-two, shall conform as near as practicable with the United States system of public-land surveys, and the rec- tangular sub-divisions of such surveys, and no such location shall include more than twenty acres for each individual claimant : but where placer-claims cannot be conformed to legal subdivisions, survey and plat shall be made as on un- surveyed lands ; and where by the segregation of mineral TI-;XT OF i". s. LAWS IN FORri: 515 hind in any le-rnl suhdivision a quantity of agricultural land less than fort v a. ITS remains, such fractional portion of agricultural land may In- entered hy any party qualified hy law. for homestead >r pre-emption purposes limitations. :_'. Where such pers.-n or association. they and their grantors. have held and worked their claims for a Period e.jual to tin- time pr. scrihed l>y the statute of limi r mining-claim! of the State or Territory where the same may be situated, evidence of stu-h possession and working of the claims for such period shall T ifto De sullicient :o .stal.lish a riirht to a pat- tens. ent ,),,,,.,.,,, ,,, M | rr f hi s chapter, in the al>- ai'v adverse claim : hut nothing in this chapter shall he deemed to impair any lien which may : in any wav whatever t.. any mining-claim or property then-to atta-h. d prior to the issuance of a pat '//// v. /s? .rrs. Placer Claim Containing lode. IS.- \Vh.-re ill,- .(ssociat ion. or .:ati..n is in possession of a placer da im. and also a vein ,r lode included \\ithin the houndaries tln-r.-of. appli n shall I.e made f..r a |.:iteiit for the placer claim. with the statem.-nt that it includes sm h vein or lode, and in siii-h O 'it shall issue for the placer claim, sul. o tin> pr.ivi-i.ius of this chapter, including such vein or lode, upon the payniriit of live dollars per acre for such vein or lode claim, and twenty live feet of surface on ea h side thereof. The remainder of the placer- Placers $2.50 claim, or any placer claim not emlua. iim Der Acre :inv Vt '" "' 1< " |t ' laini - shall be paid for at the rate of two dollars and fifty cents her with all costs of proceedings; and where in or lode, such as is described in section twenty three hundred and twenty, is known to exist within the houndaries of a placer-claim, an application for n patent for such plao-r claim which does not include .-in application for the vein or lode claim shall he construed as a conclusive declara- tion that the claimant of the placer claim has no right of possession of the vein or lode claim: hut where the existence vein or lode in a placer-claim Is not known, n patent for the |.!.ic, i ( laim shall convey all valuable mineral and oth.r deposits within the boundaries thereof. 8cr. n. Mnn Deputy Surveyor and Fees. Sec. 2334. The surveyor-general of the United States may appoint in each land-district containing mineral lands as many competent surveyors as shall apply lor appointment to survey mining-claims. The expenses of the survey of 516 TKXT OF U. S. LAWS IN FORCK. vein or lode claims, and the survey and subdivision of placer- claims into smaller quantities than one hundred and sixty acres, together with the cost of publication of notices, shall be paid by the applicants, and they shall be at liberty to ob- tain the same at the most reasonable rates, and they shall also be at liberty to employ any United States deputy sur _, , veyor to make the survey. The Commis- Charges for sioner of the General Land-Office shall also Publication, have power to establish the maximum charges for surveys and publication of no tices under this chapter ; and, in case of excessive charges for publication, he ihay designate any newspaper published in a land-district where mines are situated for th> publi- cation of mining-notices in such district, and fix the rates to be charged by such paper; and, to the end that tlio <'<>m missioner may be fully informed on the subject, each appli- cant shall file with the register a sworn statement of all charges and fees paid by such applicant for publication and surveys, together with all fees and money paid the register and receiver of the hind-office. \\-hirh statement shall be transmitted, with the other papers in the case, to the Com- missioner of the General Land-Office. Sec. n, May 10, l$lt. See p. 400. Affidavits and Proofs. Sec. 2335. All affidavits required to he mad.- under this chapter may be verified before any officer authorized to administer oaths within the land-district win-re the claims may be situated, and all testimony* and proofs may in- taken before any such officer, and. when duly certified by the officer taking the same, shall have the same force and effect as if taken before the register and Agricultural receiver of the land-office. In cases of c->n Contest test as to the mineral or agricultural < -bar acter of land, the testimony and proofs may be taken as herein provided on personal notice of at least ten days to the opposing party : or if such party can- not be found, then by publication of at least onco a' week for thirty days in a newspaper, to he designated by the ister of the land-office as published nearest to the location of such land ; and the register shall require proof that such notice has been given. Sec. 13, .!/. 1,01. Cross Veins. 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 con- tained within the space of intersection ; but the subsequent location shall have the right of way through Veins Uniting the space of intersection for the purposes on the DiD * tne conveni ^ n t working of the mine. And where two or more veins unite, the oldest or prior location shall take the vein below the point of union, including all the space of intersection. Sec. Ik, May 10, 1872. See pp. 150, I5f ri:\T OF u. s. LAWS ix FORCE. 51? Mill Sites. 7 NYheiv non-mineral land nt contiguous to tin* vein or lode is used or occupied ly i lit- proprietor of such vein in- lode for mining or milling purposes, such lion adjacent surface-ground may he embraced and included in an application for a patent for such vein or lode, and -a me may le patented therewith, subject to the sanif- preliminary requirements Bfl in survey and notice as are applicable i- lodes: but no location hereafter made oi Mich nn ;id.ia. nt land shall exceed live acres, and pay- ment for i he K I.e made at the same rate as fixed by tliis chapter for the superiiei. s .f the lode. The owner of a quart/, mill or reduci ion u ..rks. not owning a mine in connection th-n-\\ it h. mav also receive :i intent for his mill- ded in this section. .I/*;// 10, 1872. fty. Easements. :s. AB a condition of saie, in the absence of necessary legislation by the local legislature of any State or Territory m:iy pr i for working mines, involving easements, drainage, and other necessary means to their complete d> vel .pmeii t . and those conditions shall be fully expressed in the patent. Bee. :>. .//// .';. /xw. 8cc I.. Nt, Water Rights Appropriation. rer, l-y pHoritJ of possession. riu r ht> t,. the us- f..r mining, aurieiiit ural. manufacturing. or other purpo n d. and the same are ree..;:ni/rd :ind :i kn..\\ !- d.u' d l>\ the loeal customs, laws, and the decisions . asid >\\ tiers' of sucii vested rights shall !. maintained and protected in the same; an : r t lie const ruct ion OF daiuages the posses- sion of any settler on the puhlic domain, the party commit- iin- M-V or dam.-iue ^haii be liahie to the party injured for such injury .r damage. Sec. 9, Jvlfi *6, 1866. 193. Patents Subject to Water Easements. Sec. 2340. All patents -.'ranted, or preemption or homesteads allowed, shall le suhje-'t to any vested and ;i< rued water-right, or rights to ditches and reservoirs used in connection with such water rights, as may have been ac- quired under or reco-ni/ed l,y the preceding section. Sec. /! .-'. ISffO, See. i'. 19S. 518 TEXT OF U. S. LAWS IN FORCE. Homesteads. Sec. 2341. Wherever, upon lands heretofore desig- nated as mineral lands, which have been excluded from sur- vey and sale, there have been homesteads made by citizens of the United States, or persons who have declared their intention to become citizens, which homesteads have been made, improved, and used for agricultural purposes, and upon which there have been no valuable mines of gold, sil- ver, cinnabar, or copper discovered, and which are properly agricultural lands, the settlers or owners of such home- steads shall have a right of pre-emption thereto, and shall be entitled to purchase the same at the price of one dollar and twenty-five cents ner acre, and in quantity not t< exceed one hundred and sixty acres ; or they may avail themselves of the provisions of chapter five of this Title, relating to "HOMMTBAD8." Sec. 10, July 6, 1866. Segregation of Agricultural Lands. Sec. 2342. T'pon the survey of the lands described in the preceding section, the Secretary of the Interior may designate and set apart such portions oi the same as are dearly agricultural lands, which lands shall t hereal't er he subject to piv -emption and sale as other public lands, and be subject to all the laws and regulations applicable to the same. 8cc. 11, July 26, 1S66. Land Districts. Sec. 2343. The president is authori/.od to establish additional land-districts, and to appoint the necessary offi- cers under existing laws, wherever he may deem the same neeessarv for the public convenience in executing the pp.. visions of this chapter. Sec. 1, July 6, 1866. Vested Rights. Sec. 2344. Saving < Manse as to Sulro Tunnel A't. Sec. 2345. Excepts Michigan, Wisconsin and Minne- sota.* State and Railroad Grants. Sec. 2346. No act passed at the first session of the Thirty-eighth Congress, granting lands to States or corpora tions to aid in the construction of roads or for other pur- poses, or to extend the time of grants made prior to the thirtieth day of January, eighteen hundred and sixty live. shall be so construed as to embrace mineral lands, which in all cases are reserved exclusively to the United States, unless otherwise specially provided in the act or acts mak- ing the grants. Res. A 7 o. 10, January SO, 1865. *By A'ct of May 5. 1876, Sup. 104. Missouri and Kansas are excepted from ttie operation of the Mining Act. By Act of March 3, 1883, Sup. Wk, Alabama is excepted. COAL LANDS. Rights of Canadians in Alaska. Sec. 13. That native-born citizens of the Dominion mada shall he accorded in said District of Alaska the mining rights and privileges accorded to citizens of ilu> ITnited suites in p.ritish Columbia and the Northwest Territory hy the laws of the Dominion of Canada or the local laws, rules, anil regulations; but no greater rights shall he thus accorded than riti/ens of the 1'nited States or us who 1;; >d their intention to become such may enjoy in said District of Alaska: and the Secretary of the Interior shall from time to time, promulgate and en- force rules and regulations to curry this provision into ay I*,, 1898. SO St. I.. }/:.. NT Kith- 404. By act of May 21, 189G, the right of way for oil lines in Colorado and Wyoming is grant*- I When a military reservation is vacated the min- eral lands become part of the public domain. A. C. .Tuly 5, 1884, Sup. 455. COAL LANDS. Legal Subdivisions. person above the age of twenty one Of the Tinted Btate0, OF who has declared his intention t<> I ecome such, or any association of persons severally i as above, shall, upon applica- tion to t! ..f ili.- t. roper land oilice. have the right to n quantity of vacant coal lands .if the I'nited State* not otherwise appropriated or reservd i\ competent authority, not ex 160 Or 320 ceedhiK one hundred and sixty acres to such Acres $10 tO individual person, or three hundred and * Arro lw '' to mich association, upon pay * 2 P er Acre ' ment to ihe receiver of not less than ten dollars per acre for sin -h land, when- the same shall l>e situated more than fifteen miles from any completed rail- road, and not Ie0a than twenty dollars per ncre for such lands as shall be within fifteen miles of such road. H: I. Mnn-h '. : Settlers Preferred. 