THE LIBRARY OF THE UNIVERSITY OF CALIFORNIA LOS ANGELES SCHOOL OF LAW MINING EIGHTS ON THE PUBLIC DOMAIN 15TH EDITION ENLARGED AND REVISED TO DATE LODE AND PLACER CLAIMS, TUNNELS, MILL SITES AND WATER RIGHTS, STATUTES AND DECISIONS, FORMS AND PROCEDDRE ON PATENT APPLICATIONS FOR PROSPECTORS, ATTORNEYS, Su'-./EYORS AND MINING COMPANIES BY R. S. MORRISON AND EMILIO D. DE SOTO IM OF THE COLORADO BAR BENDER-MOSS (y Shaft, Cut, Tunnel, boom ditch or otherwise, are recognized by the statutes or dis- trict regulations everywhere, the only distinction being, where a discovery of a certain depth and showing certain things is required, that when discovered at the surface or in the slide there must be a shaft at least ten feet deep, or deeper if necessary, to show a well defined crevice; while if disclosed in a cross-cut or tunnel, the vein must be cut and a well defined crevice exposed, at least ten feet below the surface. Discovery by Prospecting Drill. The discovery of a lode or deposit by either horizontal or vertical drilling would doubtless fulfill all the conditions of a legal discovery, and would operate to give the party the time allowed to complete a discovery shaft ; but the idea that a drill- hole would be considered as the equivalent of a discovery shaft can not be entertained. It would be a physical impossi- bility for such a drill-hole to show a well defined crevice, and a drill-hole is neither a shaft, cut nor other opening such as are enumerated among those things which may constitute a 34 DISCOVERY AND LOCATION. discovery shaft or cut. The discovery of a lode is a matter of interest to the prospector only; but if he intends to appropri- ate the same it must be by such physical workings as shall amount to notice to third parties. A drill-hole is not a notori- ous, physical land mark, and could not be construed as such notice. Discovery Holds How Long? A discovery in Colorado, Wyoming, North and South Dakota, Montana and Oregon holds the claim for sixty days allotted to sink the discovery shaft. Marsliall v. Harney Peak Co., 1 S. D. 350, 47 N. W. 290. Alaska, Arizona, New Mexico and "Washington allow ninety days. Idaho allows sixty days, but claim must be staked within ten days after discovery. Nevada allows ninety days from date of posting location notice, but requires the monuments to be placed within twenty days from date of posting. Where no specific time is limited, 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. HitcJi- cock, 5 M. E. 542, 3 Colo. 533, it was ruled that ninety days to sink a shaft was more than a reasonable time. In Doe v. Waterloo Co., 55 F. 11, 12, a prospector completed his staking in twenty days, and he was held to be in good time. 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 dis- covery. Discovery and posting notice of claim, therefore, must be practically cotemporaneous. " Deeney v. Mineral Co., 11 N. M. 279, 67 P. 725, 22 M. R. 47. If by discovery is meant mere ocular perception of an out- crop visible to all, it may be true, but everywhere 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. DISCOVEKY AND LOCATION. 35 Notice Without Discovery. A notice with no discovery to justify is of no avail. Gemmell v. Swain, 28 Mont. 331, 98 Am. St. Rep. 570, 22 M. R. 716, 72 P. 662; McPherson v. Julius, 17 S. D. 98, 95 N. W. 428. And a notice not followed by staking does not make a location. Malecek v. Tinsley, 73 Ark. 610, 85 S. W. 81. Renewing Notice. It seems useless to add that if the discovery shaft is not completed within the legal time it is mere folly to pull down the old notice and put up another of a later date. The sixty days or other statutory 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 by posting a new notice with some other person named as discoverer. Ingemar- son v. Coffey, 41 Colo. 407, 92 P. 908. Although the notice has been posted and reposted several times, if the location is ultimately completed before any third party comes on the ground, the claim is valid. Eureka Co. v. Tom Moore Co., 52 Colo. 623, 123 P. 655. Location. The location of a lode consists in denning its position and boundaries, and in doing such acts as indicate and publish the intention to occupy and hold it under the license of the United States. The formal parts of location include: 1. The location notice at discovery. 2. The discovery shaft. 3. The boundary stakes. The Location Stake. The words "location notice," or "notice of location" require explanation. A location notice was in early stakings the prin- cipal and often the only specific act of location ; it was a uni- 36 DISCOVERY AND LOCATION. versal custom before any statutes existed purporting to regu- late the subject. It is now everywhere required by district rule or statute, but the states have divided themselves very evenly into two classes, (1) where they make it a mere memorandum notice; (2) where they make it equivalent to the location certificate and require a duplicate or substantial copy of it to be recorded afterward. In Colorado, Montana, Nevada, North and South Dakota, Washington and Wyoming it is a memorandum notice con- taining the name of the lode, the name of the locator, and the date of discovery ; where any additional item is required it will be found under "STATUTORY REQUIREMENTS, " p. 68. California, Idaho, Oregon, Utah, Arizona and New Mexico require it to contain a full description and later a duplicate or substantial copy must appear of record. As the record must show the date of location and there can not be a date before there is a location, this makes the date of posting the date of the location in those States. How Posted. Where only a memorandum notice is required the Statute or rule generally requires "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 complied 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 the fair requirement of the law. In Gird v. California Oil Co., 60 F. 531, 18 M. R. 45, the notice was placed in a tin can on a mound of stones and it was ruled a proper posting. Writing on paper held in place by a rock is sufficient Emerson v. Akin, 26 Colo. App. 40, 140 P. 481. DISCO VEBY AND LOCATION. 37 Place of Posting. The location notice must be posted at the point of discovery, and where the discoverer placed his notice at a point where the vein was not disclosed but later posted it at the proper place the latter posting was not good to cut out an intervening claimant. Butte etc. Co. v. Radmilovich, 39 Mont. 157, 101 P. 1079. The notice was posted and a similar notice was recorded, when it was found that the posted notice was outside the claim; a new notice was then posted and it was held good. The order of posting and recording is not material, and the second notice did not need to be recorded. Green v. Gavin, 11 Cal. App. 506, 105 P. 761 ; McCleary v. Broaddus, 14 Cal. App. 60, 111 P. 125. In Upton v. Santa Rita Co., 14 N. M. 97, 89 P. 275, the notice had been posted by mistake on the overlap of an older claim, but it was held that it did not invalidate the location. FORM OP NOTICE ON STAKE. THE FAMINE LODE, discovered by Patrick Corcoran, February 17, 1916. I claim 750 feet easterly and 750 feet westerly from discovery. PATRICK CORCORAN. This form fully complies with the law where no more is required than in Colorado and would still be sufficient without signing at the foot, and without stating the number or direc- tion of feet claimed. But it is usual and always safe to cover those items and if others are added, as they often are, it is harmless surplusage. Where- the full notice is required, that is, where it is to be copied or duplicated into the record, it is, of course, written or written and printed on paper. Such notice holds the claim for a reasonable time before setting the boundary stakes or other work. Union Co. v. Leitch, 24 Wash. 585, 85 Am. St. Rep. 961, 64 P. 829. This notice need not call for monuments or ties that is required of the record only. Poujade v. Ryan, 21 Nev. 449, 33 P. 660 ; Brady v. Husly, 21 Nev. 453, 33 P. 801. 38 DISCOVEEY AND LOCATION. A notice giving name of the lode, length, width and direc- tion of claim, dated and signed; held a good compliance with the statute of Wyoming. Columbia Co. v. Duchess Co., 13 Wyo. 244, 79 P. 385. THE COSTIGAN FORM. Mr. Costigan, in his valuable Hand Book of Mining 1 Law, gives the following form as a compliance with most, if not all, the local statutes : HawTc Lode. We, the undersigned, who discovered this mineral-bearing lode June 17, 1907, claim 1500 feet thereof, 750 feet easterly and 750 feet westerly from discovery, and three hundred feet on each side of the center of the vein. The general course of the vein is east and west. JOEL B. ERHARDT, 4-5. THOMAS CARROLL, 1-5. and cites Erhardt v. Boaro, 113 U. S. 527, 28 L. Ed. 1113, 5 Sup. Ct. 560, 15 M. R. 472, which sustained a much less com- plete notice. Materiality. As to the materiality of the notice the decisions of certain States hold that it is an essential act of location. Strepey v. Stark, 7 Colo. 614, 618, 5 Pac. Ill, 17 M. R. 28; Chcesman v. Shreeve, 40 F. 787, 17 M. R. 260; Upton v. Santa Rita Co., 14 N. M. 96, 89 P. 275. On the other hand there is a line of cases to the effect that the purpose of the location notice is literally what the term implies : that is, to give notice that the claim has been appro- priated and that if the second locator had actual notice of the other acts of location the want of a location stake or notice or an erroneous call therein is not material. Bismarck Mt. Co. v. North Sunbeam Co., 14 Ida. 516, 95 P. 14; Sturtevant v. Vogel, 167 F. 448, 449, 93 C. C. A. 84. And the final authority of the Federal Supreme Court seems to strongly uphold the latter contention. Yosemite G. M. Co. v. Emerson, 208 U. S. 25, 52 L. Ed. 374, 28 Sup. Ct. 196. DISCOVERY AND LOCATION. 39 The location notice is not required to be recorded. Me- Cleanj v. Broaddus, 14 Cal. App. 60, 111 P. 125. Its office is to give a reasonable time to prospect. Id, Eight to Swing Claim. In Sanders v. Noble, 22 Mont. 110, 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 pur- posely kept clear of its ground. The Court held that the law gave the locators 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 swing their loca- tion nearly at right angles and take in the Yukon ground. The opinion contains a full review of previous cases, but does not meet the proposition: that while the prospector may have such full time for such purpose he loses it the moment he by a positive act limits the general area which his monuments when set will include. We can not for a moment believe that a prospector after 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 notice. But such an instance is not at all distinguishable from the decision quoted. See Wiltsee v. King of Arizona M. Co., 1 Ariz. 95, 60 P. 896. Discovery Shaft Must Be on Public Domain. The discovery shaft must be sunk upon unoccupied public land; that is to say, it must be outside of the lines of any patent or even of any valid location. Upton v. Larkin, 5 Mont. 600, 6 P. 66; Little Pittsburgh etc. Co. v. Amie Co., 17 F. 57, 5 McCrary 298 ; Armstrong v. Lower, 6 Colo. 393, 15 M. R. 631 ; Golden T. Co. v. Mahler, 4 M. R. 390, 4 P. C. L. J. 405; Moijle v. Bullene, 1 Colo. App. 308, 44 P. 69; Watson y. Maijberry, 15 Utah 265, 49 P. 479; Tuolumne Co. v. Maier, 40 DISCOVERY AND LOCATION. 134 Cal. 583, 66 P. 863; Reynolds v. Pascoe, 24 Utah 219, 66 P. 1064; Peoria Co. v. Turner, 20 Colo. App. 474, 79 P. 915; Tiggeman v. Mezlak, 40 Mont. 19, 105 P. 77 ; El Paso Co. v. McKnight, 233 U. S. 250, 251, 58 L. Ed. 943, 34 Sup. Ct. 498, L. R. A. 1915A, 1113; Flynn Co. v. Murphy, 18 Ida. 266, 138 Am. St. Rep. 201, 109 P. 851. In the Larkin-Upton case, the discovery shaft was partly on patented ground, but a part of it showing the vein or a por- tion of the vein was on clear ground and its validity was upheld. 7 Mont. 449, 17 P. 728, 15 M. R. 404, 144 U. S. 19, 36 L. Ed. 330, 12 Sup. Ct. Rep. 614, 17 M. R. 465; Nichols v. Williams, 38 Mont. 552, 100 P. 969. Plaintiff in an adverse claim 'suit must show that his loca- tion was on vacant public domain. McWilliams v. Winsloiv, 34 Colo. 341, 82 P. 538. The presence of abandoned cabins, old stakes and prospect holes are no proof that the land was not public domain. Cook v. Elonos, 164 F. 529, 90 C. C. A. 403. The defendant may show that plaintiff's discovery was upon land not subject to location and the claim therefore invalid. Girard v. Carson, 22 Colo. 345, 44 P. 508, 18 M. R. 346. In King Solomon Co. v. Mary Verna Co. the Court of Appeals of Colorado held that a witness should not be allowed to state in terms that the claim was located on the public domain, but should state facts from which the jury might so find. 22 Colo. App. 528, 127 P. 129. Emerson, who owned the Victor lode, placed his location notice and sank his discovery of the Recompense lode within the lines of the Victor, an older claim which he owned, stating on the stand that he had at the time abandoned that part of the Victor lode. Under this dangerous and suspicious testi- mony he was allowed to escape the consequences usually fol- Iqwing the sinking of the discovery on a prior location. Emerson v. Akin, 26 Colo. App. 40, 140 P. 481. DISCOVEKY AND LOCATION. 41 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. S. 279, 285, 26 L. Ed. 735, 738, 1 M. R. 510. If made on the ground of a prior location, and therefore initiated by trespass, the subsequent abandon- ment of the prior claim does not make the later location good. See citations on page 135. Exceptional Cases Town Site Placer. Assuming that all known lodes have been excepted from a Town Site Patent, a discovery shaft may be sunk upon and within the area of its patent. Moyle v. Bullene, 1 Colo. App. 308, 44 P. 69. The exclusion of known lodes from placer patents is a like instance and has been ruled the same way. Mutchmor v. McCarty, 149 Cal. 603, 87 P. 85. Patent Over Discovery Shaft. Where a party allows a claim held by other parties to go to patent over his discovery shaft, "the loss of the discovery is a loss of the location." Gwillim v. Donnellan, 115 U. S. 45, 29 L. Ed. 348, 5 Sup. Ct. Kep. 1110, 15 M. R. 482 ; Miller v. Girard, 3 Colo. App. 278, 33 P. 69 ; Girard v. Carson, 22 Colo. 345, 44 P. 508, 18 M. R. 346. 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 agricultural patent was issued covering that end of a lode claim in 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. Donnellan did not apply. Rich- ards v. Wolfling, 98 Cal. 195, 32 P. 971; Post p. 162. 42 DISCOVERY AND LOCATION. Bingham Co. v. Vie Co. holds that where mineral had been discovered elsewhere on the claim it was not invalidated by loss of its discovery shaft. But the opinion admits that this could not hold good in States like Colorado, which recognize no discovery outside of the discovery shaft. 181 F. 748. After a claim has lost its discovery shaft by an over- lapping patent, a second location on a new discovery is a new and independent location which gives the locator no rights as against an intervening locator. Indiana Co. v. Gold Hills Co., 35 Nev. 158, 126 P. 965. Sale of Discovery Shaft. But the sale of that part of the claim containing the dis- covery shaft does not invalidate the title of that part which the locator retains. Little Pittsburgh Co. v. Amie Co., 17 F. 57, 5 McCrary 298. And in this case the grantees had afterwards gone to patent on the ground containing the discovery shaft, as parcel of another claim. A distinction can readily be drawn between this and the Donnellan case, supra; and yet they are so close that it may be considered dangerous to con- vey that portion of the lode containing the discovery without proper covenants against 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 boundaries they were made so as to exclude the discovery shaft is admissible to defeat such location. McGinnis v. Egbert, 8 Colo. 54, 15 M. R. 329, 5 P. 652. A location of certain bounds upon a discovery shaft exterior to such bounds, upon a lode which on its strike would extend into the lines staked off, is a claim without a discovery and is void. MicJiael v. Mills, 22 Colo. 439, 45 P. 429. An underground discovery in another claim aided by finding quartz on surface of the claim in controversy was held suffi- DISCOVERY AXD LOCATION. 43 rient to support the location in Reiner v. Schroder, 146 Cal. 411, 80 P. 517. A discovery shaft through which an end line runs is on the claim sufficiently to hold it. Tiggeman v. Mezlak, 40 Mont. 19, 105 P. 77. The Shaft Must Be Ten Feet Deep, by Statute in All the mining States except 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 statute as in North Dakota, which requires a shaft, but does not fix the depth. By the Arizona Act of 1909, eight feet depth is required. By the Alaska Act of 1915 the discovery must "at the time of location be denned upon the ground by the removal of so much of the surface material as may be necessary clearly to expose to view the discovery claimed and in such manner as to perpetuate its identity and preserve it so far as prac- ticable from obliteration," which is a unique departure from the legislation on this point everywhere else. A State Statute requiring a specific depth of ten feet is a valid exercise of the right of regulation allowed to the legis- lature under the Congressional Act. Sisson v. Sommers, 24 Nev. 379, 77 Am. St. Eep. 815, 19 M. R. 286, 55 P. 829 ; Beats v. Cone, 27 Colo. 473, 20 M. E. 591, 83 Am. St. Rep. 92, 62 P. 948. Depth How Measured. In those States requiring specific depth, the language 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 between its two ends or sides. In the instance of a shaft sunk not vertical but following a vein with a heavy 44 DISCOVERY AND LOCATION. pitch it is obvious that a slight difference would exist between a vertical measurement and a measurement following the pitch of the shaft, the latter measurement being the shorter distance and favoring the 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, specifically. It is obvious that a cut being equivalent to a shaft and the pitch of the vein varying to any degree between true vertical and the horizontal, it is impossible to say at what angle the / cut would be so flat as to be no longer in strictness a shaft, j 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. A cut made on the outcrop of a vein in a cliff, 12 feet in height but only 4% feet into the cliff, is not any form of a 10-foot discovery shaft or cut allowed by Colorado statute. Ingemarson v. Coffey, 41 Colo. 407, 92 P. 908. Precautions as to Depth. After a shaft has been sunk ten feet, the ground at the col- lar may cave, or the shaft may become filled with debris, or the making of a platform or raised collar may make it diffi- cult to ascertain the exact line of the original rim of the shaft, or to ascertain its original bottom. In view of these facts and of the essential importance of the shaft being full ten feet deep, it is always advisable to sink it two or three feet deeper and remove all ground for cavil or contention. 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 after- wards and before any adverse rights have intervened, such DISCOVERY AND LOCATION. 45 discovery shaft is valid. This is a matter of course on the general ruling as to performance of the various acts of loca- tion being sufficient in all instances where complete before third parties assert rights, though not completed within the statutory period. McGinnis v. Egbert, 8 Colo. 41, 15 M. R. 329, 5 P. 652. Discovery Shaft Must Show Well Denned Crevice, besides reaching a certain depth. Cheesman v. Shreeve, 40 F. 787, 17 M. R. 260. "Crevice" means a "mineral bearing vein." Seals v. Cone, 27 Colo. 473, 83 Am. St. Rep. 92, 20 M. R. 591, 62 P. 948. If a crevice does not show in ten feet, the shaft must go deeper; if it appears sooner, the ten feet must still be com- pleted. The crevice shows the lode discovered, the depth shows the lode appropriated. In the instance of a thin flat deposit, a ten-foot shaft might 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. Allmann, 23 Utah 410, 64 P. 1020, 21 M. R. 296 ; and it is error to omit this, as one of the essential elements of a discovery shaft in an instruction pur- porting to define such elements. Bryan v. McCaig, 10 Colo. 309, 15 P. 413. It need not show pay ore. Muldrick v. Brown, 37 Or. 185, 61 P. 428. Discovery Shaft Need Not Show Wall. It had been decided in Montana (Foote v. National 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 decision made the discovery dependent upon a single incident, which is not by any means the only proof of the ex- istence of a vein. This case, as well as O'Donnell v. Glenn, 8 Mont. 248, 19 P. 302, was based on a requirement of the Mon- 46 DISCOVERY AND LOCATION. tana statute to such effect (since repealed), and not upon reason or the nature of the subject matter, and has therefore no pertinency 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, 12 Colo. App. 439, 55 P. 947. 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 development, 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 slide and country. Van Zandt v. 'Argentine Co., 2 McCr. 159, 8 F. 725, 4 M. R. 441 ; Waterloo Co. v. Doe, 56 F. 685. Discovery in Broken Ground. It is a common incident to find the lo(Je at surface 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 nevertheless in place. The shattering and break- ing 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., 21 Nev. 339, 31 P. 642, 17 M. R. 530. Separate Discovery for Each Claim. The attempt to locate two full claims upon one discovery shaft is a palpable fraud. 16 L. D. 1 ; McKinstry v. Clark, 4 Mont. 370, 1 P. 759 ; Reynolds v. Pascoe, 24 Utah 219, 66 P. 1064. It is sometimes alleged that two lodes cross in the dis- DISCOVERY AND LOCATTON. 47 covery shaft, but no ten-foot shaft can 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 sub- ject 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. Where the 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 Supreme 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. Gray v. Truly, 6 Colo. 278; Electro Co. v. Van Auken, 9 Colo. 204, 11 P. 80. 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 discloses 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 pros- pector 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 govern- ment nor to the rights of other prospectors whether the dis- covery be by vertical or horizontal cutting. Either mode complies with both the letter and spirit of the law. Under the Nevada Act allowing 240 cubic feet of excavation to count as a discovery cut, the removal of an accumulation 48 DISCOVERY AND LOCATION. of caved down dirt in an old abandoned tunnel was hold to count for such excavation. Murray v. Osborne, 33 Nev. 257, 111 P. 31. Duncan v. Eagle Rock Co., 48 Colo. 569, 139 Am. St. Rep. 288, 111 P. 588, 593, treats the words "discovery shaft" as a generic term including the discovery point in any form as used in the Mining Statute of Colorado, but holds that where used as a call or tie it has no such generic meaning and that a call for a discovery "shaft" is not satisfied by a discovery "cut." Secret Underground Discovery. The only class of discoveries which would suggest any diffi- culty is where, by extending the works of an old claim, a drift or an underground cross-cut or other working passes beyond the claim and discloses either a new vein, or the exten- sion of the old vein into clear ground. We can not see any objection 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. Kimler, Fed. Cas. No. 8402, 1 M. R. 536, a secret underground working from an old claim was not allowed to hold as a valid basis for relocation of an adjoining claim, but that decision was upon the letter of the Colorado Statutes concerning relocations which in terms requires a shaft to be sunk or other new opening to be made, nor had such secret discovery been followed by proper surface notice. In Butte Co. v. Barker, 35 Mont. 327, 89 P. 302, 90 P. 177, defendant had run a cross-cut 102 feet long at 132 feet depth starting 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 DISCOVERY AND LOCATION. 49 is by no means persuasive. If such cross-cut were run by license of the patentee we can not 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 of the point of plac- ing 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, 28 Colo. 176, 89 Am. St. Rep. 188, 53 L. R. A. 793, 21 M. R. 155, 63 P. 309. Discovery in Statutory Tunnel. Where a lode is cut in a tunnel located and recorded 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 recording 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 surface against a subsequent surface discovery. Ellet v. Campbell, 18 Colo. 510, 33 P. 521. In the case referred to a notice had been posted at the mouth of the tunnel and a record had been made reciting the dis- covery 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 construction. The Court, how- 50 DISCOVERY AND LOCATION. ever, conceded 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, 167 U. S. 116, 42 L. Ed. 101, 17 Sup. Ct. Rep. 765, 18 M. R. 669. 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. 499; Hauswirth v. Butclier, 4 Mont. 299, 1 P. 714; Gohres v. III. Co., 40 Or. 516, 67 P. 666; Deeneij v. Mineral Co., 11 N. M. 279, 67 P. 724, 22 M. R, 47. These decisions are not made upon local statutes, but as the con- struction 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 staking along the bounds of the claim has been required in all cases, without regard to State, Territorial or District legislation requiring such staking. Such legislation, when it existed, has been to direct 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 suggest the time arrived to "prove up" and take his neighbor's lode. This is not a forced illustration it is the very evil which the law is intended to prevent. Gleeson v. Martin White Co., 13 Nev. 442, 9 M. R. 429 ; Gonu v. Russell, 3 Mont. 358, 12 M. R. 630 : Gil pin Co. v. Drake, 8 Colo. 586, 9 P. 787; Sweet v. Webber, 1 Colo. 443, 4 P. 752. DISCOVERY AND LOCATION. 51 Posting the discovery notice is not the equivalent of marking the surface boundaries. Doe v. Waterloo Co., 70 F. 456, 17 C. C. A. 190, 18 M. E. 255. Compromise Boundary. Long acquiescence in a compromise boundary line will, estop the parties to dispute it. Montana Co. v. St. Louis Co., 183 F. 51, 105 C. C. A. 343. Overlap on Prior Claims. The setting of stakes on prior locations or patents has been held valid. Such surveys are sustained with the reservation that such technical trespass is accomplished without breach of the peace. Del Monte Co. v. Last Chance Co., 171 U. S. 55, 43 L. Ed. 72, 18 Sup. Ct. Rep. 895 ; Bunker Hill Co. v. Empire State Co., 109 F. 538, 48 C. C. A. 665; Davis v. Shepherd, 31 Colo. 141, 72 P. 57, 22 M. R. 575, 30 L. D. 420, 31 L. D. 121. See Clark v. Mitchell, 35 Nev. 447, 130 P. 760, 134 P. 449. But the overlap belongs, of course, to the prior claim, and doing the location work upon a prior subsisting claim which has kept up its annual labor initiates no title at all in the new location. Anderson v. Caughey, 3 Cal. App. 22, 84 P. 223; Hoban v. Boyer, 37 Colo. 185, 85 P. 837. 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., 14 N. M. 96, 89 P. 275. Fractional Claims. "Where the surrounding ground has been taken up so that 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 enclosed by its vertical planes (Crown Point Co. v. Buck, 97 F. 462. 38 C. C. A. "27S). 52 DISCOVERY AND LOCATION. it is advisable to take up such vacant area as a parallelogram with parallel end lines so as to secure extralateral rights which would otherwise be lost. The fact that some or all the corners in such case would be on foreign ground would not invalidate. McElligott v. Krogh, 151 Cal. 126, 90 P. 823. The Locator Owns Only What His Lines Enclose, although not chargeable with fault in making them. It is bet- ter for him to lose part of the lode than to make title depen- dent on the result of developments made after lines have been / chosen. Iron Silver Co. v. Elgin Co., 118 U. S. 196, 15 M. R. I 641, 30 L. Ed. 98, 6 Sup. Ct>. Rep. 1177. I* Three Months to Complete Staking Is the Time Allowed j by implication from the Colorado Statute. The discoverer has sixty days to complete his discovery 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. Erhardt v. Boaro, 113 U. S. 527, 15 M. R. 472, 28 L. Ed. 1113, 5 Sup. Ct. Rep. 560. If the setting of his stakes is delayed beyond the period of three months, the location is not invalidated where no adverse rights have intervened. McGinnis v. Egbert, 8 Colo. 41, 15 M. R. 329, 5 P. 652; Crown Point Co. v. Crismon, 39 Or. 364, 65 P. 87. The Statute allows a specific length of time to the locator to learn in what direction to stake his claim. Street v. Delta M. Co., 42 Mont. 371, 112 P. 701. DISCOVEEY AND LOCATION. 53 When the time to complete staking is not fixed by statute or district rule, a reasonable time is allowed. Twenty days has been held to be a reasonable time. Doe v. Waterloo C6. t 70 F. 456, 17 C. C. A. 190, 18 M. R. 255. 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 becomes material only where the rights of third parties have intervened. Healey v. Rupp, 37 Colo. 25, 86 P. 1015 ; Columbia Co. v. Duchess Co., 13 Wyo. 244, 79 P. 385. The Diagram of a Lode Correctly Located, under the present Colorado law (1874-1916), will show sub- stantially as follows: Post Post Post o o Discovery Shaft Location Slake Post Post ELEMENTS OF LOCATION. 1st. Discovery Shaft at Least Ten Feet Deep from the lowest part of the rim at the surface, and showing a well-defined crevice. 2d. Location Stake; a Plain Sign or Notice containing the name of the lode, the name of the locator, 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 54 DISCOVERY AND LOCATION. center of each side line; that is, in a 1,500 foot claim, 750 feet from each end line. 4th. Comer 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 toward the claim. 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 REQUIREMENTS, page 68. Must Cover Apex. The stakes of the location must include the apex of the vein, and in so far as they fail so to do the claim is defective to that extent. That is to say : the theory of the statute is that a normal location 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 212. Locating Without Aid of Surveyor. In locating any class of claim, a survey is always advisable. If the prospector, however, can not procure a professional surveyor (and it is often impracticable), a reasonable degree DISCOVERY AND LOCATION. 55 of care will suffice to locate his boundaries with certainty sufficient to make the subsequent 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 location has been properly made, the record can readily be made to describe it fully, whether such location has been made by a surveyor or other- wise. The discovery shaft being taken as the center of the claim and the initial point of location, a tape measurement from its center 300* ieet at right angles to the lode 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 direction and set the second center or side stake; at right angles 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 lengthwise of the claim, and from each end of this center line measure 300 feet on each side for the end lines on the same course as the line between 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 along its center, with an offset of 300 feet at right angles in each direction at discovery shaft and at each end, 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 show the four Three hundred feet in Alaska and all States except North Dakota; 150 feet in North Dakota; 150 feet in Clear Creek, Gilpin, Boulder and Summit Counties, Colorado, and 300 feet in all other counties. This 300 or 150 feet is, of course, one-half the width of a 600 or 300 foot wide claim. 56 DISCOVERY AND LOCATION. lines to be measured on a prospector's survey, and the six points at which stakes are to be set : Comer Center State Corner o . o Shaft "" Comer Cen &? 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 number and the name of the lode. In addition to the number write "North center side stake," "South center 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 in side (which indicates the relation of the stake to the claim) and mark with pencil the name of the lode, number of corner, etc., as above directed. Marking three out of four corners was held sufficient in a Utah case. Warnock v. DeWitt, 11 Utah 324, 40 P. 205. Ke- view of citations on the point of sufficient staking. Howeth v. Sullenger, 113 Cal. 547, 45 P. 841. Where not required by statute it is not essential to put the name of the claim on the boundary stakes. Smith v. Newell, S6 F. 56; Bingham Co. v. Ute Co., 181 F. 748. 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 DISCOVEKY AND LOCATION. 57 of the claim. Except in official surveys there is no uniform rule as to which corner is numbered one. Rule 138. Position of Center Stakes. In the case of the Hardin Lode, the claim was surveyed 600 feet in one direction and 900 feet in the opposite direction from center of discovery. The center stakes were placed opposite discovery, which left them each 150 feet from their proper places. The Supreme Court held that they could not be considered as substantially in the center ; but on the other hand, 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. Tying the Claim. In addition to staking the boundaries it is essential to have sufficient ties by which to identify the claim in the location certificate. The use of the 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, neighboring shafts or shaft-houses. Anything which is a "natural object" or "permanent monument" (and reasonably substantial and prominent) is sufficient to identify the claim. From the center of the discovery and from at least one of the corner posts, take careful measurements of the exact distance to such monu- ments (the most prominent possible under 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 Quimby v. Boyd, 8 Colo. 194, 6 P. 462, "a double spruce tree," has been declared a sufficient monument. In certain 58 DISCOVERY AND LOCATION. places trees might be the only objects available, and have been considered good boundary monuments or witnesses from time immemorial. A neighboring shaft or a prominent post firmly fixed in the ground is a good monument. Jupiter Co. v. Bodie Co., 11 F. 666, 7 Sawy. 196, 4 M. R. 412. Mountain peaks are good calls. Craig v. Thompson, 10 Colo. 517, 16 P. 24. A tie to a corner of an unpatented claim is presumptively a good tie. Londonderry Co. v. United Co., 38 Colo. 480, 88 P. 455: In Vogel v. Warsing, 146 F. 949, 77 C. C. A. 199, a call for a mountain by name, with course a mile distant, was held a sufficient ti. Calling for Adjoining or Neighboring Claims. The earlier decisions were to the effect that a call for an- other mine or claim was not a call for a permanent monu- ment, and that a location certificate having such a call and no other, or no other sufficiently specific, was not a com- pliance with R. S. Sec. 2324. Baxter Co. v. Patterson, 3 N. M. 179, 3 P. 741; Drummond v. Long, 9 Colo. 538, 13 P. 543, 15 M. R. 510 ; Gilpin Co. v. Drake, 8 Colo. 586, 9 P. 787. As late as 1896 an extreme ruling to the same effect was made in an Idaho case, Brown v. Levan, 4 Ida. 794, 46 P. 661, over- ruled in 1902 by Morrison v. Regan, 8 Ida. 291, 67 P. 955, 22 M. R. 69.. 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 indefinite enough, but the paper also called for three adjoiners. The Statutes of Idaho (at that time) required 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 adjoiners 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 requirement of the location cer- tificate. DISCOVERY AND LOCATION. 