18, Any person ,,r association of person- ernlly qualified, a^ ahove provided, who have opened and Improved or shall hereafter open and improve, any coal mine or mines upon the public lands, and shall be in actual 520 COAL, LANDS. possession of the same, shall be entitled to a preference- right of entry, under the preceding section, of the mines so opened and improved : Provided, That when 640 Acre any association of not less than four per- Tracts sons, severally qualified as above provided. shall have expended not less than five thou- sand dollars in working and improving any such inim> or mines, such association may enter not exceeding six hun- dred and forty acres, including such mining improvements. Sec. Z, Id. Land Office Proceedings. Sec. 2349. All claims under the preceding section must be presented to the register of the proper land-district within sixty days after the date of actual possession and the commencement of improvements on the land, by the filing of a declaratory statement therefor ; but when the township plat 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 district 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 provisions of this section shall be allowed until the expiration of six months from the third day of March, eighteen hundred and seventy-three.- .;. 'hi. Entry Limited. Sec. L'::ro.- The ihn-e preceding sections shaH he held to authorize only on.- entry by the same per ..cia tion of persons : and no association of persons any member of which shall have taken the benefit of such sections, either as an individual or as a member of any other association. shall enter or hold any other lands ander the provisions thereof: and no member of any association which shall have taken the benefit of such sections shall enter or hold .-my other lands under their provisions: and all persons claim ing under section twenty-three hundred and forty-eight shall be required to prove their* respective rights and pay for the lands filed upon within one year from the time prescribed for filing their respective claims: and upon failure to file the proper notice, or to pay for the land within the re- quired period, the same shall be subject to entry by any other qualified applicant. Sec. ',, Id. Conflicting Claims. Sec. 2351. In case of conflicting claims upon coal- lands where the improvements shall be commenced, after the third day of March, eighteen hundred and seventy-three. Eriority of possession and improvement, followed by propel- ling and continued good faith, shall determine the prefer- Ti.MMKli AN1> S'M 'NK A' T ritrht to purchase. And also where improvements have 11 made prior to the third day of March. eighteen hundred and seventy three. division of t he land claimed may be math' by lri:al subdivisions, it. include. ;is n.>ar as may the valuabN' improvements of the respective parties. The rommissiom-r of the General Land-Office is authorized Mie all needful rules and regulations for carrying into the provisions of this and the four preceding sections. Srr. .',. 1,1. Vested Rights Lodes and Placers Excepted. Nothing in the live preceding sections shall be construed to destroy or impair any rights which may have attached prim- to the third day of March, eighteen hundred and sevnuy Mm e. or to :iuthori/e the sale of lands valuable for mines of gold, silver, or copper. Sec. <;, lrrv:it ioiis of the Itiit.'d States, valuable ( hietly for timber, but unfit for cultivation, and which have not '1 at public sale according to law, may be sold bave '! (hired their intention to become such, In quantities not ex- ing one hundred and sixty acres to any one person or n of persons, at the minimum price of two dollars and fifty - tcre : and lands valuable chietly for stone may he sold on the same terms as timber lands. Mining Claims Excepted. '. That nothing herein contained shall defeat or impair any bona-flde claim under any law of the United states, or authorize the sale of anv mining claim, or the improvements of any bona-fide settler, or lands containing gold, silver, cinnabar, copper, or coal, or lands selected by the said States under any law of the United States donating lands for internal improvements, education, or other pur- poses. (A further proviso follows sTiving ditch and water rights.) 522 TIMBER AND STONE ACT. Duplicate Statements Required. Sec. 2. That any person r stone; that it is uninhabited ; contains no mining or other improve- ments, except for ditch or canal purps. s. \vhen> any such do exist, save such as were made by or belong to the appli- cant, nor, as deponent verily believes, any valuable deposit of gold, silver, cinnabar, copper, or coal ; that deponent bus made no other application under this act : that he does not apply to purchase the same on speculation, but in good faith to appropriate it to his own exclusive use and bent-tit : and that he has not, directly or indirectly, made any a.un inent or contract, in any \vay or manner, with any person or persons whatsoever, by which the title which he might acquire from the Government of the United States should inure, in whole or in part, to the benefit of any person except himself: which statement must be verified by the oath of the applicant before the register or the receiver of the land-office within the district where the land is situated.* Sale to Bona Fide Purchaser. And if any person taking such oath shall swear falsely in the premises, he shall be subject to all the pains and penalties of perjury, and shall forfeit the money which he may have paid for said lands, and all right and title to the same; and any grant or conveyance which he may have made, except in the hands of bona-fide purchasers, shall be null and void. Publication and Posting. Sec. 3. That upon the filing of said si at emeu provided in the second section of this art. the register of the land office, shall post a notice of such application, em- bracing a description of the land by legal subdivisions, in his office, for a period of sixty days', and shall furnish the applicant a copy of the same for publication, at the expense of such applicant, in a newspaper published nearest the lo- cation of the premises, for a like period of time ; and after the expiration of said sixty days, if no adverse claim shall have been filed, the person 'desiring to purchase shall furnish to the register of the land-office satisfactory evidence, first, that said notice of the application prepared by the register as aforesaid was duly published in a newspaper as herein *An Act of 1904, 33 St. L. 59, makes special pro- vision for verification of the forms under the Act and making proofs outside the Land District. TIMBER AND STONE ACT. required: secondly, that the land is of the character con- templated in this art. unoccupied :uul without improvements, oth>r than th<>sc exeepted. cither mining or agricultural, and that it apparently contains no rateable deposits of gold, silver, cinnabar, copper, or coal: and upon payment to the l'io]M-i officer of the purchase-money of said land, together with the fees of the register and the receiver, as provided for in case of mining claims in the twelfth section of the act approved May tenth, eighteen hundred and seventy two. the applicant may he permitted to enter said tract, and. on tin- transmission to the General Land nthce of the papers and testimony in the ease, a patent shall issue thereon. Protest and Appeal. . That any person having a valid claim to any portion ol the land may oi.jeet. in writing, to the issuance of a patent to lands so held by him. stating the nature of his claim thereto; and evidence shall be taken. and the merits of said objection shall he determined l>\ the officers of the land-office, subject to appeal, as in other land for cases. Effect shall In- iriv.-n to ihe i'Mr.-->inu r provisions of this act by regulations t- of the General Land Office. this act by regulations to be prescribed by the Commissioner ' - era! L The original Act was routined to certain States, and the above Act is the law as it now reads ex- tended to all "Public Land" States./ Sup. /6'7 . Sup. 65. See p. 213. Unsurveyed lands cannot be entered under this Act. The entire procedure consists of (1) filing duplicate statements as prescribed by the second section above printed; (2) advertisement and posting for sixty . Failure of the applicant to personally examine the land sought to be entered, is fatal to the appli- cation. 32 L. D. 606, 631. TIMBER ACT. Timber Free to Miners. That nil citizens of the Ini :mi tin- State of Colorado, or .\Yvada. or either of the Territories of New Mexico, Ari/.ona. it.-ih. Wyoming, Dakota, Idaho, or .Montana, and all other mil districts of the I'nited States, shall IM-. and an- heivhy. an thorfaed and permitted to fell and remove, for lui:>! agricultural, mining, or other domestic purpos.--. any tiin ber or other trees growing or being on the public lands, said lands being mineral, and not subject to entry nnder existing laws of the Tnited States, except ior mineral entry, in eiiher of said States. Territories, or districts of which' such citi/.ens or persons may be at the time 6ona-fide residents. subject to such rules and regulations as the Secretary of the Interior may prescribe for the protection of the timber and of the undergrowth growing upon such lands, and for other purposes: rr<>riL'f. These circulars contain the "regulations" men- tioned in the act which are material, because the bur- den of proof is on the timber cutter to show coin pliance with them. U. 8. v. Basic Co. 121 F. 504. The same case gives a liberal construction to the term "mineral lands." Under the Act above printed timber may be cut on mineral lands for purposes of sale or for roasting ores nor can the Secretary by regulation prohibit cutting for such purposes. U. S. v. Rossi, 133 F. V. 8. v. Unit* Co. 196 U. 8. Using timber for smelting purposes is within the terms of the Act of 1891. 34 L. D. 7S. Also for con- structing electric light plants, bridges and flumes by city or county. Id. 1 1 i. of of panning colors is not enough to prove that the land is mineral so as to justify timber cut- ting. Anderson v. U. 8. 152 F. 87. A purchaser of timber cut by trespass cannot defend on his good faith. He cannot have a better title than his vendor. Id. See Building Stone Act. p. Alaska. Section 11. Act of 1898. 30 N/. /,. j/j. allows free nib. i to miners in Ala- 526 GLOSSARY MINING TETIMS. GLOSSARY OF MINING TERMS. ACEQUIA. A ditch. Spanish. ADIT. A horizontal drift or other passage used as an opening or drain to a mine ; applied to no level except one opening on the surface. Latin. ADVENTURER. A shareholder. ALLUVIUM. The sediment of streams and floods. Latin. AMALGAM. The mechanical combination of quicksilver with gold or silver. . ANDESITE. A dark porphyrftic lava, composed of black crystals imbedded in a mass of light colored feldspar. A \ i'i:sin: r.KKcn.v. Fragmental andesite united into a coin pact rock by silica and other natural cementing materials. The main eruptive rock of the Cripple Creek district. AXDESITE TUFF. Andesite in mtnute fragments, finer than breccia. John We1lhi'. 376. ASSESSMENT WORK. The annual labor ($100) re- quired to hold a claim. See p. 94. AURIFEROUS. Gold bearing. Latin. BACK. The roof of a drift, stope or other working. BAL. A mine. Cornish. BANK. The surface at the pit's mouth. BANKET. Term applied to the ore of the Rand Reefs. BANKSMAN. The man at the shaft-mouth who han- dles the bucket. Cornish. BAR DIGGINGS. Gold washing on river bars. BARRIERS. Masses of unworked gangue or coal left to prevent drainage from mine to mine. GLOSSARY MINING TERMS. 527 r. VSB BULLION. Pig lead containing its gold and ; unseparated. i:\sr METALS. All metals except gold, silver, mer- nnd the platinum group, which are termed m.hle metals. BED. A horizontal seam or deposit of ore. BKI- The solid rock outcropping at sunn.. or underlying the gravel, slide or other loose earth. IMUTH. A brittle crystalline grayish white metal easily fusible. Found as an oxide or sulphide in <>ivs of K . copper and other metals. Not usually k I/. Taylor. BITUMEN consists of a mixture of native hydnu-ar and their d.-rivat i\ -. which may be gaseous.' liquid, a viscous liquid or a solid, but, if a solid, melting ni"i or i.v S readily on the application of heat, and soluble in turpentine, chloroform, bisulphide of carbon, similar sol- - nnd in the malthas or heavy asphaltic oils. Natural gas. petroleum, maltha. asphalTT grahamite, gllsonlte. kerlte, etc., are bitumens. See Asm. MI BLACK JACK. A dark variety of zink blende. BLENDE. A sulphide of zink. BLOSSOM. Decomposed out-crop of a vein. Gossan. Iron BLOW-OUT. A spreading out-crop. BON itr weather at sea; a large body of pay ing ore. Became a familiar t>rm upon the opening of the immense ore bodies in the Comstock. Sp. M I ML ii. The ditch from the dam used in booming. (2) A slight channel cut down a declivity into let a sudden head of water intended to mi to bed-rock and prospect for the apex of any underlying !<>de MING. A kind of placer mining where the water is accumulated in a dam and let ont at intervals, so as .. uttiiitf pow.-r in the form of a torrent. BORRASCA. The reverse of Bonanza. Out of pay BOULDER. A large, loose, rounded stone. TICE. A bulkhead. I:AST. The heading of a drift, tunnel, or other horizontal working. BRECCIA. A conglomerate of angular fragments. Stephanite. A sulphide of ami mony and silver containing 68.5 per cent, silver with the antimony variable. Sometimes contains iron, copper and arsenic ; variable in color, hardness and specific gravity. /:. /: BROACHING. Trimming or straightening a working. BRON/K. An alloy of copper and tin. Brass is an alloy of copper and /ink. BrDDLiNG. Separating ores by washing. BULLION. Uncoined gold or silver. 528 GLOSSARY MINING TKRMS. CACHE. A place where a prospector's provisions or outfit is buried or hidden. French. CALAMINE. An ore of zink. Lapis CalmtihmriK. CALAVERITE. A telluride of gold, containing 55.5 per- cent, tellurium and 44.5 per cent, gold ; allied to and com- monly misdescribed as sylvanite ; sometimes distinguish- able from the latter by a yellow color and lack of crystalli- zation. J. W. Finch. CANON. A narrow valley. Termed Box Canon whon the sides are perpendicular. N/m /'*//. CAP. Space where the walls contract so as to 1> only a trace of the vein. A pinch. (2) A spa<-' in the vein where the gangue becomes barren. CARBONATES. The combination of carbonic arid with bases. Soft carbonates have lead for a base. Hard car- bonates have iron for ;i l.ase. An ore <>f lead and silver. CEMENT. Gold-bearing gravel united and hardened into a compact mass. CIIKKK. The side or \v;ill of a vein. CHIMNEY. A pocket or ore body when found pipe shape, with general perpendicular position. CHLORIDES. Compounds of chlorine with other ele- ments. CHUTE, (or SHOOT, i A flume for sliding ore. <-> A chimney of ore. />/r mill-hole. Tin- term als.t is applied to rough or light tinihering as distinguished fn-m solid set work. An interseetinu; vein. ss Crr. A level driven across the course of n vein. A short tunnel. POT ra. The following table gives the equivalent in cubic feet nij i-.d 'f r\ati<'L''ii \\ith a metal. Tin- ' niCtiOD is perf.r d by passing an an >:ntion of pota>sinm cyanide OTff /ink ire |'reci|.itated. H< ///// innt. IM.M. \\'"|:K. Th.- i.-viopin- ,,f a mine preparatory to stp'"- -'S4- The loose fragim-nt^ d.-ia.-ln-d from the l>ed rock ami washed down, to which the term slide is more appropriate: waste rock of any kind. //wer portion of a vein. i MKNI 1 he Mi-xif.in or Spanish equivalent at ion and record" of a claim. DESCBNSION THKOUY. Tho theory that veins were filled from above. IU.,,IN<;S. Placers. Li IHKK. A fissure made and filled by plutonic action, rock is most commonly porphyry. It is often barren, but in some cases mineralized; or may carry a mineral!/' ( l selvage and so appear as the wall of a lode. 530 GLOSSARY MINING TERMS. DILUVIUM. A deposit of loose boulders, earth, etc., attributed, geologically, to deposition from water. DIP. The line of declination of strata. Bainbri. the sun. ore eontaining e>p per 15 to 42 per cent.. eomMn.-d with iron, /ink, silver, nn-r- . nic and an: iiiiMDN . It varies in colnr. hardn.^s and s; Trovlsioning a prospector on n bar gain to share his discoveries. H.M'K. Tin- dip of the vein. ' il\N.,!N., W.M.I.. Th- uppi-r wall of a vein. in \i '!%>,. The breast or face of a working. ih u>iMiS. The mass of gravel and pay dirt above the head of a slui. , Ih \\r. The horizontal dislocation of one lode by anott IH'iii Kxii"si\is. Those of greater detonating force than black powder. H"i:M A mass of country rock between the enclos- ing walls of a vein. To constitute a Horse, "It is neces- sary that the walls should converge about the mass below and at both ends, but the greatest known horses do not converge over hend. The two walls coming to the surface are in some instances 1,000 feet apart." Testimony of l\inKY. That which refers the origin of the ore to the deposit of mineral from water holding it in solution. IN.IKCTIMN Tni:ni:v. That which refers the origin of the ore to the introduction of igneous fluid. IN I'I.ACI:. In Kitii. Words used in Section _:;_". of the T". S. Revised Statutes, (nullifying the words "quartz or other rock." and to distinguish lode from placer claims. Set p. /<;.'. IKON HAT. < /:/* n Ilnt.i The oiitcrclp of a lode, it being usjally colored by the decomposition of the iron. Von Cotta, 38. .Ii; A machine for concentrating ore by means of sieves. Cum. .IIMI-. To t:ike forcible possession of a claim. (2) To relocate abandoned prop. riy. KIHMI.I:. A kind of hoisiing bucket. r LACGINC. Poles or small timbers used for spanning from one stull-piece to another, for cribbing mill holes and for lining behind tbe timbers of ;i shaft. I.i:.\i>. An object ion.-ihle form of tbe word b>de. LEAD. A metallic element, bluish while, <;a!.na and carbonates .-ire iis m. /. I.I.N;TH. A certain portion of a vein when taken on a hori/ontal line on its coin LI:VI:I.. A drift along the vein; the word generally used where there are a series of drifts, as tiist lev. I. econd level, etc. See Gamin i: r. Lowry, :>; /./. >/;. /. M. /,- 1. 1 IT. The space between two levels. LITTLE (JIAXT. A jointed iron pipe and nozzle de- creasing in diameter with the increase of the hydraulic pressure: used in placer mining. LOCATION. The successive acts by which a claim is appropriated. i '_' The claim itself. LODE. An aggregation of mineral matter containing ores in fissures. Ton Cottn. 2C>. A vein of metallic ore. A ledge, for??. Sec />. 1<>1. .(A fault in the country which has become mineralized. .1. //. Qrten.) GLOSSARY MINING TERMS. f>tt MAN ll"i.i:. An opening just large enough to peVmit - Let \\een i\v workings* MATKIX. )f the lode.) The country rock in which ih' vein is found. nf the ore. i The rock Of ':irthy mate- rial inclosing the ore; the vein stone. l.ntin. Mvrii:. on,- of ill.- products of matte r pyritic smelting. It consists either of ferrous mono sulphide iFeS), or of cuprous sulphide. (Cu.-Si. with ferrous mono-sul- phide in varying proportion. Franklin If. Car/" nt< r. /'//./>. 9M I tin ii. < ' ;ieksilver. A shining silver whit e metal. liquid at temperature almve 40 deg. Fahr. P.oils at f.r.'.i deg. Fahr. IDnrAIXUBGT. Tlit- an f \\orking metals, including smelting, refining, and parting them from the ores. Mn-.v. nnc of tlu constituents of granite. Wlu-n separately crystalli/id is found in clear laminated plates. Mi; A passage leu in the stope for throw- ing down rock or < Mni. Kt\ The returns of a lot of ore: the assay of ore In quantity as distinguished from a specimen assay. MINI:. Any .-\. :i \:i t ion made for mineral. < - i An op, Tied. MS distinguished from an untouched deposit. (3) 1 nder^r. i from superficial workings or ries. MIM::S I\< i! There i- an aM-mpted statuloi-y defi- nition in ' \\lii.-li is oi.s.-nre and inexact. See his statute directs. tvill (ieli\,-r ;liroiii:!i each square inch of op.-ninir. a quainity \\hi.h varie> from 1.1 to 1.7 cuhic feet of water per min in aiming engineers is to tak.- l.U cuhic feet per minute as th piivalent of an inch. miner's inch is the quantity of water which will rrotf thr..u-h an aperture in its side 1 inch square. \\ !>elo\v the constant level of the watef ail, n Mainnil H i,un>-t:. PAY STKKAK. The ore body proper, or the seam of decomposed material which takes its place and preserves the continuity of the ore body. PI:NT H all classes of gold deposit, including cement and channel claims. i-xtvpt lodes in place. For special meaning under ./" <;<>ld. Platinum. Tin. - ami Mona/ite an- the minerals won by thU Pi. A i. A small chamtur <>n tin- side or sole of a level wh.-iv it inl. : -hai't. made i< t'acilit at .- dumping. When- ii U <-ut in the sole it is called a trip-plat. <'ni. ached ore body : a nesi of ore. A t.-nn appli.-d (,, a mine wh.-r.> thr pay ore occurs in small detached bodirs with intervals of pi mi- ore or barren material. The word implies a slur on th<- mine. Paull v. //' i ISE. A shaft; or winze which has been worked from below. RAND. Range of hills. Dutch. REEF. An Australian term for lode or ledge. REGULUS. The Alchemic term for "matte." 536 GLOSSARY MINING TKRAIS. UIIYOLITE. A name common to igneous rocks of a wavy texture indicative of movement or flowing when in a fluid state. RIFFLE BLOCKS. Cross sections of timber set on the floor of a sluice with irregular spaces between, in which the gold settles. American. ROB. To gut a mine ; to work for the ore in sight without regard to supports, reserves or any future consid- erations. ROCKER. See Cradle, ROOF. A stratum or rock overlying a deposit, or flat vein. The top or back of any working. ROYALTY. The dues to the lessor. RUSTY. Oxidized. Ore coated with oxide. Applies to gold which will not easily amalgamate. SCALE. A loosened fragment of rock threatening to break off and fall. SCHIST. Crystalline or metamorphic rock with slaty structure ; usually carrying mica, sometimes argillaceous. SEGREGATIONS. All those aggregations of ore having irregular form but definite limits. They differ from beds and lodes by the irregularity of their form ; from impreg- nations by their definite limits. Von Cotta 81. SKI \.\<;i:. A lining ; a gouge; a thin band of clay often found in the vein, upon the wall. SET. Portion of ground taken by a tributer. SHAFT: A pit sunk from the surface; an opening more or less perpendicular sunk on, or sunk to reach, the vein. SHIFT. (1) A miner's turn or spell of work. \\ < h ster. Two shifts is the equivalent of 16 to !'< hours work, three shifts, 24 hours work, of one man. -. SILICA. In chemistry it means Silicon dioxide. Formula, Si. 02. It Is ordinary quartz. Between ore buy- ers and sellers everything not soluble in nitric and hydr.i chloric acids is counted as "silica" a determination often manifestly unjust to the seller. Franklin If. ('< nt> r. rh. D. SOLE. The floor of a horizontal working. SOLLAR. Any platform or wooden floor or covering in a working, <'ni. SOUGH. A drain. SPAR. A general term applied to rock with distinct cleavage and lustre. SPELTER. Commercial zink. SIM i. IN.;. limbering used in quicksand or loose nd where lathes are driven behind timbers and kept flush with thr In ading. A branch or off-shoot from a larger vein. STAMPS. Machine for crushing ores by vertical STOPE. The working above or below M h-vel where the mass of the ore body is broken. Corn. 'I'lie :n-t oi lu-raking the ore above or !>< low a irvrl : whm done from tin- hack of the drift it is rullrd overhand or back stoping ; when from the sole it is underhand stoping. 1 of rock or earth of any kind. Dana. Thr plural is strain STKIKI: Thr extension of a lode or deposit on a horizontal line. Von Cotta 19. Synonymous with trend and STI ss timbers at the foot of a stope. Any extra heavy timbers. SUBLIMATION TBBOBY. That which refers the filling of fissures to material deposited from ascending steam, or by condensation from a gaseous condition. Sri.iMi vi i:. The combination of a metal with both sulphur and oxygen. SULPHIDE. The chemical union of sulphur with a metal. sniMit R. A non-metallic element. Yellow, fusible, hi it tie, insoluble; except Oxygen, the most common base < oinhining element in metallic ores, such as Pyrites. As a commercial product most commonly mined from old vol- canic crater- Gtaeatesl production. Sicily. Largest depos- Louisiana : I'.lark Ko.-k, Utah; Sun Light basin. Big Horn County, Wyo. T. 8. T carry out a large financial enterprise. TACKLE. The windlass, rope and bucket. Corn. TAILINGS. The refuse discharged from the tail end of a sluice, or washed from any sort of placer working. The waste rock left after any process of ore separation. TELLURIUM. A silver white, brittle substance, com- bining with many metals to form tellurides in the same manner as sulphur forms sulphides. TIN. A soft, malleable, white metal. Mined in Corn- wall since prehistoric times. I'sed commercially as a coat- ing to thin sheets of iron, and as a factor in many alloys. TRIHUTKUS. Miners who work a .vrf, or piece of ground, taking the proceeds as wages, after royalty de- ducted, but v.