59 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 mining claim may be a permanent monument and that if not. so developed or known as to be a permanent monument the proof of such fact is upon the objecting party. Book v. Justice Co., 58 F. 106, 17 M. R. 617 ; Riste v. Morton, 20 Mont. 139, 49 P. 656 ; Kinney v. Fleming, 6 Ariz. 263, 56 P. 723, 20 M. E. 13 ; Seidler v. Lafave, 4 N. M. 369, 20 P. 789, overruling the Baxter case, supra; Shattuck v. Costello, 8 Ariz. 22, 68 P. 529, 22 M. R. 136 ; Street v. Delta Co., 42 Mont. 371, 112 P. 701. A notice calling for ad joiners on all four sides was held valid, although the claim was described as in a quarter sec- tion different from the true one. Duryea v. Boucher, 67 Cal. 141, 7 P. 421. Description by Degrees and Minutes Not Essential. A record based on a location made as above directed, 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 dis- covery shaft or corners) that it may be readily found by a stranger examining the record, and for courses calls for some certain general direction and otherwise complies with all the statutory requirements herein stated is as valid as one which calls for degrees, minutes, metes and bounds. Indefinite Description. Location certificate describing claim as "No. 1 on Bear Creek," with little or no further description, held void. Cloninger v. Finlaison, 230 F. 98. 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 loca- tion. S mith v. Newell, 86 F. 56; Glass v. Basin Co., 22 Mont. 60 DISCOVERY AND LOCATION. 151. 55 P. 1047 ; Wiltsee v. King Co., 1 Ariz. 95, 60 P. 896. And the word "west" may be read "east" when necessary to close upon the starting corner. Upton v. Santa Rita Co., 14 N. M. 96, 89 P. 275. In Montana the holding was made that a notice of location describing the course of the vein as north and south was good to support a location on a vein running east and west. Butte Co. v. Radmilovich, 39 Mont. 157, 101 P. 1078. Precautions at Time of Location. The side and corner stakes being properly set, the location notice 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 Colorado Statute says that the posts shall be substantial 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; if of stone, twenty- four inches long. Rule 143. Trees, Stumps and Boulders As Corner Posts. In Pollard v. SUvely, 5 Colo. 309, 2 M. R. 229, the 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 which to fix the claim. Upton v. Larkin, 1 Mont. 449, 17 P. 728, 15 M. R. 404; Hansen v. Fletcher, 10 Utah 266, 37 P. 480. The DISCOVERY AND LOCATION. 61 L. O. Regulations also recognize both stones and rock in place. Rule 143. Cutting a letter into a solid rock held not equivalent to a stake. Taylor v. Parenteau, 23 Colo. 368, 48 P. 505, 18 M. E. 534. Where Stakes Can Not Be Set. Where a stake can not be driven on account of bed-rock, it should be fixed in a pile of stones and in official surveys this marking is required in all cases. Where a stake can not be set on account of precipitous 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 point (p. 23) can not be invoked where the setting of the stakes is merely difficult or inconvenient. Croesus Co. v. Colo- rado Co., 19 F. 78. Where the stakes on one end of the claim were not set, merely because the point was difficult of access, it was held that the claim was not valid. Id. A like ruling \vas made where a corner fell upon a railroad embankment. Seals v. Cone, 27 Colo. 473, 83 Am. St. Rep. 92, 20 M. R. 591, 62 P. 949. And as a matter of course, the failure to set them through inadvertence or neglect would be fatal. Patterson v. Tarbell, 26 Or. 29, 37 P. 76. Variation Between Courses and Monuments. As the result of carelessness, accident or defective instru- ments, variations between the courses called for in the record and the monuments on the ground, are matters of constant occurrence. The general rule in such cases is that the monu- ments control. Cullacott v. Cash Co., 8 Colo. 179, 15 M. R. 392, 6 P. 211; Book v. Justice Co., 58 F. 106, 17 M. R. 617; Stonewall Co. v. Peyton, 39 Fla. 726, 23 So. 440; Galbrn ! ! , r. Shasta Co., 143 Gal. 94, 76 P. 901; Treadwcll v. Marrs, '.) An/.. 333, 83 P. 350. 62 DISCOVERY AND LOCATION. Corners Misdescribed Monuments Lost. It was held in the Hardin Lode case (Pollard v. Shively), 5 Colo. 309, 2 M. R. 229, that the monuments would not control where they varied from the kind of monuments called for in the record; that a call for a "post" was not satisfied by a "stump." But in Upton v. Larkin, 1 Mont. 449, 17 P. 728, 15 M. R. 404, it was allowed to be shown that the pine trees called for as corners were really stakes. Where all the cor- ners are gone the calls of the record should control rather than the recollection of witnesses. Tiggeman v. Mrzlak, 4 Mont. 19, 105 P. 77. Both the Hardin Lode case and this Montana case support the rule that to control the calls, the monuments must remain upon the ground. This rule is neces- sary to prevent the swinging of the location. Duncan v. Eagle Eock Co., 48 Colo. 569, 139 Am. St. Rep. 288, 111 P. 588; Swanson v. Koeninger, 25 Ida. 361, 137 P. 891. Variations Chargeable to Connected Plat. The U. S. Surveyor General of each State keeps what is called the "Connected Plat," purporting to show every ap- proved survey in relation to each other on its proper section. Where the first survey on any section made an erroneous call for a Government corner, say 1300 feet, when the proper measurement was 1600 feet, it was platted as 1300 feet dis- tant. A second survey correctly measured would show a certain distance from the corner, but, of course, would not tie to the first survey as traced on the connected plat. Instead of recognizing the error as soon as discovered the department persistently for years compelled each successive applicant to treat the first survey as correct and to tie to it accordingly. This resulted in the issue of patents which really overlapped prior surveys, but the field notes appeared clear of any over- lap ; conversely, an overlap and consequent exclusion would appear where there was in fact no conflict with any prior survey. DISCOVERY AND LOCATION. 63 It was to remedy this state of affairs that A. G. Sec. 2327 was amended in 1904 (p. 647). The effect of the amendment is, however, only to emphasize the common law rule declared in the Cullacott case above cited. Patent for a full claim held to convey the entire 1500 feet, notwithstanding strong proof that the original corners were 135.5 feet short of that length. Sec. 2327, requiring that monuments control, held not to apply to a prior grant on the evidence in the case. Conkling Co. v. Silver King Co., 230 F. 561. Maintaining Stakes. Once properly set, stakes have performed their original office and their subsequent removal or obliteration not done by the act of the party does not vitiate the claim. Book v. Justice Co., 58 F. 107, 17 M. R. 617 ; McEvoy v. Hyman, 25 F. 596, 15 M. R. 397 ; Smith v. Newell, 86 F. 56 ; Gobert v. Butter- field, 23 Cal. App. 1, 136 P. 516. But where not maintained, a misdescription in the record, otherwise immaterial, may become serious, if not fatal, as above stated, because to correct courses or other errors by monuments, the monuments must, in general, be found upon the ground. Meyer Co. v. Steinfield, 9 Ariz. 245, 80 P. 400. A Location May Be Made by an Agent, and in such case written authority is not essential. Murley v. Ennis, 2 Colo. 300, 12 M. R. 360 ; Schultz v. Keeler, 2 Ida. 305, 333, 13 P. 481 ; Bush v. French, 1 Ariz. 99, 25 P. 816 ; Dunlap v. Pattison, 4 Ida. 473, 95 Am. St. Rep. 140, 42 P. 504; Moore v. Hamerstag, 109 Cal. 122, 18 M. R. 256, 41 P. 805 ; Whiting v. Straup, 17 Wyo. 1, 129 Am. St. Rep. 1093, 95 P. 849. In such case the location certificate 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 64 DISCOVERY AND LOCATION. 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 subscribing the location certificate the names are often written by the party \yho 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 subscribed as a rule only by the party himself or by one fully authorized so to do by power of attor- ney or other formal authorization. Morton v. Solairibo Co., 26 Cal. 527, 4 M. R. 463; Gore v. McBrayer, 18 Gal. 583, 1 M. R. 645 ; Morrison v. Regan, 8 Ida. 291, 67 P. 955, 22 M. R. 69. Where a location is made in the name of a supposed prin- cipal 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 location is not good as against a later valid appropriation. Thompson v. Spray, 72 Cal. 531, 14 P. 182. A location may be made by the use of the name of another even without his knowledge if there is a local rule authorizing it or a subsequent ratification. Whiting v. Straup, 17 Wyo. 1, 129 Am. St. Rep. 1093, 95 P. 850. Discovery by an option holder perfects the title of the pro- posed vendor. Eooney v. Barnette, 200 F. 700, 119 C. C. A. 116. For agency locations in Alaska, see p. 635. A Corporation May Locate. This has been expressly decided in the cases of McKinley v. Wheeler, 130 U. S. 630, 32 L. Ed. 1048, 9 Sup. Ct. Rep. 638, 16 M. R. 65, and Thomas v. Chisholm, 13 Colo. 105, 16 M. R. 122, 21 P. 1019. It is required only that it be cluirtered under the laws of some federal State- or Territory. It does DISCOVERY AND LOCATION. 65 not have to show the citizenship of its stockholders. Doe v. Vfaicrloo Co., 70 F. 463, 17 C. C. A. 190, 18 M. B. 265. Minors. The case of Thompson v. Spray, supra, holds that a minor child may make a valid mining location. Where a minor old enough to prospect and 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 Employee Deputy Surveyor. Section 452, R. S., prohibits the location of government land by any officer, clerk or employee of the General Land Office. In Lavagnino v. Uhlig, 26 Utah 1, 99 Am. St. Rep. 808, 71 P. 1046, 22 M. R. 610, the Supreme Court of Utah held that a lode location by a Deputy Mineral Surveyor was void under said Section. WasJcey v. Hammer, 170 F. 31, 95 C. C. A. 305, holds the same in strong terms. This case was affirmed in 223 U. S. 85, 56 L. Ed. 359, 32 Sup. Ct. Rep. 187, and the case to the contrary, Hand v. Cook, 29 Nev. 518, 92 P. 3, is of course nullified by the higher Federal construction. Nor can he make a mineral or homestead entry. 29 L. D. 333. 38 L. D. 346. A mineral surveyor is interested when he owns stock in a corporation claimant. 40 L. D. 217. Location Prevented by Colluding Co-Tenant. If the staking and record are in fact not made the claim never becomes perfected, although the reason 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- 66 DISCOVERY AND LOCATION. owner, based on his fraud. Lockhart v. Wills, 9 N. M. 3-11, 54 P. 336, 19 M. R. 497. Where a location was made in the name of one out of two prospectors, who were equally interested, the single locator became trustee for his associate for one-half of the title; but an agreement merely to locate, not to work or develop, did not make them partners. Hendrichs v. Morgan, 167 F. 106,. 92 C. C. A. 558. Locations Irregular in Shape. The contemplation of the law is that a lode claim should be substantially a parallelogram. Del Monte case, 171 U. S. 84, 43 L. Ed. 72, 18 Sup. Ct. Rep. 895, 19 M. R. 370. But it seems that with the limitation that the length may not exceed 1,500 feet nor the width 600 feet a location may be made in any convenient shape, the only loss from such form of survey being thai; no extralateral rights can be claimed for a survey which has not parallel end lines. Surveys in the shape of a horse shoe and in the shape of a triangle respectively were considered in the Stone Lode case (Iron Silver Co. v. Elgin Co.), 118 U. S. 196, 30 L. Ed. 98, 6 Sup. Ct. Rep. 1177, 15 M. R. 641, and in Montana Co. v. Clark, 42 F. 626, 16 M. R. 80 and to both all dip-rights were denied. In the North Star case, 83 F. 658, 28 C. C. A. 333, 19 M. R. 118, both pat- ents 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., 171 U. S. 312, 43 L. Ed. 170, 18 Sup. Ct. Rep. 909, 19 M. R. 410. Locating Across the Strike. The loss of extralateral rights by such location is considered under APEX. In Walsh v. Mueller, 16 Mont. 180, 40 P. 292, 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 predicated upon such fact standing alone. DISCOVERY AND LOCATION. 67 It simply loses the right to follow on the dip and the sur- face beyond the proper distance from center of vein is open to hostile location, as explained by diagram on p. 20. Sunday. In Union Co. v. Leitch, 24 Wash. 585, 85 Am. St. Rep. 961, 64 P. 829, the first act of location was done on a Sunday and in subsequent contest no point was made on this fact. 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. Columbia Co. v. Duchess Co., 13 Wyo. 244, 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, 45 Or. 167, 77 P. 81. The same as to cor- ner stake in Colorado. Beals v. Cone, 27 Colo. 473, 83 Am. St. Rep. 92, 20 M. R. 592, 62 P. 948. Contra, Warnock v. DeWitt, 11 Utah 325, 40 P. 205. Compliance with state law must be proved. Copper Globe Co. v. Allman, 23 Utah 410, 21 M. R. 296, 64 P. 1019. Parties made a location valid to the extent of the Congres- sional requirements, but failed to comply with the State Statute then in force. The State Statute was repealed while the locators continued in possession. Held that upon the repeal the location became valid. MCFARLAND, J., dissents. Dunnnell v. Dyer, 145 Cal. 12, 7 L. R. A. (N. S.) 763, 78 P. 247. 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. Caughey, 3 Cal. App. 22, 84 P. 223. The case of Street v. Delta M. Co. contains a fair review of what constitutes a valid location in Montana. 42 Mont. 371, 112 P. 701. McCleary v. Broaddus, 111 P. 125, 14 Cal. App. 60, is a like case on location in California. 68 STATUTORY REQUIREMENTS. Fraudulent Locations. The government will not patent locations made for the obvious purpose of securing control of a trail down a canyon and preventing its free use by the public. 36 L. D. 66. TABLE OP STATUTORY REQUIREMENTS. Indispensable Federal Requirements. Whether demanded or not by State Statute or District Rules, the Federal Statute requires that the location must be dis- tinctly 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 by reference to natural object or permanent monument as will identify the claim. R. S. Sec. 2324. Before filing his location certificate the discoverer is required by statute in: Colorado. 1. To post at the point of discovery, on the surface, a notice contain- ing the name of the lode, the name of the locator and the date of the discovery. 2. Within sixty days from the discovery, to sink a discovery shaft ten feet deep, from the lowest part of the rim of shaft, or deeper, if neces- sary, to show a well defined crevice. 3. To mark the surface boundaries by six posts sunk in the ground, one at each corner and one at the center of each side line hewed or marked on the side or sides in towards the claim. 4. The disclosure of the lode in an open cut, cross-cut, or tunnel at the depth of ten feet below the surface, or an adit at least ten feet in along the lode, suffices instead of the ten-foot shaft. STATUTORY REQUIREMENTS. 6ona fide possession and the ground is open to peaceable entry by others. Miller v. Chrisman, 140 Cal. 440, 98 Am. St. Rep. 63, 73 P. 1083. Temporary suspension of work to procure tools and sup- plies is no break in a prospector's possession, which is a right to be protected, although no discovery has yet been made. Hanson v. Craig, 161 F. 861, 89 C. C. A. 55. After location is completed the locator is not bound to remain in actual possession. Holdt v. Hazard, 10 Cal. App. 440, 102 P. 549. Trespass Force Fraud. No right can be initiated on government land by force, fraud or clandestine entry upon the actual possession of another, whether the location of such other be valid or invalid. Nevada, Co. v. Home Co., 98 F. 674, 20 M. R. 283. Title to a mining claim can not be initiated by an entry upon a prior valid existing location. Kirk v. Meldrum, 28 Colo. 453, 21 106 EECORD. M. R. 393, 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, 38 Colo. 393, 88 P. 449. Where parties were in possession of part of a claim, not the owners, but apparently strangers to the title, the rule as to initiation of a claim by trespass does not apply. Riverside Co. v. Hardurick, 16 N. M. 479, 120 P. 325. A pretended relocation by marking the stakes of the first locator and adopting his lines in the certificate, the first locator being in no default, is void. Moffatt v. Blue River Co., 33 Colo. 142, 80 P. 139. Where a party sold claim to plaintiff and later was hired by defendant to locate a claim, which he did, covering the same ground he had sold, there was no privity between him- self and his employer, the defendant, to estop defendant from holding the ground so located. Whiting v. Straup, 17 Wyo. 1, 129 Am. St. Eep. 1093, 95 P. 849. Defendants bribed a prospector under grub stake contract to allow discovery to lapse by failure to complete the loca- tion and they were ruled to hold the claim they had located as trustees for the outfitter. Lockhart v. Washington M. Co., 16 N. M. 223, 117 P. 834. Defective Record Aided by Possession, In Eaton v. Norris, 131 Cal. 561, 63 P. 856, 21 M. R. 205, the Court considered 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 Talmadge v. St. John, 129 Cal. 430, 62 P. 79, 21 M. R. 13, 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, 21 M. R. 485, it is held in terms that if the prior location is not valid the later comer may locate, although he had full notice of the prior asserted claim. RECORD. 107 In general terms, the first who complies with the law in completing his location is the first in right and this com- plaisant 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 allowed to the prior locator is to view his evidence "in the most favorable light such evidence will reasonably justify." Ambergris M. Co. v. Day, 12 Ida. 108, 85 P. 110. Extensions. The paragraph from section 2320, quoted on page 22 of itself disposes of all "extensions" and side claims, unless they be of themselves, howsoever named, independent discoveries and locations. "Extension" 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 has located a claim, not describing 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 mad it a valid mining location it would be sustained as a placer. McCann v. McMillan, 129 Cal. 350, 62 P. 31, 21 M. E. 6. But a placer location tm a metallic vein was held void in Buffalo Co. v. Crump, 70 Ark. 525, 91 Am. St. Rep. 87, 69 S. W. 572, 22 M. E. 276. 108 ABANDONMENT. ABANDONMENT. District and Territorial Regulations. The district regulations in early years often declared 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 preserved 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. Original Co. v. Winthrop Co., 60 Cal. 631; Northmore v. Simmons, 97 F. 386, 38 C. C. A. 211, 20 M. R. 128. The legislatures have not attempted the dangerous matter of defining in terms what amounts to abandonment. The cir- cumstances 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 abandonment (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 connec- tion 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, 8 P. 594, 15 M. R. 284; Mallett v. Uncle Sam Co., 1 Nev. 188, 90 Am. Dec. 484, 1 M. R. 17 ; Oreamuno v. Uncle ABANDONMENT. 109 Sam Co., 1 Nev. 215, 1 M. R. 32; Marshall v. Harney Peak Co., 1 S. D. 350, 47 N. W. 290. It is a question of fact for the jury. Aye v. Philadelphia Co., 193 Pa. St. 451, 74 Am. St. Rep. 696, 20 M. R. 177, 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, 26 Gal. 310; Doherty v. Morris, 11 Colo. 12, 16 P. 911 ; Street v. Delta Co., 42 Mont. 371, 112 P. 702. There must be a concurrence of intention to abandon and actual relinquishment of the property. Peachy v. Frisco M. Co., 204 F. 659. Ceasing to work because ore not salable is no abandonment. Hosford v. Metcalf, 113 Iowa 240, 84 N. W. 1054. In McCann v. McMillan, 129 Cal. 350, 62 P. 31, 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 because there was in fact no abandon- ment. The decision 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 readily held that the abandon- ment was complete although the friendly relocation attempted in connection with it was void. A father failed to do the work in 1890. His son relocated in 1891 and afterwards conveyed to the father.. The location 110 ABANDONMENT. of 1891 was defective. In a suit by the owner of a later location, Held: that defendant, the father, could not recall his abandonment and rely on his original title. Niles v, Kennan, 27 Colo. 502, 62 P. 360, 21 M. E. 33. A relocator may explain inadvertent recital of abandonment in his certificate. Peachy v. Frisco Co., 204 F. 659. Abandonment and Forfeiture Distinguished. These two terms are often used indiscriminately, but there is a clear distinction between them. Abandonment is the act and forfeiture is the consequence. It requires only one party to abandon; it requires at least two parties to work a for- feiture. If the owner of a claim quits work and leaves the country, intending never to return, leaving no agent to rep- resent his property, it would be a typical case of abandon- ment. 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 abandon- ment but no forfeiture, and no second party having acquired rights, the intent to abandon becomes a mere matter of senti- ment. National M. Co. v. Piccolo, 54 Wash. 617, 104 P. 128 ; Florence Roe Co. v. Kimbel, 85 Wash. 162, 147 P. 881; Bingham Co. v. Ute Co., 181 F. 748; Shank v. Holmes, 15 Ariz. 229, 137 P. 871; Co-operative Co. v. Law, 65 Or. 250, 132 P. 521. On the other hand the intention to .abandon becomes imma- terial 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 unpatented mining claim when a second party makes his relo- cation. Parish Fork Co. v. Bridgewater Co., 51 W. Va. 583, 59 L. R. A. 566, 42 S. E. 655, 22 M. R. 145; McKay v. Me- ABANDONMENT. Ill Dougall, 25 Mont. 258, 87 Am. St. Rep. 395, 64 P. 669 ; Phil- lip? v. Hamilton, 17 Wyo. 41, 95 P. 846. 2. Where the conduct of the party is such that abandonment is a necessary conclusion notwithstanding the want, or a party's denial, of his intention. Trevaskis v. Peard, 111 Cal. 599, 18 M. R. 353, 44 P. 246 ; N. A. Expl. Co. v. Adams, 104 F. 404, 45 C. C. A. 185, 21 M. R. 65. It requires affirmative action by the lessor to enforce a for- feiture. Kansas N. G. Co. v. Harris, 79 Kan. 167, 100 P. 72. Quitting to Lure. Such a thing as a conditional abandonment can not be recog- nized. Where the owner allows strangers to hold a claim under color of title, standing by and intending to resume work only in case its development shows pay, his action amounts to abandonment. Trevaskis v. Peard, supra. How Proved. Lapse of time, though not conclusive, is an incident tending to prove abandonment. Mallett v. Uncle Sam Co., 1 Nev. 188, 80 Am. Dec. 484, 1 M. R. 17 ; Beaver Co. v. St. Vrain Co., 6 Colo. App. 130, 40 P. 1066. Leaving tools in the mine tends to disprove it. Harkness v. Burton, 39 Iowa 101, 9 M. R. 318. Proof that a stranger had relocated ground as abandoned does not prove that it was in such condition. McGinnis v. Egbert, 8 Colo. 41, 15 M. R. 329, 5 P. 652. 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 assenting, the abandonment became complete and the new location was not to be considered as a claim initiated by trespass. Conn v. Oberto, 32 Colo. 313, 76 P. 369; Oberto v. Smith, 37 Colo. 21, 86 P. 86. 112 ABANDONMENT. Of Prospect Before Record. Where a discoverer by conduct shows an intent to quit njirl not perfect his location begun, the claim is abandoned and strangers need not await the expiration of the prospector's time before locating. Kinney v. Fleming, 6 Ariz. 263, 56 P. 723, 20 M. R. 13. In Spokane Co. v. Larson, the Court held certain alleged placer locations to have been unperfected and merely specula- tive and allowed proof of expenditures made by the defendant after the suit was begun in aid of its plea of abandonment by plaintiffs. 71 Wash. 301, 128 P. 641. Ditches and Water. Failure to use water and allowing ditch to go to decay are evidence tending to prove abandonment. Dorr v. Hammond, 1 Colo. 79, 1 P. 693 ; Sieber v. Frink, 1 Colo. 149, 2 P. 901. But non-user alone does not of itself necessarily imply abandon- ment. Welch v. Garrett, 5 Ida. 639, 51 P. 405, 19 M. R. 193 ; Integral Co. v. Altoona Co., 75 F. 379, 21 C. C. A. 409 ; N. A. Co. v. Adams, 104 F. 404, 45 C. C. A. 185, 21 M. R. 65. A ditch may be abandoned without the abandonment of the owner's water rights Nichols v. Mclntosh, 19 Colo. 22, 34 P. 278; Wood v. Etiwanda Co., 147 Cal. 228, 81 P. 512. Other Subjects of Abandonment. A leasehold interest, water, slag and tailings are things which may be lost by abandonment. Glasgow v. Chartiers Co., 152 Pa. St. 48, 25 Atl. 232, 17 M. R. 523 ; Barker v. Dale, 3 Pgh. 190, Fed. Cas. No. 988, 8 M. R. 597 ; McGoon v. Ankeny, 11 111. 558, 1 M..R. 9; Porter v. Noyes, 47 Mich. 55, 10 N. W. 77. A prospecting contract may be abandoned. Chadbourne v. Davis, 9 Colo. 581, 13 P. 721, 15 M. R. 620; McLaugUin v. TJiompson, 2 Colo. App. 135, 29 P. 816. And failure to supply his outfit to the prospector will justify abandonment by the prospector. Hurley v. Ennis, 2 Colo. 300, 12 M. R. 360. All improvements found on abandoned claims belong to the relocator. Wolf skill v. Smith, 5 Cal. App. 175, 89 P. 1001. ABANDONMENT. 113 Pleading. There has been no consistency in the rulings as to whether abandonment necessitates a special plea. California has uni- formly held that it does not. Willson v. Cleaveland, 30 Cal. 192 ; Bell v. Bed Rock Co., 1 M. R. 45, 36 Cal. 214 ; Contreras v. Merck, 131 Cal. 211, 63 P. 336; Trevaskis v. Peard, supra. But the current of authority elsewhere seems to require such plea. Hector Co. v. Valley View Co., 28 Colo. 315, 64 P. 205 ; Bishop v. Baisley, 28 Or. 119, 41 P. 936 ; Renshaw v. Sivitzer, 6 'Mont. 464, 13 P. 127 ; Cache Creek Co. v. Brahenberg, 217 F. 240, 133 C. C. A. 234. Whether pleaded or not the decisions are uniform that when relied on the party asserting it has the burden of proof. Johnson v. Young, 18 Colo. 625, 34 P. 173; Niclwls v. Mc- Intosli, 19 Colo. 22, 34 P. 278 ; Hammer v. Garfield Co., 130 U. S. 291, 32 L. Ed. 964, 9 Sup. Ct. Rep. 548, 16 M. R. 125. And it must be strictly proved. Mt. Diablo Co. v. Callison, 5 Sawy. 439, Fed. Cas. No. 9886 ; Colman v. Clements, 5 M. R. 247, 23 Cal. 245. But in Duncan v. Eagle Rock Co., 48 Colo. 569, 111 P. 588, an adverse claim suit, where a junior location overlapped a senior claim (which is a relocation to the extent of the ground covered by the overlap), the Court held that the senior lode must prove that its annual labor had been done for the year preceding the date of the location of the later claimant. In Harper v: Hill, 159 Cal. 250, 113 P. 163, the abandonment and forfeiture of a claim not mentioned in the pleadings were allowed to be proved. As to "pleading and proof in adverse claim cases, see p. 620. 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. Thomp- son, 10 Colo. 517, 16 P. 24. 114 ANNUAL LABOB. 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 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 mine upon which such failure occurred shall be open to relocation in the same manner as if no location of the same had ever been made, provided that the original locators, their heirs, assigns, or legal representatives, have not resumed work upon the claim after failure and before such location. * * * Sec. 5 A. C. May 10, 1872. Amendment of 1880, Adopting the Calendar Year. Sec. 2. That section twenty-three hundred and twenty-four of the Revised Statutes of the United States be amended by adding the follow- ing 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 seventy-two." Jan. S2, 1880. Alaska Act of 1907. That during each year and until patent has been issued therefor, at least one hundred dollars' worth of labor shall be performed or improve- ments 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 upon failure of the locator or owner of any such claim to comply with the provisions of this act, as to performance of work and improvements, such claim shall become forfeited and open to location by others as if no location of the same had ever been made. * * * 34 St. L. 1243, Comp. L. 1913, Sec. 16Z. *June 10, 1874, should read January 1, 1875. The time was first extended to June 10, 1874, 17 Stat. L. 483, and later to January 1, 1875, 18 Stat. L. 61. ANNUAL LABOR. 115 Annual Labor Was Not Required by either Legislative or Congressional law before the 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 referred to. Their provisions both as to amount required and the period in which to perform are superseded by the terms of the Congressional Act. The idea of annual or periodical labor is not new; it was a part of the Spanish system, and generally 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 such lodes was $10 for each hundred feet, but where claims were held in com- mon, 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, 3 Utah 246, 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. But few claims remain subject to this law. During the lapse of time, now more than forty years, they linve 1 < ; n 116 ANNUAL LABOR. either abandoned or passed on to patent, or have been relo- cated. When so relocated they are 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 never 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 the date of location, and this date was hard to fix with exactness. It might have been any date, intermediate between discovery and record. 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 locations, it does not seem that a party, by expending any portion of the full amount, can save any fractional portion of his lode. But if a party own a segre- gated 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 party. 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 tenants in common, but to include all the owners, either in common or after they have ANNUAL LABOR. 117 segregated their interests; 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 per- formed 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 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 true 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., 14 N. M. 96, 89 P. 275. Pending Application for Patent, until Entry, the Work Must be kept up. South End Co. v. Tinney, 22 Nev. 1, 35 P. 89. Where an applicant after publication delays entry and neglects his annual labor the ground is open to relocation. Gillis v. Downey, 85 F. 483, 29 C. C. A. 286, 19 M. R. 253. The relocator's title in such case being necessarily too late to be protected by adverse claim, it may be asserted by suit. Poor e v. Kaufman, 44 Mont. 248, 119 P. 785. 118 ANNUAL LABOB. 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." Alia Co. v. Benson Co., 2 Ariz. 362, 16 P. 565 ; Aurora Hill Co. v. 85 Co., 34 F. 515, 12 Sawy. 355, 15 M. E. 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, 21 M. R. 664; Benson Co. v. Alta Co., 145 U. S. 428, 36 L. Ed. 762, 12 Sup. Ct. Rep. 877, 17 M. R. 488; Southern Cross Co. v. Sexton, 147 Cal. 758, 82 P. 423. While the entry stands on the Land Office books, the land is withdrawn from the Public Domain even if cause for can- cellation exists and cancellation later is allowed. Such is the clear ruling in Batterton v. Douglas M. Co., 20 Ida. 760, 38 L. R. A. (N. S.) 1121, 120 P. 827. On the facts of the case, an entry having been made, the annual labor then neglected, followed by a relocation by a new party, such relocation was held void, although the entry was later set aside for short posting. It cites Murray v. Polglase, 23 Mont. 401, 59 P. 440, 20 M. R. 296, where the receiver's receipt having been set aside for fraud, such a relocation was held valid. It says there may be a distinction between the cases on such ground of fraud, but attacks the principle on which the Murray case was decided. In line with the Murray case are : Shanks v. Holmes, 15 Ariz. 246, 137 P. 871; Swigart v. Walker, 49 Kan, 100, 30 P. 162. But it would seem that the case of Brown v. Gurney, 201 U. S. 184, 50 L. Ed. 717, 26 Sup. Ct. Rep. 509, makes good the rule quoted from the Batterton case and overrules the other decisions above cited, the conclusion being that a relo- cation can not be made while the entry stands or until the ANNUAL LABOR. 119 old locator does some act which amounts to abandonment of his title from which act a cancellation of his entry neces- sarily follows. 3 Lindley, 3d ed., sec. 772. Time During Which Labor Must Be Completed. On all lodes located before or since May 10, 1872, the year for doing the labor is each year of our Lord, beginning Janu- ary 1st and ending December 31st. The Location Year. Since the Act of 1880 no annual labor is required during the year in which the location is made. Hall v. Hale, 8 Colo. 351, 8 P. 580; McGinnis v. Egbert, 15 M. E. 329, 8 Colo. 41, 5 P. 652. Its language is that the period "shall commence on the first day of January succeeding the date of location." But a district rule or Statute may impose conditions which imply expenditure during the location year. North-more v. Simmons, 97 F. 387, 38 C. C. A. 211, 20 M. R. 128. The annual labor period does not begin until discovery and location are completed. Borgwardt v. McKittrick Oil Co., 164 Gal. 650, 130 P. 417. The Date of Location. If a discovery be made in the latter part of the year but the staking and record are not completed until some time in the early part of the following year, the latter year would be, in our opinion, the location year, and there could be no 'for- feiture 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, 25 Mont. 258, 87 Am. St. Rep. 395, 64 P. 669; Hickey v. Anaconda Co., 33 Mont. 46, 81 P. 806, 811. But the word "location" is used with extreme looseness in many statutes. In Nevada the discoverer is required to post 120 ANNUAL LABOR. a notice "at the time and point of discovery" which must contain the date of location so that practically the date of discovery is made the date of location. The Statutes of Idaho, Utah, Oregon and "Washington seem to fix the date of posting or at least the date of some early act in the process of location as the date of location. In New Mexico the case of Deeny v. Mineral Creek Co., 11 N. M. 279, 291, 67 P. 724, 22 M. E. 47, construes the local Statute to the same effect. In Arizona by Stats. Sees. 3232, 3234, the date of posting the discovery monument seems to be made the date of location and the sinking of the shaft and setting the boundaries are only declaratory of the fact of location. The Montana Statute in terms says that the date of location ''shall be the date of posting such notice." In the absence of any such Statute the date of the last act to be done on the ground seems obviously to be the date of location. It can not include the date of record because the record under the Act of Congress must give the date of location, which, to be so given, must necessarily be precedent to the paper reciting it, except of course that the record might be made on the same date that the last act was per- formed on the ground. 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 improvements. Belk v. Mcagher, 3 Mont. 65, 1 M. R. 522; Atkins v. Hendree, 1 Ida. 107, 2 M. R. 328; Mills v. Fletcher, 100 Cal. 142, 34 P. 637, l'? M. R. 671. 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 dispo- sition to take advantage of this fact leads to delays which ANNUAL LABOR. 121 often ultimate in allowing the whole time to pass by and the claim to become liable to relocation. Who May Perform. 