-bo work under direction of the owners and bold no possession or title as lessees. TimriM.i:. A fault. TUNDRA. The moss, or scrub-covered, regions of the Arctic. TINCSTKN. (Wolfram.) A bard. heavy, grayish white metal, that fuses with great difficulty. A steel hard ening alloy. Its ores are s< la-Hit . Huebnerite and Wol- framite, all <>f he.-ivy specific gravity. \Vol t'rainit e is sim- ilar to iron in appearance, but when sera tdn-d shows red- dish brown. Hnebnerite shows reddish brown, straight and fan-shaped crystals. Matrix of both, usually white quart/ or buff-colored quartzite. A.. /'. Freitzel. TUNNEL. A horizontal excavation starting at the surface and driven across the country for discovery or working purposes. Irr WMKK. Work paid for by the foot as distin- guished from tribute work. UPCAST. A ventilating shaft where the air ascends. URANIUM. This metal occurs in the mineral urani- uite or pitch blende as an oxide ; also, associated with vana- dium in the mineral carnotite. The color of pitch blende varies from gray to black; that of the carnotite is lemon yellow. Radium occurs in these ores and may be prepared from them. U ;//. /'. llrml..".. U 'in. /'. Hnl n. VI:INS. Aggregations of mineral matter in fissures of forks. \ ',n Oott* If; /.//.i/j/-//i/ ,'. The word vein has ;i !>roarani-h's of tlu> v>ta. or main v-in. >'///"/>(. A ravity in iln ore or rock. WAI. i.. Tli.- plan.' oi tlu> country \vh>n> it tourli.-s th.' side of the v.in. \\li.n used in reference to lodes. Tln> side of a level or drift, \vh.>n- ust-d with reference to the workii _ p. 188. i AI.. A pit or hoi.- in the ground. A mine. Tin- nams ..t most mines in <'oinwall are preceded by the word \Vhml. (ild form //in/. Corn. WHIM. A ii.a.hine for raiKing the bucket by m if a revolving diMim. WHIP. An apparatu- for raising I In- burke) with i-op,' and pulleys, by horse p..\ver on a straight drive. \\ i .Hi sunk t"i-om a level; not necessarily eonneeting two lev. /INK. A m.-tallie eb-meiit : bluish white; generally found as a sulphide (blende) or as a carbonate (cnlamine.. 540 TABLES. j a t- - " - ri : ! - * ' ' - - - - 1- - - - 't >- "' .' :: ~ >' c -' r. ,- y - i- : :i i- xcooo _*^ > : i z i -.--.- r , : - r. . -. r. r '- : : : i / : : '. -J8, 68, 167. Am. i -ir.-.n Sm. c... v. Lind8ley, Am.\ siiv.-r-.miih Case, 1 73 An:., -on. l;i Co, v. I'.u" Anchor \. Howe, 172 US. 60, 100. -- v. : - v. Hapler. Ml. - v. I Anthony v. Jills. .n. -JIT. Ant l.i iinningham, 264. Anvil CO. v. Hum). I.-. Aidesco Co. v. <;ils..n. .::.' Argent - v. T.-rrilil.' Co., 17.".. 1T'.< 187, Argcnnut Co. v. Kennedy Co., - v. Turnrr. l ::. L< Arkansas Val. C'o. v. Helden Co., Armstrong v Lower, 57, liM. 149, L6O, P.M. Ainett v. Linhart, 198. ArnoM v. llak.-r. ::i I. Ashes' I MI r.-i ml. 8 Ashland Co. v. \Yallao-. Ashman v. Wi^t.-n. I'M. Asp.-n CO, v. Ku<-kT. Astlazaian v. Santa Kita Co., Atchison v. Peterson, 194. 880, 281. Atkins v. lh-n.li. Allanti II v. Sl.-v. Attwo,,,i v. Prleott, 22, :: ^. Aurora Hill Ca r, 85 < 148. Austin v. I.rrlin. ::_'!. Ailom Co. v l.i til.. 480. v. Whit.-. 1 in. Philadelphia Co., '"'. 291, v. Th.. nil. .n. ::."!. r.a.iL-. : itockton Co., 1L'>. Wilson. L'lio. P.aillr \ I. r..iinl v Williamson, 192. f v. Montana < !o , 880. Hakerstield Co. v. K.-i n County, l". Italian! v. iJolol,, 120. : v. |al,-. I laniard v. McKenzie, 264. \ Koane Co.. :;i"> I'.arU.-y v. Phillips. 291. Bassick Co. r. s-hoo|ji,.|i. 264. Baxter Ca \. 1'ai t.-rson. 58. Boy v. Oklahoma Ca, i ( >7. State Ca r. r.n.wn. :; :.. Beals v. Cone, 3" 82 89, n. :.:. L04, im. 134, 489. P.ean r. PioniM-r c,,. :;:,7. Bearer Ca w. St. Vrain c ( ,. f 92. Beck v. O'Connor, 261. 542 TABLE OF CASES CITED. Becker v. Pugh, 14, 23, 120, 130, v. People. :;i:', 345, 346, 350, 480, 481, 492. Brady v. Husby. :;;. :;4'.. Bejchei Co. v. Deferrari, 107. Bramlett v. Flick, 76, 87, 845. Belk v. Meagher, 37, 83, 90, 109, Branagan v. Dulaney, 153. 346, 491. Brash v. White, 128. Bell v. Bed Rock Co., 6, 94. Breed v. Bank, 32'. . - v. Benson. .".7.".. Brewster v. Shoemaker. 2!>. \~>. - v. Skillicorn, 184. 1x7. 254. Bellevue Co. v. Mooney, 356. Bn.ckbank v. Albion Co., 122. Bennett v. Harkrader, 77, 489, Brooks v. Cook. 2!'2. 503. v. 2. Bic-knell v. Austin Co., 293, 295. Buckley v. Fox, BID. Billings v. Asj.cn Co.. 809, ::in. v. Port Ilenr\ Bishop v. Baisley. ( .4. HH. Buffalo Co. v. Cruini Bissell v. Foss, :?3.". Bullion Co. v. Cn 1U2. Black v. Flkhorn Co.. 1 18, -71. P.HI. Blackburn v. Portland Co., 47!>. - V. Kureka Co., HJI. 1X1. 867, Blackmarr v. Williamson. 2'.i2. P.ullis v. Noyet, 295, Blackmore v. liHll.v. 2 If,. Bunker Hill Co., v. Kmpir. Blackmer v. Summit Co., 829, i;. 133, KM. I7'.. 1M. Blake v. Butte Co., 1 .',;. 494. - v. Thorne, 80, 127. Burke v. McDonald. 15. 36, 29, Blen v. Bear liiver Co., 283. 163, 345, 180, Bliss v. Kin-do,,,. 254. Burkliard v. Mitchell. 2 Block v. Murray. 265. Burnham v. l-'reeman, 198. Bluebird Co. v. Largey, H',5. p.m. r.usl.v v. Centurv Co., --"-S v. Murray.' |sj. :;72. Bush' v. Pioneer Co.. 36i.. Boggs v. Merced Co., 144, 146. Bush v. Sullivan. &&. Boileau v. Heath, 2<>;. Busk irk v King. :'.64. Bonanza Co. v. Golden lit ad Co., Butler \. Rockwell, 282. 77. Bun.- CO. \. Barker. 44. 1M2. 133, Bonner v. Meikle. 477. 135, Ixl. - v. Kio Grande Co., 2u::. \ Boston Co., 368. Bonson v. Jones, 241. v. Frank, 10, 260. Book v. Justice Co., 30, 53 v. Merriman, 223. 57, 102, 111, 153, 157, 164, * v. Montana Co., 2<;;. 166, 190, 481. 232, 335. Boston Co. v. Montana Co., 187, - v. Sloan, 224. 227. 271, 364, 367. v. Societe, K54. 1X4. Bradbury v. Davis, 305. v. Vaughn, ll5. Bradford v. Morrison, 10. - in re, 460. Bradley v. Harkness, 198. Butterfield v. Nogales Co., 365. T AT.I.K - El CITED. 543 Byanl v. ii.iim.->. 282, Cherokee Co. v. Brithm. :::.r, Byrne ;-ry Va!. Co, v. Floivm-e Co., Mm -a-,. Co, v. Fi.l.-liiy c.... a v. Bayaud, child, r-, \ NVely, 261. caldw.'ll v. Fulfil. 241. Miisholm v. Eagle Co., 337, 378. v. Portland. L-.II. Christy v. Campbell, 284. Calhoun ax Co., 14.'5. Chung Kee v. 1 >avidson. 260, ::,::. 204, chmvhill v. More. Callahan v. .!.-,: Cjril v. Chirk. 884. Calumet Co. v. Phillips, 328. cisn:i v. Mallory. ."."-. camhers v. I.owry. Clark v. American Co., L'7v 'ii v. Seaman. 439. - v. r.arnard. U'll v. FJl.'t. 45, 250. - v. Buffalo Hump Co., v. Golden Cycle Co., 328. . - v. Fit/.tf.>r:ild. 171. :ankin. 87. - v. Nash. 204. Mirer Bow Co., 207. - \ Wall, 299. ilngton Co.. :?.".'.. Clarm. v. (Irnyson, 281. ar.l.-lli v. Comstock Co., U'n. clary v. lla/liit. L45, L"- 1 ::. 361. Clav.-rin- v Clavcrhm. in v. Freeman, 7:t, 181, n.-ar Wai.-r Co. v. San Gtarde, Carney \. .\ii/..na Co., n-i. 78. CN-ary v. Skilli.-h. L'us. 286. 28l, Carson v Hayes, 230. citv Co. v Ntn-ih Star Cleopatra Co. V. Dickinson 145, L68, 17::. 354. 174, 177. Clifton c,,. v. I'v. _::". Cart. ^alupi, 80. rlipp.-r Co. v. Fli Co., 228, . ege, 224. Id v. M-> v. rroducera Co.. 147. rune v. Ju 295, :i v. LuiiKiilin. 313. M v. Ilini-li. 158, ."<7. TJ v. Cady, 369. (Vntral Co. v. E. Central Co.. Col.. < nan v. Curtis. !>;;. m. chadhourne v. Davis, 93. v. Davis, 488. chamberlain v. Colllnson. ::.". c,,iii,.|- v. M linger. 802 Chambers v. Brown. < '.llins \ M.Kay. 278 - v. Chester - v. Smith, 297, - v. Harrington. ]]. Coiman v. Clements, 6, 94.' v. Jones, 144. Colo. Cent. Co. v. Tmvk, 175, Champion MS. Wyoming 177, 352. Co., 154, 478. c,>io.. Coal Co. v. T T . S., 140. 208, chapman v. Toy Long, 11 \ Tryor. i_".i Chnppius v. Hlaiikman. -Jill. Colo. I. \Vks. v. Taylor. -JC,.-,. chariton v. Kelly. 214. Colo. Midland K\. rs, O'Brien, Charter Oak Co. v. Stephen*, 858, cohimhia c<.. v. Dnchei s. _".. 86, Chatham Co. v. Moffat, 283. 48, 60. man v. Half. L'30. Columhus Co. v. TurkiT. L 1 ::". v. Hart. I r,n. 177. ;;r,n. Con.- v. Koxana <',,.. 255, \ Shreeve, 35. 41. r_"_'. Conn v. Oberto. 182, 188, HJ4, 166, 184. 850, Connolly v. Hugh.>. 848, '.:: Conrad v. Snglnaw Co., - 544 TAP.T.E OF CASES CITED. Cons. Channel Co. v. C. P. R. Co., 204. Cons. Coal Co. v. Baker, 259. v. Peers, -298. Cons. Gregory Co. v. Kaber. "-'> Cons. Rep. Co. v. Lebanon Co., 14, 22. Cons. Wyoming Co. v. Champion Co., 155, 163, 174, 184. Contreras v. Merck, 94. Consumers Co. v. American Co.. 300. Conway v. Hart. 27, 122. ((.(.per v. Roberts, 244. Coosaw Co. v. Carolina C v. Farmers Co., 868, Copper Globe Co. v. Allmann, 41, 60, 78, 83, 86, 347. Corning T. Co. v. Pell, 250. Cosmopolitan Co. v. Foote, 178. Cosmos Co. v. Gray Eagle < .. 848. Costello v. Muheira, 349. Conrchaine v. Bullion Co., 87, Cove v. N. Y. Co.. L".t:>. Cox v. Clough, 374. v. Nat. Oil Co.. .v. Prentice, 378. Craig v. Roberts, 208. v. Thompson, 52, 82. !>4. 133. Crane v. Salmon, 305. Crane's Gulch Co. v. Scherrer. 223. Craw v. Wilson. ."."I. Cra\\ ford v. Kellevue Co., !".'.". Credo Co. v. Highland Co., 77. Creede Co. v. Uinta Co., 253. 255, 257. Crescent Co. v. Silver Kin Cro?sus Co. v. Colorado Co., ".:. Cronin v. Bear Creek Co., 482, 485. Crowley v. Genesee Co., 329. Crown Point Co. v. Buck. 1. 173. v. Crismon, 47, 104, 110. Cullacott v. Cash Co., 56. Cunningham v. Pirrung. 12.'*. Currie v. Jones, 363. J)aggett v. Yreka Co., 173, 18.">. Dahl v. Kannheim. L'ur,. __> 7. Dangerfield v. CM Id well. Darger v. Le Sieur 77. Park v. Johnston. L".i ( .. Davidson v. Fraser, 4.T.. I)a vis v. Brown C'y Co., 302. v. Dennis, 349. - v. Gale, 195. - v. Graham. 358. - v. Shepherd, 4;. :>T:.. - v. Weibbold, 14.-,. 243, 247. Dayton Co. v. Seawell, 1M4. Del.ris Cases, L'::::. De, ney v. Mineral Cr. C( 4:.. li'-J. 1 :;:',. 484, 486, 491. D< iTehack v. Hawke. 1 15, _';. i Graffenried v. Sava^. 298. Delude v. Long. ll'n. li_>7. Del Monte Co. v. Last Chance 46, 59, 150, - v. New York Co., 177. De NO..II v. Morrison. !]. D.-piiy v. Williams. 90, Derry v. ROM, '.'". Dil.l.le v. Castle Chief Co., 11<. Diirnan v. Newlin. Dillon v. Bayllss, 80. D.-dgo v. Marden. I'.c.i. Doe v. Sanger, 17L'. 177 v. Ty ley. 80. v. Waterloo Oo 16, 48, 58, 135. i:,7. 1 ',<;. 17;. 184, 282, 311, 480, 489. v. Wood. 298. Doherty v. Morris. 90, 10<> ; 126. Dolan v. Passmore, 7.. Donahue v. Johnson, 368. Donnelly v. P.ooth Co., """. Donovan \\ Hananer. L'T''. 1 ..rr v. Hammond. ' Doster v. Friedensville Co.. -J'7 Dougherty v. Chesnutt. .'{.".I* v. Creary, i3. L'Jii'. Dower v. Richards. '_' 1 . Dc.vle v. P.ui-ns. :;oi. Drake v. Lady Ensley Co.. 230, Driscoll v. Dunwoody. 359, Drnmmond v. Long. ."..",. Ducie v. Ford, 495. Dnttield v. Rosenzweig, o-"> .".. Dufresne v. N. Light Co., 4!1. Dugdale v. Robert son. .",71. Duggan v. Davey. 17<>. 17*;. isi. Duncan v. Pulton, KM. 1 TABLE OF CASES CITKI > 1 Hindus v. Muhlenberg, 353. Inmham-v. Kirkpatrick, 212. v. Seiberling, Dunlap v. Pattison, 57. Du Pont v. Tilden, 314, 328. I Hi Prat v. James, 83, 101, 109. Dnr:inr Case, 188. Urn-ant T. Comegys, 277. - v. Corbin, 215. iMinmt Co. v. Percy Co., I MII -an v. Redding, 477, 481. I niryea v. Boucher. - v. Burt, 261. huinnell v. Dyer, 60. Iyk- v. Caldwoll. 1'."; f v. Nat. Tr. Co v. Whyte, 259, 34-.'. in v. Bashford, 265. v. Friend Cent. Co. v. Central Co., Aood v. Standard Ca, 265. i v. N orris, 88. Eberle v. Canuchael, 102. ille v. Lt , 374. Krlips- c.,. v. Spring, 156. Kdsall v. M.-rrill. Is v. Allouez M. Co., 230. !:-. v. Kille, : man, 82. V. IlMl-Srsho,. Co.. 1 IT. 1 1!I. ro-Magnetlc Co. v Van AU- k.-n. Ellet v. Campl.Hl. :,. _.. <., 180. English v. Johnson, 22. 87. Ennor v. Barwell, 371. Enterprise Co. v. Rico-Aspen Co., 250, 256, 257. Kquator Co. v. Guanella, 295. v. Marshall Co.. I Krhardt v. Boaro, 26, 27, 34, 47, 86. 109, 250, 347, 350, 362, 367. E i nest v. Vivian, 362. Erwin v. Perego, 29, 131. Erwin's App., 206, 207, 232. Eureka Co. v. Bass, 357. 18 v. Richmond Co., 141, 162, 164, 172. 1 'airplay Co. v. Westou, 200. Karmington Co. v. Hhymney Co., Faxon v. Barnard. 82, 8t>. S4& Fee v. Durham, 1-4. I-YIton v. Wrst CO, 880, Ferris v. Coover, 90. 1-Yrnim Co, v. M-MilU-u. 181. Field v. Beaumont, 860. v. Grey. 347 V. Tanner. 1 U l.:;. TJ4. Kim-rty v. I-'rh/. L'7r,, 880, First Nat. M. Co. v. Altvai.i. 110. Fisk M. To. v. K...I. l!3. Fissure Co. v. Old Susan <'>. 78, 79, 102, - Fitzgerald v. Clark, n,j Fitzpatrick v. Montgomery, 229. Flagstaff Co. v. Tarbet, 158, 173, 180, 187. Flavin v. Mattingly, 79. Fleming v. Daly, 42. Flick v. liahns Peak Co.. 102, Florence Co. v. Orman, L".'7 Foote v. National Co., 41. s v. Gracey, 8, 259. 1 v. Campbell, 71. Forderer v. Schmidt, 120. Foster v. Lumbermens Co., 207. v. Weaver, 420 Mining Co. v. Bullion Co., 374, 375. Fox v. Hale Co., 338. 378. v. Mackay, 338. v. Myers, 27, 30. Freezer v. Sweeney, 221. Fremont v. Seals, 312. v. U. 8., 312. French v. Lancaster, 336. Fri.-l v. Kimberly, 356. Frisholm v. Fitzgerald, 134. Fuhr v. "Dean, 298. FnlhT v. Harris, 6, 128. v. Swan River Co., 195, 230, 363. Fulmers App., 334. Fulton Co. v. Wilmington Co., 358. G. V. B, Co: v. Bank. 261, 315, 327. 546 TABLE OF CASES CITED. Galbraith v. Shasta Co., r>6, 146, 275. Gale v. Best, 207, 243. Galloway v. Blue Spgs Co., 260 Gamer v. Glenn, 76, 79. Garcin v. Penn Co., 278. Garfield Co. v. Hammer, 82. Garrard v. S. P. Mines, 145. Garthe v. Hart, 121. Garvey v. Elder, 104. Gaylord v. Place, lii 1 :.'. Gear v. Ford, 100. Gelcich v. Moriarty. -4.". Gelwicks v. Todd, T.x. Gemmel v. S\v;iin. L's. :; 1 Genett v. Delaware ('>., JMI;. (venter v. Conglomerate Co., "-'.. Ghost v. Shuman, :'..'.. Gibbon v. Atkinson, ^ ( ..~>. Gibson v. Anderson, ."..".;. v. Chout(>;ni, 1 ."..".. Giffin v. Pipe Lines, Ml. Gildersleeve v. NYw M<-\. Co M 313. Gill v. Weston, 212. Gillis v. Downey, 98. Gilpin v. Sierra Nevnd:i <',,.. 17>. Gilj)iu M. Co. v. Drake, 46, 53, 354. Ghiocchio v. Amador Co., 198. Girard v. Carson, 38. 850. Gird v. California Co., 36, 72, 7!>. ini. I'll'. 215. Glacier Ml. Co. v. Willis. 270, 374. Glasgow v. Chart iers Co., 03, L".IL'. <;i;iss v. Basin Co.. r. i. Gleeson v. Martin Whit.- <',,.. _'_'. 4<5. 82, 101. Globe Co. v. Tennessc.- Co., ::.".'.'. Glovn- v. M.-inila Co., ::L".>. Godfrey v. Faust. loo. Gohres v. Illinois Co., 16, 45, 215. Goldberg v. Bruschi, 110. Golden v. Murphy, 165, 373. Golden Fleece Co. v. Cable Co., .">, 158, 345. R. Co. v. Buxton Co., 353. Terra Co. v. Mahler, 29, 37. Gold Hill Co. v. Ish, 244. Gold Ridge Co. v. Tallmaage, 202. Gonu v. Russell, 22, 46, 106. Goodwin v. Colorado Co., 332. Gordon v. Darnell, 276. Gore v. McBrayer, 6, 25, 58. Gorman Co. v. Alexander, 309. Grand Cent. Co. Mammoth Co., 144, 164, 166, 184. Gray v. Truby, 43. Gray Copper Led.-. 134. Co.j '_' ^ .". . Great Western Co. v. Hawkins. 205. Greer v. Heiser, !!.".. Gregory v. Pershbaker. S3. 21O, 347. Gr-y v. Northumberland, in 1 .!. Gi-iilin v. Hurley, 264. Gruwrll v. Rocco, 310. Guild Co. v. Mason, 338. GumaT v. < 'ripple Creek Co., 330. Gurney v. Brown, 38, 466. Gwillim v. l>oiinellan, 38, i:;.". Habeler v. Rogers, 338. Hadley Co. v. Cummings, 265, I (aim v. James, TO. Main v. Matn-s. li.'.T, 346. Hall v. Ahraham. 2J)S, 352. v. Arnott, 133. v. Duke of Norfolk. 376. v. Hale. v. Kear'ny. 1 '_-. i ]n. \ . i\'.i rnj . i "_. I la Hack* v. Traber. rjs. Hamburg Co. v. Stephenson. 'JM7. 289. Hamilton v. Ely, 360. v. Nevada Co., ">74. Hammer v. Garfield Co., 7',. 77. 94, Ml 1. Hammon v. Nix, 260. Hancock v. Keene, 358. Hand v. Cook, 58. Handy Ditch Co. v. Louden Co., 195. Haiinan v. Seidentopf, 268. Hanson v. Fletcher, 16, 5H. 7J. T.xm.K . 'K CA8B8 CITED. 547 v. Bar.. 11. . Hic-ks v. Anit-riran Co., 363. Hiiniin Lode Cas. (Sec Pollard --- v. B.-l! Iliirsrins v. California Co., Harkiu-ss v. Burton. '._>. Highland Boy Co. v. IVuu-h. 868 Harlan v. Ilarlan. 841. -- v. Stickily 208, '-'04. Harley v Montana Hill v. King, 230. Harrington v. chambers, 31, 32. -- v. Standard M. Co.. I.M. 490. 281. Harris v. Balfour Co., .'{.".T Hindson v. Markle. 230. v. KM'. 10. Hines v. Mil 348, 350, Hirschler v Mi Kendricks, 101, -- v. Helena Co., 479. 108. v. Kellogg, 11". ill. Hjelm v. Western Gr. Co., : 810, Hoban v. Boyer, 46. rd Co. v. Cambria Co., Hobart v. Ford, -"-' 1 1.. n man v. Beecher, 471'. Hartman v. Smith. I'.".''., 238. Ih. II. rookr v. Harrington. Lift, Ilarv.y v. Kyan. 7. Honak.-r v. Martin. Ho. 107. - v. Sides Co., 206. i_:: \\irth v. Mutch.-r. H'.. .". HIMH! v. Hampton Co., 32IV Ha\vkin< v. S|M,kan.- Hoosac Co. v. Donat. 20& HawN-y v. iMll.-r. :, l|,,in,.r v. Watson. -H. Co., 71, 87, Horsky v. H.-lma Co., 8*fc v. Moran. JIT llawiayn.- v. Bourn. 329. n..|v>t v. Shea. :;74 . Hawxluirst v. Lander, 87. ||..r-\v.-ll v. Kui/. S'J. 1TJ. .,nl v. M.-i.'ull. '.'". L M .)S. Bgnino, _'.'. lii. Hosmcr \. Wyminj: Co., 2T7, 177 H..V. v. Howe's Ass'n.. Hayn.-s v. I'.ris, ..,-. 1 Hi. 1 17. ::7J I v. Ku|.|> 18, 878 Howeth v. Sull.-nir.T. 51, 185, \. Bun. Hoi v. Altoonn lain r, M.-CmmitY. v ITallej V'iev Co., iiukill --'I '.T Hulsi v. l>o-rstlrr, r_'7. ll.-illiim v. ll.,]y TerriOT ' llumhinl \. Dt 1 1. -in/.' v. BOSI..II Humphivys V. Mooivy. Hum v. Kur.'ka (lulch, 846, II. It. - v. McNainee, 857, ll.-l.na CO, \ BanU< . - V. Tat. 'hin. 124. v. Spratt, J"l. 204, - v. Steese. U 1 ^ .in \ Kodes, 148. Hutchinson v. Klin.. 241, H.n.l Holy Cross Co., Hyman v. Wlu-.-i.-r. H>J, ir,7. Il.'rraocilla v. Hubhell, 2 Iba v. Cent. Assn., 487. Herriman Co. v. Butterti.'ld. ::74 Idaho Co. v. WincueH, 205. Herron v. Eagle Co., 10. Ingemurson v. Coflfey, 34. Hersey v. Tiilley, 330. Ingram v. Golden Co., 294. Hess v. Winder, 15, 22, 348, 362. Integral Co. v. Altoona Co., 93, Hesser v. Chicago Co., 339. 350. Heydenfeldt v. Daney Co., 143, Iron Silv.-r c,,. v. Campbell, 143, 245, 171. 184, 226, 227, 461. Ilickey v. Anaconda Co.. 23, 81, - v. Cheesman, 166, 167, 99, 140. 186. 548 TABLE OF CASES CITED. v. Elgin Co., 47, 59, Kahn v. Old Telegraph M. Co.. 172, 187, 191. 145. . v. Mike and Starr Co., Kannaugh v. Quartette Co., 138. 165, 171. 224, 225. Keeler v. Green, 298. Irwin v. Davidson, 360. v. Trueman, 10. v. Strait, 199. Keppler v. Becker, 486. Isom v. Rex Co., 284. Kelly v. Fourth Co., 314. Ivanhoe Co. v. Keystone Co., Kendall v. San Juan Co., 336. 245. Kendrlck v. Colyer, 284. Kern Co. v. Crawford, 218 Jack Harvard Co. v. Continental Kevern v. Prov. Co., 357. Co., 360. King v. Amy Silver Smith Co.. Jack Pot Lode, 191. 173, 175. Jackson v. Dines, 310. v. Edwards, 107. v. McFall, 483. v. Mullins, 363. v. Prior Hill Co., 121. v. New York Co.. 1M 1. v. Roby, 101, 114, 345, v. Thomas, 246, :'.7.~i. 492. Kinney v. Cons. Va. Co., r,. Jacob v. Day. 203. v. Fleming, 53, 93. v. Lorenz, 195, 199. v. Lundy, 123. James v. Emmet Co., 356. Kinsley v. New V. CQ., 100. Jamestown Co. v. Egbert, 302. Kirk v. Meldrum, 88, 215, 218, Jantzen v. Arizona Co., 310. 219, 493. Jefferson Co. v. Anchoria Co., Klein v. Davis, 360, 362. 178. Kleppner v. Lenxm. -' Jeffords v. Hine, 148. Klopenstine v. Hays, 101, lor,. Jennings v. Beaje, 365. Knox v. Higby, 259. v. Rickard, 301. Koons v. Bryson. 348. Jennison v. Kirk, 194. 195, 201. Kramer v. Settle, 101, !'!>. Job v. Potton, 299, 334. Johnson v. Buell, 158. Lacey v. Woodward, 104. v. Munday, 481. Lacustrine Co. v. Lake Gunno v. Sage, 328. Co., 206. v. Young, 94, 113, 125, Lacy v. Gunn, 315. 488. Laesch v. Morton, 204, 335. Johnstone v. Robinson, 299. Lngarde v. Anniston Co., 328. Johnstown Co. v. Butte Co., 365. La Grande Co. v. Shaw, 270. v. Cambria Co., 298. Lakin v. Dolly, 145. Jones v. Jackson, 232. v. Roberts, 145. v. Pearl Co., 315. v. Sierra Buttes Co., v. Prospect Co., 42, 104. 163, 175. Lalande v. McDonald, 82. v. Scott. 294. Lampman v. Milks, 199. Jordan v. Duke, 87, 108, 348. Lane Co. v. Bausermnn, 357. v. Schuerman, 133. Lange v. Robinson, 214, 349. Joseph v. Davenport, 293. Largey v. Bartlett, 283. Jos. Taylor Co. v. Dawse, 356. Larkin v. Upton, 161. Junction Co. v. Springfield Co., Co 195 Jupiter Co. v. Bodie Co., 28, 29, '1 v *. Tyler Co, 137 ir.r, 52, 101, 187. 174, 177, 180, 494. Jurgenson v. Diller, 265. Lauman v. Hoffer, 125. Justice Co. v. Lee, 308. Lavagnino v. Uhlig, 38, 58, 108, !.K \\ is. :\ce \. Gav Low Moor Co. v. La Biam-a. 356 - v.Robinson. :ii. I/owry v. Silver City Co.. 12s, '.... HJi. i;ii'. ille Co. v. Fitzgerald, 16.". l.vtl.- v. Jaraes, 360. 166, 176, 184. Letan Cons. Republican Mack v. Mack, 301, 8 Co.. -7L'. Mao.n v Tr..\vl.riilj:'. 2t!l. 2!1. - v. Rogers. 160, Ledoux v. Forester. 17. Madison v. Ducktown s. v. Stahl, i:.::, 234. Amonson, 208. Ma -ris v. i:irkn>ll. i '.).", r.".> W. Carroll. Magnet Co. v. Page. 362. .eggatt v. Stewart. 16. Mah.-r v. Slnill. .eblgb Co. v. Bamford, 283. laby v. Rice, 474. v. New Jersey Co., 341. Malecech v. Tinsley. 34. - v. Tn.it.-r. 338, 369, Mallett v. Uncle Sam Co., 10, 378. 92. rg v. Brotherton Co.. 357. Malone v. Big Flat Co., 'J'.l .176. Milon.y v King, 184, 353, 361, v. Marsh, -.71 364, 367. 352. - v. Love, 294. .iin.' Lode Case, 188. :nim>tli 0, 362. Matulys v. Philadelphia Co., lorroll. 1 242. Lohman v. Hrluirr. Meagher v. Reed. 292. !onderry Co. v. United Co., Meehan v. Nelson, 303. 80. ilors v. Shaw, 356. Lon.> Acre Co. v. Swayne, 334. Mercur Co. v. Spry, 259. Lohmmno v. Helmer. Merk v. Bowery Co., 277. Lonsdule v. Curwen, 371. Merrltt v. Judd, 10. L.-r.l v. Pueblo Co.. 358. Metcalf v. Prescott. 79, 80. 550 TABLE OF CASES CITED. Meylette v. Brennan, 301. 374, 490. Michael v. Mills, 39. Mickle v. Douglass, 242, 293. Mike & Starr Case, 165, 17 1, 224, 225. Migeon v. Montana Ry., 487. Miles v. Butte Co., 199. Miller v. Butterfield, 301. v. Chester Co., 294. v. Chrisman, 87, 122, 135, 215, 282. -v. Girard, 38. v. Sinaw, 9, 243,, 312. v. Hawley. 466. Mills v. Fletcher, 99, 103. v. Hart, 127. Minah Co. v. Briscoe, 128. Mineral Farm Co. v. Barrlck, Minnesota Co. v. Brasier, 87& Minton v. La Follette Co.. 865. Miocene D. Co. v. Jacobsen, 199, 201, 363. v. Lyng, 205. Miser v. O'Shea, 232. Mitchell v. Cline, 215. v. Hutchinson, 216. Moffat v. Blue Kiv.-r Co., KS, 122, 493. Molina v. Luce. 840, Mollie Gibson Co. v. Thatcher, 272. Monroe v. N. Pac. Co.. 354. Montague v. Laltay. 491, Montana < 'o. v. I'.oMon Co., 14.'{. 15Q, 184, 271, v. Clark. :,'.. 171'. 17'. 363, v. Gehring, L' v. Livingston, -">'.' v. St. Louis CO., 272, - - ~Ry. v. Migeon, --L Montgomery v. Gilbert, 368. Montrozona Co. v. Thatcher, 294, 352. Moody v. McDonald, 354. Mooney v. York Co., 303, 355. Moore v. Ferrell, 360. v. Griffin, 273. v. Hamerstag, 57. -v. Indian Camp Co., Moragne v. Doe, 335, 352. More v. Massini, 362. Moienhaut v. Wilson. 488. Morgan v. Tillotson, 114, 123. Morgenson v. Middlesex Co., 153. Moritz v. Lavelle, 301. Morris v. DeWitt, 359. Morrison v. Regan, 53, 58, 78, 133. Morrow v. Matthew, 302. Morton v. Solambo Co., 57. Mosher v. Sinnott, 314. Mountain Copper Co. v. I. S.. j:;i. Mt. Diablo Co. v. Callison. M 100, 101. I*;.',. Mi. Kosa Co. v. 1 'a IIII.M-. 228, Mt. View Co. v. MrFadden, 479. Mt. Wilson Co. v. r.url.rid- Moyle v. Bullene, 37, 38. 1 ::.",. 246. Moynahan v. Trent i . :'..".". Mudsill Co. v. Watrous, 2,s:i. :;7v Muldoon v. Brown, 80, 490. Mullan v. U. S., 1 Ml. Muldrick v. Brown, 30, 41. Murley v. Ennis, 26, 57. 98, 299y 301. Murphy v. Cobb, 344. Murray v. llav.-rty. v. Polglase. 99. Murray Hill Co. v. Hav-nor. 1 11. 349. Muskett v. Hill, _".'. Miitrhmor v. McCarty, 38, 77, 225, Ifyen v. Hudson Cft v. SjHiDiu-r. '.MI. v. \Vharton. L".rj. 241. -v. Robbins, 147. McCann v. McMillan, 78. 89, 91. McCarthy v. Bunker Hill Co., 231. v. Speed, 80, 126, 227, 248. McCleary v. Highland Boy Co., 231, 234. McConaghy v. Doyle, 223. McConnell v. Pierce, 241. McCord v. Oakland Q. Co., 115, 335. McCormick v. Baldwin, 107. v. Parriott, 103, 373. TABLE OF CASES CITED. 551 rnes, 187. Newman v. Barnes, 493. \van v. MoLay, 81, 374. v. Newton, 487. Mi-Irrmott M. CM. v. McDermbtt, New Mercer Co. v. Armstrong, 128. maid v. Montana Co., 215. New River Co. v. Seeley, 367. M.-KIiii:..tt v. Krojrh. U, -1, 47. New York Co. v. Rogers, 355. 17::. Nichols v. Mclntosh, 93, '.14. .MvKv..y v. IlYinan. r.T. 1 .",:?. -J'.l. \n,. s v . K>mi:m, '.!, 350. MrFaddon v/Mt. Vi-\v Co., 336, N,, Mistak.- Lode, 477. Nnnamaker v. Amos, 295. ters v. rirrsnn Noonan v. ralrdoniu Co., 8< M., 41, North Am. Co. v. Adams. .-j. :t. s6, 92. 99. 111. 112, 132, 198. 489, 490. N..rihinore v. Simmons. 90, 99. McGoon v. Ankeny. North Noonday Co. v. Orient Co., McOowan r, Bailey, 334. _:. -), 31, 82, n;::. 809, 348. Mclntosl. v. Price, 20, 79 North Star Case, 59. 144, 145, \ IJ..M.. 291. 163. 173, 174, 177, 190, Melntyre v. Ajax Co., 338. N>t>\vare v. Stearns, 201. r. Melntyre Co.. 291. Noyes v. Black, 82. McKay \ ail, 92. 99, Iu7. v. Mantle, 224, 22ft, v. Neuslerr. !': 228. M Kee v. Brooks, 298. : Co. v. Bruce, 302. M'-Kenzle v. Poor Man Mines, _7 "Oberto v. Smith, 93. M.-Klnley v. Mineral Hill Co., Occidental M. Co. v. Comstock T. :*55. v. Wlu-.-i.T. 58. O'Conn.-ll v. rinnacle Co., 9. M< Kinley Co. v. Alaska Co., 21'.'. ( ) l,,nn,-II v. <;i'iin. :i2, 41. 79. O'Keefe v. caiinon, __::. L"J4. M. Kinstry v rf Clark, 42, 82. n'K.-ifT.- v. Cunnillfbtti, 232. M. I.ar. n v I'.vrm- McLaughhn v 1 , I K, . _", 288. Old Colony Co. v. Carrick, 283. v. Thompson. 03, 301. Old Dominion Co.. Haverly, 208. Mrl.ur.- v. Sh.-n.ian, :;03. I MM T.