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, 3 Cal. App. 22, 84 P. 223. By Statute in New Mexico any lien holder may do the work to protect his incumbrance. McVeigh v. Veig, 16 N. M. 453, 117 P. 857. And we have no doubt that such work wmild avail without the aid of any Statute. A stockholder may per- form the annual labor. Musser v. Fitting, 26 Cal. App. 746, 148 P. 536. What Counts for Improvements. Any work done for the purpose of discovering minerals is improvements within the spirit of the statute. U. 8. v. Iron- Silver Co., 24 F. 568. Road building counted as annual labor. Doherty v. Morris, 17 Colo. 105, 28 P. 85 ; Mt. Diablo Co. v. Callison, 5 Sawy. 439, 9 M. R. 616, Fed. Cas. No. 9886; Sexton v. Washington Co., 55 Wash. 380, 104 P. 614. Flumes, drains or the turning of a stream or the sinking of a common shaft will count. St. Louis Co. v. Kemp, 104 U. S. 636, 26 L. Ed. 875, 11 M. R. 692. The value of rails laid, pow r der, fuse, candles, the value of meals furnished and the reasonable compensation for use of tools are to be considered. Fredricks v. Klauser, 52 Ore. 110, 96 P. 679. Work done for railroad company in association with mining company held for benefit of located claims. Florence-Rae Co. v. Kimbel, 85 Wash. 162, 147 P. 881. In estimating the value of work done by hydraulic pipe the value of the use of the entire system is to be considered. Anderson v. Robinson, 63 Ore. 228, 126 P. 988, 127 P. 546. 122 ANNUAL LABOR. Watchman. Where a mine is idle, the time and labor of a watchman or custodian may be treated as annual labor. Lockhart v. Rol- lins, 2 Ida. 540, 21 P. 4l3, 16 M. R. 16 ; Altoona Co. v. Integral Co., 114 Cal. 100, 45 P. 1047 ; Tripp v. Dunphy, 28 L. D. 14. Pay of watchman allowed where there is portable property needing protection. Kinsley v. New Vulture Co., 11 Ariz. 66, 90 P. 438. Otherwise where there is no such property. Gear v. Ford, 4 Cal. App. 556, 88 P. 600; Fredricks v. Klauser, supra. The wages of a watchman may be counted when needed while mine temporarily idle, but the salary of a superintendent as a mere keeper can not be allowed to go on indefinitely as a substitute for annual labor. Merchants Bank v. McKeown, 60 Or. 325, 119 P. 334. 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. Baudit, 6 Mont. 138, 9 P. 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, 11 Mont. 91, 27 P. 397, 17 M. R. 404. Material taken to a claim but not used does not count, nor the price paid for working animals, nor the cost of tools and boarding outfit. Fredricks v. Klauser, supra. Cutting firewood and pasturing do not count. Richen v. Davis, 76 Or. 311, 148 P. 1130. Wages of cook and wood- chopper disallowed. Merchants Bank v. McKeown, 60 Or. 325, 119 P. 334. Dumping tailings on a claim is no improvement. Jackson v. Roby, 109 U. S. 440, 27 L. Ed. 990, 3 Sup. Ct. Rep. 301. Traveling and expenses in getting ready to go to work can not be considered. McGarrity v. Byington, 12 Cal. 426, 2 M. R. ANNUAL LABOR. 123 311; DuPrat v. James, 65 Cal. 555, 4 P. 562, 15 M. R. 341. Nor work done by third parties and bought in. Little Gun- nell Co. v. Kwiber, Fed. Gas. No. 8402, 1 M. R. 536. But see post, p. 594. Taking specimens for assays will not count for annual labor nor as a legitimate resumption of work. Bishop v. Baisley, 28 Or. 119, 41 P. 936. The cost of sharpening tools may or may not be a legitimate item, according to circumstances. Hirschler v. McKendricks, 16 Mont. 211, 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. 447 ; Kramer v. Settle, 1 Ida. 485, 9 M. R. 561 ; Mt. Diablo Co. v. Callison, 5 Sawy. 439, Fed. Gas. No. 9886, 9 M. R. 616; Klopenstine v. Hays, 20 Utah 45, 57 P. 712; 17 L. D. 190. Whether the work done on one is really for the benefit of the group is for the jury to say. Wilson v. Triumph Co., 19 Utah 66, 75 Am. St. Rep. 718, 56 Pi 300; Treka Co. v. Knight, 133 Cal. 544, 65 P. 1092, 21 M. R. 478. Where sundry claims are worked together as one group, the development work though confined to a single claim, may count for all. Chambers v. Harrington, 111 U. S. 350, 28 L. Ed. 452, 4 Sup. Ct. Rep. 428 ; Jupiter Co. v. Bodie Co., 11 F. 666, 4 M. R. 413, 7 Sawy. 96 ; St. Louis Co. v. Kemp, 104 U. S. 636, 26 L. Ed. 875, 11 M. R. 692; DeNoon v. Morri- son, 83 Cal. 163, 23 P. 374, 16 M. R. 33, 23 L. D. 267. Contiguous Claims. There are several 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 ; Eoyston v. Miller, 76 F. 50, 18 M. R. 418 ; Fredricks v. Klauser, supra. But Altoona Co. v. Integral Co., 18 M. R. 410, 114 Cal. 100, 45 P. 1047, is to the contrary and there is nothing in the wording of the Congressional Act which compels them to be 124 ANNUAL LABOE. contiguous except in the case of oil placers. In Chambers v. Harrington, supra, the opinion assumes that they must be con- tiguous. In Morgan- v. Myers, 159 Gal. 187, 113 P. 153, the claims were apparently not contiguous and further were separated by a ravine so that work on one could not benefit the other. The court held that work on one could not be counted for both. Claims which merely corner on each other are not contiguous. Anvil Co. v. Code, 182 F. 205, 105 C. C. A. 45. Burden of Proof Shifts. The work may be done on an adjoining patented claim but when done on any kind of claim 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, 33 P. 373, 17 M. R. 594; Sherlock v. Leighton, 9 Wyo. 297, 63 P. 580, 934 ; Copper Mt. Co. v. Butte Co., 39 Mont. 487, 133 Am. St. Rep. 595, 104 P. 540; Fredricks v. Klauser, 52 Or. 110, 96 P. 679; Merchants Bank v. Mc- Keown, 60 Or. 325, 119 P. 334. 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 stoping, or any work what- ever 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. Wailes v. Dames, 158 F. 667, 164 F. 397, 90 C. C. A. 385. A cross-cut started on the claim, above the vein, intended to benefit itself and 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. ANNUAL LABOR. 125 Assessment work outside the claim must be of value to the claim intended to be protected. Little Dorrit Co. v. Arapa- hoe Co., 30 Colo. 431, 71 P. 389. The Court should not substitute its judgment for that of the mine owner as to the expediency of the plan of work unless it could have no reasonable adaptation to the end in view, but on the facts of the case it was held that the work was too far away to count as any possible improvement on the claims in question. Copper Mt. Co. v. Butte Co., 39 Mont. 487, 133 Am. St. Rep. 595, 104 P. 540. On the other hand, work on one of seven or eight claims was allowed to count for all when the possibility of benefit to the other claims was extremely remote. Nevada Co. v. Spriggs, 41 Utah 171, 124 P. 770; STRAUP, J., dissented. Un watering the Mine. The case of Evalina Co. v. Tosemite Co., 15 Cal. App. 714, 115 P. 946, presents a peculiar state of facts. The work 'done by the parties alleged to be in default "was done for the sole purpose of unwatering the mine so that it could be examined by a prospective purchaser. They testified that it was not done as assessment work nor was it intended to be so considered." The Court said that it was not such work "as is contem- plated by the United States Statute." Were it not for the voluntary waiver contained in the above quotation we would consider the ruling debatable and even then it seems analogous to the case of Crary v. Dye, 208 U. S. 515, 52 L. Ed. 595, 28 Sup. Ct. Rep. 360, where a man was held not bound by an admission that he had no title when he was under a misapprehension of the law and his title in fact was good. The unwatering of a mine is as much work as drilling or blasting and the fact that it was done to put the mine in shape to show to a buyer would not lessen the cost nor diminish the labor. 126 ANNUAL LABOR. And yet there is much to be said on the other side. It is not so much work on the mine as it is work to get ready to work on the mine (which is not computed as part of the annual labor) and extreme cases can be imagined where a man might unwater his mine from year to year without any added development whatever. 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, 17 M. R. 617. 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, 8 N. M. 169, 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 tunnel should not avail to protect each claim provided the full $100 is expended for each claim. Fissure Co. v. Old Susan Co., 22 Utah 438, 63 P. 587. A blacksmith shop used for the benefit of the claim in con- troversy, and for other claims, can not be counted for annual labor with no proof of how much of its value could be appor- tioned to the claim in controversy. Upton v. Santa Rita Co., 14 N. M. 96, 89 P. 276. The questions of group work and outside work are fully considered by the Supreme Court of South Dakota in Haw- good v. Emery, 22 S. D. 573, 133 Am. St. Rep. 941, 119 N. W. 177. The case in particular holds that work done on a claim owned by one party alone can not avail for work on a neighboring claim in which he has an undivided interest although such work might benefit such claim. The opinion seems to intimate that such work might count for the claims held in common if there had been an agreement to such effect. ANNUAL LABOR BY TUNNEL. See p. 319. ANNUAL LABOB. 127 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 estimating the amount of work done, they amount to absolutely nothing. The "fiat" does not alter the "fact." The true measure is the real expenditure. Wright v. Killian, 132 Cal. 56, 64 P. 98, 21 M. R. 211; Penn v. Oldliauber, 24 Mont. 287, 61 P. 649; Woody v. Barnard, 69 Ark. 579, 65 S. W. 100 ; Ware v. White, 82 Ark. 220, 108 S. W. 831. And if the work has been done, or the materials furnished by the owner himself, the measure of value is what it would have cost to procure the same labor and materials from a second party in other words, the market value of the labor and materials. Quimby v. Boyd, 8 Colo. 194, 342, 6 P. 462, 7 P. 288. And its enhancing the value of the claim is no test. Mattingly v. Lewisohn, 13 Mont. 508, 35 P. Ill, 17 M. R. 693. The test is what the work was worth, rather than what was paid for it, but what was paid for it goes to prove its value. Stolp v. Treasury M. Co., 38 Wash. 619, 80 P. 817; McCor- mick v. Parriott, 33 Colo. 382, 80 P. 1044. A party can not put an arbitrary price on his own labor. McKay v. Neussler, 148 F. 86, 78 C. C. A. 154. The Fact that the Work has Not Yet Been Paid For Does Not invalidate its sufficiency to count as annual labor. Lock- hart v. Rollins, 2 Ida. 540, 21 P. 413, 16 M. R. 16 ; Coleman v. Curtis, 12 Mont. 301, 30 P. 266. Full payment for the work will not save the claim where the party hired to do it makes only a pretense of performance. Protective M. Co. v. Forest City Co., 51 Wash. 643, 99 P. 1033. Rightful Owner Out of Possession. Where possession is wrongfully taken and withheld, the rightful owner is excused from the necessity of doing the work. Utah Co. v. Dickert Co., 6 Utah 183, 5 L. R. A. 25-9, 128 ANNUAL LABOR. 21 P. 1002 ; Slavonian Co. v. Perasich, 1 F. 331, 7 Sawy. 217, 1 M. R. 541 ; Mitts v. Fletcher, 100 Cal. 142, 34 P. 637, 17 M. R. 671; Trevaskis v. Peard, 111 Cal. 599, 44 P. 246, 18 M. R. 353 ; Field v. Tanner, 32 Colo. 278, 75 P. 916. A relocator can not take advantage of the fact that the work was not done when prevented by his own act. Garvey v. Elder, 21 S. D. 77, 130 Am. St. Rep. 704, 109 N. W. 508. Performance of Annual Labor After the Year Has Expired Two Parties Essential to Forfeiture. The neglect to do the annual labor required by the United 'States government by no means works a forfeiture of the claim. Lakin v. Sierra Suites Co., 25 F. 343, 11 Sawy. 231 ; Lacey v. Woodward, 5 N. M. 583, 25 P. 785. To illustrate : If a lode was located in 1890 and after that year no annual work was done until 1896 (when a period of five full years would have intervened), and in 1896 the owner enters and performs $100 worth of work for that year, he continues to be the owner of the claim, and his title relates back to the original location of 1890; provided always, that the lode has not been relocated in the meantime. Crown Point M. Co. v. Crismon, 39 Or. 364, 21 M. R. 406, 65 P. 87 ; Peachy v. Gaddis, 14 Ariz. 214, 127 P. 739. It requires two parties to make a forfeiture absolute : First, the party who abandons, and, second, the party who relocates. The second party therefore must take advantage of the first party's default before such default can enure to the second party's benefit. Little Gunnell Co. v. Kimber, Fed. Gas. No. 8402, 1 M. R. 536 ; Seals v. Cone, 27 Colo. 473, 83 Am. St. Rep. 92, 20 M. R. 591, 62 P. 948; Madison v. Octave Oil Co., 154 Cal. 768, 99 P. 176. The fact that failure to do the work does not ipso facto work a forfeiture and the fact that advantage of the default must be taken by some adverse party are important in several classes of cases: ANNUAL LABOR. 129 First Where the work done before the neglect is necessary to complete the $500 worth of improvements required before patenting. Second Where in a suit of ejectment between two claims it is necessary to prove priority and carry the title back to the original location. Third Where a party has neglected to do his annual work and a third party has entered for purpose of relocation. Fourth The fact that neglect to do one or more years' labor does not, ipso facto, operate as a forfeiture is of special importance in the case of overlapping claims, where the junior claim has been worked and the senior claim has not been worked. 1. Where the Work Done Before the Neglect Is Necessary to Complete the $500 Worth of Improvements Required Before Patenting. If failure to do one year's work operates, ipso facto, to defeat the location, in such case the title would have to date from the date of resumption; in fact, a new location would have to be made by the owner. But the failure not having been taken advantage of in due time, the old title remains, dates from original discovery, and consequently old work and new count together as improvements on the claim for purpose of patenting. 2. Where It Is Essential to Carry the Title Back to Dis- covery. The remarks of the foregoing paragraph apply also to this heading. The doctrine of relation carries a title back to the first step in its inception, always excepting where an adverse right has intervened. As the failure of itself works no forfeiture, the continuity in this case is not broken. A loca- tion, however, made over a claim where the work has not been done (before bona fide resumption by the owner) would break this continuity and would take the conflict, whether it pur- 130 ANNUAL LABOR. ported to be a relocation of the defaulting claim or only inci- dentally took some of its ground. It has been held that where work was not done and the ground located by a third party who later failed to keep up his work and the original owner returns and resumes work, the original title remains valid, notwithstanding the inter- vening location. Justice M. Co. v. Barclay, 82 F. 554, 19 M. R. 68; Klopenstine v. Hays, 20 Utah 45, 57 P. 712. See 2 Lindley, 3d Ed., Sec. 651. 3. Where a Third Party Has Begun to Relocate Resump- tion by Owner. The words of the Act relative to this class of cases are as follows : Provided that the original locators, their heirs, assigns, or legal repre- sentatives, have not resumed work upon the claim after failure and before such location. If the location of the third party is complete before 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 before 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 sufficient to defeat the intervening claim- ant? The Act says that the owner may resume work at any time "before such location." The location of the intervenor 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. Muldoon, 75 Cal. 284, 15 M. R. 348, 17 P. 70. 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 ANNUAL LABOR. 131 the usual hour for honest labor on the morning of the first. The relocator had barely a technical case, if any. In an- other instance, on facts much stronger for the second party (Gonu v. Russell, 3 Mont. 358, 12 M. R. 630), it was dis- tinctly held that the re-entry of the original owner before the newcomer's location was completed would save the for- feiture. The same court reaffirms this ruling in McKay v. McDougall, 25 Mont. 258, 87 Am. St. Rep. 395, 64 P. 669. On the contrary, HALLETT, J., in the case of Little Gunnell Co. v. Kimber, Fed. Gas. No. 8402, 1 M. R. 536, held that the party attempting to take up abandoned property has the same period of three months to complete his location, which is allowed by law to a discoverer ; and Pelican Co. v. Snodgrass, 9 Colo. 339, 12 P. 206, is to the same effect. We have little doubt of the correctness of the latter opinion. "The condition of development should be attached to every mine ; and courts should, as far as consistent with legal prin- ciples, maintain the construction of mining customs which accomplish this end." King v. Edwards, 1 Mont. 235, 4 M. R. 480 ; Russell v. Brosseau, 65 Cal. 605, 4 P. 643. In Belcher Co. v. Deferrari, 62 Cal. 160, plaintiff, the original owner, did only .one-half the required amount in 1880. In January, 1881, he did $24 worth of work on two claims. Defendant relocated in August, 1881. Held: That the plain- tiff had resumed work and was entitled to recover. Such a decision is only trifling with the law and the rights of parties based on the law. On a case of like facts the contrary has since been held by the same court. McCormick v. Baldunn, 104 Cal. 227, 37 P. 903. In the well considered opinion in Honaker v. Martin, 11 Mont. 91, 27 P. 397, 17 M. R. 434, the cases on this subject are reviewed by BLAKE, C. J., and it was decided that where a resumption takes place it must be substantial, and result in the prompt performance of at least the full amount which should have been done the previous year. It does not decide in terms as in the Pelican case and Gunnell case, that the 132 ANNUAL LABOR. resumption is too late when the first act of relocation has been initiated, but it bears out the argument to the same result. The owners of the Nellie were on the ground December 31, and resumed work on January 1. The same day the Equate was located over the Nellie. The Court held that such loca- tion could not be initiated while the ground still remained unforfeited, the owners having resumed the work, though they afterwards failed to complete the full assessment. Jordan v. Duke, 6 Ariz. 55, 53 P. 197. Labor when resumed must be prosecuted with reasonable diligence till the $100 is complete. Hirschler v. McKendricks, 16 Mont. 211, 40 P. 290. Where a claimant is at work on the last day of the year intending to -continue work on the next day, a party who attempts to relocate before the usual hour to start work is a trespasser. Willitt v. Baker, 133 F. 937. Where a party is at work on January 1 and continues at work, it makes no difference that the work for the elapsed year was not done. The resumption saves the claim. Ander- son v. Robinson, 63 Or. 228, 126 P. 988, 127 P. 546. Where resumption of work is relied on the burden of proof is on the original owner to show that it preceded the relocation. McKnight v. El Paso Co., 16 N. M. 721, A. C. 1912D, 1309, 120 P. 695. No Resumption in Alaska. Under the Special Act concerning annual labor in Alaska, p. 114, the work must be done during the year and resump- tion will not save the claim. Tlwtcher v. Brown, 190 F. 708, 111 C. C. A. 436. 4. Work Neglected on Senior Claim Overlapped by Junior Claim. Where a local statute provides for filing relocation cer- tificate to take in the overlap of the senior claim, which has e ANNUAL LABOR. 133 become abandoned, we have no doubt that such filing is necessary to give it to the junior claimant. Moorhead v. Erie M. Co., 43 Colo. 408, 96 P. 253. Even without such statute it was generally conceded that the failure did not ipso facto give it to the junior claimant. 2 Lindley 3d Ed., Sec. 363; 1 Snyder, Sec. 574. It was so expressly decided in Os- camp v. Crystal R. Co., 58 F. 293, 7 C. C. A. 233, 17 M. R. 651. In numberless instances the two claimants, being on friendly relations, the junior claimant has no desire to take advantage of the failure of the senior claimant to do his work for a single year. Does the law then give it to him against his will? The only authority we know of supporting such proposition is an isolated dictum in McPherson v. Julius, 17 S. D. 98, 95 N. W. 235. Three Successive Locations. There are three cases in the Federal Supreme Court, Lavag- nino v. Uhlig, 198 U. S. 443, 49 L. Ed. 1119, 25 Sup. Ct. Rep. 716 ; Brown v. Gurney, 201 U. S. 184, 50 L. Ed. 717, 26 Sup. Ct. Rep. 509 ; Farrell v. Lockhart, 210 U. S. 142, 16 L. R. A. (N. S.) 162, 52 L. Ed. 994, 28 Sup. Ct. Rep. 681, in each of which there was a first, second and third location of sub- stantially the same ground, the second being made while the first was a valid subsisting claim, but which later was aban- doned or became forfeited. The question then arises : Did the second claim, initiated by trespass upon the rights of the first, become valid upon the legal decease of the first ? Or, did the third, which was not begun until the lapse of all title in the first claim, become the better title? In the Brown case the south 700 feet of the Kohnyo lode, by certain proceedings in the Land Office, became vacant ground on June 14, 1898. The Scorpion had been located over the same area in May, while the Kohnyo was still a valid claim. The Hobson's Choice was not located until after June 14. The Court held that the Scorpion location was void, that the loss of the Kohnyo title did not enure to benefit the Scorpion, and 134 ANNUAL LABOR. that the Hobson's Choice, the first location after the ground had reverted to the public domain, was the winning title. In the Farrell case the South Mountain lode was located in 1900, the Cliff lode in 1901, while the S. M. lode was not in default as to annual labor. The Divide lode was located in 1903 after the S. M. lode had failed to do any work for 1901 or 1902. The opinion cites the Lavagnino case and says it should be qualified so as to allow the third location to attack the second location on the ground that it was a trespass on the first location. In the Lavagnino case the Levi P. lode was the first located. While it was a valid subsisting claim the Uhlig lode was located over it. The Uhlig was therefore at the date of its location not a valid claim. After the year for annual labor had expired, and no labor performed, the Yes You Do lode was located over the same ground. The Uhlig lode applied for patent and the Levi P. lode adversed. The Yes You Do lode filed no adverse. The Court held that the conceded rule that upon abandonment the ground became public domain did not apply where an application for patent had been made and the abandoned lode did not adverse. The Brown and Farrell cases are consistent with each other and with the basic case of Belk v. Meagher which started the proposition that no valid claim could be initiated within the lines of a prior subsisting claim, but the Lavagnino case dis- carded that rule. The Lavagnino case was fully analyzed in Nash v. Mc- Namara, 30 Nev. 114, 133 Am. St. Rep. 694, 16 L. R. A. 1 (N. S.) 168, 93 P. 405, and was cited cautiously in Montagne v. Labay, 2 Alaska 575. But it is now a matter of legal retro- ' spect and was set at rest by Swanson v. Sears, 224 U. S. 180, 56 L. Ed. 721, 32 Sup. Ct. Rep. 455; Lindley, 3d Ed., Sec. 645A. In this Swanson case the Emma was located in 1881. While it remained a valid location the Independence was located on a discovery on Emma ground. The Emma failed to do its ANNUAL LABOR. 135 work for 1903 and was relocated by its owner in 1904. The Court held that the Independence, being originally void, was not validated by any default or failure of title on the Emma. It affirms the case below as reported in 17 Ida. 321, 105 P. 1059, under the style of Swanson v. Kettler. A location within the lines of a senior claim is void, and subsequent abandonment of the senior claim does not make the junior valid. Street v. Delta Co., 42 Mont. 371, 112 P. 702 ; Moorhead v. Erie Co., 43 Colo. 408, 96 P. 253. Failure to perform for one year with relocation by stranger who defaulted does not destroy the old title. Richen v. Davis, 76 Or. 311, 148 P. 1130. Although the burden of proof is usually upon a party alleging forfeiture, yet, when it is alleged that a certain loca- tion is void because made upon a prior valid claim, the burden is upon the party making such allegation to prove that such prior claim was not forfeited. Willison v. Eingivood, 190 F. 550, 111 C. C. A. 401, following Farrell v. Lockwood, supra. The Relocator No Trespasser. When the year has expired and the work has not been done a third party has the right to enter within its boundaries and relocate the claim, although the original owner be still (constructively) in possession. DuPrat v. James, 65 Cal. 555, 15 M. R. 341, 4 P. 562; Brown v. Oregon King Co., 21 M. R. 485, 110 F. 728. A Relocation Begun Before the Year Expires Is Void. Belk v. Meagher, 3 Mont. 65, 1 M. R. 522. An entry on ground not in default can not be made with intent to make a provisional location, to be asserted if the original locator fails to do the annual labor. Eooney v. Barnette, 200 F. 700, 119 C. C. A. 116. 136 ANNUAL LABOB. Equity of the Annual Labor Law. The opposition to the requirement of annual labor so evi- dent when it was first imposed has long since yielded to a concession of its equity even in the case of claims located before its passage. The holder has no just right to prevent the government disposing of such claims as he is unwilling or unable to work, to such as are ready to assume the risk and develop the deposit, the estate of the holder hot being absolute, but by implied contract and general mining custom conditioned upon develop- ment, of which development the government has merely fixed the amount by the Act of 1872, and that at a reasonable limit. Development is the condition upon which the government allows the miner to hold his possessory title and afterwards perfect it by patent. Erhardt v. Boaro, 113 U. S. 527, 28 L. Ed. 1113, 5 Sup. Ct. Rep. 560, 15 M. R. 472; O'Reilly v. Campbell, 116 U. S. 418, 29 L. Ed. 669, 6 Sup. Ct. Rep. 421 ; Kramer v. Settle, 1 Ida. 485, 9 M. R. 561. Nevertheless, the Act is to be strictly construed against forfeiture. Emerson v. McWhirter, 133 Cal. 510, 65 P. 1036, 21 M. R. 470. It is no objection to testimony to disprove annual labor that it is negative in character; it is necessarily so. The evi- dence reviewed and held to outweigh the positive testimony that it was done. First Nat. M. Co. v. Altvater, 149 F. 393, 79 C. C. A. 213. Evidence reviewed and held proof of labor performed. Smith v. Mt. Gulch Co., 12 Ida. 219, 85 P. 918. Neglect to do the work forfeits the claim, although the locator remains in possession. Goldberg v. Bruschi, 146 Cal. 708, 81 P. 23. As to the Plea of Forfeiture for Failure to Perform, see Page 113. In adverse claim suits, page 620. The Burden of Proof Is Upon the Party Asserting That the work was not done. Quigley v. Gillett, 101 Cal. 462, 35 P. 1040, 18 M. R. 68 ; Hall v. Kearny, 18 Colo. 505, 17 M. R. 594, ANNUAL LABOR. 137 33 P. 373 ; Earns v. Kellogg, 117 Cal. 484, 49 P. 708 ; Axiom Co. v. White, 10 S. D. 198, 72 N. W. 462 ; Seals v. Cone, 27 Colo. 473, 83 Am. St. Rep. 92, 20 M. E. 591, 62 P. 948; Lancaster v. Coale, 27 Colo. App. 495, 150 P. 821. And the proof should be clear and convincing. Strasburger v. Beecher, 20 Mont. 143, 49 P. 740; Dibble v. Castle Chief Co., 9 S. D. 618, 70 N. W. 1055 ; Crown Point Co. v. Crismon, 39 Or. 364, 21 M. R. 406, 65 P. 87; Upton v. Santa Rita Co., 14 N. M. 96, 89 P. 275 ; Gear v. Ford, 4 Cal. App. 556, 88 P. 600. As to burden of proof when the work was done outside the claim, see p. 124. The question whether the work was done is for the jury and the Court can not take it from them when there was evidence to prove it. Knickerbocker v. Holla, 162 F. 318, 98 C. C. A. 298. On Rebuttal the Other Side May Show That the Work Done off the claim did not benefit the claim. But the work done need not be that which would be most beneficial to the claim. Sherlock v. Leighton, 9 Wyo. 297, 63 P. 580, 934. Proof that the labor in question had been applied as im- provements on application for patent on another claim is admissible. White River Co. v. Langston, 76 Ark. 420, 88 S. W. 971. Proof of Annual Labor. E. S. Colo. Sec. 4209. 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 out- lay was made, or some person for him, may make and record in the office of the recorder of the county wherein such claim is situate, an affi- davit in substance as follows: * * * The continuation of the section contains a form, same as on page 139, and makes the affidavit, or a certified copy, prima facie evidence of the performance. The object of this section is to provide a convenient method of preserving proof of the 138 ANNUAL LABOR. labor performed by making the affidavit prima facie evidence of the fact. Cowman v. Curtis, 12 Mont. 301, 30 P. 266. Like acts exist in most of the other States, 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 affidavit is only prima facie evidence and may be con- tradicted. Dickens Co. v. Crescent Co., 26 Ida. 153, 141 P. 566. For proof of annual labor in Alaska, see p. 636. 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. McGinnis v. Egbert, 8 Colo. 41, 15 M. R. 329, 5 P. 652 ; Book v. Justice Co., 58 F. 118, 17 M. E. 617 ; Murray Hill Co. v. Havenor, 24 Utah 73, 21 M. R. 668, 66 P. 762. But the pre- caution to file should by no means be neglected. 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. Harm v. Kellogg, 117 Cal. 484, 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 professional 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 existence of facts which do not appear of record. This evil should be obviated as far as possible by precautions, such as are above suggested ; but, after all, the result remains, that no claim can be considered secure until a patent is obtained and the title taken out of the class of conditional estates. ANNUAL LABOR. 139 FORM OF AFFIDAVIT OF LABOR PERFORMED. STATE OF COLORADO, } Summit County. J Before me, the subscriber, personally appeared, Thomas A. "Brown, who being duly sworn, saith that at least one hundred dollars' worth of work or improvements were performed or made upon the Chaos Lode, situate on Silver mountain, in Avalanche Mining District, County of Summit, State of Colorado, between the first day of January, A. D. 1915, and the thirty-first day of December, A. D. 1915. Such expenditure was made by or at the expense of Robert W. Foote, owner (or one of the owners) of said claim, for the purpose of complying with the law and holding said claim. (Jurat.) THOMAS A. BROWN. A single affidavit may be filed for the labor on several claims. McGinnis v. Egbert, 8 Colo. 41, 15 M. E. 329, 5 P. 652. And it may be filed before the year elapses. Id. But not after the time limited by the Statute. McKnigM v. El Paso Co., 16 N. M. 721, Ann. Gas. 1912D, 1309, 120 P. 695. Certificate in Lieu of Annual Labor. In 1893 and 1894 Congress passed Acts suspending 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. There can be no forfeiture for failure of co-tenant to con- tribute 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, 76 F. 50, 18 M. E. 418. 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. 673, 20 M. E. 283. It is not contempt of a mining injunction to perform the amount of labor necessary to save the claim from forfeiture. Silver Peak Mines v. Hanchett, 20 M. E. 19, 93 F. 76. 140 ANNUAL LABOR ON PLACERS. Duty of trustee to do annual labor. If he refuses bene- ficiary may perform. Anderson v. Robinson, 63 Or. 228, 126 P. 988, 127 P. 546. Where the lessor enjoined the lessee from working, it excused him from his covenant to do the annual labor. Holla v. Rogers, 187 F. 778, 109 C. C. A. 626. 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. 630, 34 P. 173. Breach of Contract to Perform. In Stamey v. Hemple defendant had agreed to do the annual labor, which he failed to do and, as the complaint alleged, the claims were relocated on the first of January. The Court held that the defendant was liable in any event for the $100 on each claim and intimated that he would be liable for the full value of the claims unless he was able* to show that the plaintiff might have saved his title by reasonable exertions. 173 F. 61, 97 \1 C. A. 379. ANNUAL LABOR ON PLACERS. Judicial Rulings As to Labor on Placers. The question of annual labor on placers is a curious 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 applied 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 Cliapman v. Toy Long, 4 Sawy. 28, 1 M. R. 497, Fed. Cas. No. 2610, placers were referred to incidentally as subject to the labor law. In Jackson v. Roby, 109 U. S. 440, 27 L. Ed. 990, 3 Sup. Ct. Rep. 301, without argument, the same dictum was expressed. Later, ANNUAL LABOK ON PLACEUS. 141 in Carney v. Arizona Co., 65 Cal. 40, 2 P. 734, 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 Sec. 2329 a sec- tion enacted two years prior to the annual labor section sustain the affirmative of the proposition. In Sweet v. Web- ber, 1 Colo. 443, 4 P. 752, the precedents thus established were followed without reference to the original statute. Morgan v. Tillotson, 73 Cal. 520, 15 P. 88. A single record of a placer claim, whether of 20 acres by one person or 160 acres by eight persons, is one 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 expenditure as a 160-acre claim. One hundred dollars' labor on each 20 acres of an association placer is not required. Rooncy v. Barnett, 200 F. 700. Work done outside the claim to avail as annual labor must be shown to be of benefit to the placer the same as in the case of lode claims. Anvil Co. v. Code, 182 F. 205, 105 C. C. A. 45. The Forms of Affidavit, Notice and Proof of Forfeiture 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 placers, altering the period during which it was to be performed, and providing for for- feiture of the delinquent co-owner's interest. It was declared in conflict with the Congressional Act in attempting to lessen the annual expenditure in Sweet v. Webber, 7 Colo. 443, 4 P. 752. It was obviously so in its attempt to interfere with the beginning and end of the annual period. All such statutory provisions are superfluous where they agree with the Act of Congress and nugatory where they conflict with it. 142 FORFEITURE TO CO-OWNER. Special A. C. as to Group Oil Claims. That where oil lands are located under the provisions of title thirty- two, Chapter six, Revised Statutes of the United States, as placer raining claims, the annual assessment labor upon such claims may be done upon any one of a group of claims lying contiguous and owned by the same person or corporation, not exceeding five claims in all; Provided, That said labor will tend to the development or to determine the oil-bearing character of such contiguous claims. Feb. 12, 1903. 32 St. L. 825. Comp. L. 1911, p. 611. This section is construed in Smith v. Union Oil Co., 166 Cal. 217, 135 P. 967. See p. 689. FORFEITURE TO CO-OWNER. By Failure to Do Annual Labor Notice. R. S. Sec. 2324. * * * Upon the failure of any one of several co-owners to contribute his proportion of the expenditures required hereby, the co-owners who have performed the labor or made the improve- ments may, at the expiration of the year, give such delinquent co-owner personal notice in writing or notice by publication in the newspaper pub- lished nearest the claim, for at least once a week for ninety days, and if at the expiration of ninety days after such notice in writing or by pub- lication such delinquent should fail or refuse to contribute his proportion of the expenditure required by this section, his interest in the claim shall become the property of his co-owners who have made the required expenditures. Sec. 5, A. C. May 10, 1878. Oregon supplements this section by an Act in minute detail. Laws of 1903, p. 326. The provision for forfeiture to co-owners is not unconstitu- tional and equity will enforce it. Van Sice v. Ibex Co., 173 F. 895, 97 C. C. A. 587. 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 FOEFE1TUKE TO CO-OWNER. 143 his proportion of the amount which the law required to be expended upon the claim. The recovery of his proportion of additional expenditures depends upon other grounds, and is to be enforced only by judicial proceedings, involving the question of mining part- nership accounts or the expressed or implied assent of the co-owner to the expenditure of the additional amount. 5 L. 0. 4; Neuman v. Dreifurst, 9 Colo. 228, 11 P. 98; McCord v. Oakland Q. Co., 64 Cal. 134, 27 P. 863, 49 Am. Rep. 686. The distinction is clearly expressed in Holbrooke v. Harrington (Cal.), 36 P. 365. The delinquent co-owner is not bound to pay his proportion of the annual labor as a debt. McDaniel v. Moore, 19 Ida. 43, 112 P. 317. 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 interest 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 party who has made the expenditure afterwards associates with him in de- veloping the claim, it would probably be considered a waiver of the forfeiture. Burden of Proof. The presumption in law is always against forfeiture, and the party who asserts it must be prepared to make his proof in such case. Turner v. Sawyer, 150 U. S. 578, 17 M. R. 683, 37 L. Ed. 1189, 14 Sup. Ct. Rep. 192. 144 FORFEITURE TO CO-OWNER. 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 exclude expenditure upon each claim." Hay nes v. Briscoe, 29 Colo. 137, 67 P. 156, 21 M. R. 720. 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 date 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 per- sonal service by showing that copies of the paper were sent to and received by the party in default. Haynes v. Briscoe, supra. And publication of forfeiture notice is a waiver of prior personal demand. Knickerbocker v. Holla, 177 F. 172, 100 C. C. A. 634. Nearest Newspaper. As to what is the "newspaper published nearest the claim" the construction followed by STEELE, 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 thirteen weeks was held sufficient in Elder v. Horseshoe Co., 15 S. D. 124, 102 Am. St. Rep. 681, 21 M. R. 510, 87 N. W. 586; affirmed, 194 U. S. 248, 48 L. Ed. 960, 24 Sup. Ct. Rep. 643. Proceedings to Enforce Forfeiture. In the first instance file the usual affidavit of labor per- formed, in the form given on p. 139. FOEFEITUEE TO CO-OWNEE. 145 FORFEITURE NOTICE. (A) GEORGETOWN, COLO., January 3, 1916. To Robert H. Tinker: You are hereby notified that I have expended during the year 1915 one hundred dollars in labor and improvements upon the Corinne Lode Mining Claim, situate on Republican Mountain in Griffith Mining District, County of Clear Creek, State of Colorado, the location certificate of which is found of record in book SO, page 222, in the office of the recorder of said county, in order to hold said claim under the provisions of section 2324 of the Eevised Statutes of the United States, and the amendment thereto approved January 22, 1880, concerning annual labor upon mining claims, being the amount required to hold said lode for the period ending on the 31st day of December, A. D. 3915. And if, within ninety days from the personal service of this notice, or within ninety days after the publication thereof, you fail or refuse to contribute your proportion of such expenditure as a co-owner, which amounts to fifty dollars, your interest in the claim will become the property of the subscriber, your co-owner, who has made the required expenditure, by the terms of said section. JAMES H. PEESHINO. If the demand contained in this Forfeiture Notice is 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: PROOF OF FORFEITURE. (B) STATE OF COLORADO, County of Clear CreeTc: ss. James H. Pershing, being duly sworn, saith that he seryed the within forfeiture notice upon "Robert H. Tinker, the delinquent co-owner therein named, upon the 17th day of March, A. D. 1916, at said county, v by delivering to him a true copy of the same and explaining the contents thereof; and that the said Robert H. Tinker wholly failed to comply with the demand contained in said notice or to pay or tender his proportion of said expenditures during the period of ninety days after said date or at any time since hitherto. JAMES H. PERSHING. Sworn and subscribed before me this first day of July, A. D. 1916. [SEAL] John Toinay, Notary Public. The above form completes the proceeding where the notice has been personally served, but where it has been by publica- tion, discard the form "B" and use the following "0" and "D." 146 FOEFEITURE TO CO-OWNER. PROOF OP PUBLICATION, (c) STATE OP COLORADO, County of Clear Creek: ss. (Copy of Notice "A" Attached.) Jesse Randall, being duly sworn, saith, that he is the publisher of the Georgetown Courier, a weekly newspaper published in said county, and that said Georgetown Courier is the newspaper published nearest to said Corinne Lode Claim, and that the above notice was published in said paper fourteen successive weeks, the first publication appearing in the issue of January 7, 1916, and the last publication in the issue of April 8, 1916. JESSE RANDALL^ Sworn and subscribed before me this tenth day of April, A. D. 1916. [SEAL] John Tomay, 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 NON-PAYMENT. (D) STATE OF COLORADO, County of Clear Creek: ss. James H. Pershing, being duly sworn, saith, that "Robert H. Tinker, the person named in the forfeiture notice attached to the within proof of publication, wholly failed to comply with the demand contained in said notice or to pay or tender his proportion of said expenditures, during the period of said notice or within ninety days thereafter, or at any time. JAMES H. PERSHING. Sworn and subscribed before me this tenth day of July, A. 7). 1916. [SEAL] John Tomay, Notary Public. These forms "A" and "B," in cases of personal service, and "A," "C" and "D" in cases of advertisement, complete the forfeiture and place its proof in a shape where it is recognized in all land office proceedings as the equivalent of a deed from the delinquent party; but when the forfeiture has to be proved in court these ex parte proceedings would not be recognized, except the publisher's proof (if this proceeding can be con- sidered as an advertisement required by law) which is in Colorado made evidence by statute R. S., Sec. 2503. Similar procedure for proof of statutory publication is provided by statutes generally. FORFEITURE TO CO-OWNER. 147 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, 20 Mont. 139, 49 P. 656. Minor Heirs Grouping Notice. In Elder v. Horseshoe Co., 15 S. D. 124, 102 Am. St. Rep. 681, 21 M. R, 510, 87 N. W. 586, affirmed in 194 U. S. 248, 48 L. Ed. 960, 24 Sup. Ct. Rep. 643, it was held that the failure of a co-tenant to pay for his share of the work was a breach of the condition under which he held title ; that there was no saving of the rights of minor heirs; that a notice of for- feiture for several consecutive years was valid and .that it was optional to serve personal or publish printed notice of for- feiture. But notice to the administrator instead of to the heir will not avail even if the administrator communicates such notice to the heir. O'Hanlon v. Ruby Gulch Co., 48 Mont. 65, 135 P. 914. Parties Defenses. A party not a co-tenant at time of notice can not be deprived of an after acquired title by such notice. Even a patent pro- cured by the forfeiting title will stand to the use of such party. Turner v. Sawyer, 150 U. S. 578, 37 L. Ed. 1189, 14 Sup. Ct. Rep. 192, 17 M. R. 683. The attempted forfeiture is a void proceeding where his share of worji has been in fact done by the co-tenant alleged to be in default. Brundy v. Mayfield, 15 Mont. 201, 38 P. 1067 ; Thompson v. Pack, 219 F. 624. Or where the forfeiting co-tenant did not in fact do the labor. McKay v. Neussler, 148 F. 86, 78 C. C. A. 154; Delmee v. Long, 35 Mont. 139, 88 P. 778. Or only a part of the labor. Pack v. Thompson, 223 F. 635-645. A forfeiture notice is not good against a co-owner not named in the notice. Ballard v. Golob, 34 Colo. 417, 83 P. 376. 148 FORFEITURE TO CO-OWNER. It has been held that the regularity of the forfeiture can not be questioned by third parties representing a title hostile to the claim where the alleged forfeiture to co-owner was asserted. Becker v. Pugh, 17 Colo. 243, 29 P. 173 ; Lancaster v. Coale, 27 Colo. App. 495, 150 P. 821. And an irregular notice may be cured by laches. Cassidy v. Silver King Co., 199 F. 100, 117 C. C. A. 640. If a co-owner who has performed the labor sell his interest before completing forfeiture proceedings, whether his as- signee can forfeit is an open question, but the language of the Turner case, that the right is limited to a co-owner who has performed the labor, would seem to be against such right. See 31 L. D. 178. But in Badger Co. v. Stockton Co., 139 F. 838, where the performing co-owners had conveyed their claim to a corpora- tion, taking its stock for consideration, the forfeiture per- fected by the corporation was upheld. In Forderer v. Schmidt, 154 F. 475, 12 Ann. Gas. 80, 84 C. C. A. 426, a friend of the party who was being advertised out offered to pay the amount due, which tender was ap- proved by the party as soon as he learned of it. Held, that the tender defeated the forfeiture. A stockholder has such an interest in the property that he may represent it and do the annual labor and he can not repudiate such labor after it is done and relocate the prop- erty. Wattes v. Davies, 164 F. 397, 90 C. C. A. 385. A party received a deed for an undivided interest in a claim as his pay for protecting the annual labor on the claim, his grantor retaining an interest in the claim. The Court held that the grantor, not his grantee, was the party who might declare forfeiture against the non-contributing co-owners. Knickerbocker v. Holla, 177 F. 172, 100 C. C. A. 634. The same case held that tender of contribution by one co-tenant for another was good. The beneficial owners are the proper parties to give notice although they have con- veyed their interest in trust. Van Sice v. Ibex Co., 173 F. 895, 97 C. C. A. 587. RELOCATION OF ABANDONED CLAIMS. 149 Certain co-owners on the Slap Jack lode were in default on their share of the annual labor for 1898. Written demand for contribution and notice of intent to forfeit were served in 1899 after they had conveyed the property, but the deed was not of record and the parties who served the notice had no knowledge of the deed. This demand in writing was immedi- ately delivered to the grantee, who failed to pay, and the Court held the forfeiture good. Evalina Co. v. Yosemite Co., 15 Cal. App. 714, 115 P. 946. 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 relocator may sink the original discovery shaft ten feet deeper than it-was at the time of abandonment, and erect new or adopt the old boundaries, renew- ing 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 any part of the new location is located as abandoned property. Sec. 16, Feb. 13, 1874. The Old Claim Must First Be in Default. This is the basis of the right to relocate. -GartJie v. Hart, 73 Cal. 541, 15 M. R. 492, 15 P. 93; Locklwrt v. Rollins, 2 Ida. 540, 21 P. 413, 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 relocation 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, 4 N. M. 378, 150 BELOCATION OF ABANDONED CLAIMS. 20 P. 798; Shattuck v. Costello, 8 Ariz. 22, 68 P. 528, 22 M. R. 136 ; Golden v. Murphy, 31 Nev. 395, 103 P. 394, 105 P. 99. The burden of proof is upon the relocator. Providence Co. v. Burke, 6 Ariz. 323, 19 M. E. 625, 57 P. 641; Zerres v. Vanina, 134 F. 610, 150 F. 564, 80 C. C. A. 366. 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., 19 S. D. 453, 104 N. W. 207; Slothower v. Hunter, 15 Wyo. 189, 88 P. 36. But the rule has its limitations and in Zeiger v. Dowdy, 13 Ariz. 331, 114 P. 565, under the facts of the case the party was held not estopped to attack the validity of the claim he had purported to relocate. Plaintiff in an adverse suit must show that his claim was located on the unoccupied public domain. And when he shows that there was a prior location on the ground and does not show it abandoned he fails on this point. The statement of a witness that the prior claim "was abandoned" is a mere statement of a conclusion of law. Lozar v. Neill, 37 Mont. 287, 96 P. 343. Form and Manner of Relocation. 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 discoverer, although not in strictness a discoverer at all. Armstrong v. Lower, 6 Cblo. 393, 15 M. E. 631; Pelican Co. v. Snodgrass, 9 Colo. 339, 12 P. 206. 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 adjoining claim. Little Gunnell Co. v. Kimber, 1 M. E. 536, Fed. Gas. No. 8402. See page 48. RELOCATION OF ABANDONED CLAIMS. 151 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 boundaries of the old location. The stakes of the old claim may be adopted as the stakes of the new.Conway v. Hart, 129 Cal. 480, 62 P. 44, 21 M. R. 20; Brockbank v. Albion Co., 29 Utah 367, 81 P. 863; Riverside Co. v. Hardwick, 16 N. M. 479, 120 P. 325. But in Moffat v. Blue River Co., 33 Colo. 142, 80 P. 139, and Miller v. Chrisman, 140 Cal. 440, 98 Am. St. Rep. 63, 73 P. 1083, 74 P. 444, where in each instance an attempt had been made to jump a valid prior claim in the actual posses- sion of its owner by adopting its stakes and filing a record on the boundaries set by the first party, the second attempted location 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 second 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, 21 M. R. 485 ; Deeney v. Mineral Co., 11 N.. M. 279, 67 P. 724, 22 M. R. 47. But if he enters as a relocator he can not assert defects in the original notice. Yosemite Co. v. Emerson, 208 U. S. 25, 52 L. Ed. 374, 28 Sup. Ct. Rep. 196. 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 reloca- tion. Cheesman v. Shreeve, 40 F. 789, 17 M. R. 260. There is no privity of title. Burke v. 8. Pac. R. Co., 234 U. S. 670, 58 L. Ed. 1527, 34 Sup. Ct. Rep. 907. 152 RELOCATION OF ABANDONED CLAIMS. 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 require- ment is permissive, but if relocation is made by sinking the original discovery 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, 9 Ariz. 288, 80 P. 329, rightly adjudged 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 overlapped prior location was not valid. The statute was further considered in Matko v. Daley, 10 Ariz. 175, 85 P. 721, and in Kinney v. Lundy, 11 Ariz. 75, 89 P. 496, and in Clason v. Matko, 12 Ariz. 213, 100 P. 773, but the mischievous law was not only repealed in 1907 but in 1909 a further act was passed declaring that as to all records made while the act was in force the omission to refer to abandoned lodes should not invalidate such records. The act requiring such recital does not require mention of a location which was never 'completed. Paragon Co. v. Stevens Co., 45 Wash. 59, 87 P. 1068. All such statutes are useless and produce only embarrass- merit. A prospector finding old works or notices may be in entire ignorance as to whether they represent a perfected claim or an unperfected prospect. But unwise as such statutes may be, they are not in contravention of the Mining Acts of Con- gress. Clason v. Matko, 223 U. S. 646, 56 L. Ed. 588, 32 Sup. Ct. Rep. 392, affirming Matko v. Daley, supra. The case of Copper Queen Co. v. Stratton, 17 Ariz. 127, 149 P. 389, provides an escape by holding that a certificate of location of abandoned ground without mention of that fact, is invalid only where the original locators or parties claim- ing under them are asserting their interest. KELOCATION OF ABANDONED CLAIMS. 153 Where the language and context of such statutes will pos- sibly permit, they ought to be held directory merely, not man- datory, and thus no loss of title from non-compliance would follow. The fact that there was a cabin on the ground located, and old notices and stakes does not show that the ground was not public domain, there being no proof of any discovery in connection with the stakes and notices. Cook v. Klonos, 164 F. 529, 90 C. C. A. 403. Re-Entry by Original Owner. After the annual period has expired, the old claimant has still the first right; but if he has commenced work before another party enters, he must complete the full amount required with reasonable diligence, as otherwise the claim would remain forfeit. Honaker v. Martin, 11 Mont. 91, 27 P. 397. And after the relocator has entered he hag the right to maintain his possession against an attempted resumption by the old owner. Morgan v. Tillotson, 73 Cal. 520, 15 P. 88 ; McDonald v. McDonald, 16 Ariz. 103, 144 P. 750. In Field v. Tanner, 32 Colo. 278, 75 P. 916, a party attempted 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. In Thornton v. Kauftnan, 40 Mont. 282, 135 Am. St. Rep. 618, 106 P. 361, the Little Spring Lode had become open to relocation in January, 1898, and the plaintiffs had apparently completed their location on the ground before the Little Spring owners resumed and completed work in December, 1898. But plaintiffs' record was defective and was not made good by a valid amended certificate until several years later. The court held that the resumption was in time, treating the record as a part of the location and holding that a resump- tion could be made at any time before the location was com- plete by record. 154 RELOCATION OF ABANDONED CLAIMS. When the Original Owner Had Begun 1 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. McNeil v. Pace, 3 L. D. 267 ; Fee v. Durham, 121 F. 468, 57 C. C. A. 584. After midnight of December 31 the claim is open to relo- cation. McDonald v. McDonald, 16 Ariz. 103, 144 P. 750. Relocating Instead of Resuming. In Warnock v. DeWitt, 11 Utah 324, 40 P. 205, 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. The Court cites the case of Hunt v. PatcMn, 35 F. 816, 13 Sawy. 304, 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 justify 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 period or during the next year before another has entered. 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 obligation to follow up his location by labor in good faith. The claim is open to relocation by all citizens barring the one whose default is the occasion of its being open and his only rights are those conferred on him by the statute to-wit: the right to resume and perform. Mr. Lindley fully coincides with these views. 2 Lind. 3d. Ed., sec. 405. EELOCATION OP ABANDONED CLAIMS. 155 There is a legislative construction to the same effect by the insertion at the proper context of the words "open to loca- tion by others" in the Special Act concerning annual labor on claims in Alaska. See p. 114. The California Act of 1909, Sec. 1426 S., forbids a reloca- tion by an owner who has failed to do his annual labor, within three years after the date of his original location. Relocation After Patent Applied For. In South End M. Co. v. Tinney, 22 Nev. 19, 35 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 completed his entry, but it was held that the relocation title was valid and that the patentee took the patent 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. MURPHY, C. J., dissented, as did BELKNAP, J., in part. See page 118. In Land Office proceedings the party asserting a relocation must prove an abandonment of the original claim. 21 L. D. 219. Or the original application may be canceled for laches. See page 598. Overlapping Senior Claim. It has been held that the filing of amended certificate giving such bounds as include the interference of a prior survey which has failed to have its annual labor performed operates as a relocation of such abandoned overlapping area without specific mention of such being the intent of the amendment. Johnson v. Young, 18 Colo. 625, 34 P. 173. See page 132. Where the Court had decided that neither claimant to the mine had title, a relocation by one of the parties after such adjudication was held valid. Laiunan v. Hoofer, 37 Wash. 382, 79 P. 953. 156 RELOCATION OF ABANDONED CLAIMS. Relocation of Abandoned Claim by Co-Tenant. Where the several owners of a claim have allowed the annual period to expire without doing the 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 ' ' Shall be open to relocation in the same manner as if no location of the same had ever been made. ' ' R. S. Sec. 2324. 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 strangers, 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 relocate as a stranger he must yield his prior claim absolutely, and proceed in all particulars as an entire stranger. The question has been set at rest by repeated decisions that any relocation or attempted relocation made by a co-tenant is for the benefit of the common title and one co-tenant can not by recording in his own name oust his co-tenants. McCarthy v. Speed, 11 S. D. 362, 50 L. R. A. 185, .19 M. R, 615, 77 N. W. 590; Yarwood v. Johnson, 29 Wash. 643, 70 P. 123, 22 M. R. 398 ; Perelli v. Candiani, 42 Or. 625, 71 P. 537. In Saunders v. Mackey, 5 Mont. 523, 6 P. 361, a co-owner had agreed to see the work done; he did not do it, and afterward 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 intimated 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, 16 P. 911, where the same ruling was -made and the breach of trust not considered on the RELOCATION OF ABANDONED CLAIMS. 157 pleadings. In Royston v. Miller, 76 F. 50, 18 M. R. 418, it was more broadly held that a co-tenant so acting could take no advantage of his location. But it requires no decision to say that if a co-owner promise to do the 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 inure to the good of the injured party. In the Morris case, the actual doing of the work was made apparent on the final trial. 17 Colo. 105, 28 P. 85. The case of Tarwood v. Johnson, 29 Wash. 643, 70 Pac. 123, 22 M. R. 398, was much like the Morris case in its facts. Plaintiff 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 relocation 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. Clark v. Mitchell, 35 Nev. 464, 130 T. 764, 134 P. 449. The case of Turner v. Sawyer, 150 IL S. 578, 37 L. Ed. 1189, 14 Sup. Ct. Rep. 192, 17 M. R. 683, lays down the true principle applicable to the point, to-wit: that the co-tenant can not 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 perfecting patent was the purchase of such a title. Suessenbach v. Bank, 5 Dak. 477, 41 N. W. 662 ; Mills v. Hart, 24 Colo. 505, 65 Am. St. Rep. 241, 52 P. 680; Stevens v. Grand Cent. Co., 133 F. 28, 67 C. C. A. 284; Delmoe v. Long, 35 Mont. 139, 88 P. 778. Abandonment of Undivided Interest. Where there are two co-owners of a possessory claim and one of them fails to perform his proportion of the annual work the one who does the work may, of course, at the end of the year acquire the interest thus practically abandoned. But an actual abandonment may take place irrespective of 158 RELOCATION OF ABANDONED CLAIMS. the annual labor. Suppose that one of the owners deliber- ately informs his co-tenant that he quits the ground with intent never to return or protect his interest. Undoubtedly at that moment the one who remains in possession may file a relocation certificate, in his own name, reciting the fact of abandonment and become the owner of record of the whole estate. But if he neglects so to do what is the status of the abandoned half interest? Certainly a stranger, perhaps unfriendly to the half owner in possession, could not relocate the undivided interest and force himself into the title as a co-partner. We believe that in such case the one who remains in possession becomes the owner of the abandoned half. See O'Hanlon v. Ruby Gulch Co., 48 Mont. 65, 135 P. 913. 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. Hulst v. Doerstler, 11 S. D. 14, 75 N. W. 270. 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 defeat the mortgage. Alexander v. Sherman, 2 Ariz. 326, 16 P. 45, 15 M. R. 638. The grantor by quit-claim deed is not estopped to relocate when his vendee fails subsequently to keep up his annual labor. Blake v. Thome, 2 Ariz. 347, 16 P. 270. For attempted relocation by vendor after sale see Minah Co. v. Briscoe, 89 F. 891, 32 C. C. A. 390. In McDermott M. Co. v. McDermott, 27 Mont. 143, 69 P. 715, 22 M. R. 338, McDermott had sold the lode to a com- pany in which he became a director. Afterwards the com- pany failed to do its work and the claim was relocated by a third party, who conveyed it back to McDermott. There was no collusion whatever. The company had quit because it could find no pay. The Court held that upon abandonment of RELOCATION OF ABANDONED CLAIMS. 159 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 capacity can not relocate for his own benefit. Lockhart v. Rollins, 2 Ida. 540 (503), 21 P. 413, 16 M. R. 16; Co-operative Co. v. Law, 65 Or. 250, 132 P. 521. Nor betray the property to a stranger. Utah Co. v. Dickert Co., 6 Utah 183, 21 P. 1002. Nor can a hired prospector say that what he has turned over to his out- fitter is his own by a prior title. Fuller v. Harris, 29 F. 814. Lessees can not take their lessor's property by going through the form of a relocation. Lowry v. Silver City Co., 179 U. S. 196, 45 L. Ed. 151, 21 Sup. Ct. Rep. 104, 21 M. R. 113 ; Brash v. White, 3 Ariz. 212, 73 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. Hallack v. Traber, 23 Colo. 14, 46 P. 110, 18 M. R. 360. Defendant agreed to relocate for plaintiff and himself. He relocated for self and two strangers. Decree for plaintiff. Clark v. Mitchell, 35 Nev. 448, 130 P. 760, 134 P. 448. A Location Made by an ex-Employee 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 own- ers of the adjoining patent. Thallman v. TJwmas, 111 F. 277, 49 C. C. A. 317, 21 M. R. 573. 160 EELOCATION BY OWNER. RELOCATION BY OWNER. In What Cases Owner May Relocate. R. S. Colo. See. 4210. If at any time the locator of any mining claim heretofore or hereafter located, or his assigns, shall apprehend that his original certificate was defective, erroneous, or that the requirements of the law had not been complied with before filing, or shall be desirous of changing his surface boundaries, or of taking in any part of an over- lapping claim which has been abandoned, or in case the original certificate was made prior to the passage of this law, and he shall be desirous of securing the benefits of this act, such locator, or his assigns, may file an additional certificate, subject to the provisions of this act; Provided, That such re-location does not interfere with the existing rights of others at the time of such re-location, and no such re-location or other record thereof shall preclude the claimant or claimants from proving any such title or titles as he or they may have held under previous location. Sec. 13, Feb. 13, 1874. This section provides an escape from the consequences of loose and careless records; it also gives narrow claims the 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 certificate should show that it is a relocation, and of what lode. AMENDED OR RELOCATION CERTIFICATE. KNOW ALL MEN BY THESE PRESENTS, That I, Andrew J. Hughes, of the City and County of Denver, State of Colorado, claim by right of re-loca- tion, and this amended certificate of location, fifteen himdred feet, linear and horizontal measurement, on the Kentucky Lode, along the vein thereof, with all its dips, variations and angles, together with one hundred and fifty feet in width on each side of the middle of said vein at the surface; and all veins, lodes, ledges and surface ground within the lines of said claim; 750 feet on said lode running north 10 degrees east from the center of the discovery shaft, and 750 feet running south 10 degrees west from said center of discovery shaft; said discovery shaft be ; ng situate upon said lode, within the lines of said claim, iu Silver Cliff EELOCATION BY OWNER. 161 Mining District, County of Custer, State of Colorado. Said claim la hou:>uc'l and described as follows: Beginning at corner No. 1 (etc., (1. .<;/', e as in original location or according to the new lines, if changed, and conclude as follows) : Being the same lode originally located on the first day of May, A. D. 1894, and recorded on the first day of June, A. D. 1894, in book 7, page 11, in the office of the recorder of said county. This further certificate of location is made without waiver of any previous rights, but to correct any error in prior location or record, to secure all abandoned overlapping claims, and to secure all the benefits of section 4210 of the Revised Statutes of Colorado. Date of relocation, January 7, 1908. Date of amended certificate, January 8, 1908. ANDREW J. HUGHES. Nearly all the mining States have adopted statutes similar to the Colorado Act providing for the relocation of aban- doned claims, for relocation by the owner, or the filing of amended certificate of location. But they are only declaratory of the right which any claim- ant has without the aid of any such statute to amend his own publication of claim. Thompson v. Spray, 72 Cal. 528, 14 P. 182. 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 loca- tion the same should be rectified upon the ground before recording. The description in the new certificate will, of course, correspond 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 should be considered as answering all purposes of notice the same as the old dis- covery 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, 17 Colo. 243, 246, 29 P. 173. In fact, no change, whatever, upon the ground 162 RELOCATION BY OWNER. . is necessary if the original location was perfectly regular, an 1 the only idea in relocating or in filing the amended certifi- cate is to formally appropriate abandoned interferences or to correct mistakes in the record. When admitted in evidence both the original and relocation certificates are to be construed together. Duncan v. Fulton, 15 Colo. App. 140, 61 P. 244, 20 M. E. 522. The Intent of the Act Is : First, to provide a recognized mode of relieving from the consequences of clerical and other mistakes; second, to give ' to old locations the benefit of the additional width allowed under the A. C. of 1872, 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, 27 P. 240. 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 increase 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 specific purpose mate- rial to the suit. It will take in abandoned overlap although intention so to do is not expressed on its face. Carlin v. Freeman, 19 Colo. App. 334, 75 P. 26 ; Tonopah Co. v. Tono- pah Co., 125 F. 390. New 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. Erwin v. Perego, 93 F. 609, 35 C. C. A. 482; Silver City Co. v. Lowry, 19 Utah 334, 57 P. 11, 20 M. R. 55. Affirmed without discussion of this point in Lowry v. S. C. Co., 179 U. S. 196, 45 L. Ed. 151, 21 Sup. Ct. Rep. 104, 21 M. R. 113. EELOCATION BY OWNER. 163 In Treasury Co. v. Boss, 32 Colo. 27, 105 Am. St. Rep. 60, 74 P. 888, where a new discovery shaft had been sunk to get clear of patented ground on which the original discovery had been made, the claim was held valid, although 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 McMillen v. Ferrum Co., 32 Colo. 38, 105 Am. St. Rep. 64, 74 P. 461. But the ruling that such shifting of discovery shaft without a second record is good, is a dangerous precedent to rely on. Where a party shifts his discovery shaft and relocates upon such new discovery shaft it is no abandonment of his rights under the first location. King Solomon Co. v. Mary Verna Co., 22 Colo. App. 528, 127 P. 130. 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., 71 F. 848, 18 M. R. 303. Changing Boundaries. A claim may be swung at right angles if it takes up no ground to which rights have intervened. Duncan v. Fulton, 15 Colo. App. 140, 61 P. 244, 20 M. R. 522. Distinction Between Relocation and Amended Certificate. In strictness there is a relocation only when some change is made upon the ground, as by changing length, width or boundaries ; perhaps also when overlapping abandoned ground is taken. The certificate filed to show such change is a relo- cation certificate. But if the error is in the papers only, as by a misleading or too vague description, 'there is no relocation, 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 reloca- 164 RELOCATION BY OWNER. tions or relocation certificates, and a misuse of the terms is not generally material. Cheesman v. Shreeve, 40 F. 789, 17 M. R. 260. An amended location certificate may be filed after suit com- menced. Strepey v. Stark, 7 Colo. 614, 5 P. Ill, 17 M. R. 28. And in Butte Co. v. Barker, 35 Mont. 327, 89 P. 304, 90 P. 177, it was admitted in evidence though not filed till after the trial had begun. A relocation by new parties may be made to protect the original locators. U. 8. v. McCutchev, 217 F. 650. Relation Back and Intervening Claim. It relates back, where adverse rights have not intervened, to the date of the original location. McGinnis v. Egbert, 8 Colo. 41, 15 M. R. 329, 5 P. 652; Strepey v. Stark, supra; Las Vegas Co. v. Summerfield, 35 Nev. 229, 129 P. 303. In the case of McEvoy v. Hyman, 25 F. 596, 15 M. Pt. 397, and in Craig v. Thompson, 10 Colo. 517, 16 P. 24, tli3 amended record was allowed in evidence and to affect and cut out intervening claimants. In the latter case the interven- ing claimant was treated as a trespasser who could not initi- ate rights; in the former 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, 17 M. R. 260, 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 superflu- ous because vested rights save themselves. There is no doubt that an amended record, the land office entry, the patent, every successive incident toward perfecting title, relates back to the first step taken toward obtaining such title. But not- withstanding 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 can not be invoked to work injustice to third parties. Gibson v. Chou- teau, 13 Wall. 101, 20 L. Ed. 534. And if a location or location RELOCATION BY OWNEB. 165 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, 80 Cal. 348, 22 P. 200 ; Jordan v. Schuerman, 6 Ariz. 79, 53 P. 579 ; Deeney v. Mineral Co., 11 N. M. 279, 67 P. 724, 22 M. R. 47; Morrison v. Regan, 8 Ida. 291, 67 P. 956, 22 M. R. 69, Brown v. Oregon Co., 110 F. 728, 21 M. R. 485. New rights can not be acquired by relocation inconsistent with the intervening rights of others. Bunker Hill Co. v. Em- pire S. Co., 134 F. 268 ; Butte Co. v. Barker, 35 Mont. 327, 89 P. 302, 90 P. 177; Ware v. White, 81 Ark. 220, 108 S. W. 832; Bakersfield Co. in re, 39 L. D. 460; Giberson v. Tuolumne Co., 41 Mont. 396, 109 P. 974. Nevertheless it was in effect so held in Copper Queen Co. v. Stratton, 17 Ariz. 127, 149 P. 389. Where Original Record Was Voidable Only. In Moyle v. Bullene, 7 Colo. App. 308, 44 P. 69, 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 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 accord- ing to the doctrine of relation. But in Frisholm v. Fitzgerald, 25 Colo. 290, 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 Congres- sional 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 per- sonal 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 166 KELOCATION BY OWNER. is based shakes our conclusions as stated in the preceding paragraph, and we consider untenable the proposition that any amendment can cure a void record as against an inter- vening location. An amended notice relates back to the original notwith- standing intervening locations if made to cure obvious defects in the original notice without including any new ground. Gobert v. Butterfield, 23 Cal. App. 1, 136 P. 516. Will Not Cure Want of Discovery. In most of the cases above cited the point was one of objec- tion to the form or contents of the original location certifi- cate that is, to the papers in the case not the merits of the discovery or the location proper, but in Beats v. Cone, 27 Colo. 473, 83 Am. St. Rep. 92, 62 P. 949, 20 M. R. 591, 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 claim- ant took the ground and that the 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. 