-l. M. < ',,. v. Ontral Co., M.-Miii.-n \. Perron Co., 31, 493 McNeely v s is-nn. nil Co., 335. Olive Co. v. Olmstead, 207, 214. \.-ii v. r. Omaha Co. v. T/Timr, 290, Ml, M.-Ph.Tson v. .inline if,. ::t. i's. 150. Omar v. Soper, 84, 135, 153. \I --Shan. \ K.nki. ^ah Co. v. McCaleb, 336. M< Williams v. Winslow. .",7. 493. Ophir Co. v. Carpenter, 199. nppenlander v. Left Hand Co., laara. 84, 85. 49 195. National Co. v. Weston, 341. Oreamuno v. Uncle Sam Co., 90. n v. Champaigne Co., 98. Oregon Co. v. Trullenger, 199. Neuebaumor v \v..ndman, 87. O'Reilly v. Campbell, 109, 310, iraan v. Drelfurst, 115. 311. vada Co. v. Home Co., 28, 29, Original Co. v. Wlnthrop Co 87, 118, Ormond v. Granite Mt. Co., 373, v. Miller, 214. 378. Newark Co. v. Upson, 368. Ormsby v. Budd, 283. New Dunderberg Co. v. Old, 352. Oscamp v. Crystal R. Co., 108. 552 TABLE OF CASES CITED. Osgood v. Bauder, 355. Osterman v. Baldwin, 309. Otaheite Co. v. Dean, 233, 364. Overman Co. v. Corcoran, 27. Oviatt v. Big Four Co., 199. Pacific Co. v. Spargo, 176. Packer v. Heaton, 101. Page v. Fowler, 341. -v. Summers, 301. Palmer v. Uncas Co., 264. Par.tzar v. Tilly Co., 356. Paragon Co. v. Stevens Co., 123. I 'Mi-dee v. Murray, 153, 156. Parish Fork Co. v. Bridgewater Co., 92, 297. I'.irker v. Furlong, 360. Parley's Park Co. v. Kerr, 6, 17. Parrot S. Co. v. . Heinz*', 171. 176, 360, 362. Parrott v. Palmer, :jr,u. Patchen v. Keeley, :i.~.i. Patrick v. Colorado Co., 338. . Patterson v. Hewitt, 360. v. Hitchcock, no. L'<;, 33, 83, 141, 158, 160, 304. v. Ogdt'ii. -J"7. I'll. : v. Tarbell, Paul v. Cragnas, 292. Paull v. Halferty, : Peabody Co. v. Gold Hill Co., 20, 145, 146, 147, 373. Pelican Co. v. Snodgrass, 107, 121. Penn v. Oldhauber, 103. Pennsylvania Co. v. Bales, 346, 485. v. Smith, 276. v. Thomas, 279. Penny v. Central C. Co., 372. People v. De France, 372. v. District Court, 335. v. Page, 342. v. Sloper, 342. v. Williams, 342. Peoria Co. v. Turner, 37, 445. Perego v. Dodge, 480, 481. Perelli v. Candiani, 126. Perry v. Acme Co., 293. Peters v. George, 356. Petroleum Co. v. Coal Co., 302. Pfeiffer v. University, 203. Pharis v. Muldoon, 106. Phenix Co. v. Lawrence, 82. Philadelphia Co. v. Taylor. I'.'-J Phillips v. Salmon R. Co.. *J<". Philpotts v. Blasdel, 272. Phipps v. Hully, 378. Pho3nix Co. v. Scott, 1<>. Pierce v. Barney, 374. Pike's Peak Lode, 248, 460. Pilgrim Co. v. Teller County. 259. Pioneer Co. v. Shamhlin. 204, Pitts v. Wells, 357. Pittsburg Co. v. Bail<-y. -J7r,. v. Glick, 378. v. Greenlee, L".i. v. Spooner, 327. Plummer v. Hillside Co., 1M 1 . 294. Pocahontas Co. v. William Pollard v. Shively, 51. M Porter v. Noyes v. Tonopah Co., l-i . Portland Co. v. 1 l.ih.ny Possell v. Smith, 330. Poujade v. Ryan, 30, 7 Power v. Klein, 363. v. Sla., 488. ^idio Co. v. r.ullis. -J7T. Preston v. Iliint.-r, 78, 86. Price v. r.lnck. 294. Prince v. Lamb, 302. Prosser v. Parks, 6. Protector Lode, 248. Providence Co. v. r>mk.. 78, 121, 309, 311, 480. v. Marks, 340. 17'' 485. Puget Co. in re, 378. Purdum v. Lnddin, 70, 78. Quigley v. Gillett, 110, 48. Quimby v. Boyd, 52, 80, 103, 487. Quincy Co. v. Hood, 355, 356. Quinlan v. Noble, 1!4. Quinn v. Baldwin Co., 300. v. Silka, 368. Quirk v. Falk, 198. Rader v. Allen, 147. Raisbeck v. Anthony, 162, 164. Rankin's App., 363. Rara Avis Co. v. Bouscher. L'lj-J. Rathbuu v. Snow, 328. Raunheim v. Dahl, 138, 227. TABLE OF CASES CITED. f.n ,: Kawlings v. Armel. Royston v. Miller, 101, 113, 126. 485. Rozecrans Co. v. Morey, 330. Raymond v. Johnson, 301. Ruble Co. v. Princess Co.. 315. Raymond v. Johnson, 301. Ruby Co. v. Prentice, 330. Real del Monte Co. v. Pond Co.. Rush v. French, 57, 82. 360. Russell v. Brosseau, 107 oa Co. v. Bryant, 445. v. Chumasero, 70. Red Mtn. Co. v. Essler, 335. R. d Winjr Co. v. clays, 184. Safford v. Flemmlng, 365. K v. Bald Mt. Co., -' Bt O.-iir v. Cash v. Morgan Co.. 356. St. John v. Kidd. 6. Regan v. Whittaker, 246. St. I.oui* Ca r. K.-inp. Inn. i. 177, -jn. 461, t;-j R. mmington v. Bandit. 100. v. M>iit;m:i Co.. HM. haw v. Swltzer, 94. 178, 255, 872 Resurrection Co. v. Fortune Co., 495. 353. Salnu>n v Synx>nds. _ I l R.-vnolds v. Iron S. Co., 225,340. Salt Lak Co. v. chaimnan Co v. Pascoe, 37, 42. Riborado v. Ouang Pang Co., 6. Sampson CM. v Schaad, v. Kj:e, 277. v. Noble 36. v. Rigley, 302. Sand Point Co. v. Pan Handle Ttidi v. Victoria Co., 335. Co., 199. Illng, 38. Sands v. Cruikslumk. 1*7. 254. Samly R. Co. v. Whit Hums.'. .'!"-. Hi. -hards. -n v. Lowe, 283. San \ K . ; i; nichincnd Ca v ICureka Co., 499. San Miguel Co. v. i:..nnrr. isj. V. Rose, 16. I. a Piirisiina Co., Riddle v. -'.>5. Rills- \ Iteckey, r_v,. Ripl.y \. Prl i v. Alhambrt Co . I't^ Risch v \\ is^-man, 87. :. Dlti r. K.-.-i.-r. 57. Riste v. Morton, 53. l r.. s.-h\vai. v. Beam, 195. Hitter v. Lynch, 232. ing Creek Co. v. Anthracite Searl. 21 J. L'28. Sears v. Tayim-. ;. s7. :: i:. DMa v Imperial Co., 236. Seidler v. La I Co. v. Johnson. v. Maxfleld, 7'.' Rockwell v tic v . Whit.-;-.. 277 is v. Cooney, 206, 233. Severson v p.ini.-talllc Co.. : Co. v. l Seymour v. Fisher. 131, 13G. 138, Rose v. Lanyon Z. Co., L _>.-, v. Richmond Co,, 145, ghackelford v. BloM Co., 338. Rosenthal v. Iv, <. M5, 2SL/V < 5S5S2S ID f ft 490 Hnft0viii.> ',, v i(,\\ i ciiii-h Co snarkey v. ( anainni, .io, ti. 4yu. 1^ Shattuck v. Costello, 53, 121. Ross* Oil Co. vs. Eastham, 329. S! NV v - Hoi S e r; 293> Rough v. Simmons, 484. ~J;,, Kello f ' :1 : Roxanna Co. v. Con ^"' v Minna, ,'im , 309. 17;. Sheaffer's App., 367. i! K. Placer. 213. sii.-j.anl v. Murphy, 73. 554 TABLE OF CASES CITED. Sherlock v. Leighton, 102, 110, South Yuba Co. v. Rosa, 194. 310. Soyer v. Gt. Falls Co., 356. Shively v. Bowlby, 499. Sparrow v. Strong, s. 25. Shoshone Co. v. Rutter, 13G, 104, Spelman v. Gold Co., ::L".. 166, 272, 480. Spotts v. Gilrhi-ist. Shreve v. Copper Bell Co., 3o. spr.-mur v. Locke. ::','.'. 163, 272. Suihl v. VMM Vl'.. v. Winchell, 84. Stanley v. Mineral rni.m. 24& Silent Friend Co. v. Abbott, 337. State v. P.rrryman. .'Ui 1 . Silver Co. v. N. C. Sm. Co., 378. v. Hurt. :\4'2. Silver Bow Co. v. Clarke, 138, v. District Court. IT*,. 143, 145. :t7L. Silver City Co. v. Lowry, 131, Steams-Roger Co. v. P.nwn. '.'T 295, 492. Steel v. Gold Co., 466, 487. Silver Cord Co. v. McDonald, steele v. Tanana Mines, 208, 214. 355. Steinbeck v. Bon Ilomme Co., Silver Peak Mines v. Hanchett, 283. 113. Si.-clsmith v. Garthm. L".7. Sisson v. Sommers, 39, 347. stcnnvinder Co. v. Emma Co., Slavonian Co. v. Perasich, 103. n;. Slothower v. Hunter, 77, 121, Stephenson v. Wilson. :i7.",. 465, 492. Sterrett v. Northport Co., 234. Smallhouse v. Kentucky Co., 264. 376. Smart v. Jones, 206. Stevens v. Gill, 164. Smelting Co. v. Kemp. (8cc St. v. Gr. Central Co., 1-7 Louis Co. v. Kemp.) v. Williams, 162, 166, Smith v. Belshaw, 357. 361. v. Kollrs. L's-j. :::. I. Steves v. Carson, 346, 492. v. Cascnden, 79. Btewarl r, I')iiglas, 302. v. Hill, 247. v. Gold Co., 309. v. Idaho Q. Co.. ; stinchfleld v. (Jill is. 154, 1 '-.",. v. Imperial Co., 4s_ 187, 271, 272. v. Jamison, 361. Stinson v. llMnly. 298. v. Mt. Gulch Co.. 11<>. stookbridjre Co. v. Cono Works. v. Newell, 51, 54, 57, 78. 353, 372. v. O'Hara, 198. Stolp v. Treasury M. Co.. 108. v. Oxford Co.. 356. Stone v. .Marshall Co., :;:,::. v. Reynolds, 27;. Souter v. Maguire, 73. Stoughton v. Leigh. _!74. South End Co. v. Tinney, 98, Strahlendorf v. Rosenthal, 355, 125, 349, .374, 375. 356. Southern Cross Co. v. Europa. Strasburger v. Beecher, 110. Co., 71. Stratton v. Gold Sov. Co., 254. v. Sexton, 99. S t r a 1 1 o n's Independence v. South Nevada Co. v. Holmes Dines, 283, 354. Co., 174. Strepey v. Stark, 35, 132, 349, South Star Lode, 226, 247, 460. 350, 489, 490. South West Co. v. Smith, 355. Strickler v. Colo. Springs,, 195. TABLE OF CASES CITED. 565 Strk-kley v. Hill. ;J10, 483. . v. K.-rr Salt Co :*6l. Stuart v. Adams, 328. v. Com., -'". -senbarh v. Hank. 1'JT. Suffolk Co. v. San Miguel < .. Sullivan v. Iron Silver Co., 227, v. Sharp, 489. Summerlin v. FrnnTi/.u "Co., Sun Dance Co. v. Frost, 284. Sunnyside Co. v. K ...y v. II a nl. -y. Sweet v. Webber, 4, S'2. 111. _an v Walk.T Table Mountain ',,. v. Strana- han Tabor v. Dexter, 163. Talbott v. King. 148, 145. Talmadge v. St. John, 80, 88. Tanm-r v. Treasury Co., 255. Tartar r, spring < n-ek Co., 239. : v. Mi.Mletnn. 79, 90. v. Parentenu, 19, 55. v. Thomas. TellurMe | v. Ayers, 8S1. v. Hamilton. 2 Terrible Co. \ Argentine <'o., 31. ory v. Mi i Thalliiiann v. Thomas, 83, 88, 128, 147. Thay.-r v. Sprat t. (24, Thistle v. Frost berg Co., 348. Thomas v. Chisholm. 58. v. Oakley, : Thompson v. Jacobs, 96. v. Noble, IMJ V. Spray. r,s, 130, 135. v. Wise Boy Co., 264. Thornburgh v. Savage Co., 371. Thornton v. Kaufman, 485. Ticker v. Kler. 328. Tipping v. Bobbins, 299. Tischle v. Penn.. Tipping v. Robbins, 299. Titcomb v. Kirk, 201. 2U3. Tombstone < <>. v Way Up Co., 166, 190. -T. S. Cases, 1M<; Tonopah Co. v. Tonopah Co., 31, l.'io. i:;i. i ;{.-,. ISM. Tornanses v. Melsing, 309. Townsend v. Peasley. 1 ._'. Traphaireu v. Kirk, 207. Trade Dollar Co. v. Fras. . Travis Co. v. Mills, 231. Treadwell v. Via ITS. Treasury Co. v. Boss, 131. rredlnnlck \. i;.d cloud Co., 263. Trevaskis v. Peard, 92, 94, 103. Trihay v. Brooklyn Co., 353, 357. Tripp v. Dunphy. 100. Trotter v. ll.vksher, 338, 378. Tuolumne CO, v. Maier. i Tinner v. Sa\vy>r. 1 Hi. 11'.'. ll'T. iTi. IT:.. Tyee M. Co, v Langstedt. 874, Tyler Co, v Last Chance Co., 181, 17'.'. 372. Tynon v. Despaln, 194, 200. linta Co. v. AJax Co., 25, 145. reede Co., 144, 155. rimer v. Farnsworth. 192. rni..n ',,. v . Bank, 315. v. Dangberg, 201. v. Leitch, 36, 60. riiion Oil Co. in re, 215. I IV i:.v CO, v. .larvi. :io5. I'M it. ! Merthyr Co., 352. i . s \ Basic M. Co., 525. v. Blarkliurn. 208. v. Carpenter, 336. v. Clark, 146. v. Detroit L. Co., 523. v. Iron S. Co., 100, 146, 211, 228. - v. King, 147, 429. v. Marshall Co.*, M'. North Bloomfleld Co. 231, 234. v. Parrott, m;i. v. Rossi, 164, 207, 525. v. San* Pedro Co., 812. v. Smith, 5. v. Trinidad Co., 313. -v. 1'nited Verde Co., 525. 556 TABLE OF CASES CITED. -v. Winona Co., 146. U. S. G. Co. v. Pacific Co., 338. U. S. M. Co. v. Lawson, 143, 161, 495. Upton v. Larkin, 27, 37, 55, 79. v. Santa Rita Co., 36, 46, 54, 98, 103, HO, 484, 489, 492. -v. Weisling, 284. TJren v. Golden T. Co.. 358. Utah Co. v. Dickert Co., 103, 128. Valcalda v. Silver Peak Mines, 238 Van Buren v. McKinley, 6, 81. Vanesse v. Catsburg Co., 356. Van Horn v. State, 212. Van Wagenen v. Carpenter, 335. Van Zandt v. Argentine Co., 31, 42, 175, 368. Venture Co. v. Fretts. L M .7. Vervalen v. Older, 260. Vietti v. Nesbit, 338, 378. Virginia Co. v. Kelly, 241. Vogel v. Wnrsing, 52, 350, 361. Wakefield v. Sunday Lake Co., 294. Wakeman v. Norton, 149, 184. Walker v. Pennington, 71. Walrath v. Champion ( 156, 172, 178, 187. Walsh v. Henry, 88. . v. Mueller, 27, 50, Walton v. Wild Goose Co., 221. Ward v. Carp River Co.; 2;i. Wardell v. Watson, 241. Warner v. Benjamin, 354. Warnock v. De Witt, 51, 60, 124. Warren v. Parkhurst, 231. Washburn v. Alden, 330. Waterloo Co. v. Doe, 29, 42, 144. Waterman v. Banks, 277. Waters v. Stevenson, 352. Watervale Co. v. Leach, 153, 160. Watson v. Colusa-Parrot Co., 232. v. Mayberry, 37. Watson Co. v. Jirmes, 283. Webb v. Am. Asphaltum Co., 210. v. Carlson, 80. Weed v. Snook, 28, 29, 214, 282. Weese v. Darker. 7.'i, si 1 Welbold v. Davis, 375. Weill v. Lucerne Co., 272. Welch v. Garrett, 93, 199. Wells v. Davis, 78. - v. Leek, 302. Welsh v. Lehigh Co., 357. Wesling v. Kroll, 2J.". Western Co. v. Berberirh. West Granite Co. v. Granite Co., 80. Westmoreland Co. v. De Witt. 294. West Point Co. v. Reyin.-n. ::._'. Wetzstein v. Largey, 268. WlH-eler v. Smith. 2 - v. Walton < -- v. West, 297. CO, v. Kl.l.T. 281, , . . White v. Century Co., 338. --- v. Lansing. 206, ' -- v. Lee, 218. White River Co. v. Langston 110. White Star Co. v. Hultberf, 1<> Whltmer v. Schenk, 282. Whitm-y v. Ihisk.-ll, 26. Whittaker v. Lindhy. 274, \\i-ht v. Dubois, 139. Wilht'lm v. Silvester. !.":'.. Wilkins v. A bell, 264. Willeford v. Bell Williams v. Kl Dora Co., -''. - v. Gibson, 1M 1 . - - v. Hawley, ir,. 268 --- v. Long, 364. ------ v. McKinley, 329. -- v. Morrison, 298. - v. Pomeroy Co.. 876, Williamson v. Jones, 334. Willitt v. Baker, 108, 481, Wills v. P.Iain. 121. Willson v. Cleaveland. '.'! Wilson v. Alpine Co., 355. v. Big Joe Co., 292. - v. Gerhardt, 294. v. Harnette, 373. v. Henry, 375. v. Triumph Co., M. 101. Wiltsee v. King Co., 37, 54. Winchester v. Davis Co., 337. Winters v. Hub Co., 330. Woleott v. Johns, 282. TABLE OF CASES CITED. 