536. The Official Survey Corrects the Errors of the Original location and its stakes and corners need not be identified with the locator's survey. Howeth v. Sullenger, 113 Cal. 547, 45 P. 841. Changing Names of Locators on Notices Transfers Before Record. After a record is made based on a valid location, the pos- sessory title becomes perfect, subject to the conditions of a possessory title. Gurillim v. Donnellan, 115 U. S. 45, 29 L. Ed. 348, 5 Sup. Ct. Rep. 1110, 15 M. R. 482. But before record it is EELOCATION BY OWNER. 167 not unusual for prospectors to settle their rights among them- selves by the primitive but practical method of adding or eras- ing names from the discovery notice. Names can not be so erased without the assent of the parties to the destruction of the right vested by putting them there in the first instance. Thompson v. Spray, 72 Cal. 528, 14 P. 182. But this is matter of complaint only by the parties injured, and strangers to the title can not take advantage of such things. Thompson v. Spray, supra; Omar v. Soper, 11 Colo. 380, 7 Am. St. Rep. 246, 15 M. R. 496, 18 P. 443. In Doe v. Waterloo Co., 70 F. 455, 17 C. C. A. 190, 18 M. R. 265, 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 location for their joint benefit. Where new parties become transferees of an uncompleted or an irregularly completed location they have the right to perfect the record in their own names. Miller v. Chrisman, 140 Cal. 440, 98 Am. St. Rep. 63, 73 P. 1083, 74 P. 444; Tonopah Co. v. Tonopah Co., 125 F. 389. Change of Name of Lode. It is not infrequent by filing amended location certificate and posting amended notice on the claim, to change the name of the lode. Butte Co. v. Barker, 35 Mont. 327, 89 P. 302, 90 P. 177. Where names such as decency forbids have been placed on record the land office has declined to patent the lode by name. In such instances, or even where the name is objectionable only for sentimental reasons, where all parties interested consent, a change of name is certainly legal. Sey- mour v. Fisher, 16 Colo. 188, 197, 27 P. 240. But when done, as it has been, in instances, preparatory to application for patent with intent to mislead and forestall an anticipated adverse claim, or preparatory to intended forfeiture publica- tion, there could be no stronger circumstance from which to draw the inference of fraud. 168 UNITED STATES PATENT. Defendants held valid locations on certain lode claims for several years before 1907 and did their work every year except 1907. On January 1, 1908, they posted location notices stating that the same were on abandoned ground and recorded such notices, changing the names of the lodes but keeping the same boundaries and kept at work during 1908, 1909 and 1910. Plaintiffs entered and attempted to locate in 1910. The Court held that, notwithstanding the statement in defendants' notices that they were relocating abandoned ground, their continued possession negatived the intention to abandon and that they held under their original title. Peachy v. Gaddis, 14 Ariz. 214, 127 P. 739. Double Record on Same Ground. The Edith lode was located%200 feet in length. Discover- ing that there was 200 feet of vacant ground, the Edith own- ers 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. Butter, 87 F. 801, 31 C. C. A. 223, 19 M. R. 356. UNITED STATES PATENT. Policy of the Government As to Mineral Lands. The general policy of the United States has been to pass the fee simple title to its lands to the ultimate 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. UNITED STATES PATENT. 169 A temporary departure from this rule in taking an im- politic royalty from the miner, based on Acts of Congress as early as 1807, was made in the attempt to lease the lead an^l copper lands on the Mississippi and Lake Superior. Lori- mcr v. Lewis, 1 Morris (Iowa), 253, 39 Am. Dec. 461, 12 M. R. 437. But a return to the leasing system has been made in later legislation on a much larger scale as to coal and oil, especially in Alaska. The government had no occasion to deal with lands con- taining the royal metals until the acquisition of California, upon which event, instead of adopting any system of legisla- tion, it merely preserved the mineral lands from sale and acquiesced in the asserted rights of the prospector and miner until 1866. In that year was 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 amendments. 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. Procession of Title. Title becomes initiate by discovery; the possessory 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: 170 UNITED STATES PATENT. 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 F. 558, 9 C. C. A. 613. r< : 4 Second The subsequent issue of the patent follows 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. 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 equities 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, estab- lish the priority of any assertion of title to the block rep- resenting 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 proceeding to obtain patent a proceeding in rem, 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. UNITED STATES PATENT. 171 The last is the system adopted by the government, by the original Act of 1866, and continued in all the amendments. Priorities Adjudicated Before Patent Issues. The result follows that upon the issue of a patent the patentee has got rid of all assertions of title hostile to his own title, and all supposed prior discoveries and locations which might have interfered with him are lost, by failure to assert them as adverse claims, or to prove them in the ejectment suit brought in support of the adverse claim. Silver Bow Co. v. Clark, 5 Mont. 378, 5 P. 570; Raunheim v. Dahl, 6 Mont. 167, 9 P. 892; Kannaugh v. Quartette Co., 16 Colo. 341, 27 P. 245 ; Seymour v. Fisher, 16 Colo. 188, 197, 27 P. 240. 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. Lebanon Co., 4 Colo. 112, 13 M. E. 282; Wight v. Dubois, 21 F. 693. Poncia v. Eagle is a case where an adverse claimant whose suit had been dismissed was held to have equities entitled to protection. There -had been a stipulation on the faith of which his adverse proceedings had been dropped. 28 Ida. 60, 152 P. 208. 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 possessory 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. Exclusion from Public Domain. The Surveyor General shows all conflicts with previous sur- veys upon the approved plat, and notes all previous official surveys in the approved field notes, but only approves as to the 172 UNITED STATES PATENT. correctness of the survey, not excluding the area of priorities, if their inclusion is asked. The register of the land office, when application for patent is made, is supposed to except all previous surveys as noted in the approved 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 exclusion of the claim from the mass of the public domain. From this point the claim so first excluded must, under the practice of the land office, be recognized by all subsequent applicants for sur- vey 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 exclusion took place in the office of the Surveyor General. But the Surveyor 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. In former editions the word "segregation" was used instead of "exclusion," but the usage of the department is to treat "segregation" as the separation of one class of claims from another class of claims, as, for instance, when a lode survey is cut out of a homestead entry, and the word "exclusion" refers to such action as temporarily or permanently removes a tract from the unoccupied public domain on the official cor- rected plat. Under the Act of 1866 the survey was not approved until after the application had been otherwise perfected. The Doctrine of Relation. Where successive steps are essential to perfect title, as dis- co-very, location, record, application for patent, entry and finally patent, and during the progress 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 UNITED STATES PATENT. 173 doctrine of relation may become material to determine between them the question of priority. When discovery is followed by location and record 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 inter- vened, and if a second title has intervened at a period when the first title was in default the doctrine of relation does not apply. 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 the senior application when made, because relation will carry the junior entry back to the date of its senior appli- cation. 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 today on a location of 1866 would supplant a patent to the same ground issued twenty years ago. Relation never applies either to defeat a statute or to work manifest injustice. In Hickey v. Anaconda, Co., 33 Mont. 46, 81 P. 806, the Montana Supreme Court refused to allow the law of relation to carry the title of the Nipper lode patent back to the date of its location certificate, a paper so defective as to be void. The different classes of claims to which it applies necessitate certain distinctions. Where Both Are Possessory, the First Discovery Followed up by completed location within the allowed 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 v. Hitch- 174 UNITED STATES PATENT. cock, 3 Colo. 533, 5 M. R. 542. For instance, if A discover a lode on January 1st in a State which gives sixty days to sink discovery and thirty days more to record, and he completes sinking on the sixtieth day and records on the ninetieth day, he has an older and better title than B, who discovers the same vein on January 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 location, 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 better 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 can not appeal to the doctrine of relation to defeat the express terms of the statute. Eureka Co. v. Richmond Co., Fed. Gas. No. 4548, 4 Sawy. 302, 9 M. R. 578. 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., 114 F. 420, 52 C. C. A. 222, 22 M. R. 132. Thus, in the class of cases where two veins parallel on sur- face, dip towards 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 discovery so as to give the united vein to the title first initiated and perfected without default or lapse. UNITED STATES PATENT. 175 The patent of an overlap to the junior locator conveys the title and defeats the senior location, but does not determine as a fact the priority of the two claims. Clark Montana Co. v. Butte Co., 233 F. 548. Applications Pending at Same Time. The question may also arise between two claimants 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 becomes "prior" by its right to be excluded from later applications, and the applicant whose area is excluded in the land office becomes the party Avho must adverse in order to maintain such priority of title as he may claim. 26 L. D. 81, 29 Id. 226. 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 "appli- cation for patent" (form M, p. 560), and even if he be the first to enter and pay and obtain the receiver's receipt, the entry when made of the survey which first filed its "application" will relate 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 proceedings where there was no oppor- tunity to adverse and the proceeding therefore not a proceed- ing in rein, as in a conflict between school land and a mining claim. Heydenfeldt v. Daney Co., 93 U. S. 634, 23 L. Ed. 995, 13 M. R. 204. Or between a lode and a town site. Talbott v. King, 6 Mont. 76, 9 P. 434; Silver Bow Co. v. Clark, 5 Mont. 378, 5 P. 570 ; The Smokehouse Lode, 6 Mont. 397, 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, 135 U. S. 286, 34 L. Ed. 155, 10 Sup. Ct. Rep. 765, 16 M. R. 218. 176 UNITED STATES PATENT. Excluded Area. It is the practice of the department to exclude from <>::<-h 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., 20 Mont. 336, 51 P. 159, 19 M. R. 186. And where 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, owing to error in the surveys, there is in fact no conflict, the excluded area belongs to the patentee. 45 L. D. 10. 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. S. M. Co. v. Lawson, 134 F. 769, 67 C. C. A. 587. The Nature of the Merger of the Possessory into the patented title is learnedly discussed in Black v. Elk- horn Co., 49 F. 549 ; affirmed 52 F. 859, 3 C. C. A. 312, 163 U. S. 445, 41 L. Ed. 221, 16 Sup. Ct. Rep. 1101, 18 M. R. 375. What It Conveys. A patent covers blind lodes within and underneath its lines. Calhoun Co. v. Ajax Co., 27 Colo. 1, 59 P. 608, 83 Am. St. Rep. 17, 50 L. R. A. 209, 20 M. R. 192 ; affirmed 182 U. S. 499, 45 L. Ed. 1200, 21 Sup. Ct. Rep. 885, 21 M. R. 381. The sur- face, and the right to follow on the dip veins apexing within its lines. Empire Co. v. Bunker Hill Co., 114 F. 420, 52 C. C. A. 222, 22 M. R. 132. The surface although the vein has left the side lines. Argonaut Co. v. Turner, 23 Colo. 400, 48 P. 685, 58 Am. St. Rep. 245, 18 M. R. 556. An ore body within the patented lines presumptively belongs to the owner of the patent. Steivart Co. v. Bourne, 218 F. 327, 134 C. C. A. 123 ; affirmed Stewart Co. v. Ontario Co., 237 U. S. 350, 59 L. Ed. 989, 35 Sup. Ct. Rep. 610. UNITED STATES PATENT. 177 Conclusiveness As to Title. A patent is conclusive in all suits at law (1) when valid on its face and (2) when not issued in opposition to law. In any such case it is a final disposition of the legal title and must be recognized by courts and allowed such effect. Boggs v. Mer- ced Co., 14 Cal. 279, 10 M. R. 334. It is also conclusive as to the bounds or limits of the claim. Waterloo Co. v. Doe, 56 F. 685, 17 M. R. 586. Patent is conclusive evidence that there had been a sufficient location notice. Chambers v. Jones, 17 Mont. 156, 42 P. 758 ; that a valid discovery and location had been made; that the required expenditure showed on the ground and that the patentee is owner of all veins enclosed by his survey. Carson City Co. v. North Star Co., 83 F. 658, 28 C. C. A. 333, 19 M. R. 118. It is a conclusive presumption that there is the apex of a vein within the patented ground. Or. Central M. Co. v. Mammoth Co., 29 Utah 490, 83 P. 643, 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., 114 F. 420, 52 C. C. A. 222, 22 M. R. 132. And of a valid discovery. Calhoun Co. v. Ajax Co., 182 U. S. 499, 45 L. Ed. 1200, 21 Sup. Ct. Rep. 885, 21 M. R. 381 ; Stewart Co. v. Bourne, 218 F. 327, 134 C. C. A. 123. The patent is not only conclusive evidence that there was mineral discovered before it issued but that all State as well as federal prerequisites were complied with. Work M. Co. v. Doctor Jack Pot M. Co., 194 F. 620, 114 C. C. A. 392. But the case of Uinta Co. v.. Creede Co., 119 F. 164, 22 M. R. 445, 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 patented across the line of a tunnel before it was cut in the tunnel, the patent is not con- clusive evidence of a valid discovery as against the asserted rights of such tunnel. The facts were these : The lode was located before the tun- nel site was located. After both locations the lode was pat- ented. The tunnel owner on reaching the claim, which crossed 178 UNITED STATIC PATEM 1 . the line of the tunnel, had no right to cross, if, in fact, a valid location 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 contended that the patent was con- clusive 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. 337, 49 L. Ed. 501, 25 Sup. Ct. Rep. 266. Followed on like facts in Uinta Co. v. Ajax Co., 141 F. 563, 73 C. C. A, 35. Conclusiveness As to Mineral Character of Land. See p. 252. 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 Telegraph Co., 2 Utah 174, 11 M. R. 646 ; St. Louis Co. v. Kemp, 104 U. S. 636, 26 L. Ed. 875, 11 M. R. 673 ; Garrard v. S. P. Mines, 82 F. 578. A patent for a lode in excess of legal width has been held void. Lakin v. Dolly, 53 F. 333 ; Lakin v. Roberts, 54 F. 461, 4 C. C. A. 438 ; but other- wise 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. Clark, 5 Mont. 378, 5 P. 570 ; Rose v. Richmond Co., 17 Nev. 26, 27 P. 1105. A patent is not void as to the excess from the fa ft that it conveys more than 300 feet from the center of the lode. UNITED STATES PATENT. 179 Pcabody Co. v. Gold Hill Co., 97 F. 657, 111 F. 818, 49 50 GO 70 80 90 VERTICAL DEPTH. 17.4 feet 34.2 50.0 64.3 70.71 76.6 86.6 94.0 98.5 100.0 HORIZONTAL DEPARTURE. 98.5 feet 94.0 " 86.6 ?6.6 70.71 6*.3 50,0 34.;1 17.4 0.0 DIP. 225 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, 3 S. C. 168, 16 Am. Rep. 697, 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 surface 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, Second An exception out of the estate of the adjoining claim. The maxim that ownership extends from the surface to the center of the earth in vertical planes, in either event, there- fore, does not apply to its full extent. The claim in its down- ward course is governed by the dip of the vein whose apex appears at the surface; it extends under the vertical planes 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 Co. v. Cheesman, 116 U. S. 530, 29 L. Ed. 712, 6 Sup. Ct. Rep. 481. Where a lode cut in a tunnel has a dip it will be assumed that it carries the same dip to the surface. Brewster v. Shoe- maker, 28 Colo. 176, 63 P. 309, 21 M. R. 155. 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, 7 Sawy. 96, 4 M. R. 412; Walrath v. Champion Co., 63 F. 552. 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 226 WALLS. can not claim the dip beyond its side lines. The Flagstaff case, 98 U. S. 463, 9 M. R. 607, 25 L. Ed. 253 ; McCormick v. Varnes, 2 Utah 355, 9 M. R. 506 ; Argentine Co. v. Terrible Co., 122 U. S. 478, 30 L. Ed. 1140, 7 Sup. Ct. Rep. 1356, 17 M. R. 109, and cases cited under APEX. And, as we contend, the same rule controls whenever the angle is enough to carry it across both side lines. 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 pro- tracted, the claim ceases and the dip can not be followed across the protraction of end lines. Richmond Co. v. Eureka Co., 103 U. S. 839, 26 L. Ed. 557, 9 M. R. 634; Stone Lode case, 118 U. S. 196, 30 L. Ed. 98, 6 Sup. Ct. Rep. 1177, 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 207. 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. Stinchfield v. Gillis, 96 Cal. 33, 30 P. 840, 17 M. R. 497, 107 Cal. 84, 40 P. 98, 18 M. R. 195 ; 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. 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 planes of demarcation between the country and the gangue. WALLS. . 227 Relation to the Country. It should seem almost self-evident that the nature 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 trace- able; between 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 oblit- erated 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. S. 530, 29 L. Ed. 712, 6 Sup. Ct. Rep. 481, and in the Durant case, 29 F. 354, 15 M. R. 519. In the former decision, after denning what constitutes a lode as a "body of mineral or mineral-bearing rock within denned boundaries," MILLER, J., adds: "In the existence of such body and to the extent of it, boundaries are implied." In the latter case, in such language as would be used by a lawyer thoroughly 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 continuity 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 228 SPURS. to be considered where the further continuity of the vein is made doubtful by reason of the simultaneous disappearance of the mineral and an apparent change in the rock which is being followed. See page 45. 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 by "cutting through the wall" is spoken of by working miners 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 relative, not definite. That which, when first discovered, may be called a spur, may prove to be a better developed 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 many 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. 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, especially where the law fixes no limit to the size of the vein which may be located, nor ANGLES AND VARIATIONS. 229 admits comparison of different sizes between conflicting loca- tions. Carson 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 ques- tions of fact to be found by the jury. Blue Bird Co. v. Lar- gey, 49 F. 289; Book v. Justice Co., 58 F. 106, 17 M. R. 617. Ore bodies formed off from the fissure do not form separate veins. Tombstone M. Co. v. Way Up Co., 1 Ariz. 426, 25 P. 794. ANGLES AND VARIATIONS. Use in Statutes and Conveyancing. In Sec. 4, A. C. 1866, the words "angles and variations" were used, and under the act a lode was patented 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 essential grant of the patent. These words, or like terms, are in common use in the phrase- ology of mining deeds (Bullion v. Croesus Co., 2 Nev. 168, 90 Am. Dec. 526, 5 M. R. 257) but are not words of essential description. 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 par- allelogram 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. 230 ANGLES AND VARIATIONS. 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. Elgin Co., 15 M. R. 641, 118 U. S. 200, 30 L. Ed. 98, 6 Sup. Ct. Rep. 1177. Whether the presumption allowed in ordinary cases (Arm- strong v. Lower, 6 Colo. 582, 15 M. R. 458), that the survey covers the vein would be indulged to a claim which has acute angles, may be doubted. Such presumption is merely to fix the party on whom is the burden of proof, and on an angled claim ought to yield to very 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 three inches long could not be allowed as a parallel end line within the meaning of the law. 34 L. D. 470. Angles to Allow for Erosion and Slope. A vein may have an angle of its own, without regard to its dip or the contour of the surface. In such case it is obvious that its survey must have a corresponding angle. If the vein is not only straight, but perfectly vertical, no angles are needed, because a parallelogram will always cover such vein. Also, where the vein has no angle on its strike, no angle is required where the outcrop is on a flat surface or if the vein runs straight up and down the mountain or if it is on an even slope not sunk by erosion nor heaved by a fault. But where the vein has a dip and outcrops at an angle to the contour of the surface, there must be an angle in the survey to cover its outcrop. This is made necessary because erosion has brought the lower part of the vein laterally to a point beyond the plane of the higher parts of the vein. DRAINAGE. 231 The above plat is an endeavor to explain the text. A B is a vein dipping to the south on a slope where the east end of the outcrop, and the country with it, has been worn down so that B is considerably lower than A. It is clear that the parallelo- gram 1, 2, 3, 4 would lose the apex at the point X, but the lines 1, 5, 6, 7, 8, 4 would enclose it within both end lines. DRAINAGE FLOODING. Legislative Control. Sec. 3. The general assembly may make such regulations, 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. Sees. 4226-4234 attempt fo 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 proportion of the cost of drainage. Where a tunnel or lower adit drains another mine, 232 DRAINAGE. it is doubtful whether such acts have any application, as such drainage is only incidental. Baird v. Williamson, 15 C. B. N. S. 376, 4 M. R. 368 ; 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 con- tribution, even giving a royalty to the draining mine, have been enforced. Ahren v. Dubuque Co., 5 M. R. 144, 48 la. 140. The mine owner is liable where for want of reasonable fore- sight he so worked as to tap a lake and drown out the adjoiner. Duff v. U. 8. Gypsum Co., 189 F. 234. The city of Butte was held in damages for flooding a mine from defective sewer. Kelly v. Butte, 44 Mont. 115, 119 P. 171. 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 servitude to the water flow of the mine above. Philadelphia Co. v. Taylor, 5 M. R. 133, 5 Leg. Gaz. 392 ; Spadra Co. v. Eureka Co., 104 Ark. 359, Ann. Gas. 1914C, 454, 148 S. W. 644. Servitude of the Lower. In lode mines the same rule applies that the lower work- ings must stand the water from the higher pits, subject to such regulations as the Drainage Act supplies, where such act exists and its provisions can be enforced ; and the upper mine can not wantonly cast its water on the lower. Locust Co. v. Oorrell, 9 Phila. 247, 5 M. R. 129. The same rule applies to quarries. Ulmer v. Famsworth, 15 Atl. 65, 80 Me. 500, 17 M. R. 134. Breaking Barrier. The adjoiner is liable for the damage caused by breaking the barrier, but he is not bound to restore it. Lord v. Carbon Co., 42 N. J. Eq. 157, 6 Atl. 812. DITCHES AND WATER. 233 A Drainage Contract Between Two Mines Having a Common water burden was construed and enforced and a heavy judg- ment for damages sustained, the Court holding that the rela- tion of the mines to the common enemy was such that there was ample consideration 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. Fish M. Co. v. Reed, 32 Colo. 506, 77 P. 241. Springs. The mine operator is not liable for drainage of surface springs. Sloss Co. v. Sampson, 158 Ala. 590, 48 So. 493. DITCHES AND WATER. Congressional Recognition of Easements. R. S. Sec. 2339. Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes herein specified is acknowledged and confirmed; but whenever any person, in the construction of any ditch or canal, injures or damages the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage. Sec. d, A. C. July %6, 1866. This section not repealed by later acts. U. S. v. Utah Co., 208 F. 821. Excepted in Patent. R. S. Sec. 2340. All patents granted, or pre emption or homesteads allowed, shall be subject to any vested and accrued water-rights, or rights to ditches and reservoirs used in connection with such water-rights as may have been acquired under or recognized by the preceding section. Sec. 17, A. C. July 9, 1870. 234 DITCHES AND WATER. Claims Subject to Ditches, Flumes and Trails Parol License. R. S. Colo. Sec. 4216. All mining claims now located or which may be hereafter located, shall be subject to the right of way of any ditch or flume for mining purposes, or of any tramway or pack trail, whether now in use or which may be hereafter laid out across any such location ; Provided, always, That such right of way shall not be exercised against any location duly made and recorded, and not abandoned prior to the establishment of the ditch, flume, tramway or pack trail, without consent of the owner, except by condemnation, as in case of land taken for public highways. Parol consent to the location of any such easement accom- panied by the completion of the same over the claim shall be sufficient without writings; And Provided further, That such ditch or flume shall be so constructed that the water from such ditch or flume shall not injure vested rights by flooding or otherwise. Feb; IS, 1874. 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. 129, 30 Id. 404. The Desert Land Act recognizes the right to divert water for mining and irrigation. Caviness v. La Grande Co., 60 Or. 410, 119 P. 731. 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. 507, 22 L. Ed. 414; Jennison v. Kirk, 4 M. R. 504, 98 U. S. 453, 25 L. Ed. 240; Snyder v. Colo. Co., 181 P. 62, 104 C. C. A. 136. 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 agricul- tural 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 appropriation of DITCHES AND WATER. 235 water. South Yuba Co. v. Rosa, 80 Cal. 333, 22 P. 222; Tynon v. De&pain, 22 Colo. 240, 43 P. 1039. Water diverted in one State will be protected against a later appropriation above although in another State. State lines cut no figure in such case and the appropriation is governed by the laws of the State where made. Morris v. Bean, 146 F. 423. A Ditch Is an Easement Over the Land which It Crosses. Quinlan v. Nolle, 75 Cal. 250, 17 P. 69. A party can not locate a ditch in such a manner as to prevent the practical mining by hydraulic power, or otherwise, 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 so as not to interfere with the full use of the prior ditch. Jennison v. Kirk, supra. Appropriation by Placer Location. It has been held that a placer location is of itself an appro- priation of all the water flowing across it to the extent needed for working it. Schwab v. Beam, 86 P.- 41, 19 M. R. 279. This is an extreme holding and seems to us an indefensible position. Since the above paragraph was in print, Schwab v. Beam has been expressly overruled by Snyder v. Colo. Co., 181 F. 68, 104 C. C. A. 136. Change of Point of Diversion or Place of Use. The change of locality where water is used does not forfeit the right. Maeris v. Bicknell, 7 Cal. 262, 68 Am. Dec. 257, 1 M. R. 601. The owner may change either the point of diver- sion or the place of use. Telluride v. Davis, 33 Colo. 355, 108 Am. St. Rep. 101, 80 P. 1051 ; Strickler v. Colo. Springs, 16 Colo. 61, 25 Am. St. Rep. 245, 26 P. 314. If he has prior right to the-water he may take it by a new and different ditch. Jacob v. Lorenz, 98 Cal. 332, 33 P. 120; Greer v. Heiser, 16 Colo. 306, 26 P. 770. 236 DITCHES AND WATER. Intervening Right. But 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. 449, 49 F. 430 ; Handy Ditch Co. v. Louden Co., 27 Colo. 515, 62 P. 847 ; Fuller v. Swan River Co., 12 Colo. 12, 16 M. R. 252, 19 P. 836. The subsequent appropriator who makes his diversion, under the belief that the water appropriated by the senior appropri- ator will continue to be used as it was until the time of the subsequent appropriation, acquires a vested right to insist on such conditions. Baer Bros. Co. v. Wilson, 88 P. 265, 38 Colo. 101. Placer water after use was appropriated for irrigation. Held, that the miner could not change the point of diversion so as to cut off such second appropriator. Head v. Hale, 38 Mont. 302, 100 P. 222. A Party May Use the Bed of a Natural Stream as His Means of conducting water added to it by a ditch, without being con- sidered as abandoning the water by mingling it with the orig- inal waters of the stream. Butte Co. v. Vaughn, 11 Cal. 143, 70 Am. Dec. 769, 4 M. R. 552 ; Oppenlander v. Left Hand Co., 18 Colo. 142, 31 P. 854. Location of Ditch Right. At the point where water is taken from the stream, post notice as follows : DITCH NOTICE. MIDLAND DITCH. I claim 150 inches of the water of this stream, to be taken by ditch from this point to claims on Wightman's Gulch, in Summit Mining District, Bio Grande County, for mining purposes. January 17, 3916. 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. Caldivell, 2 Ariz. 394, 18 P. 276. DITCHES AND WATER. 237 The ditch should be staked and work commenced and prose- cuted Avith reasonable diligence. If the notice be not followed up within a reasonable time by actual work in carrying out the intended appropriation, 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 constructed and continuously used. But record is customary, always advisable, and when made becomes the initial point in the chain of recorded title. In Colorado, by Act of 1903, R. S. Sec. 3181, duplicate maps and statements are required to be filed with the State Engineer within sixty days after the commencement of actual construc- tion, or the beginning 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. DITCH STATEMENT. KNOW ALL MEN EY THESE PRESENTS, That I, Alexander G. Cochran, of St. Louis, in the State of Missouri, do hereby declare and publish as a legal notice to all the world that I have a valid right to the occupation and possession of that certain tract or parcel of land lying in Summit Mining District, in the County of Eio Grande, State of Colorado, for ditch and mining purposes, and more particularly described in the map hereto attached. That I have located the MIDLAND Difcn, and do hereby make and file, in compliance with the laws of the State of Colorado, this state- ment in duplicate, and that the accompanying map, which shows the loca- tion of said ditch, forms a part of this filing and is hereby made a part thereof. First The headgate is located at a point on the south bank of the Alamosa river, from which it derives its supply of water, whence the N. E. corner of Section No. 31, Township 37, Kange 4 East of. the New Mexico Principal Meridian, bears N. 45 E. 600 feet. Second Said ditch is four feet deep, five feet wide at the top and four feet wide at the bottom; the grade is ten feet per 1,000 feet and the length is 2^ miles. Third The carrying capacity of said ditch is 150 cubic feet per second of time. 238 DITCHES AND WATER. Fourth Work was commenced on said ditch on the 17th day of January, 1916. (Claimant may take either date of survey or date of actual construc- tion begun for this paragraph.) Fifth The estimated cost of ditch is $3,000. ALEXANDER G. COCHRAN. STATE OF COLORADO, County of Fremont: ss. Alexander G. Cochran, being first duly sworn, deposes and says that he is the claimant of the within named ditch and water-right ; that he has read the foregoing statement and has examined the accompanying map, and that the same are true to the best of his knowledge and belief. ALEXANDER G. COCHRAN. Subscribed and sworn to before me this 1st day of February, A. D. 1916. George W. Clelland, Notary Public. The map accompanying the above statement is required to be on white linen drawing paper, 24 by 36 inches in size, with a two inch margin on the left side, and should show the fol- lowing : First The location of the headgate by course and distance to a corner of the public survey, or if upon unsurveyed land, to some natural object, so that the same may be easily located. Second The general course and the name of the stream. Third The route of the ditch by course and distance. Fourth The legal 40 acre subdivisions and other patented lands. Fifth The ownership of all lands crossed by the ditch or canal. And should also coatain the following: AFFIDAVIT OF SURVEYOR. STATE OF COLORADO, County of Fremont: ss. E. E. Chase, being duly sworn on oath, deposes and says that he is the engineer (or surveyor) of the MIDLAND DITCH; that the survey of the same and the map thereof was made by him (or that such map was made under his instructions), 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. CHASE, Engineer (or Surveyor). Subscribed and sworn to before me this 1st day of February, A. D. 1916. George W. Clelland, Notary Public. DITCHES AND WATER. 239 When it is impracticable to make a complete survey and maps within the sixty day period, temporary maps may be filed with the statements, to be supplemented by a detailed map when the survey is completed. When local statutes do not require other details or the filing of maps the above statement would be a valid location cer- tificate of ditch rights, by incorporating into the statement a description of the course of the ditch, and omitting reference to the map. The appropriation of water in most of the States is now, 1916, regulated or attempted to be regulated by statutes not at all uniform. Such statutes must be consulted in connection with the general principles in this chapter indicated. How Conveyed. Right to water appropriated may be transferred like other property. A ditch is real estate and is conveyed by deed. Smith v. O'Hara, 1 M. R. 671, 43 Cal. 371 ; Bradley v. Hark- hess, 26 Cal. 69, 11 M. R. 389 ; Burnham v. Freeman, 11 Colo. 601, 17 P. 761, R. S. Colo. Sec. 669. Appurtenance. Whether a deed of land conveys the ditches and water rights depends upon the intent of the grantor, and may be implied where the use is necessary to its beneficial enjoyment. Arnett v. Linlmrt, 21 Colo. 188, 40 P. 355; Gelwicks v. Todd, 24 Colo. 494, 52 P. 788. The water right goes with the sale of a mill site. N. A. Co. v. Adams, 104 F. 404, 45 C. C. A. 185, 21 M. R. 65. The ditch was held no appurtenance in Quirk v. Falk, 47 Cal. 453, 2 M. R. 19, and Ginocchio v. Amador Co., 67 Cal. 493, 8 P. 29. Whether a certain ditch is an appurtenance to land conveyed by deed may be proved by parol evidence. Fayter v. North, 30 Utah 156, 6 L. R. A. (N. S.) 410, 83 P. 742. It has become a rule of property in Montana that "a water right is appurtenant to the land upon which it is used." Leg- 240 DITCHES AND WATER. gat v. Carroll, 30 Mont. 384, 76 P. 806. A patent does not divest ditch rights. Dodge v. Harden, 1 Or. 456, 1 M. R. 63. The right granted under the A. C. 1866 was not confined to ditches then in existence. Jacob v. Lorenz, 98 Cal. 332, 33 P. 119. A Ditch May Be Abandoned Without Necessarily Abandon- ing the water which it carried. New Mercer Co. v. Arm- strong, 21 Colo. 357, 40 P. 989. Non-user of ditch does not necessarily amount to abandonment. Welch v. Garrett, 51 P. 405, 5 Ida. 639, 19 M. R. 193. Buyer Must Take Notice of. A ditch is a physical and visible monument, and doubtless the grantee of land crossed by a ditch buys with presumptive notice of its existence. Oregon Co. v. Trullenger, 3 Or. 1, 4 M. R. 247 ; Lampman v. Milks, 21 N. Y. 505. Relation. When a ditch is made for the appropriation of water, the right relates back to the commencement of the work on the ditch, if the same be completed within a reasonable time. Maeris v. Bicknell, 1 Cal. 262, 68 Am. Dec. 357, 1 M. R. 601; Irwin v. Strait, 18 Nev. 436, 4 P. 1215. But if the ditch be not completed with due diligence, the right only accrues from the time the water is actually appro- priated. Ophir Co. v. Carpenter, 4 Nev. 534, 97 Am. Dec. 550, 4 M. R. 640. Facts stated and held to amount to due diligence. Oviatt v. Big Four Co., 39 Or. 118, 65 P. 811; Sand Point Co. v. Pan Handle Co., 83 P. 347, 11 Ida. 405. And the ditch has a right of way over claims located across its line after work commenced, but before completion. Miocene D. Co. v. Jacob- sen, 146 F. 680, 77 C. C. A. 106. Until claimant of water is in a position to use the water he can not claim damages against a party diverting or using it. Miles v. Butte Co., 3 Mont. 56, 79 ,P. 549. DITCHES AND WATER. 241 In Tlwrn'dyke v. Alaska M. Co., 164 F. 657, 90 C. C. A. 473, the district rule required that the appropriates of water must "work diligently and uninterruptedly to completion." On the facts the ditch owner was held to have not abandoned his water rights, under this rule. One who takes up land left vacant by the death of a squatter who had no heirs, does not succeed to the water rights appro- priated by the squatter. Head v. Hale, 38 Mont. 302, 100 P. 222. Surplus Water. Ditch owner must return surplus. Stanford v. Felt, 71 Cal. 249, 16 P. 900. After user by placer miner it must be let go to claims below. Alder Gulch Co. v. Hayes, 6 Mont. 31, 9 P. 581. Waste water defined. Byrne v. Crafts, 73 Cal. 641, 15 P. 300. The flowage of water from a tunnel is a subject for appro- priation, and, where a party appropriated water from a tunnel, which was afterwards undercut by a lower tunnel, the water of which it also appropriated, its right, by relation, went back to the original appropriation. Ripley v. Park Center Co., 40 Colo. 129, 90 P. 75. But such appropriation does not impose any obligation on the tunnel owner. Cardelli v. Gain- stock Co., 26 Nev. 284, 21 M. R. 699, 66 P. 950 ; the same as to water from the sluice of a placer claim and tapped on the owner's ground by his license. F airplay Co. v. Weston, 67 P. 160, 29 Colo. 125, 21 M. R. 725. Water flowing from an abandoned artesian well on the public domain is subject to appropriation. De Wolfskill v. Smith, 5 Cal. App. 175, 89 P. 1001. Parol License to Construct. Where a ditch is constructed on government land or over the land of persons who give their consent, no condemnation pro- ceedings are necessary; the ditch once constructed becomes a lawful easement ; or the consent may be treated as giving title 242 DITCHES AND WATER. by estoppel. Yunker v. Nichols, 8 M. R. 64, 1 Colo. 551. With or without the aid of this or like decisions it remains clear that a ditch over the public land requires the consent of no person, the federal consent being given by law, that verbal consent is commonly taken as sufficient over possessory claims and that when by its construction it becomes a fixed easement, even the patented title recognizes the validity of the title to such ditch. Tynon v. Despain, 22 Colo. 240, 43 P. 1039; Stoner v. Zucker, 148 Cal. 516, 113 Am. St. Rep. 301, 7 Ann. Gas. 704, 83 P. 808. The term "miner's inch" may be explained by parol testi- mony. Ulrich v. Pateros Co., 67 Wash. 328, 121 P. 818. See GLOSSARY. Condemnation Where Necessary. Where it is to be built across claims or other lands whose owners refuse consent, condemnation proceedings are necessary under the Eminent Domain Acts, notwithstanding the right of way granted to ditches by the Act of 1866. (R. S. 2339.) A ditch, when carried across mining claims already located, must recognize their prior possessory rights and pay damages as in other cases of condemnation. Titcomb v. Kirk, 51 Cal. 288, 5 M. R. 10; Jennison v. Kirk, 98 U. S. 453, 25 L. Ed. 240, 4 M. R. 504; Noteware v. Sterns, 1 Mont. 311, 4 M. R. 650. It seems not necessary that the ditch owners should incorporate to condemn a right of way for ditches, though incorporation in such cases is usual and is always assumed to be necessary in the absence of constitutional provisions dispensing with it, such as Sec. 7, Art. XVI, Colorado Constitution. The flooding of land by a reservoir for supply of power to mines and smelters and for irrigation is a public use. Helena Power Co. v. Spratt, 35 Mont. 108, 10 Ann. Gas. 1055, 88 P. 773. Where a ditch was constructed without objection from the owners of the mining claims it crossed, but without condemna- tion proceedings, an attempt by the mine owners to destroy the ditch will be enjoined. The mine claimants are entitled to EIGHT OF WAY AND OTHER EASEMENTS. 243 damages only. Miocene D. Co. v. Jacobsen, 146 P. 680, 77 C. C. A. 106. Irrigation Ditches Are Granted the Same Rights of Way and the same right to appropriate water as ditches for mining purposes under section 2339 above printed. Neither has any class priority over the other. Union Co. v. Dangberg, 81 F. 73. The first in time is first in right. They may in general be located and recorded in the same form as a mining ditch, except when otherwise regulated by statute. The Colorado Act applies to reservoirs and ditches for any beneficial use and for the enlarging of the same. The form on page 236 is sufficient for an irrigating ditch by changing the purpose of the use. Contract to enlarge a ditch so that it would be filled from a certain river construed to mean to make a ditch of a certain capacity and not a guaranty that the water would be there to fill it. Flick v. Halm's Peak Co., 16 Colo. App. 485, 66 P. 453. A party contracting to supply water to a placer mine must furnish water fit for the purpose, and if the water furnished has come from a placer above, the duty is upon him to provide the necessary reservoirs to settle it. Gold Ridge Co. v. Tall- madge, 44 Or. 34, 102 Am. St. Rep. 602, 74 P. 325. Using sHch water as furnished was no waiver of damages for its defects. Id. For form of incorporation of ditch company see p. 402. RIGHT OF WAY AND OTHER EASEMENTS. State Power to Regulate Easements. B. S. Sec. 2338. As a condition of sale, in the absence of necessary legislation by Congress, the local legislature of any State or Territory may provide rules for working mines, involving easements, drainage, and other necessary means to their complete development; and those con- ditions shall be fully expressed in the patent. Sec. 5, A. C. July S6, 1866. 244 EIGHT OF WAY AND OTHER EASEMENTS. Highways. R. S. Sec. 2477. The right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted. Sec. 8, A. C. July 86, 1866. By the terms of the above section 2477, roads and trails may be established without any license or formality over the public domain. Hobart v. Ford, 15 M. R. 236 ; 6 Nev. 77. By a very early statute in Colorado all claims are made sub- ject to the right of way for hauling quartz (R. S. Sec. 4215), and by section 4216 parol license to build a road is valid with- out 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 condemnation under the Eminent Domain Acts with compensation in damages. Titcomb v. Kirk, 5 M. R. 10, 51 Cal. 288. Except where granted by the above section, 2477, or allowed by State statute enacted under the permission of section 2338 (which has a very limited scope) the title to an easement must be created by 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 executed license, but if a good title is sought at the outstart it should be secured in writing in every instance. Highland Boy Co. v. "Strickley, 116 F. 852, 54 C. C. A. 186. 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 v. Rio Grande 8. R. Co., 31 Colo. 446, 72 P. 1065; Tuolumne Co. v. Maier, 134 Cal. 583, 66 P. 863, 21 M. R. 678. A Mineral Patent Does Not Divest a Valid Highway Already on the ground when patent was applied for. And when con- strued 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 EIGHT OF WAY AND OTHEK EASEMENTS. 245 affecting the ground prior to the application. Such an ease- ment saves itself and needs not to be protected by filing an adverse claim. Rockwell v. Graham, 9 Colo. 36, 10 P. 284, 15 M. R. 299 ; Jacob v. Day, 111 Cal. 571, 44 P. 243. Deed in general terms giving right of way to a mining com- pany to get mineral construed to authorize a tramway and also the right to change the line of the tramway. Duncan v. American Co., 30 Ky. Law Rep. 84, 97 S. W. 392. Annual Labor. The building of trails or roads for the benefit of a claim counts as annual labor or towards making up the $500 improve- ments required before patenting. See page 121. One Tenant in Common Can Not by His Deed or License create an easement over the common claim in favor of a stranger. Pfeiffer v. University, 74 Cal. 156, 15 P. 622. Nor has the general manager of- a mine power to grant an ease- ment. B utte Co. v. Montana Co. (Mont.), 55 P. 112. 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, 38 Colo. 171, 120 Am. St. Rep. 106, 87 P. 1081, 52 Colo. 541, 125 P. 498. Nor to maintain a pipe line across the common ground for any purpose other than the mining of it. Pioneer Co. v. ShamUin, 37 So. 391, 140 Ala. 486. Congressional Grant of Easements. By various Acts of Congress the right of way over the public domain is given to tramways, canals, ditches and lines for distribution of electric power, with provisions for reservoirs and power sites. The departmental regulations concerning the same are scattered, and necessarily so, on account of the overlapping and conflicting acts which grant them. We refer to the later rulings, as follows : 246 BIGHT OF WAY AND OTHER EASEMENTS. Ditches. Ditch rights under Act of March 3, 1891, 26 Stat. L. 1095, and Act of May 11, 1898, 30 Stat. L. 404, are considered in 42 L. D. Ill, 217, 562 and 595. Regulations as to petition for ditch rights are found in 41 L. D. 13. No company will be recognized as an applicant for ditch rights until the formal presentation of an application for a specific right of way. 40 L. D. 125. Want of diligence forfeits reservoir and other irrigation rights. 38 L. D. 175, 39 L. D. 27, 309. Government may appropriate water and cut out later asser- tions of right to the same. 39 L. D. 334. Practice of the Department where water rights are disputed by rival applicants. 37 L. D. 152. Pipe Lines. Rights of way to pipe lines are considered in 41 L. D. 138 and 43 L. D. 110. Power Sites, Telephones, Telegraphs. Regulations on petitions for power lines, telegraph and tele- phone lines are found in 40 L. D. 30, 41 L. D. 150, 454, 532, and 42 L. D. 465. Power sites, rules and decisions concerning. 39 L. D. 209. In 41 L. D. 532, amended, 42 L. D. 348 are found detailed regulations concerning applications for power sites. (See also 42 L. D. 562.) Rental charge on electrical transmission lines changing regu- lation 8 as found in 41 L. D. 454. 44 L. D. 335. Forest Reserves. Rights of way over forest reserves are considered in 43 L. D. 448. The approval of an easement within a forest reserve is only advisory to the Secretary of the Interior and does not oust his jurisdiction as to the title. 40 L. D. 380. EIGHT OF WAY AND OTHEK EASEMENTS. 247 The right of way act of February 1, 1905, 33 Stat. L. 628, concerning ditches and other easements is operative within the forest reserves in Alaska. 40 L. D. 426. Easements in General. R. S. Sec. 2338 as to easements created by State laws is printed on page 243, and E. S. Sec. 2339 confined to water rights on page 233. In 36 L. D. 567-591 is found a recapitulation of rules and practice concerning all kinds of easements, "with forms. Protest, Forfeiture. Rules for practice in cases of protest against power applica- tions are found in 41 L. D. 590. Regulation of proceedings by the United States to forfeit rights of way. 39 L. D. 480. If a contested land entry has been set aside by judicial decision and the title restored to the government, no applica- tion will be received on the same until it has been noted on the Land Office records. 38 L. D. 597. After the five year period in the Act of March 3, 1891, 26 Stat. L. 1095, and Act of May 11, 1898, 30 Stat. L. 404, judicial proceedings must be taken to forfeit the right. 38 L. D. 207. Procedure of Department on protest against oil applications is found in 44 L. D. 420. Reservations in Patents. The reference in the patent to the reservation of easements is considered in 40 L. D. 28 and 44 L. D. 412. By A. C. May 21, 1896, 29 St. L. 127, oil pipe lines in Colo- rado and Wyoming are given free right of way over public land. For right of way over national forest a special permit must be secured. 43 L. D. 448. 248 RIGHT OF WAY AND OTHER EASEMENTS. Interstate Commerce. Void Pipe Line Act of Oklahoma. To forbid the doing of acts in themselves harmless and which are absolutely essential to the enjoyment of property amounts to confiscation. Haskcll v. Cowham, 187 F. 403, 109 C. C. A. 235 ; Oklahoma v. Kansas Co., 221 U. S. 230, 35 L. R. A. (N. S.) 1193, 55 L. Ed. 716, 31 Sup. Ct. Rep. 221. Pipe lines are common carriers. Prairie Oil Co. v. U. S., 204 F. 798. Eminent Domain. Acts to condemn ditches are found in all the arid States. By Colorado Act of 1907, R. S. 2438, an aerial tramway, or pipe line for public use, 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, 4 Ann. Gas. 1171, 49 L. Ed. 1085, 25 Sup. Ct. Rep. 676. A private tramway may not be condemned. People v. Dist. Ct., 11 Colo. 147, 17 P. 302. It has been held a public use in Nevada. Dayton H. Co. v. Seawell, 11 Nev. 394, 5 M. R. 424; Byrnes v. Douglass, 19 M. R. 96, 83 F. 45, 27 C. C. A. 399. And in Utah, Highland Boy Co. v. Strickley, 28 Utah 215, 107 Am. St. Rep. 711, 3 Ann. Cas. 1110, 1 L. R. A. (N. S.) 976, 78 P. 296. And in Montana, Helena Power Co. v. Spratt, 35 Mont. 108, 8 L. R. A. (N. S.) 567, 88 P. 773. In Byrnes v. Douglass a tunnel was condemned. But otherwise in California; Cons. Channel Co. v. C. P. R. Co., 51 Cal. 269, 5 M. R. 438 ; Amador M. Co. v. Dewitt, 73 Cal. 482, 15 P. 74; Butter County v. Nicols, 93 P. 872, 152 Cal. 688, 15 L. R. A. (N. S.) 616. Ground for deposit of tailings may be condemned. Goldfield Co. v. Old Co., 38 Nev. 426, 150 P. 313. A railroad to a mine is a public use. Eipp v. Davis Daly Co., 41 Mont.- 509, 36 L. R. A. (N. S.) 666, 110 P. 237. A pipe line to carry oil or t DUMP. 249 natural gas may be condemned as a public use. City of LaHarpe v. Elm Co., 69 Kan. 97, 76 P. 448. A distinction has been made where the easement is intended only for the private benefit of the condemnor and where intended to supply the public generally, being allowed in the latter instance and denied in the former. Great Western Co. v. Hawkins, 30 Ind. App. 557, 66 N. E. 765 ; Miocene D. Co. v. Lyng, 138 F. 544, 70 C. C. A. 458. 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 con- demn land to connect with a railroad. Sec. 2464. The measure of damages where a quarry is condemned is the value of the stone in place. Cole v. Ellwood Co., 65 Atl. 678, 216 Pa. 283. Right of Way to Tunnel. See TUNNEL SITE. DUMP. The Right to Dump Is But Little If At All Affected by statutory regulations, and the right to dump, as 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. S. C. Ct. Colorado, an action brought to restrain the dumping across a claim lying below on the mountain slope, it was lield, 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. 250 DUMP. 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 done by each party, that only nominal damages could 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, 98 Am. Dec. 209. 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 improvements 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. Sec. 2338, ante p. 243, or allowed by dis- trict rule. The owner of a gypsum bed can not make his neighbors' land a convenience to dump his waste on. White v. Lansing, 119 App. Div. 584, 103 N. Y. Supp. 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 can not exceed the amount of such value. Harvey v. Sides M. Co., 1 Nev. 539, 90 Am. Dec. 510, 10 M. R. 107. A Dump Is Real Estate and Passes to the Grantee Without special mention. Savage v. Nixon, 209 F. 122; Steinfeld v. Omega Co., 16 Ariz. 230, 141 P. 847. But a contract to sell the ore found in it need not necessarily be by deed. Smart v. Jones, 15 Com. Bench, N. S., 717 ; Hanson v. Dayton, 153 F. 258, 82 C. C. A. 588. A dump of slag is real estate, but may be treated by the owner as personalty and sold and delivered as such. Hanson DUMP. 251 v. Dayton, 153 F. 258, 82 C. C. A. 588. Dump deposited on the land of another and allowed to remain indefinitely becomes parcel of the land. Lacustrine Co. v. Lake Guano Co., 82 N. Y. 476; Erwin's App., 12 Atl. 149, 16 M. R. 91. A deposit of tailings becomes an accretion to the land. Rogers v. Cooney, 14 M. R. 85, 7 Nev. 213. Under a mining lease in general terms the lessee 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. Heath, L. R, (1898), 2 Ch. 301; Genett v. Delaware Co., 14 App. Div. 177, 43 N. Y. Supp. 589, 122 N. Y. 505, 25 N. E. 922. The right to dump may be lost by allowing adverse posses- sion of the ground for the statutory period. McLaughlin v. Del Re, 71 Cal. 230, 16 P. 881. Ejectment lies to recover ground used for tailings. Campbell v. Silver Bow Co., 49 F. 47, 1 C. C. A. 155. 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. 91, 12 Atl. 149; Doster v. Friedensville Co., 21 Atl. 251, 140 Pa. 147. Construction of contract to work dump. Foster v. Lum- bermen's Co., 36 N. W. 171, 68 Mich. 188. 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., 79 F. 821, 18 M. R, 616; Himrod v. Ft. Pitt Co., 220 F. 80, 135 C. C. A. 648. Dump rights and the easement of the right to work through adjoining ground are appurtenances which pass on foreclosure of a mechanic's lien. Park County v. Comstock Co., 36 Utah 145, 103 P. 254. 252 MINERAL LAND. MINERAL LAND. Contests With Non-Mineral Claims. The question: What is mineral land? arises in contests between mineral and agricultural claimants, between mill site and lode claimants, in timber cutting cases, indirectly in con- tests as to the exception of known lodes from placers and in other instances. Where it is the duty of the land department to decide this point before they issue patent their decision is final. Gale v. Best, 78 Cal. 235, 12 Am. St. Rep. 44, 20 P. 550, 17 M. R. 186 ; Traapliagen v. Kirk, 30 Mont. 562, 77 P. 58 ; Paterson v. Ogden, 141 Cal. 43, 99 Am. St. Rep. 31, 74 P. 443, 34 L. D. 401. Title to known mineral land can not lawfully be procured by agricultural entry. Murray v. White, 42 Mont. 423, Ann. Cas. 1912A, 1297, 113 P. 755. Lands containing minerals of sufficient value to warrant expenditure are disposable only under the" mining laws, although they may possess a possibly greater value for other purposes. 43 L. D. 248. The Surveyor General's return cuts but little figure in a mineral or non-mineral contest. 39 L. D. 491 ; 45 L. D. 25. 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, 133 F. 380, 66 C. C. A. 442. 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. Olmstead, 20 M. R. 700, 103 F. 568; Bay v. Oklahoma Co., 13 Okla. 425, 73 P. 936. The subsequent discovery of mineral after a vested right in a non- mineral location does not invalidate the location. Cleary v. Skiffich, 28 Colo. 362, 89 Am. St. Rep. 207, 21 M. R. 2G4, 65 P. 59. Discovery of coal after entry will not defeat the MINERAL LAND. 253 issue of his patent to a homestead claimant. 21 L. D. 92; Colo. Co. v. U. 8., 123 U. S. 308, 31 L. Ed. 182, 8 Sup. Ct. Rep. 131. The test in agricultural contests is one of comparative values. Hunt v. Steese, 75 Gal. 621, 17 P. 920. A discovery justifying further exploration makes the land mineral. 19 L. D. 455. 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. Tanana Mines, 148 F. 678, 78 C. C. A. 412. It is not necessary that immediate profitable mining could be carried on to make the premises mineral land. Madison v. Octave Oil Co., 99 P. 176, 154 Cal. 768. The mineral value of the land, to defeat an agricultural entry, must be substantial. Abandoned works are not enough. U. S. v. Blackburn, 5 Ariz. 162, 48 P. 904. Pumice deposit is mineral land. 41 L. D. 584. Ordinary clay or limestone of no special value does not make the land mineral. 41 L. D. 314. The same as to rock of no pecuniary value. 41 L. D. 655. Sand and gravel are not minerals in a homestead contest. 39 L. D. 310. Value for gypsum makes the land mineral. 29 L. D. 181; 27 L. D. 57. Madison v. Octave Oil Co., supra. The department in a circular letter, dated Nov. 30, 1908, concerning the Timber and Stone Act, gave a formal definition of non-mineral lands as follows : Non-mineral lands are such lands as are not known to contain any substance recognized and classed by standard authorities as mineral, in such quantities and of such qualities as would, with reasonable prospects of success in developing a paying mine thereon, induce a person of ordinary prudence to expend the time and money necessary to such devel- opment. 37 L. D. 290. 254 MINERAL LAND. Coal Lands. Coal lands are "mineral lands" as that term is generally used in the disposal of the public domain. U. S. v. N. Pac. Ry., 170 U. S. 498. Phosphates. Phosphate land is mineral land and as such excepted from railroad grants. 26 L. D. 600. And phosphate is such mineral value as will suffice to cancel a homestead entry. 18 L. D. 58. Jurisdiction to Determine. The Department retains jurisdiction to inquire into the min- eral character of land until patent issues. 41 L. D. 520. The ruling of the Land Department in a contest 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, 11 Ariz. 241, 90 P. 333; Le Feme v. Amonson, 11 Ida. 45, 81 P. 71. Where fraud is alleged it must be extrinsic to the issue passed upon by the Department. Cragie v. Roberts, 6 Cal. App. 309, 92 P. 97. A court has no jurisdiction to restrain the officers of the Land Department in their proceedings to ascertain the mineral character of land, although the same be held by plaintiff under the mining act. Cameron v. Weedin, 226 F. 44. It is the province of the Land Department to determine what land is mineral and what is non-mineral. Cosmos Co. v. Gray Eagle Co., 190 U. S. 301, 47 L. Ed. 1064, 23 Sup. Ct. Rep. 692 ; Wright v. Hartville, 13 Wyo. 497, 81 P. 649, 82 P. 450 ; Nevada Co. v. Spriggs, 41 Utah 171, 124 P. 770. But in a contest between a lode and a placer, the Court must necessarily decide to which class the ground belongs. Duffield v. S. F. C. Co., 205 F. 481, 123 C. C. A. 548. And the Court can relieve against a manifest mistake of law by the Land Office. West v. Timber Co., 210 F. 189. MINERAL LAND. 255 Severed Title in United States. By A. C. of July 17, 1914, provision is made to allow agri- cultural entry of lands withdrawn as * phosphate, nitrate, potash, oil, gas or asphalt, with a reservation of the title of the United States to such minerals. 38 St. L. 509. Such lands may be prospected upon giving bond to protect the agricultural claimant, and there are sundry provisions naturally incident to this novel idea of partnership in the title to the public lands. Where the patent itself contains a mineral reservation it is not conclusive evidence that the land is non-mineral. Eastern Co. v. Willow River Co., 187 F. 466. Mines and Quarries at Common Law. The term "mine" is generally applied to an excavation for mineral which enters cover as distinguished from a "quarry" which is supposed to be a working for the removal, of rock, layer by layer, from the surface down without getting under roof. But this distinction is not universal ; for, under certain systems of working and in certain formations, even a fissure vein may be exploited by a continuous open trench, and there are excavations for the extraction of slate which are subterra- nean. It is also obvious that a placer working is as much a mine as a lode mine and such workings are always open, barring the method of placer mining known as ' ' drifting. ' ' An exhaustive history of the etymology of these words as well as the legal distinctions between them is found in the first chapter of "MacSwinney," the leading English authority on mining law, and Mr. Costigan in his excellent "Handbook on American Mining Law" explains with great clearness the meaning of these words as used in the United States, and their various equivalents or alternative forms, as "location," "claim," "prospect" and "valuable mineral deposit." The generic term "mines" is not confined to subterraneous excavations nor the word "minerals" to metallic deposits. Nephi Co. v. Judb County (Utah), 93 P. 53. 256 MINERAL LAND. The meaning of the words "fully developed mine" is dis- cussed in People v. WJialen, a false pretense case, 98 P. 194, 154 Cal. 472. In Guffey Pet. Co. v. Murrel, the definitions of mine, quarry and ore are given with the ruling that an oil well is not a mine. 127 La. 466, 53 So. 705. Drilling for oil is not mining. Kreps v. Brady, 37 Okla. 754, 47 L. R. A. (N. S.) 106, 133 P. 216. Opened and New Mines. At common law everywhere a life tenant can work a mine opened and worked before he succeeded to the life estate, but can not open a new mine nor even work a mine which had become disused. We would consider claims on the public domain under the mining acts, whether patented or only located, to be opened mines. They could not become legal claims until worked at least enough to disclose the vein or placer values. The annual labor requirement and the essential $500 improvements also enforce this conclusion. See Seagar v. McCabe, 92 Mich 186, 52 N. W. 299, 16 L. R. A. 247; Poole v. Union Co., (Mich.) 157 N. W. 430. Minerals Defined. The cases defining what is a mineral, generally arising out of the construction of reservations in deeds, uniformly hold that the valuable metals and coal are within the meaning of the word, and the debatable substances have been the various forms of clays, stone, gravel, sand, oil, gas, and mineral waters. The best definition of mineral seems to be: any form of earth, rock or metal of greater value while in place than the enclosing country or the superficial soil. McCombs v. Stephenson, 44 So. 867, 154 Ala. 109, which adopted this definition, is a case in which the authorities are reviewed. Hext v. GiU, L. R. 7 Ch. App. 699, 17 M. R. 1, construing a reserve of china clay, is a learned English case on the subject; followed by Johnstone v. Crompton, L. R. 2 Ch. 197 (1899). PLACERS. 257 Meteorite Fossils Cave. A meteorite is real estate. Oregon Iron Co. v. Hughes, 47 Or. 313, 8 Ann. Cas. 556, 81 P. 572 ; Goddard v. Winchell, 86 Iowa 71, 32 N. W. 1124, 41 Am. St. Rep. 481, 17 L. R. A. 788. Fossils of dinosaurs do not create mineral value. 44 L. D. 325. Nor the presence of a cave of stalactites. 30 L. D. 357. PLACERS. Open to Location and Patent. R. S. Sec. 2329. Claims usually called "placers," including all forms of deposit, excepting veins of quartz, or other rock in place, shall be subject to entry and patent, 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 States, the entry in its exterior limits shall conform to the legal subdivisions of the public lands. Sec. 12, July 9,. 1870. Size of Claim Legal Subdivisions. R. S. Sec. 2330. Legal subdivisions of forty acres may be subdivided into ten-acre tracts; and two or more persons, or associations of persons, having contiguous claims of any size, although such claims may be less than ten acres each, may make joint entry thereof; but no location of a placer-claim, made after the ninth day of July, eighteen hundred and seventy, shall exceed one hundred and sixty acres for any one person or association of persons, which location shall conform to the United States surveys; and nothing in this section contained shall defeat or impair any bona fide pre-emption or homestead claim upon agricultural lands, or authorize the sale of the improvements of any b against executors. Stratton's Ind. v. Dines, 126 F. 968 5 135 F. 449, 68 C. C. A. 161. 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, 210 Pa. 311. And between associates none can secure a secret profit on the sale. Recovery in such case does not depend on proof of actual fraud. Sun Dance Co. v. Frost, 7 Ariz. 289, 64 P. 435, 356 FRAUD. 21 M. R. 252 ; Upton v. Weisling, 8 Ariz. 298, 71 P. 917, 22 M. R. 601 ; Christy v. Campbell, 36 Colo. 261, 87 P. 548; Dreeland v. Pascoe, 102 P. 331, 39 Mont. 290. A purchaser is not chargeable with notice of his vendor's fraud in his original purchase. Kendrick v. Colyar, 143 Ala. 597, 42 So. 110. A party who by his own conduct prevents the completion of an act of appropriation can take no advant- age of his own wrong. De Wolf skill v. Smith, 5 Cal. App 175, 89 P. 1001. An agent employed to buy a mine for $150,000 got it for much less than he reported to his principal. A judgment for the amount of his secret rebate was upheld, and the fact that plaintiff consummated the purchase was no bar to his action for damages. Great Western Co. v. Chambers, 155 Cal. 364, 101 P. 6. Where parties to a mining sale collude to deceive a pur- chaser, both the party who takes title and the party for whom he holds it and the property itself become liable and charged with a constructive trust. Cunningham v. Pettigrew, 169 F. 335, 94 C. C. A. 457. Pretending to become himself a purchaser of mining stock and giving check to pay for same and so inducing defendant to purchase also when the check was only a blind and was returned to the maker, Held, good to rescind the sale. Seaver v. Snider, 21 Colo. App. 431, 122 P. 402. Fake check and salted samples. Springhetti v. Hahneivald, 54 Colo. 383, 131 P. 266. Purchaser of stock sued her broker for stock purchased on extravagant representations and alleged guarantee. Evidence and measure of damages in such case stated. Buttock v. Lewis, 22 Colo. App. 449, 125 P. 849. Distinction Between Opinions and Facts. Assertions of value are as a rule only expressions of opin- ions. But otherwise as to statements that the lands sold include a certain ore bed. Chatham Co. v. Moffatt, 16 M. R. 103, 147 Mass. 403, 9 Am. St. Rep. 727, 18 N. E. 168. And MIMING LEASE. 357 opinions and promises (false averments of large means and extensive operations intended) may amount to actual fraud. Rarer Co. v. Trout, 83 Va. 397, 5 Am. St. Rep. 285, 2 S. E. 713. The same as to promises never intended to be performed. Laivrence v. Gayetty, 78 Cal. 126, 12 Am. St. Kep. 29, 20 P. 382, 17 M. R. 169. The false representation of the amount of mineral in place, and as well the false representation that an expert had reported 50,000 tons in place when he had only reported 5000 tons, are material to set aside a sale. Johnson v. Withers, 98 P. 42, 9 Cal. App. 52. A statement that certain mining stock was of great value and would pay immense dividends is only expression of opin- ion. Wegerer v. Jordan, 10 Cal. App. 362, 101 P. 1066. But overstating purchase price may be fraud. Rich v. Teasley, 194 F. 534. Representations Not Relied On. Where a party buys a mine after examination, or after full opportunity to examine, or where he has tested and prospected a claim, or buys upon the report of his own expert, false rep- resentations, as a general rule, become immaterial. Fidelity Co. v. Bank, 139 F. 101, 71 C. C. A. 299 ; Winter v. Bostwick, 172 F. 285; Mitchell M. Co. v. Eammons, 12 Ariz. 300, 100 P. 795 ; Dooley v. Burlington Co., 12 Ariz. 332, lOO^P. 797 ; Ernest v. McCauley, 155 Cal. 739, 102 P. 924; King v. Lamborn, 186 F. 21, 108 C. C. A. 123. "'/" 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. Sec. 2662.) If for a less period it is still often reduced to writing, and the covenants being peculiar can not be too particularly expressed. The actual possession taken by the lessee being notice of his rights, the lease generally is neither acknowledged nor recorded. 358 MINING LEASE. Utider an ordinary surface lease at a fixed rent the tenant has no right to sink an oil well. Isom v. Bex Oil Co., 147 Cal. 659, 82 P. 317. A writing in the form of a deed, but reserving rent, is in legal effect a lease. Tooth man v. Courtney, 62 W. Va. 167, 58 S. E. 915. Lease may be good without the signature of the lessee. Chandler v. Hart, 161 Cal. 405, Ann. Cas. 1913B, 1094, 119 P. 516. There are cases making refined distinction between a lease proper and a sale of the mineral in place. They may involve tax questions and occur only in long leases treating the con- tract as a sale of the coal or mineral and not as an agreement to work it out on a royalty. Delaware Co. v. Sanderson, 109 Pa. 583, 58 Am. Rep. 743, 1 Atl. 394; Browning v. Bosicell, 215 F. 826, 132 C. C. A. 168. Where lessees continue to work for years after the termina- tion of the lease they are considered to be working the same as if the lease had been renewed. Wallace v. Dorris, 218 Pa. 534, 67 Atl. 858. 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 retain- ing 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 language, and means sinking shafts and running drifts, adits or cross-cuts, or it may embrace every- thing except 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. MINING LEASE. 359 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. . FOBM OF LODE LEASE. THIS INDENTURE, made this -first day of May, in the year of our Lord one thousand nine hundred and sixteen, between Harvey C. Vernon of Chicago, State of Illinois, lessor, and Franlc H. Stanwood, of Salina, State of Colorado, lessee or tenant : Witnesseth, that the said lessor, for and in consideration of the royalties hereinafter reserved and the covenants and agreements hereinafter expressed, and by the said lessee to be kept and performed, hath granted, demised, and let and by these presents doth grant, demise and let unto the said lessee all the following described mine and mining property, situate in Four Mile Mining District, County of Boutt, State of Colorado, to-wit: The Owl Bird Lode Mining Claim, Survey Lot No. 172, 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 first day of May, 1917, 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 doth covenant and agree with said lessor as follows, to wit: 1. To enter upon said mine, or premises, and work the same mine fash- ion, in manner necessary to good and economical mining, so as to take out the greatest amount of ore possible, with due regard to the develop- ment and preservation 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 continu- ously, from the date of this lease with at least two persons employed underground, for at least twenty shifts to the man each calendar month. 