557 Wolfley v. Lebanon M. Co., 13!>, 158. Wolfskill v. Smith, 93, 200, 212, 284. \\olverton v. Nichols, 482. Wood v. Aspen Co., 311. v. Eliwande Co., 93. v. Saginaw Co., 329. Woods v. Montevallo Co.. Woodside v. Ciceroni. 298, 302. Woodward v. Mitchell, 291. Woodworth v. McLean, 303. Woody v. Barnard, 103. v. Hinds, 486. Worthen v. Sidway, 218. thington v. Given, 338. Wright v. Ascheim. 368. v. Hartville, 478. v. Killian, 103. v. Lyons, 60, 81. \Ynlff v. MaiiiiH. 48ft. Yurwood v. Cedar Canyon Co., L'tiS. -v. Johnson, 126, 127. York v. Davidson, 230. Yosemite Co. v. Emerson, 7, iirJ. 488. Youghiogheny Co. v. Hopkins, Young v. Bankier Dist., 284. v. Goldsteen, 478, 481. v. Northern Co., 260. Yreka Co. v. Knight, 101. 350. Yuba County v. Kate Hayes Co., 181, Yunker v. Nichols, 200. Zerres v. Vaninn, 1*9, 7<. 71. 121. 7.ull:irs v. Kvans, 29. 65S INDEX. INDEX. Abandonment, Page 89. Of Possessory Claim, 10 Of Ditch, 93, 199. Conditional, 92. Relocation after, 120. Of Tunnel, 256. Pleading, 94, 110, 487. Distinguished from Forfeiture, 91. Abstract of Title- In Examining Title, 304. On Application for Patent, 434. On Adverse Claim, 471. Accidents, 355. Acknowledgment, 274. By Individual, 267. By Wife, 274, 305. By Corporation, 275, 332. By Attorney in Fact, 275. To Contracts, 282. To Articles of Incorporation, 316. Notary Public's Commission, 267. Acreage Of Lode Claim, 448. Of Placer, 222. Government Price, 448. Adverse Claim, 468. See Forms. Ejectment. By Known Lode, 226. By Mill Site, 240. By Tunnel Site, 256. Connection between Suit and Application, 484. Ejectment Supporting, 345. INMiX 55? Adverse Claim Continued. By Whom Verified, 473. By Co-Owner, 474. Amendment of, 476. What Should Adverse, 477. Proceedings After Determination, 493. Annual Labor Pending, 495. Statute Concerning, 2326, 510. Land Office Rules, 398. Form of, 469. Complaint Supporting, 482. Answer in, 486. Certificate of Suit, 479. Effect of Failure to Assert, 138, 141. Waiver of, 491. Affidavit Of Annual Labor, 112. Of Citizenship, 436. In Land District, 449. By Agent, 450, 473. Agent Location by, 57. Lease by, 293. Powers of, 328. Adverse by, 473. Process Agent, 332. To Procure Patent, 449. Agricultural Lands, 244, 516. Alaska, 500. District Rules, 5. Location of Claim in, 61, 221. Tide Lands in, 501. Timber in, 525. Aliens, 308, 519. Amendment Of Location or Record, 129, 132, 177. 560 INDEX. Angles, 49, 190. Annual Labor, 94. On Group Claims, 101. Proof of, 110 By Tunnel, 257. On Old Lodes, 95. Equity of the Law Requiring, 109. On Placers, 113. On Oil Claims, 115. Pending Patent, 98, 495. After Entry, 98. Certificate in Lieu of, 112. Time to Perform, 99. District Rules, 95, 103. Pending Adverse, 495. Pleading, 94, 487. Soldiers' Claims, 12. Roads and Trails as, 203. Apex, 167. Stakes Must Cover, 49. Survey Presumed to Include, 149. No Apex, No Dip, 187. Statute, Section 2322, 508. Application for Patent, 418. See Forms. Land Office Rules, 386. Survey for, 405. Circular to Applicants, 414. Adjoining Claims, 432. By Agent, 449. By Corporation, 451. On Surveyed Lands, 458. For Mill Site, 451. Proof of Non-abandonment, 438. Cancellation of Entry, 444. By Trustee, 465. Without Record Title, 465. Conflicting, 142, 466. Statute, 2325, 510. Relation of Suit to the, 484. INDEX. 661 Appropriation, 24, 25. Of Water, 194. Arizona Location of Lode Claim in, 62. Location of Placer in, 219. Assay, 376. Assessments, 326. Association of Persons, 13, 215. Nominal, 14, 215. Asphalt, 210, 211, Attorney in Fact Acknowledgment by, 275. Power to Apply for Patent, 450. Blanket Veins, 170. Boundaries Staking, 45. Monuments Control, 55. Immaterial Calls, 78. Building Stone, 212, 213, 521 Bureau of Mines, 376. By-Laws, 318. California, Location of Claims in, 62, 221. Canadians, Rights of, in Alaska, 519. Children, Employment of, 344. Citizenship- Land Office Rules, 396. Form of Proof, 436. 562 INDEX. Citizenship Continued. Statute, 2321, 507. Of Corporation, 396, 437. Pleading and Proof of, 310. Proof by Witnesses, 437. Claim. See Possessory Claim, Lode, Placer. Acreage of Lode, 448. Acreage of Placer, 222. Length, 12-17. Width, 17-21. Side Claims, 13. Divided into Lodes and Placers, 210. Possessory, 9-11. Right to Swing, 36, 132. Fractions, 59. Coal Lands, 519, Coal Mines Drainage, 192. Penal Regulations of, 344. Colorado Location of Lode in, 23, 61. Location of Placer in, 209. Commissioner of Mines, 376. Condemnation, 201, 204. Contract Mining Sale, 275-282. To Sell and Buy, 279. Prospecting, 299. Working, 302. Conveyance, 2.66. Before Record, 135. Of Water Rights, 198. Agreements for, 275-282. In Examining Title, 305. INLK.X Conveyance Continued. Form of Warranty, 266. Form of Quit Claim, 268. Subdividing Lode, 270. Acknowledgment, 267, 274. Escrow, 281. Mining Deed, 269. Witnesses, 273. Short Form Deed, 269. Wife's Signature, 273, 305. Corporation, 313. Location by, 58. Foreign, 331. Citizenship of, 396, 437. Corporation Deed, 315. Filing Fees, 325. Form of Articles, 315, 323, 324. Amendment of Articles, 330. First Meeting, 318. By-Laws, 318." Seal, 315. Annual Report, 321. Smelting and Sampling Companies, 324. Ditch Company. 323. License Tax, 325. Assessments, 326. Powers of Manager, 328. Acknowledgments by, 275, 332. Application for Patent by, 451. Costs, 484. Crevice, 41. Crimes, 341. Cross Lodes, 150. In Conveyance, 272. Custom. See District Rules. 564 INDEX. Damage In Trespass, 351. For Negligence, 355. Measure of, 351. For Dumping, 229. On Condemning Ditch, 201. Dead Work, 284. Deed. See Conveyance. Departure from Side Lines, 158, 173, 174. Deposits In Place, 162, 167. Richness of, 163. Deputy Surveyor. See Mineral Surveyor. Description, 72, 74. Defective, 76. In Conveyance, 270, 305. Wrong in Patent, 147. Descriptive Report, 455 Diagram of Lode, 48, 50, 74. Showing Excess Width, 21. Showing Apex, 174, 178, 183. Of Official Survey, 422. Dip, 185. Of Deposits or Contacts, 169. Veins Uniting on, 154. Right to Follow, 167. Plat Showing, 178, 183. Table of Degrees, 186. Discovery on, 175. Discovery Old Lodes, 22. Under Present Law, 23. INDEX 565 Discovery Continued. After Location, 29. Where Made, 32. On the Dip, 175. Methods of, 32. In Open Cut, 24, 43. In Tunnel, 24, 43, 44. Gives Title, 26. When Complete, 27. By Drill Hole, 33. Time It Holds Claim, 33. On a Spur, 190. Location Without, 346. Essentiality of, How Proved, 26. Outside of Discovery Shaft, 31. Secret Underground, 44. On Placers, 214, 215. Discovery Shaft And Discovery Distinguished, 30. Statute Requiring, 23. Must Be 10 Feet Deep, 23, 39. Depth, How Measured, 40. Must Show Crevice, 41. Must Be- On Public Domain, 37. On Town Site, or Placer, 38. Patent Over, 38. Claim Must Include, 39. Sale of, 38. Time to Sink, 24, 61. Where Sunk, 32. In Slide or Country, 42. Walls in, 41. For Each Claim, 42. District Rules, 3. Affecting Labor, 95. Ditch Company, 323. 56C INDEX. Ditches, 193, 202. Abandonment of, 93. Location Notice, 195. Location Certificate or Statement, 196. As Appurtenances, 198. Parol License to Construct, 200. Condemnation Proceedings, 201. Surplus or Waste Water, 199. Dower, 273. Drainage, 192. Dump, 205. Location of, 232. For Tailings, 233. For Tunnel, 252. Easements, 194, 202. Ejectment, 344. Supporting Adverse, 345, 480. Proper Court, 479. Certificate of Suit, 479. Form of Complaint, 482. Form of Answer, 486. Nonsuit, 493. Verdict in, 489. Electric Power Lines, 204. Eminent Domain, 201, 204. Colorado Tunnel Acts, 255. End Lines On Prior Claims, 46. Parallel, 168, 171, 187. Converging, 173. Plat Showing, 178. Relation to the Strike, 178. One Set for All Veins, 178. Following Lode Beyond, 180. INDEX. 567 Entry, 444. Annual Labor After, 98. Death of Applicant, 465. Of Area Not in Dispute, 493. Escrow, 281. Estoppel, 116. Examination of Title, 303. Excluded Areas, 143, 425, 444. Extensions, 89. Fault, 164. Feeders, 189. Fees Of Surveyor General, 418. In Land Office, 442. Of Secretary of State, 325. Fiduciary Relations, 59, 125, 127. Fixtures, 293. Float Ore, Location on, 29. Forcible Dispossession, 343, 369. Forcible Entry, .T> 1 Foreign Corporations, 331. Forest Reserve, 336. Forfeiture, 115. See Abandonment. Parties Essential to, 104. Relocation, before Complete, 106, 109. . To Co-Owner, 115. To Co-Lessee, 292. ^otice, 117- 568 INDEX. Forfeiture Continued. Form of Proof, 117-119. Of Placers, 114. Pleadings, 94, 110, 487. Forms Acknowledgment By Individual, 267. By Corporation, 275, 332. By Attorney in Fact, 275. To Articles of Incorporation, 316. Agreement to Sell, 276, 278, 279, 280. Amended Location Certificate, 129. Annual Labor Affidavit, 112. Annual Report of Corporation, 322. Articles of Incorporation, 315, 323, 324. Assessment, 327. By-Laws, 318. Certificate of Stock Paid, 321. Contract to Sell and to Buy, 279. Designation of Agency, 332. Ditch Incorporation, 323. Ditch Statement, 196. Ditch Notice, 195. Dump Location Notice, 252. Ejectment, Complaint and Answer, 482, 486. Escrow, 281. Forfeiture Notices, 117, 118. Injunction Notice, 365, 370. Lease on Lode, 285. Lease on Placer, 290. Lease, Gas and Oil, 295. Lease and Option, 280. Lode Notice, 34, 36. Lode Location Certificate, 75. Mill Returns, 289. Mill Site Location Notice, 235. Mill Site Location Certificate, 235. Miner's Lien, 262. Notice to Ore Buyers, 340. Notice of Leased Mine. 265. Organization Meeting, 318. " INDEX. 569 Forms Continued. Placer Notices, 216, 217. Placer Location Certificate, 218. Placer Lease, 290. Prospector's Notice, 34. Prospecting Contract, 299, 300. Protest, 496. Quit Claim Deed, 268. Relocation Certificate, 129. Resolution to Assess, 327. . Reservation, 273. Sale Subject to Examination, 278. Title Bond, 276. Tunnel Location Notice, 253. Tunnel Location Certificate. 2",1. Warranty Deed, 266. Working Contract Sale, 278. Forms in Application for Patent A. Request for Official Survey, -n:. B. Order for Survey, 420. C. Preliminary Plat, 423. D. Field Notes, 423. E. Approval of Survey, 427. / The Final Plat, 428. G. Surveyor General's Approval of Survey and Certificate of Improvements, 428. //. Approved Field Notes, 429. /. Surveyor General's Certificate to Tran- script, 429. K. Notice of Application, 431. L. Proof of Posting, 432. M. Application, 433. N. Abstract of Title, 434. O. Proof of Citizenship, 436. P. Publisher's Contract, 438. Q. Publication Notice, 439. R. Proof of Notice Remaining Posted, 441. S. Proof of Publication, 442. T. Proof of Sums Paid, 442. U. Application to Purchase, 443. 670 INDEX. Forms in Application for Patent Continued. V. Register's Certificate of Posting, 445. W. Register's Final Certificate of Entry, 446. X. Affidavit of Lost Receiver's Receipt, 447. Y. Power of Attorney, 450. Mill-Site Z. Non-Mineral Affidavit, 451. AA. Affidavit of Use for Mining Purposes. 452. Placer BB. Proof of No Veins, 454. CC. Descriptive Report, 455. DD-GG. Exhibits of Descriptive Report. 4:.7, 458. Forms in Adverse Claim HH. The Adverse, 469. JJ. Certificate of Suit, 479. KK. Complaint Supporting, 482. LL. Answer, 486. MM-NN. Verdicts, 489, 490. Fraud, 87. Patent Obtained by, 145. Sale Induced by, 282. Between Fiduciaries, 125, 128, 327. Location Prevented by, 59. Location Initiated by, 87. Glossary of Mining Terms, 526. Group Claims Apex Rights of, 177. Annual Labor on, 101. Patenting, 461. $500 Improvements, 462. Survey of. L. O. Reg. 130, p. 407. High Grading, 343. Highways, 202. INDKX 571 Holidays, 476. Homestead, 222. 2341, 518. Idaho- Location of Lode in, 63. Location of Placer in, 219. Improvements. See Land Office Rules. $500 Worth, 98, 463. What Counts as, 100, 452. By Tunnel, 257. On Mill Site, 452. Completed Pending Application, 464. On Adverse, 472. Mining Under, 241. Indian Reservation, 336. injunction, 359. Against Tailings, 230. Notice to Ore Buyers, 340. Inspection and Survey, 303, 370. Inspector of Mines, 376. Interference of Claims, 148. Irrigation, 201. Judgment, Lien of, 260. Jumping Act, 343, 369. Known Lodes Excluded from Placer, 223. What are, 223. Not Recorded, 224. Adverse by, 226, 461. Proof of, 227. Width of, 228. 