3. To well and sufficiently timber said mine at all points where proper, in accordance with good mining; and to repair all old timbering wherever it may become necessary. 360 MINING LEASE. 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 thereunder, and to not sub- let the said premises or 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 pretense whatever. 6. To occupy and hold all cross or parallel lodes, spurs or mineral deposits of any kind which may be discovered 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. 8. To do no underhand stoping, and to make all shafts 7 feet long by 4 feet wide in the clear, and all drifts 6 feet high by 4 feet wide in the clear. 9. To pay to said 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 regular 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. (See clause 9, Covenant for Graded Royalty, or Royalty on Price Per Ton.) 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 ready for immediate continued work- ing (accident not arising from negligence alone excusing) without demand or further notice, on the said 1st day of May, A. D. 1917, at noon, or at any time previous, upon demand for forfeiture. 11. And finally, that upon violation of any covenant or covenants here- inbefore reserved, the term of this lease shall, at the option of the saiii lessor, expire, and the same and said premises, with the appurtenances, shall become forfeit to said lessor; and said 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. SSI.) Each and every clause and covenant of this Indenture shall extend to the heirs, executors, administrators and lawful assigns of all parties hereto. MINING LEASE. 361 In witness whereof, the said parties have hereunto set their hands and seals. HARVEY C. VERNON. [SEAL.] FRANK H. STANWOOD. [SEAL.] (For acknowledgment, if desired, see p. 332.) Special Covenants. Where the law allows a lien in favor of lessee's employees, unless notice is posted, there should be a special covenant to keep such notice posted. Where a large product is expected it is usual to require lessee to make a monthly report of his pay roll and mill returns, and unusual conditions may suggest many other special covenants, particularly in coal leases, but as a rule the more simple the lease the better for both sides. The covenant to not assign is often omitted, especially where an option goes with the lease. It is not unusual to insert a covenant releasing obligation to work in case of labor strikes. In this connection see Hitch- man Co. v. Mitchell, where the United Mine Workers of Amer- ica were enjoined. 202 F. 512. 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 roy- alty is much graded and made dependent on the amount oi* 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 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. 362 MINING LEASE. Royalty on Price Per Ton. 9. To pay to said lessor as royalty 10 per cent of the net mill returns of oil 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 is made, are substantially according to the form on following page. PLACER LEASE. Follow the form for Lode Lease except in the description and the numbered covenants, which may be as follows: 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 worlc 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 con- tinued working and to the special covenants hereinafter reserved. 2. To work and wash said premises steadily and continuously from the date of this lease with a force of at least two men and with as much of said water as can be obtained and used. Cessation of work for the total number of three secular days in any one calendar month shall be con- sidered a violation of this covenant. But no work shall be required while the ground is frozen. 3. To take care of the dump and tailings so as to prevent their accumulation upon any ground of the lessor remaining unworked. 4 and 5. (Same as lode lease.) M1M.XG LEASE. 363 CD > V) Crt * O IS X SAMPLER LOT No. 1 |i s 1 If WEIGHTS . 'n i I! I NET POUNDS Si-*? < ANALYSJS * 1* * 1* t 1?* 8 i* ? | * ** ? 1 r r r r 2 2 2 2 S CA 9 M H Cfl 'fl <* Iff f I 1 f -s III If" - *r!f S l?i | III b?? S | " * Et ssbsssbs s AMOUNT RECEIVED W > CO h3 W 55 CO > O o o 364 MINING LEASE. 6. To clean up the gold not oftener than once every two weeks and at least as often as once in four weeks and to give 48 hours' notice to lessor of the date intended for clean up, and at each clean up lessor shall have the right to be personally present or to send some one person to represent 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 as 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 same to be 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. 1917, or at any time previous upon demand for forfeiture. 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 as he may elect. Third Form of Royalty Covenant. After the (*) proceed as follows: Of 25 per cent of the net mint returns or proceeds of sale to some regular gold buyer at Fairplay or Denver for use of the lessor. Covenant to Work. Where royalty is reserved in the usual form there is an implied covenant to keep at work. Rorer Co. v. Trout, 83 Va. 397, 5 Am. St. Rep. 285, 2 S. E. 713; Aye v. Philadelphia Co., 193 Pa. 451, 74 Am. St. Rep. 696, 20 M. R. 177, 44 Atl. 555. Otherwise where there is a fixed rent, or a rent based on an assumed minimum production. Mclntyre v. Mclntyre Co., 11 N. E. 645, 105 N. Y. 264. The ordinary covenant to "take out the greatest amount of ore possible" is enforceable as such and is not a mere condi- Mils IMG LEASE. 365 lion. The measure of damages in such case would depend on the amount of ore that could have been mined with reason- able diligence. Macon v. Trowbridge, 38 Colo. 330, 87 P. 1147. Dredge company held for royalties on ground worked and for gravel which it should have worked. Northern Light M. Co. v. Blue Goose Co., 25 Cal. App. 282, 143 P. 540. And for failure to commence work in a reasonable time the lease may be cancelled. Mclntosh v. Robb, 4 Cal. App. 484, 88 P. 517. For breach of covenant the lessor may elect between for- feiture and damages. Brooks v. Gaffin, 90 S. W. 808, 192 Mo. 228. An agreement to work is not necessarily an agreement, to work continuously. Caley v. Portland, 12 Colo. App. 397, 56 P. 350. But the case of Zelleken v. Lynch holds that the phrase means to work to the end of the term. 80 Kan. 746, 46 L. R. A. (N. S.) 659, 104 P. 563. Failure to start work is same as quitting. Woodward v. Mitchell, 140 Ind. 406, 39 N. E. 437, 439, 18 M. R. 158. A parol agreement as to what shall be considered sufficient work is binding on lessor and his grantees. Bartley v. Phillips, 36 Atl. 217, 18 M. R. 542, 179 Pa. 175. To recover substantial damages against a lessee failing to work, the plaintiff must show that the ore could have been mined to a profit. Colorado F. Co. v. Pryor, 25 Colo. 540, 57 P. 51, 19 M. R. 544. 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 J. Co., 78 N. E. 902, 222 111. 600. A lessee is not bound under covenant to return in as good condition as when received, to restore buildings accidentally destroyed by fire. Id. 366 MINING LEASE. Exhausted Mine Faults. There are many cases which hold that breach of covenant to work, or to pay a minimum rent, is excused when the ore in the mine becomes exhausted. Brooks v. Cook, 135 Ala. 219, 34 So. 960, 22 M. R. 456 ; Wilson v. Big Joe Co., 134 Iowa 594, 112 N. W. 89; Ross v. Savage, 66 Fla. 106, 108, 63 So. 148. Or when the lessee fails to find any ore. Girton v. Daniels, 35 Nev. 438, 129 P. 555. A lessee bound to take out all the coal under the demised tract is not bound to take out coal which could not be taken out at a profit. Wilson v. Big Joe Co., 134 Iowa 594, 112 N. W. 89. Troxell v. Anderson C. Co., 62 Atl. 1083, 213 Pa. 475, and Wilson v. Big Joe Co., 112 N. W. 89, 134 Iowa 594, are cases in which lessees of coal mines sought relief against rents on account of encountering faults. In the first cited case relief was denied on the assumption that lessee had no right to open the ground by instroke. Whether the lessees worked "mine fashion" as required by the terms of the lease is a jury question, but the Court con- strued the covenant "to get all pay dirt as low as 2 cents per pah" not to mean all pay dirt of that value in the mine but only such as it would pay to get by the use of miner-like methods. Belsea v. Tindall, 190 F. 440, 111 C. C. A. 244. The plea of "exhausted mine" is for the defending lessee to allege and make good. Martin v. Walsenburg Co., 200 F. 270. Instroke. This term covers the right to work one mine through another. It is of importance in many colliery cases and is becoming so in deep lode mining. Instroke is defined and fully considered in MacSwinney on Mines, p. 230. It will be allowed to lessee unless his papers covenant against it. Schobert v. Pittsburg Coal Co., 254 111. 474, Ann. Cas. 1913B, 1104, 40 L. R. A. (N. S.) 826, 98 N. E. 945. But trespass by instroke will be enjoined. Truf'ees v. Lehigh Valley Co., 236 Pa. 350 t 41 L. R. A. (N. S.) M39, 84 MINING LEASE. 367 Atl. 820. And the lease may be so worded as to cut out the instroke right. Sharum v.. Whitehead Co., 223 F. 282. See Bagley v. Republic Co., 193 Ala. 219. Right to Quit. Under the covenant to work in the above forms, the lessee has no right to quit at discretion. Northern Light M. Co. v. Blue Goose Co., 25 Cal. App. 282, 143 P. 540. 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 and 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. Wharton, 121 Pa. 424, 15 Atl. 615, 16 M. R. 239. The lessee may quit at will under a lease con- taining no covenant to work. Glasgow v. Chartiers Co., 152 Pa. 48, 25 Atl. 232, 17 M. R. 523. Co-Tenant Owners Partnership Lessees. The legal relation of co-lessees is that of partners. Meagher v. Reed, 14 Colo. 335, 350, 9 L. R. A. 455, 24 P. 681 ; Lamont v. Reynolds, 26 Colo. App. 347, 144 P. 1131; Manville v. Parks, 7 Colo. 128, 2 P. 212, 15 M. R. 565; Walker v. Bruce, 44 Colo. 109, 97 P. 250. Co-owners, however, are not necessarily partners. They may work it under such arrangement as does not constitute a partnership. Howard v. Luce, 171 F. 584. Only those co-owners who join in working the mine become partners and the idle co-tenants are not liable for its debts. Madar v. Norman, 13 Ida. 585, 92 P. 572; Peterson v. Beggs, 26 Cal. App. 760, 148 P. 541. A co-lessee may quit and his liability cease. Lamont v. Reynolds, supra. Quitting work but with intent to resume does not dissolve the partnership. Nielson v. Gross, 17 Cal. App. 74, 118 P. 725. 368 MINING LEASE. The lessees of a mine and those whom they take in as asso- ciates are partners, although the lease forbade an assignment of the lease. Bentley v. Brossard, 33 Utah 396, 94 P. 736. When one of the partners assigns his interest the partner- ship is not dissolved, but the new party takes the grantor's place. Loy v. Alston, 172 F. 90, 96 C. C. A. 578. A retiring partner is liable for wages where the miner has no notice that he had sold out. Kelley v. McNamee, 164 F. 369, 90 C. C. A. 357, 16 Ann. Gas. 299, 22 L. R. A. (N. S.) 851. A partnership exists where the several owners operate the mines together, one working, himself, and one putting in a man. Walker v. Bruce, 44 Colo. 109, 97 P. 250. A mining partnership contract is not within the statute of frauds. Whistler v. MacDonald, 167 F. 477, 93 C. C. A. 113. A threat of one partner to make no further advances and let the mine drown unless his partner signed the cpntract did not amount to duress. Connolly v. Bouck, 174 F. 312, 98 C. C. A. 184. The decease of one of the parties does not dissolve the part- nership. Boehme v. Fitzgerald, 43 Mont. 226, 115 P. 413. The essentials of the pleadings stated in action by one against another or by administrator against the survivor. Id. Distinction between mining and trading partnership stated. Dailey v. Fitzgerald, 17 N. M. 137, Ann. Gas. 1914D, 1183, 125 P. 625. In Paul v. Cragnaz, 25 Nev. 293, 47 L. R. A. 540, 59 P. 857, 60 P. 983, the lessee of a third interest was allowed heavy dam- ages against the majority owner disputing his right to enter and mine. We can not 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 denned in Shaw v. Homer, 7 Colo. App. 83, 42 P. 689, as "an apportionment among the parties inter- MINING LEASE. 369 ested, 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. Dav- enport, 116 Iowa 268, 89 N. W. 1081, 22 M. R. 171. Fixtures. Unless otherwise covenanted the fixtures belong to the lessee and are removable. Conrad v. Saginaw Co., 54 Mich. 249, 20 N. W. 39, 52 Am. Rep. 817. And this applies even to a for- feited lease. Mickle v. Douglas, 75 Iowa 78, 39 N. W. 198, 17 M. R. 137. A mortgage on fixtures was held good after forfeiture in Alberson v. Elk Creek Co., 39 Or. 552, 65 P. 978. But after forfeiture he must remove them within a reason- able-time. Perry v. Acme Oil Co., 44 Ind. App. 207, 88 N. E. 859. Engines, boilers, hoisting works, pumps and the like annexed to the land for mining are fixtures. And a contract that they shall be considered personalty is not good against creditors. Arnold v. Goldfield Co., 32 Nev. 447, 109 P. 718. The terms of the lease will hold as fixtures, machinery fur- nished to the lessee. Puzzle M. Co. v. Morse Bros. Co., 24 Colo. App. 74, 131 P. 791. Letting by Agent. The agent in charge 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 P. 432. And though unauthorized to lease, if the company stand by and allow the lessee to spend money, they will be bound. Hoosac Co. v. Donat, 10 Colo. 529, 16 P. 157. In Franklin v. Havalena Co., an unauthorized corporate lease and bond was held void. The lessee to account for ores mined but allowed to offset instalments paid. (Ariz.) 157 P. 986. 370 MINING LEASE. Lease by One Co-Tenant Majority Control. It has been repeatedly held that one co-tenant can not give a lease of the whole mine technically binding on all the co- owners. But it is constantly done and often without any moral wrong attaching to it. Of course, there must be an accounting to the non-joining co-tenant on the royalties received. Cascaden v. Dunbar, 191 F. 471, 112 C. C. A. 115. "Where they can not agree as to mode of working, a majority must control. Dougherty v. Creary, 30 Cal. 290, 89 Am. Dec. 116, 1 M. R. 35, 36 ; Blackmarr v. Williamson, 57 W. Va. 249, 4 Ann. Gas. 265, 50 S. E. 254. A Colorado Act of 1911, p. 474, gives the right to a major- ity interest to work the mine, provided a statement of intent to work it be recorded. The act is involved and confusing, but on close construction seems to do nothing more than to declare what the law was before the act was passed except to require the filing of this useless statement. Assignment. A lessee is not in general released from personal liability by assigning his lease ; but remains in the nature of a surety to his landlord. Pittslurg Co. v. Greenlee, 164 Pa. 549, 30 Atl. 489 ; Wilson v. Gerhardt, 9 Colo. 585, 13 P. 705. A Non-Assessable Interest in a Lease Is an Interest Charge- able 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, 52 P. 1029, 19 M. R. 310, holding it entitled to a full share of the gross pro- ceeds is wholly against the meaning of the term as understood by miners. In Taylor v. Thomas, 31 Colo. 15, 71 P. 381, 22 M. R, 527, 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. MINING LEASE. 371 Forfeiture. Unless the lease provide for forfeiture none occurs for non- payment of rent or breach of covenant. Plummer v. Hillside Co., 104 F. 208, 43 C. C. A. 490; Wake field v. Sunday Lake Co., 85 Mich. 605, 49 N. W. 135. A forfeiture enforced by collus- ion with employees of lessee is not lawful. 85 Mich. 605, 49 N. W. 135. Forfeiture can not be enforced by a party who is himself in default. Ingram v. Golden Co., 25 Wash. 318, 65 P. 549. Draining and pumping are counted as labor under a cove- nant to keep at work. Miller v. Chester Co., 129 Pa. 81, 18 Atl. 565, 16 M. E. 288. Where parties have acted loosely in complying with the terms of lease the lessor can not abruptly become strict and declare a forfeiture. Westmoreland Co. v. De Witt, 130 Pa. 235, 5 L. E. A. 731, 18 Atl. 724: Hukill v. Myers, 36 W. Va. 639, 15 S. E. 151; Price v. Black, 126 Iowa 304, 101 N. W. 1056. A lessor can not lull the tenant by indulgence and then suddenly enforce forfeiture. Pyle v. Henderson, 65 W. Va. 39, 63 S. E. 762. In Montrozona Co. v. Thatcher, 19 Colo. App. 371, 75 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. 972; Jones v. Scott, 58 Atl. 281, 209 Pa. 177. When forfeiture is provided for on account of certain breaches, there is no forfeiture for other breaches; and none for breach of implied covenants. Core v. N, T. Co., 52 W. Va. 276, 43 S. E. 128 ; Rose v. Lanyon Z. Co., 68 Kan. 126, 74 P. 625; Cluindler v. Hart, 161 Cal. 405, Ann. Gas. 1913B, 1094, 119 P. 516. The forfeiture of the lease for breach of contract to not assign forfeits the option. Behrens v. Cloudy, 50 Wash. 400, 97 P. 450. A lessor (or vendor) can not forfeit and at same time recover instalments. Youngs M. Co. v. Courtney, 219 F. 868. 372 MINING LEASE. St. Louis Union Trust Co. v. Galloway Co., 193 F. 106, is a well-considered case on the limitations against forfeiture of a lease of a large colliery, working the coal field demised and other coal by instroke. Relief Against Forfeiture. Courts should promptly seize upon any circumstances which the dealings between the parties will allow to show a waiver, and so relieve against "the harsh and at times unjust remedy of f orf eiture. " Spedden v. Sykes, 51 Wash. 267, 98 P. 752. Equity will not enforce a forfeiture, but will relieve a defaulting lessee who is willing and ready to pay and pro- ceed. Pheasant v. Hanna, 63 W. Va. 613, 60 S. E. 618. Royalty. Under a mining lease covenanting to pay a certain 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. Griblen v. Atkinson, 64 Mich. 651, 15 M. R. 428, 31 N. W. 570. And see on this point cases cited under ORE CONTRACTS and EXHAUSTED MINE. A mining lease based on royalty as its main consideration is forfeited after unreasonable delay to begin work. Mills v. Hartz, 11 Kan. 218, 94 P. 142. Oil produced by a lessee is his property and he has the right to sell the whole of it although a royalty percentage is reserved to the lessor. Coalinga Co. v. Associated Co., 16 Cal. App. 361, 116 P. 1107. The question under a lease, whether net profits on "culm" were to be based on the total cost of mining or on the cost of handling the "culm" only, held a question for the jury. Woodruff v. Gunton, 71 Atl. 849, 222 Pa. 376. In calculating minimum royalty each year is a period by itself. Woodruff v. Gunton, 222 Pa. 384, 71 Atl. 851. Changing terms of royalty in written lease by parol is valid and not within the Statute of Frauds. Nonamaker v. Amos, MINING LEASE. 373 76 N. E. 949, 73 Ohio St. 163, 112 Am. St. Rep. 708, 4 Ann. Gas. 170, 4 L. R. A. (N. S.) 980. The receipt of royalty admits the validity of the lease. Bicknell v. Austin Co., 62 F. 432; Burkhard v. Mitchell, 16 Colo. 376, 26 P. 657. A lessee has the right to show that the 75 per cent royalty, which his lease called for, was a mutual mistake, 25 per cent having been intended. Kuzek v. Magaha, 148 F. 618, 76 C. C. A. 465. . Miscellaneous Decisions. An advertisement, bid and acceptance make a complete agreement for a lease. Cochrane v. Justice Co., 16 Colo. 415, 26 P. 780. And the lessor can not after such proceedings insist on new and arbitrary terms. Id. Whether a lease has been extended is a question of fact which the Court can not take away from the jury. Riddle v. Mellon, 147 Pa. 30, 23 Atl. 241. A tenant can not take leases of two hostile titles and then compel his lessors to interplead. Standley v. Roberts, 59 F. 836, 8 C. C. A. 305. A lessee attempting to relocate the ground forfeits all rights under his lease. Silver City Co. v. Lowry, 19 Utah 334, 57 P. 11, 20 M. E. 55. Affirmed Lowry v. Silver City Co., 179 U. S. 196, 45 L. Ed. 151, 21 Sup. Ct. 104, 21 M. R. 113. A lease of a mining shaft means not only the shaft but the ground accessible through such shaft. Wesling v. Kroll, 78 Wis. 636, 47 N. W. 943. "Waiver of conditions may be shown by parol. Equator Co. v. Guanella, 18 Colo. 548, 33 P. 613; Bullis v. Presidio M. Co., (Noyes) 75 Tex. 540, 12 S. W. 397. And release of royalty. Crawford v. Bellevue Co., 183 Pa. 227, 38 Atl. 595. That a lessee did not drive the entry as fast as agreed is not sufficient to justify a forced rescission, and the Court will con- sider hard times as an element of excuse. Ross v. Sheldon, (Ky.) 119 S. W. 225. 374 LICENSE. "Where the provisions of a lease are susceptible of different constructions, the one which the parties have acted upon will be assumed to be correct, and one of them can not later assert a different construction to the detriment of the other. Mc- Keever v. Westmoreland Coal Co., 219 Pa. 234, 68 Atl. 70. And a surrender of the lease may be proved by the conduct of the parties. Pursel v. Reading Co., 232 F. 801. 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 practically amounts to a mere privilege to work at the owner's will. It is a permission sufficient to defeat 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, 71 Gal. 126, ] 1 P. 871, 78 Cal. 95, 20 P. 45; Collins v. Smith, 151 Ala. 133, 43 So. 838. But these rulings would be indefensible if the party had gone into possession under the implied covenant to work. In every lease, verbal or written, reserving royalty, there is an implied covenant to work (See p. 364) and the express obligation to work is not one of the distinctions between lease and license. The exclusive right to mine implies a lease and not a license. Consolidated Coal Co. v. Peers, 150 111. 344, 37 N. E. 937 ; Stinson v. Hardy, 27 Or. 584, 41 P. 116. LICENSE. 375 An option to purchase with privilege to work is a license coupled with an interest ; and after expenditures made is irrev- ocable. Ha II v. Abraham, 44 Or. 477, 75 P. 882. The same where there are expenditures but no option. Hosford v. Met- calf, 113 Iowa 240, 84 N. W. 1054, 21 M. R. 198. The general nature of a license as distinguished from a lease or other like grant is stated in Massot v. Moses, 3 S. C. 168, 16 Am. Rep. 697, 8 M. R. 607 ; Doe v. Wood, 9 M. R. 182, 2 B. & A. 724; McCullagh v. Rains, 75 Kan. 458, 89 P. 1041. 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, 32 Pa. 241, 72 Am. Dec. 783; Woodside v. Ciceroni, 93 F. 1, 35 C. C. A. 177. 2. Passes No Property or Vested Estate. A license is authority for the temporary occupation of land or to enter upon and do particular acts in and about it. It creates no estate. Fuhr v. Dean, 26 Mo. 116, 69 Am. Dec. 484, 6 M. R. 216. After it is broken by licensee the rock in a quarry belongs to him. McKee v. Brooks, 20 Mo. 526. 3. Revocability. Although revocable the owner can not arbitrarily oust the licensee without compensation for expenditures made. Bush v. Sullivan, 9 M. R. 214; 3 G. Greene (Iowa) 344, 54 Am. Dec. 506. After a proper revocation the licensee has no title in what he continues to break and sever. Williams v. Morrison, 32 F. 177. A license once given continues till revoked. Keeler v. Green, 12 M. R. 465, 21 N. J. Eq. 27. An executed license (to build a ditch) amounts to a grant. De Graff enried v. Savage, 9 Colo. App. 131, 47 P. 902. After revocation further working by licensee may be enjoined. Clark v. Wall, 32 Mont. 219, 79 P. 1052. 376 PROSPECTING CONTRACT. 4. Not Assignable. Being only a personal privilege any transfer operates as a forfeiture. Dark v. Johnston, 9 M. R. 283, 55 Pa. 164, 93 Am. Dec. 732. But if the license imply a grant of the ore it may be assigned. Muskett v. Hill, 5 Bing. (N. 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 Eq. 84, 14 M. R. 329 ; Tipping v. Bobbins, 71 Wis. 507, 37 N. W. 427 ; Omaha Co. v. Tabor, 16 M. R. 184, 13 Colo. 41, 16 Am. St. Rep. 185, 5 L. R. A. 236, 21 P. 925. In Shaw v. Caldwell a peculiar deed of a half interest in a mine was construed to be a grant of such half and as a license to work the other half. 16 Cal. App. 1, 115 P. 941. oH PROSPECTING CONTRACT. Much litigation has grown out of contracts of this kind owing to the loose manner in which they are generally under- taken and the strong inducements to shirk their obligations when a rich discovery has been made. Murley v. Ennis, 12 M. R. 360, 2 Colo. 300 ; Johnstone v. Robinson, 16 F. 903, 12 M. R. 396, 3 McCrary 42. The following form covers the legal points necessary to be guarded in this class of contract : GRUB STAKE CONTRACT. In consideration of provisions advanced to me by Albert "B. Roeder, and of his agreement to supply me from time to time, as I may reasonably demand them, with tools, grub and mining outfit generally, and the sum of fifty dollars in hand paid, I agree to prospect for lodes and deposits in Grand County, Utah, and to locate all discoveries which I may consider worth the expenditure, and record the same in the joint names of said outfitter and myself, and in our names only, as equal owners. PROSPECTING CONTRACT. 377 My time and labor shall stand against his money, provisions, etc., as aforesaid. All expenses of survey and record shall be paid by the out- fitter, and I agree to make no debts on account of this agreement. Work clone on claims after record and before the expiration of this contract shall be considered as done under this contract, and no charge for labor or time shall be made for the same. This contract shall stand good during the whole of the summer and fall of 1916 (expiring Dec. 1st) and during all of that period I will not work or prospect on my own account, or for any parties other than said outfitter. Dated April 1, 1916. L. L. CRAPO. I agree to the terms above stated. ALBERT B. ROEDER. Under the following form the prospector is allowed wages and takes a similar interest in lodes found. AGREEMENT of date March 7, A. D. 1916, between S. P. McGough, Eobert Pitcairn, and Arthur D. Bullis, outfitters, and C. H. PicTcett, prospector. WFTNESSETH, That said outfitters agree to pay to said prospector on demand seventy-five dollars ($75) for the purchase of tools and packing outfit, and twenty-five dollars ($25) for railroad fare and expenses from Idaho Springs to Creede, and to allow said prospector wages at three dollars per day for each secular day after arrival at that place, until November 1, 1916, unless this contract is rescinded by notice before that date, and to pay all expenses of surveys and records to be made under this contract and for powder, fuse and other mining materials, if required by said prospector, to the extent of fifty dollars. And in consideration of the premises, said prospector agrees industri- ously and to the best of his skill to prospect for lodes and deposits in the neighborhood of Creede camp, within the limits of Hinsdale, Rio Grande and Mineral counties, and to locate and record all discoveries which iii his judgment are worth holding, in the joint names of all parties hereto one-fourth interest to each. And that he will use no company name and make no debts against his And that he will at least once each month report progress and all dis- coveries made, by letter, to said A. D. 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 during the lifetime of this contract, and if at 378 PROSPECTING CONTRACT. any time within one year thereafter he shall become interested by location or purchase in any claims on which he may have prospected under this contract, he will allow his associates to take an equal interest with him- self on the same terms and at the same cost at which he has acquired such interest. On final settlement full wages are to be allowed as above agreed, but aid 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 supplies on hand when contract expires, if terminated on his notice; but shall keep such tools and supplies if contract determined at outfitters' election, or by expiration of the full term limited, or by failure to remit proper account monthly on demand. And the said pros- pector shall have no right to quit on notice until he shall have prospected two full months under this agreement. Witness the hands and seals of said parties. S. P. McGouGH. [SEAL.] ROBERT PITCAIRN. [SEAL.] A. D. BULLIS. . [SEAL.] C. H. PlCKETT. [SEAL.] The contract does not require a seal, and is not within the Statute of Frauds, and therefore may be verbal. Hurley v. Ennis, supra; Moritz v. Lavelle, 77 Cal. 10, 11 Am. St. Rep. 229, 18 P. 803, 16 M. E. 236 ; Meylette v. Brennan, 20 Colo. 242, 38 P. 75 ; Raymond v. Johnson, 17 Wash. 232, 61 Am. St. Rep. 908, 49 P. 492, 19 M. R. 56 ; Shea v. Nilima, 133 F. 209, 66 C. C. A. 263; Doyle v. Burns, 123 Iowa 488, 99 N. W. 195; Mack v. Mack, 39 Wash. 190, 81 P. 707 ; Cascaden v. Dunbar, 157 F. 62, 84 C. C. A. 566; Clark v. Mitchell, 35 Nev. 447, 130 P. 760, 134 P. 448. The association is practically a partnership. Lawrence v. Robinson, 12 M. R. 387, 4 Colo. 567 ; Abbott v. Smith, 3 Colo. App. 264, 265, 32 P. 843. A grubstake contract does not make a partnership unless it goes beyond the mere agreement to furnish supplies in con- sideration of an interest in the discoveries. Costello v. Scott, 30 Nev. 43, 93 P. 1, 94 P. 222. Where a partnership for the location of claims was prac- tically stranded one of the parties was justified in transferring PROSPECTING CONTRACT. 379 a part of the property to prevent the loss of it all by failure to do the annual labor. Id. A party who enters into a prospecting lease, each one to be interested in proportion to his payments, has no equity if he fails to tender his share until after mineral is struck.; Cam- eron v. Burnham, 146 Cal. 580, 80 P. 929. If the outfitter neglect to furnish the agreed and necessary supplies, such failure may be treated as a condition precedent, and the prospector is at liberty to search for mineral upon his own account. Hurley v. Ennis, supra; Miller v. Butterfield, 17 M. R. 222, 79 Cal. 62, 21 P. 543. "Where a prospector made locations which he concealed from his outfitters, and afterwards sold, he was compelled to account for the outfitters' share of the price. Jennings v. Rickard, 15 M. R. 624, 625, 10 Colo. 395, 15 P. 677. 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. A party so locating in his own name becomes trustee for the benefit of his associates. Cascaden v. Dunbar, 157 F. 62, 84 C. C. A. 566. "Where an association for prospecting purposes is abandoned, the several late partners may perfect locations on discoveries made on their several account. Page v. Summers, 15 M. R. 617, 70 Cal. 121, 12 P. 120. If one of the associates quits before mineral is struck he can not claim an interest in the perfected location. McLaughlin v. Thompson, 2 Colo. App. 135, 29 P. 816. Delay to assert an interest in the discoveries is fatal. Cisna v. Mallory, 19 M. R. 227, 84 F. 851. "When a prospecting partnership was ended, but some of the party afterwards assayed a piece of rock picked up on the first trip, went back and found a lode of value, the other original parties had no equity in this discovery. McGahey v. Oregon King Co., 165 F. 86. When the discoverer points out the place for location upon a verbal arrangement with the second party to take up the 380 PROSPECTING CONTRACT. claim for their joint benefit and the second party excludes the discoverer from the location there arises a resulting trust in favor of the discoverer. Stewart v. Douglass, 148 Gal. 511, 83 P. 699. Where a defendant located a claim in his own name and sold it to a company for stock, being under prospecting con- tract with plaintiff, plaintiff is entitled to his share of the stock upon payment of his share of the expenses. Mack v. Mack, 39 Wash. 190, 81 P. 707. As to the degree of proof necessary to establish the contract compare Rice v. Rigley, 20 M. R. 553, 7 Ida. 115, 61 P. 290, and Morrow v. Matthew, 10 Ida. 423, 79 P. 196. The consid- eration must be adequate. Fifty dollars is not enough to outfit a prospector from California to Alaska. Prince v. Lamb, 20 M. R. 419, 128 Cal. 120, 60 P. 689. A contract to convey one-fifth interest in whatever mining property defendant might locate or acquire, held non-enforce- able by specific performance, because inequitable for want of limitation of time and also, in this particular case, for inad- equacy of consideration. Marks v. Gates, 154 F. 481, 83 C. C. A. 321, 12 Ann. Gas. 120, 14 L. R. A. (N. S.) 317. Prospecting Private Ground. Permission by the owner to prospect his ground must be exercised within a reasonable time. Cahoon v. Bayard, 48 Hun 619, 1 N. Y. Supp. 814. But in Woodside v. Ciceroni, 93 F. 1, 35 C. C. A. 177, the license was construed as perpetual. On contract to prospect and test land for mineral value, for what amounts to sufficient search, see Wells v. Leek, 151 Pa. 431, 25 Atl. 101 ; Jamestown Co. v. Egbert, Id. 151 ; Petroleum Co. v. Coal Co., 18 S. W. 65, 89 Tenn. 381 ; Cleveland Cliffs I. Co. v. East Itasca Co., 146 F. 232, 76 C. C. A. 598. 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, 120 Ky. 337, 86 S. W. 558. WORKING CONTRACTS. 381 Knowledge of value is good consideration for the sale of such knowledge. Reed v. Golden, 28 Kan. 632, 42 Am. Rep. 180. An extremely interesting case on this point is Edelman v. Latshaw. A stock certificate in a mining company had been sold for a nominal sum. After the sale and after the estate was settled up, the executor by letter addressed to the deceased, learned it had value and got it back for a small payment on false representations. But the knowledge of value contained in the letter which the executor had received, we believe was his property and not, as the Court held, the property of the then holder of the stock. 180 Pa. 419, 36 Atl. 926, 18 M. R. 608. WORKING CONTRACTS. The right to "work" a mine implies the right to remove and sell the ore. Bailey v. Bond, 77 F. 406, 23 C. C. A. 206, 18 M. R. 466. A contract to sink a shaft does not necessarily imply that the vein will be followed. Buckeye Co. v. Carlson, 16 Colo. App. 446, 66 P. 168, 21 M. R. 499. The contractor is not bound to timber where the contract is silent on that point. No. 5 Min. Co. v. Bruce, 3 M. R. 146, 4 Colo. 293. Nor to furnish packer and tubing on contract to sink an oil well Collier v. Monger, 75 Kan. 550, 89 P. 1011. Contract to sink to bed rock is complete without disclosing bed rock along the whole bottom of the shaft. Meehan v. Nelson, 137 F. 731, 70 C. C. A. 165. On a contract to sink on the vein, where the vein disappears the contractor is not bound to go down through the country. Woodworth v. McLean, 97 Mo. 325, 11 S. W. 43, 17 M. R, 194. Measure' of recovery where work on shaft was ordered stopped before completion. Mooney v. York Co., 82 Mich. 263, 46 N. W. 376. 382 EXAMINATION OF TITLE. For breach of covenant by lessee to furnish plant, drive tunnel, etc., see Cleopatra Co. v. Dickinson, 28 Wash. 211, 68 P. 456. Where the mine is to furnish supplies to the contractor, on failure he may quit and sue for the work already done. Davis v. Brown County Co., 21 S. D. 173, 110 N. W. 113; Degnan v. Nowlin, 5 Ind. Terr. 312, 82 S. W. 758 ; Bailey v. Fredonia Co., 82 Kan. 746, 109 P. 411. A contractor, stopped by the company on his contract to dig six gas wells, allowed the difference between the contract price and the cost of sinking in other words, profits as his measure of da'mages. Fredonia Co. v. Bailey, 77 Kan. 296, 94 P. 258. It is a fair construction of a contract of doubtful wording vc sink several oil wells, that each should be paid for as it was eujik. Bailey v. Fredonia Co., supra. A covenant by the grantee of an undivided interest, to work the v&Lae, is only a personal contract between the parties and its viot\iion does not cancel the deed. Womble v. Womble, 14 Cal. App. 739, 113 P. 353. A min&j hired for the mining season in Alaska and dis- charged wiUiout cause may recover for the balance of the season. Ch^okovitch v. Porcupine Co., 73 Wash. 48, 131 P. 459. A contract U keep four men at work twenty days per month strictly constnud not allowing an equivalent number of shifts to be a compliance. Arkoosh v. Sorrenson, (Utah) 150 P. 959. EXAMINATION OF TITLE. The written title t* * mining claim begins with -the location certificate, after which the conveyances and incumbrances should appear on the ab&Jract as in other classes of real estate. EXAMINATION OF TITLE. 