572 INDEX. Land Office Rules, 380. Abstract of Title, [Rule 42.] Adjoining Claims, Call for, [10.] Adverse Claim, [78-88.] Affidavit/Who May Take, [69.] Affidavit, Out of District, [69.] Agricultural and Mineral Contests, [99-111.] Alaska, [112, 113.] Annual Labor, [12-15, 55.] Application for Patent, [34-57.] Area and Conflicts, [38, 44, 149, 152, 153.] Diagram and Claim, [37, 161.] Entry, [52.] Proof of $500 Improvements, [25, 48-50.] Lost Records, [43.] Newspaper, [45-47, 89.] Notice of, [46.] Numbering Surveys and Entries, [36, 72.] Official Survey, [34, 35.] General Provisions, [115-169.] Posting Plat, [39, 40, 51, 73.] Proof of Sums Paid, [52.] Publisher's Contract, [45.] Statement of Claimant, [41.] Building Stone, [20, 114.] Certificates of No Suit, [76, 88.] Chain of Title Broken, [74, 75.] Citizenship, Proof of, [66-70.] Deputy Surveyors, [89-98, 115-121, 128.1 Descriptive Report on Placer, [167.] Errors in Surveys, [162-166.] Fees and Charges, [89-98, 120, 122.] Forest Reserves, [114.] Forfeiture, [15.] Group Surveys, [130.] Hearing to Determine Character of Land, [99- 111.] Improvements, [156-160.] Location, [4-11.] Lode Claims', Length, [4.] Width, [5.] INDKX 573 Land Office Rules Continued. Size, [6.] In Placer, [26, 161.] Mill Sites, [61-65, 150.] Mineral Surveyors, [89-98, 115-121, 128. | Monuments, [9, 36, 135-142, 147, 158.] Oil Claims, [21.] Old Lodes, Status of [2.] Placer Claims, Location and Patenting of, [ID 30, 58-60.] Possessory Right by Limitation, [74-77.1 Protest, [53.] Railroad Selections, [102.] Record, [11, 18.] Salines, [31-33.] School Lands, [20.] Side Veins, [2, 3.] Stakes and Corners. |10, 143-146.] Ties, [9, 36, 135-142, 147, 158.] Timber, [114.] Trustee, Application by, [54.] Tunnels, [16-18.] Larceny, 342. Lease, 284. On Lode, 285. On Placer, 290. On Oil and Gas, 295. By Agent, 293. And Option, 280. Assignment of, 293. Non-Assessable Interest in, 294. Ledge, 161. Length of Lode Claim Before May 10, 1872, 12. At Various Dates, 15. Since May 10, 1872, 15. How Distributed, 16. Excessive, 16. 674 INDEX. License, 297. Of the United States, 7. To Construct Ditch, 200. Liens, 260. How Affected by Patent, 260. Miner's, 261. Covenant Against in Lease, 287. Surveyor's 264. In Examination of Title, 306. Limitations, 373. Location, 22-60. Definition of, 35. Statutory Requirements in Each State, 61-69. Formal Parts of, 35. Of Old Lodes, 22. Of New Lodes, 23. Of Placers, 208. Of Tailings Claim, 232. Diagram of, 48, 50, 74. Not Covering Vein, 49, 158. Before Discovery, 29, 346. Must Be Good When Made, 37, 490. Excessive, 16. Possession Without, 86, 88, 346. One or Both Parties in Default, 83, 86. Initiated by Trespass, 83, 87, 217. Presumption of 349. Land Office Rules, 380. Without Surveyor, 49. Of Tunnel Site, 250. Of Lode Cut in Tunnel, 253. Across the Strike, 59. Conflicting, 148, 272. Location Certificate, 69-89. Statutory Requirements, 61-69. Form of Lode, 75. As Proof of Location, 349. Contradicting, 80. INDEX. 575 Location Certificate Continued. Test of Sufficiency, 79. Amended, 129. Where Voidable Only, 133. Form of Ditch, 196. Form of Placer, 218. Form of Mill Site, 235. Form of Tunnel, 251. In Examining Title, 304. Verification of, 64, 81. Location Monument. 78, 408. Location Notice Statutes Requiring, 23, 61-69. On Lode, 34, 36. On Ditch, 195. On Placer, 216, 217 Changing Names on, 135. Location Stake, 35. Notice on, 36. Removal, 343. Lode, Defined, 161. Length of Old Claims, 12. Present Length, 15. Width, 17-21. Discovery and Location, Size and Value, 30, 163. Uniting on Dip, 154. Wider than Claim, 161. Proof of Continuity, 164-166. Side Viens, 156, 157. "In Place," 162, 167. Test of Value, 164. Record, 69. Diagram, 48, 50, 74. Interference, 148. Within Placer, 222. Cross, 150. Location Over Placer, 227, 248. 576 INDEX. Lode Continued. Cut in Tunnel, 253. Cubic Incidents of, 186. And Placer Distinguished, 453. Group of, in Patent, 461. Blanket Veins, 170. Change of Name, 135. Lodes, Veins and Ledges, 161. Malicious Mischief, 343. Mandatory Writ, 369. Married Woman, 273, 305. Measure of Damages, 351. Mexican Grant, 311. Mill Returns, 289. Mill Site, 234. Application for Patent on, 451. Adverse and Protest, 240, 477. Separate Application, 239. Must Be Non-Mineral, 238. Location Certificate, 235 Patented, 243. Land Office Rules, 395. Non-Mineral Affidavit, 451. Statute, 2337, 517. Mineral Land, 207. Comparative Value, 164, 238. Mineral Surveyor, 400. Mineral Value, 163, 213. Miner's Lien, 261. Covenant Against, in Lease, 287. Miner's Rights, 7. INDEX 577 Miner's Title- Recognition of, 7. Nature of Estate, 136. Mining Claim. See Claim, Possessory Claim, Lode. Mining Districts, 3. Mining Lease. See Lease. Minors, 58, 119. Montana Location of Lode in, 63. Location of Placer in, 219. Monuments, 52, 55, 74. See Land Office Rules. Mortgage, Lien of, 260. By Corporation, 315. i Natural Gas, Lease, 295. Naturalization, 308. Negligence, 355. Nevada Location of Lode in, 65. Location of Placer in, 220. New Mexico- Location of Lo'de in, 66. Location of Placer in, 221. Newspaper, In Application for Patent, 438. In Forfeiture, 117. North Dakota- Location of Lode in, 66. Location of Placer in, 221. 10 678 INDEX. Notice- Lode Location, 34-36. Placer Location, 216, 217. Renewing, 34. Changing Names on, 135. On Underground Discoveries, 44. Injunction, 365, 370. Of Forfeiture, 117. To Ore Buyer, 340. Of Assessment, 527. Nuisance, 234. Oil and Gas Lease, 295. Oil Land, as Placer, 211, 514. Annual Labor on, 115. Oil Wells, 344. Open Cut, Discovery in, 24, 43. Option, 275, 280. Ore Buyers, 339. Ore Contracts, 337. Ore Salting, 342. Ore Stealing, 342. Oregon Location of Lode in, 67. Location of Placer in, 221. Overlapping Claims, 125, 143, 150, 153 Annual Labor on, 108. Partnership, 292. Patent, 136. Application for, 418. Land Office Rules, 386. INDKX 579 i Patent Cuntinuril. Not Divest Easements, 203. Lodes Dipping Under, 244. In Examination of Title, 305. To Assignee, 465. Suit to Cancel, 146, 373. Its Common Law Grant, 175, 179. Pay Ore, In Discovery, 30. Penal Provisions, 341. Philippine Islands, 503. Pipe Lines, 519. Placer, 208. Patented as a Lode Claim, 146. Appropriation of Water, 195. What is Classed as, 210. Location Certificate, 218. ation Notice, 216, 217. Size of, 215. Location on Surveyed Land, 218. Lease of, 290. Association to Locate, 215. Statutes of U. S. and Colorado, 208, 209. Statutes of Other States, 219-221. Lodes Within, 222, 459, 460. Annual Labor on, li:i. Application for Patent, 223, 453. Width of Lode in, 228. Forfeiture of, ill. What Patent Covers, 243. Application for Group, 461. Land Office Rules, 384, 394, 413. Pleading- Abandonment and Forfeiture, 94, 110, 487. Possession Without Record, 82. During Location Period, 86. 580 INDEX. Possession Continued. Defective Record Aided by, 88. As Notice, 307. Without Location, 346. How Proved, 348. In Ejectment, 346. Possessory Claim, 7, 9. Abandonment, 10, 89. Vested Estate and Freehold, 9, 10. Power of Attorney, 450. Proof- On Citizenship, 436. Of Labor, 110-112. Of Forfeiture, 116, 118. Of No Known Lodes, 454. Prospect, Transfer of, 282. Abandonment of, 93. Prospecting Contract, 299. Prospector, Rights of, 27. Protest, 496. Publication- To Enforce Forfeiture, 117. In Patent Application, 438. Proof of, 442. Period of, 439. Public Domain Occupation of, 7. Paramount Title in, 9. Segregation of Claims, 139. Quarry, as Placer, 212. Quartz, in Discovery, 31. Quit Claim Deed, 268. INDEX. 681 Real Estate, 10. Dump Is, 206. Receiver's Receipt, 147, 446. Cancellation of, 444. Affidavit of Lost, 447. Record, 69. Necessity for, 71. Time to Record, 72. Of Location Notice as Certificate, 72. Definition of, 73. Description in. 74 Possession Without Record, 82. Statute Requiring, 69. Priority, 81. Relation Doctrine of, 105, 132, 140, 155. Water Rights, 199. Relocation Upon New Discovery Shaft, 32. Before Year Expires, 109. Of Abandoned Claims, 120. Instead of Annual Labor, 124. After Patent Applied for, 125. Of Void Claim, 488. Pleading, 94, 110, 487. By the Owners, 128. Form of Certificate, 129. After Loss of Discovery Shaft, 131. Replevin, 358. Reservation See Severance. In Town Site Patents, 245. In Patents Generally, 242, 247. Indian, 336. Military, 519. Of Minerals by Deed, 273. 582 INDEX. Right of Way, 202. To Cross Lodes, 151. To Oil Pipe Lines, 519. Roads, 202. Rock in Place, 162, 167. Royalty, 285, 291. Salines, 212, 386, 514. Sampling and Smelting Companies, 324, 339. Notice to, 340. Scales, False, 341. School Claims, 11. School Lands, 244. Location of Claim on, 248. School of Mines, 379. Seepage, Show of Mineral by, 164. Severance, 240. Side Lines- Departure of Vein from, 158, 173, 174. Relation of Apex to, 173. Side Veins, 156, 157. End Lines Control, 178. Dip Rights of, 187. Soldiers' Claims, 12. South Dakota Location of Lode in, 67. Location of Placer in, 221. Spurs, 189. INI> Stakes- Statute Requiring, 23. Center and Corner Posts, 23, 48. On Prior Claim, 46, 80. Time, to Set, 47. On Cross Cut Discoveries, 44. Must Cover Apex, 49. Marks on, 50. On Precipitous Ground, 55. Maintaining, 57. Overlapping, 80. On Placer, 217, 218. Removal, 343. Size of, 54. State Lands, Location of Claim on, 248. Statutes- Repealed Act of Congress, 504. Text of Acts of Congress, 506. Timber Act, 524. Timber and Stone Act, 521. Coal Lands, 519. Placer A. C., 208, 222. 1,500-Foot Act, 15. Stock See Corporations. Paid in Lands, 314. Certificate of Paid Up, 321. Assessment of, 317, 326. Stockholders, 314, 315. Stone, Building, 209, 521. Sunday, 60, 476. Surface Acreage of, 222. Mining Under Improvements, 241. Severance, 240. Separate Ownership of, and Minerals, 240. Right to Tunnel Under, 254. 684 INDEX. Survey For Patent, 405, 420. For Adverse, 472. For Location, 49. With Inspection, 370. On Examination of Title, 303. Land Office Rules for, 405. Presumed to Cover Vein, 149. Overlapping, 150, 153. Apex Leaving, 173, 174. Irregular, 191. Angles to Allow for Slope, 191. Surveyor General's Circular, As to Fees, 418. Surveyor's Lien, 264. Table, of Atomic Weights, Symbols, Specific Gravity and Fusing Points, 540. Table of Cases Cited, 541. Tailings, 229. Abandonment of, 93. The Debris Cases, 233. Taxes, 258. Tenants in Common, 333. Non-Joinder of, 350. Collusion With Third Parties, 59. Relocation by, 125. Rights of, in Patent, 127, 306. Lease by, 292. License from, 203. Adverse by, 474. Tide Lands, 499, 501. Ties, 52, 53, 74. See Land Office Rules. To Discovery Shaft, 75. On Placer, 217. INDEX. 585 Timber, 343, 521, 524. Timber and Stone, 213, 521. Time- To Perfect Location, 47. To Adverse, 475. To Record, 72. Essence of Contract, 277. Title- Abstract of, in Examining Title, 304. Abstract of, in Land Office, 434, 471. After Acquired, 305. Possessory, 7, 9. Patented, 138, 141. After Entry, 137. Color of, 159. In Third Party. 349. In Neither Party, 492. Title Bond, 276. Town Sites, 245. Trails, 203. Tramways, 204. Trespass, 351. Rights Initiated by, 83, 87, 217. Relocator, no Trespasser, 109, 122. By Surface Owner, 241. Not Larceny, 342. Measure of Damages, 351. Tunnel Sites, 249. Diverse Ownership in, 102. Discovery in Tunnel, 24, 43. Record of, 250. Location Certificate, 251. Location Notice, 252. Claiming Over 3,000 feet, 258. 586 INDEX. Tunnel Sites Continued. Abandonment of, 256. Annual Labor in, 257. Land Office Rules, 383. Utah- Location of Lode in, 68. Location of Placer in, 220. / Variations, 56, 190. Vein See Lode. Irregularity of, 148. Ventilation, 344. Verdict, in Adverse Suit, 489. Verification, of Location Certificate, 64, 81. Vertical Planes- Right to Vein Within, 175, 179. Walls, 188. In Discovery, 41. Warranty Deed, 266. Conveys After Acquired Title, 305. Washington Location of Lode in, 68. Location of Placer in, 220. Water. See Ditches, Appropriation, Drainage. Weights and Measures, 341. Width of Lode Claims, 17-21. Witnesses, to Deeds, 273. INDEX. 587 Working Contracts, 302. Wyoming Location of Lode in, 69. Location of Placer in, 221. Position of Discovery Shaft, 19. Zone, Mineral Bearing, 165. We desire to express obligations for courteous suggestions and information as to the local law and custom in their respective States, to the following attorneys: D. D. Williams, Boise, Idaho; Cullen, Day d Cullen, Helena, Montana; Corlett Downey, Laramie, Wyoming; Willis B. Herr, Seattle, Wash- ington; C. C. Dey, Salt Lake City, Utah; Curtis H. Lindley, of San Francisco, California; Hon. Jas. W. Fowler, Dead wood, South Dakota; J. C. Flanders, Portland, Oregon; J. B. Woodward, Phoenix, Ari- zona; W. E. So Relle, Goldfield, Nevada, and to Horace F. Clark, of Washington, D. C., for points in Land Office practice. M. & DE. S. Denver, March 31, 1908.