383 Inspection and Survey. In addition to the abstract of title a survey and local inspec- tion are indispensable to security, especially when the claim is not patented. This inspection and survey should result in ascertaining the depth of discovery shaft, and whether it shows a well defined crevice ; whether the location notice was duly posted and what it contains (p. 38); whether the stakes were properly set; whether the claim (as far as such fact can be fairly ascer- tained) is laid so as to cover the apex or general course of the lode, and more especially what shafts, tunnels, prospect holes, stakes, notices and improvements indicate the presence of hostile claims ; and if such intervening or overlapping hostile 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 worth- less. 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 examination. Every hole or stake in proximity to the claim should be examined, its history traced, and the possibility 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 examina- tion will be as follows : 1. THE ABSTRACT. The abstract should be certified by the Recorder or by some reputable abstract firm, to contain all deeds and instruments filed or recorded, conveying, encumbering or in any manner affecting title to the property in question. The abstract, however, amounts to nothing more than a guide or memorandum to the attorney in his examination. 384 EXAMINATION OF TITLE. 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 2. LOCATION CERTIFICATE. The material points to be observed in the location certificate are that it contains all that is required by the terms of A. C. Section 2324, and by the statute of the particular State ; ante p. 68. 3. CONVEYANCES. A mine is conveyed by deed or encumbered by mortgage the same as other real estate. The description should contain: First The name of the lode. Second If patented the number of the survey lot. Third 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 often 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 required in any State, such acknowledgment is generally 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. 341. After Acquired Title. A warranty deed conveys to the grantee any after acquired title of his grantor, and even a quit-claim made pending appli- cation, may carry the patented title to the grantee. Crane v. Salmon, 41 Cal. 63; Bradbury v. Davis, 3 M. R. 398, 5 Colo. 265. ~IQ EXAMINATION OF TITLE. 385 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 patent carries the title back to the entry at least. Benson Co. v. Alta Co., 145 U. S. 428, 36 L. Ed. 762, 12 Sup. Ct. 877, 17 M. R. 488. 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 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 of the discovery may continue to be material where the question of relation arises. See p. 172. 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 instances 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 successfully maintain their adverse. But it does not divest the title of a co-tenant dropped in the patent application (see p. 156), 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 OP PATENT. 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 386 EXAMINATION OF TITLE. the Surveyor General's office, and a comparison of such copy of 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. Sec. 2332. A judgment not becoming a lien until a transcript of the same has been recorded, such lien should show on the abstract. There is also a class of possible liens which have to be the subject of parol inquiry, such as mechanics' liens, liens in favor of the State on an audited account or for fine or costs or suretyship in criminal cases. R. S. Colo. Sees. 2009, 2010. 7. PARTIES IN POSSESSION. If parties are in actual possession, claiming adversely 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. Emigh, 15 Colo. 184, 10 L. R. A. 125, 25 P. 83. 8. CONCLUSION DUTY OF COUNSEL. If, from the abstract or from any of the certificates 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 informed of any adverse title, or of any outstanding trust or adverse 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 expressed to the client. And when the attorney has satisfied his own mind upon all such questions of law as may have arisen during the course of his examination, the client has a right to be advised of all points which remain in doubt, and of any contingencies 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 ALIENS. 387 title, so that the true value of the title in law shall be repre- sented to the client, that is, the intending purchaser. For in all cases of examination of title, the attorney should be selected, or at least assented to, by the purchaser, 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 pur- chaser 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 conveyance, 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 Constitu- tion) allows ownership by either resident or non-resident aliens. A patent to the use of an alien may not be attacked except by direct governmental inquisition. Justice Co. v. Lee, 21 Colo. 260, 52 Am. St. Rep. 216, 40 P. 444, 18 M. R. 220. Ownership of Possessory Title. The Mining Acts throw open the public domain only to citi- zens and to those who have declared their intentions to become citizens. A. C. Sec. 2319. 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 tiu> ml* laid down in opinions of the Federal Supreme Court, 388 ALIENS. Manuel v. Wulff, 152 U. S. 505, 38 L. Ed. 532, 14 Sup. Ct. 651, 18 M. R. 85; McKinley Co. v. Alaska Co., 183 U. S. 563, 46 L. Ed. 331, 22 Sup. Ct. 84, 21 M. R. 730, 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 he claims under his own location is good against all the world. The issue of alienage can not be raised in a mining suit where the United States is not a party. Holdt v. Hazard, 10 Cal. App. 440, 102 P. 540; contra, Galbreath v. Simas, 161 Cal. 303, 119 P. 86. Adverse Claim Cases. As the government rarely initiates such proceedings the alien in contest with a citizen has therefore the same standing as the citizen (Tornanses v. Melsing, 109 F. 710, 47 C. C. A. 596) save only on application for patent and in suits support- ing 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 Noonday M.. Co. v. Orient Co., 9 M. R. 529, 530, 1 F. 522, 6 Sawy. 299 ; Providence Co. v. Burke, 6 Ariz. 323, 57 P. 641, 19 M. R. 625 ; Gorman Co. v. Alexander, 2 S. D. 557, 51 N. W. 346 ; Billings v. Aspen Co., 52 F. 250, 3 C. C. A. 69 ; Stewart v. Gold Co., 29 Utah 443, 82 P. 475. The Citizenship of the Original Locator Is Material Only where he continues to be the claimant to the time of the insti- tution of the adverse suit. It is not even inquired into by the land office where patent is applied for by the grantee of the original locator. Not- withstanding the numerous holdings cited in the preceding ALIENS. 389 paragraph, the case of Duncan v. Eagle Rock Co., 48 Colo. 569, 139 Am. St. Rep. 288, 111 P. 588, rules' to the contrary. 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. The Act of Naturalization Is Retroactive, So That if an alien had located a claim and afterwards became or declared his intention to become naturalized, his location is good from its original date. Osterman v. Baldwin, 6 Wall. 122, 18 L. Ed. 730, 732, 29 L. D. 164; Shea v. Nilima, 133 P. 209, 66 C. C. A. 263. In the last cited case a prospecting contract between 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 and was adversed. Pending trial he became naturalized, he being a minor immigrant entitled to take out papers without previous declaration of intention, and the Court held that the effect of naturalization was retroactive, made his claim valid and defeated the adverse. Children of Aliens. There is a common impression that the naturalization 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. B. S. Sec. 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. 388, 2 C. C. A. 252, 52 F. 250, 3 C. C. A. 69; Lohmann v. Helmer, 104 F. 178. 590 ALIENS. Pleading and Proof of Citizenship. Except in adverse claim cases it need be neither alleged nor proved. Farm v. Kellogg, 117 Cal. 484, 49 P. 708 ; Buckley v. Fox, 8 Ida. 248, 67 P. 659 ; Gruwell v. Rocca, 141 Cal. 417. 74 P. 1028. .It may be proved when essential though not averred. Altoona Co. v. Integral Co., 114 Cal. 100, 45 P. 1047. Where no issue is made on it, it can not be controverted. Jackson v. Dines, 13 Colo. 90, 21 P. 918 ; Sherlock v. Leighton, 9 Wyo. 297, 63 P. 580, 934.. Indirect proof by circumstances has been allowed. Strick- ley v. Hill, 22 Utah 257, 83 Am. St. Rep. 786, 62 P. 893, 20 M. R. 722, and in Jantzon v. Arizona Co., 3 Ariz. 6, 20 P. 93. the broad view was expressed, 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. S. 418, 420, 29 L. Ed. 669, 6 Sup. Ct. 421 ; Dean v. Omaha Co., 21 Wyo. 133, 128 P. 881, 129 P. 1023. Where a party is native born his own statement proves his citizenship. Where naturalization or declaration of intention is in issue the proper proof is the production of a certified copy of the record, but there are instances where this strict- ness is not insisted on. Wood v. Aspen Co., 36 F. 25 ; Provi- dence Co. v. Burke, 6 Ariz. 323, 57 P. 641, 19 M. R. 625. 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. R. 125, 130 U. S. 291, 32 L. Ed. 964, 9 Sup. Ct. 548 : O'Reilly v. Campbell, 116 U. S. 418, 420, 29 L. Ed. 669, 6 Sup. Ct. 421. Citizenship of the stockholders of an American corporation need not be proved and issue can not be taken on this point. Doe v. Waterloo Co., 70 F. 455, 456, 17 C. C. A. 190, 18 M. R. 265. MEXICAN GRANT. 391 The Federal Alien Acts Relating to Territories Have Now no force except in the Territory of Alaska. They add little or nothing to the general restrictions already noted, limiting the right to locate and purchase mining claims to citizens and declarants. 29 Stat. L. 618, Cornp. Stats. (1911) p. 1168. Chinese. Idaho, Nevada and Oregon attempt restrictions on owner- ship by Mongolian aliens, but such discriminations are subject to treaties of the United States. A lease to Chinamen was held good in Ah Kle v. McLean, 3 Ida. 538, 32 P. 200. MEXICAN GRANT. The three cessions of Mexican territory to the United States were by the treaty of Guadaloupe Hidalgo, Feb. 2, 1848, the Gadsden purchase in 1853 and the grant by the State of Texas in 1850, of all its claims to territory outside of its present boundaries. 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 recognized by all the treaties as well as by the modern law of conquest, and they have been variously confirmed by special acts, by patents, or by the adjudication 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 United States is understood to be bound as fully as was the original government. In Moore v. Smaw, 12 M. R. 418, 17 Cal. 199, 79 Am. Dec. .123, where the subject of mineral rights in grants was fully discussed, it was held that no interest in minerals passed by the grant of the Mexican government without express words 392 MEXICAN GRANT. 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 to the United States ; but that a patent from the United States, in confirma- tion of such grant, making no reservation of the minerals, invested the patentee with the ownership of the minerals. In Fremont v. U. 8., 17 How. (58 U. S.) 542, 565, 15 L. Ed. 241, 249, it was held that the discovery of gold or silver did not, under the mining laws of Mexico, destroy the title of the individual 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 Hee v. Crippen, 10 M. R. 367, 19 Cal. 491, 492, remained for many years unques- tioned, but in U. 8. v. San Pedro Co., 4 N. M. 225, 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 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., 3 Ariz. 20, 20 P. 189, 148 U. S. 80, 37 L. Ed. 376, 13 Sup. Ct. 457. But confirmation may be complete without patent. Shaw v. Kellogg, 170 U. S. 312, 42 L. Ed. 1050, 18 Sup. Ct. 632. And the action of Congress is not subject to judicial review. Catron v. Laughlin, 11 N. M. 604, 72 P. 26. A mining location may be made on an unconfirmed Mexican grant. Such land is not reserved against entry. Loci-hart v. Witts, 9 N. M. 344, 54 P. 336, 19 M. R. 497; Aff'd Lockhart v. Johnson, 181 U. s! 516, 45 L. Ed. 979, 21 Sup. Ct. 665. In Gildersleeve v. New Mexico Co., a confirmed Mexican. grant was upheld on the ground of laches of the complainant. 161 U. S. 573, 40 L. Ed. 812, 16 Sup. Ct. 663. MINING CORPORATIONS, DOMESTIC. 393 MINING CORPORATIONS, DOMESTIC. A Corporation Is an "Association of Persons" within the meaning of the U. S. Mining Acts. U. S. v. Trini- dad Co., 137 U. S. 160, 34 L. Ed. 640, 11 Sup. Ct. 57. *Any three or more persons are authorized to file their certificate of incorporation under the Colorado Incorporation Act. R. S. Sees. 845-999, for purposes of mining or construc- tion of ditches or flumes; to run tunnels; or in fact "for any lawful purpose," but there are special provisions in the cor- poration chapter which refer only to mining, ore reduction, and tunneling companies and other special provisions con- cerning ditch, flume and pipe line companies. Sees. 988, 998. Number of Directors. By Act of 1915, p. 173, amending R. S. Colo. Sec. 865, the number of directors must not be less than three nor more than thirteen. The Par Value of Shares May Be in Any Sum Provided for in the articles but can not exceed one hundred dollars, and the shares may be issued payable in instalments. Sec. 850, Acts of 1915, p. 172. The directors have power to sell the stock of the company at less than par. Mosher v. Sinnott, 20 Colo. App. 454, 79 P. 742. Rights of Stockholders. Any stockholder has a right to inspect the books of the cor- poration. Sec. 869. And the holders of fifteen per cent may demand a written statement. Sec. 877. * These details vary in the several States, but each allows of incorpora- tion upon practically the same terms and upon compliance with substan- tially 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 complete local forms and directions are given in any book to attempt to write any such document as a corporate charter without professional counsel. 394 MINING CORPORATIONS, DOMESTIC. By statute in some States, stockholders may inspect the mine. Such a statute is construed in Hobbs v. Tom Reed Co., 164 Cal. 497, 43 L. R. A. (N. S.) 1112, 129 P. 781. The Term of Existence Can Not Exceed Twenty Years. Sec. 847. But may be renewed. Sec. 891. Stock Paid in Lands. Any such company may issue stock in payment for mines, such stock to be treated as paid-up stock. Sec. 851. Where stock is issued upon excessive over- valuation the holder may be held personally liable. Kelly v. Clark (Fourth Co.), 21 Mont. 291, 69 Am. St. Rep. 668, 42 L. R. A. 621, 53 P. 959, 19 M. R. 431; compare DuPont v. Tilden, 42 F. 87. No personal liability is imposed upon stockholders for debts, except to the extent of unpaid stock held by them. Sec. 873. Directors and officers become liable for failure to make and file an annual report; or for declaring fraudulent dividends. Sees. 872, 911. Sale to corporation of claims located without discoveries held to be without consideration and the stockholders person- ally liable. Buck v. Jones, 18 Colo. App. 250, 70 P. 951, 22 M. R. 467. But this is not the decision of a Court of last resort and it overlooks the fact that a claim staked to cover the supposed extension of a blind lode or a placer claim carry- ing a heavy overburden may have real and even great pecuniary value, although not yet held by valid possessory title. Annual Meeting's of Stockholders Are Provided for by statute, the by-laws fixing the time and place. They can not be lawfully held out of the State. Jones v. Pearl M. Co., 20 Colo. 417, 38 P. 700. The Colorado Act (1915 p. 173) requires notice to be pub- lished not less than 30 days previous to the meeting, in a MINING CORPORATIONS, DOMESTIC. 395 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. Sec. 865. The amendment of 1915, p. 173, allows a five years' lease without such assent. Before such amendment a lease for that period had been held an incumbrance under this section in Westerlund v. Black Bear Co., 203 F. 599, 121 C. C. A. 627. Other states have similar limitations. Either previous assent or subsequent ratification answers the demands of such statute. Lacy v. Gunn, 144 Cal. 511, 78 P. 30 ; Royal M. Co. v. Royal Mines Co., 157 Cal. 737, 137 Am. St. Rep. 165, 110 P. 123. A party holding a mortgage without such assent or ratification has no standing in Court. Bennett v. Red Cloud Co., 14 Cal. App. 728, 113 P. 119. But only the stockholders can defend against a mortgage issued in violation of this pro- vision. Firestone C. Co. v. McKissick, 24 Colo. App. 294, 134 P. 147. Corporate Deed. The seal of the company is prima facie evidence that it was affixed by corporate authority. Union Gold M. Co. v. Bank, 2 Colo. 226. To render a conveyance of real property unim- peachable it should be authorized by the board of directors, preceded by action of the stockholders at a meeting called for that purpose. But the deed may be valid without such min- utes. RuUe Co. v. Princess Co., 31 Colo. 158, 71 P. 1121, 22 M. R. 569. Seal. A corporation may be bound by a scroll seal. G. V. B. Min. Co. v. First Nat. Bank, 95 F. 23, 36 C. C. A. 633. And may adopt new seal when its president withholds the old one. Socorro Cf. r Preston, 17 Misc. 220, 40 N. Y. Supp. 1040. 396 MINING CORPORATIONS, DOMESTIC. ARTICLES OF INCORPORATION MINING COMPANY. WHEREAS, Arthur Howe Carpenter, Elberi F. Fitzgerald and Frank W, Ilou-bert, all of the City and County of Denver, State of Colorado, have associated themselves together for purposes of incorporation under the General Incorporation Acts of the State of Colorado, they do therefore make, sign and acknowledge these duplicate f certificates in writing, which when filed, shall constitute the Articles of Incorporat>n of Tlie Ytllow Bug Mining Company. ARTICLE. 1. The name of said company shall be The Yellow Dug 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 incident to the general business of mining and to treat and market 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 are Arthur Howe Carpenter, Elbert F. Fitzgerald and Frank W. Howbert. ARTICLE 6. The principal office of said company shall be kept at Placerville in said County and the principal 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, and cumulative voting of stock shall (not) be allowed. Act of 1915. ARTICLE 8. The board of directors shall have power to make such pru- dential by-laws as they may deem proper for the management of the affairs of the company, not inconsistent 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 hereunto set their hands and seals this first day of January, A. D. 1916. ARTHUR HOWE CARPENTER. [SEAL.] ELBERT F. FITZGERALD. [SEAL.] FRANK W. HOWBERT. [SEAL.] MINING CORPORATIONS, DOMESTIC. 397 STATE OF COLORADO, City and County of Denver: ss. I, Duncan W. Miller, a notary public in and for said County, do hereby certify that Arthur Howe Carpenter, Elbert F. Fitzgerald and Frank W. Ilowbert, who are personally known to me to be the same persons described in, and who executed the within duplicate Articles of Incorporation, 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. 1916. . Duncan W. Miller, [SEAL.] Notary Public. My commission expires Oct. 1, 1917. Where it is desired to transact part of the business out of the State the certificate must so state : ARTICLE 9. A part of the business of said company shall be carried on in Ecldcy, County of Luzerne, Commonwealth of Pcnnsylrnnia, and the principal office of said company out of the State shall be at said Ecldey, at which office meetings of directors may be held. The first seven articles in the above form contain all of the statutory requirements. Article 8, in regard to the by-laws, is necessary if it is intended that the directors instead of the stockholders, shall make the by-laws. R. S. Sec. 853. 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 carried on in more than one county, the word duplicate should not be used, as there must be an original 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 assessable, 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 is complete, a company desires to extend its business into other counties, it may do so without amending charter, by filing certified copy from the Secretary of State 's office with the Recorder of the new county. 398 MINING CORPORATIONS, DOMESTIC. On filing the articles a copy certified by the Secretary of State should be procured and preserved as the legal voucher for corporate existence. At the same time the Secretary of State issues his "Certificate of Authority" and thereupon 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 incorporators, though not necessarily so). This organization meeting, so-called, is really the first regular meeting of the board of directors, and at such* meeting the articles filed should be formally accepted. ORGANIZATION MEETING. Record of the first meeting of the Board of Directors of The Yellow $ug Mining Company, at Placerville, Colorado, January 7, 1916. At a meeting of the persons named in the articles of said company, there being present Arthur Howe Carpenter, Elbert F. Fitzgerald and Frank W. Hewlett. On motion Arthur Howe Carpenter was elected chairman and Frank W. Hoivbert 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 Arthur Howe Carpenter was elected president of the company, Elbert F. Fitzgerald was elected vice-president, Frank W. How- bert was elected treasurer, Albert B. Eoeder was elected secretary, and James A. Ownbey was elected superintendent. On motion the following by-laws were adopted: BY-LAWS. [The by-laws below will be found, in general, sufficient; but each by-law should be reviewed and such changes made as may be needed to cover special plans of the incorporators.] I. OFFICERS. The officers of this company shall consist of a President, Vice-Presi- dent, Secretary, Treasurer, and Superintendent, who shall be chosen by the Directors at their first meeting following the annual meeting of the stockholders 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 and enter upon the duties of their offices. MINING CORPORATIONS, DOMESTIC. 399 Vacancies among the Directors may be filled at any meeting of the Board of Directors, by ballot. n. 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, agreements or other instruments in writing, made or entered into by or on behalf of the corporation; to sign ail certificates of stock, and all orders for money on the Treasurer, and in general perform all acts incident to his office. in. 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. IV. DUTIES OF SECRET ART. The Secretary shall give due notice of all meetings of stockholders, and of the Board of Directors; shall prepare 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 or the Directors may prescribe. He shall counter- sign and register all certificates of stock, and other documents requiring the signature of the President, attaching the corporate seal of the company to all instruments requiring seal, and perform all such other duties as are incident to his office. A suitable compensation, to be determined by the Directors, shall be allowed the Secretary for his services. lie shall be the custodian of the corporate seal. V. DUTIES OF TREASURES. The Treasurer shall be the custodian of the funds until the same be disposed of by order of the Board of Directors. He shall give bond satis- factory to the Board of Directors, for the faithful performance of his duties. No money shall be paid out by the Treasurer except on the order of the President or Superintendent, countersigned by the Secretary. VI. DUTIES OF SUPERINTENDENT. The Superintendent shall have control of the working and developing of the company's mining property; shall report to the Board of Directors, for their approval, all contemplated work, and after such approval, shall have full power to contract said work. All expenses incurred by the Superintendent in the working and management of the company's prop- erty shall be borne by the company. A suitable compensation, to be determined by the Board of Directors, shall be allo\yed him for hia services. Vn. BOARD OF DIRECTORS. The Board of Directors shall consist of three members, always includ- ing the President, Vice-President and Treasurer. It shall be the duty of the Board to exercise general supervision over the affairs of the company; 400 MINING CORPORATIONS, DOMESTIC. to receive and pass upon the reports of the Secretary, Treasurer an.l Superintendent, to audit all bills and accounts against the company, an.l to direct the Secretary in correspondence. VIII. ANNUAL REPORTS. The Board of Directors shall cause its officers to make a full exhibit of their several departments and to prepare reports for submission to the annual meeting of stockholders. IX. DIRECTORS ' MEETINGS. The Board of Directors shall meet at such times as they shall from time to time determine, and a meeting of the Board may at any time be called by the President or any two members of the Board by causing per- sonal notice to be served upon the Directors at least one day before the date of such proposed meeting. Two of the Directors shall constitute a quorum for the transaction of business. All Directors and officers must be stockholders. X. STOCKHOLDERS ' MEETING. The first annual meeting of the company shall be held at the office of the company at Placerville, at 10 o 'clock A. M., on the second Tuesday in January, A. D. 1916, and on the same Tuesday of each succeeding year. If omitted, the Directors shall hold over until their successors are ap- pointed. 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 per- sonal notice by mail as may be required by law, shall be given of each 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 See. 865. Amended 1915, p. 173. 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 counter- signed by the Secretary. The certificates of stock shall be numbered and registered as they are issued. Transfers of stock shall only be made on the books of the company, either in person or by attorney, and the pos- session of stock shall not be regarded as evidence 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 com- pany 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. MINING COEPOEATIONS, DOMESTIC. 401 XIV. CORPORATE SEAL. This company adopts as its corporate seal, the device described as fol- lows: 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 is complete, and the minutes proceed to note business as it may be transacted. Reports and Certificates Required. After payment of the last instalment of capital stock the president and a majority of the board of directors are required by Sec. 875 to record a certificate in the office of the Secretary of State as follows: CERTIFICATE OF FULL PAID STOCK. STATE OF COLORADO, County of San Miguel: ss. The undersigned, Arthur H. Carpenter, President, and Elbert F. Fitz- gerald, Director, constituting a majority of the Directors of The Yellow Bug Mining Company, do hereby certify, in accordance with Section 875 of the Kevised Statutes of said State, that the amount of the capital stock of said company, as fixed and limited by its Articles of Incorpora- tion, is $100,000, and that the whole amount of said stock has been paid in. That $10,000 thereof was paid in cash and $90,000 was paid for by the purchase of mining property. Witness our hands this 5th day of February, A. D. 1916. ARTHUR H. CARPENTER, President. ELBERT F. FITZGERALD, Director. STATE OF COLORADO, County of San Miguel: ss. Arthur H. Carpenter and Elbert F. Fitzgerald, being dulyVsworn, say that they are the officers named in the foregoing certificate, and constitute a majority of the Board of Directors of said company; that they have heard said certificate read and know the contents thereof, and that the matters and things therein stated are correct and true. ARTHUR H. CARPENTER. ELBERT F. FITZGERALD. Sworn and subscribed before me this fifth day of February, A. D. 1916. Curtis L. Greenwood, [SEAL.] Notary Public. My commission expires May 1, 1917. 402 MINING CORPORATIONS, DOMESTIC. 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 made and record such certificate. Austin v. Berlin, 13 Colo. 198, 200, 22 P. 433. Annual Report. By Colorado R. S. Sec. 911 an annual report is required of all corporations to be filed within sixty days from January 1. The penalty for failure to file is personal liability of all officers and directors. Special details are demanded of mining and ditch companies which are scheduled in printed blanks fur- nished on request from the Secretary of State's office. Such report must be signed by the president and verified by the president and secretary and the corporate seal attached. "Where the stock has been paid up by purchase of the mine, the certificate must so state. ARTICLES OF INCORPORATION DITCH COMPANY. (Preamble same as p. 396.) ARTICLE 1. The name of said company shall be "The Deluge Ditch Company. ' ' ARTICLE 2. The objects for which said company is created are to construct a ditch and keep and maintain the same from the stream known as Eoaring ForTc of the Grand, tapping such stream at a point about one- quarter mile above the Jones ranch, and about one hundred yards below Eagle Cliff, and fifty feet northeast from lone pine tree blazed D. D.; the line of said ditch running thence (give course and distance of survey if possible, so as to describe "the line of said ditch as near as may be"). The water of said ditch to be used and sold for placer mining. ARTICLED 3, 4, 5, 6, 8 and 9 and acknowledgment (same form as on p. 396.) ARTICLE 7. The stock of said company shall be assessable, upon majority vote at stockholders' meeting, as required by law. The stream tapped, head of ditch, line of ditch and intended use of water must always be stated; also the location of the reservoir if a reservoir is to be constructed. Any surplus Avater they are compelled to keep for sale, at rates fixed by County Commissioners. MINING CORPORATIONS, DOMESTIC. 403 SMELTING AND ORE-SAMPLING COMPANIES. The following Articles stating the purposes of organization are taken from records filed by operating companies. The other Articles for such or other like companies should be sub- stantially in the above form, always observing that the article (No. 7) referring to assessability of stock, and the require- ment to print "Assessable" or " Non- Assessable " on the face of the stock certificate is confined to ore-reducing, mining and tunneling companies. Sec. 975. (The Pueblo Smelting and Refining Company.) ARTICLE 2. The objects for which the said company hereby formed is created shall be: To buy and sell ores, metals and other furnace prod- ucts; to smelt and reduce lead, gold, silver, copper and other ores, and refine bullion; manufacture lead, copper and iron products and articles of merchandise, and do a general smelting, refining and metallurgical business; to erect necessary buildings, mills, machinery and appliances; purchase materials for the proper working thereof; and do any and all other things necessary, proper or requisite to carry into effect the objects aforesaid. (The Omaha and Grant Smelting and Refining Company.) ARTICLE 2. The nature of the business to be transacted shall be: 1st. The purchase, lease, erection and operation of smelting and refin- ing works, and the smelting and refining therein of gold, silver, and other valuable ores and metals. 2nd. The purchase, lease and operation of mines and mining prop- erty, for the purpose of obtaining said gold, silver and other valuable ores. 3rd. The purchase of gold, silver and other valuable ores and metals for smelting and refining, and the sale and disposal of the products thereof. 4th. To acquire by donation, purchase, lease, or otherwise real or per- sonal property of any kind, and to use, maintain, enjoy, and dispose of the same for the benefit of said corporation. (The Taylor $ Brunton Ore Sampling Company.) ARTICLE 2. The objects for which said company is created are to acquire, hold and operate mills and works at and near Aspen, in said County of Pitkin, for the crushing, sampling and testing of mineral- bearing ores; and to buy, sell, assay, hold, store, ship and deal in such ores and their products on its own account, and as factor or agent for others; and to do all things incident to the general business of maintain- 404 MINING CORPORATIONS, DOMESTIC. ing and operating such mills and works, and dealing in all kinds of mineral-bearing ores and the products and proceeds thereof. Filing Fees Domestic Corporations. On filing its Articles in the office of the Secretary of State each domestic corporation is required 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 capital, 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 Kevenue Act of 1907 all corporations, domestic 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 MINING CORPORATIONS, DOMESTIC. 405 failure to pay the tax is a forfeiture of the right to do business in 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 corporations by assessing them at a greater percentage, and was declared void by American Sm. Co. v. lAndsley, 204 U. S. 103, 51 L. Ed. 393, 27 Sup. Ct. 198, 9 Ann. Gas. 978, whereupon the act was amended as above, taxing both sorts equally, so that it is now doubtless valid as to both classes. 34 Colo. 240, 82 P. 531. Assessments on Stock. By R. S. Sees. 978, 980, 981, provisions are enacted for the assessment of shares of companies whose stock is made assess- able 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 each director. No greater assessment than 10 per cent 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 "immediately," and if unpaid after thirty days is considered delinquent 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 empowered to sell the shares at public auction in front of the chief office of the company to the highest bidder for cash. The Act further requires notice to be sent to each stock- holder, informing him of the assessment. Almost every Colorado mining company issues only non- assessable stock, but it is not certain that such stock when not paid for to its face value can not be assessed up to such value, and until such value has been paid, under the terms of Sec. 850. See A. Leschen Co. v. Allen, 187 F. 977, 110 C. C. A. 315. 406 MINING CORPORATIONS, DOMESTIC. The procedure to make formal assessment, under the terms of the three sections above cited together, is slow and compli- cated, and much of the wording of the act is inconsistent with other clauses. But they do not seem, to apply to assessments of installments of purchase price. Resolution to Assess. Eesolved, That an assessment, to be styled Assessment No. 1, of 5 per cent, is hereby levied and made upon each and every share of the capital stock of this corporation, The Vanadis Mining Company, payable immedi- ately, at the office of the company, to Jean Francis Webb, the treasurer. NOTICE OF ASSESSMENT. Office of THE VANADIS MINING COMPANY, No. 777 Stout Street, Denver, Colorado. January 3, 1915. Brinton Gregory, Stockholder: You are hereby notified that at a regular meeting of the board of directors of The Vanadis Mining Company, this day held at the office of said company, by a majority vote of all the directors, notice of such meet- ing having been first given to each director, there was levied and assessed upon each and every share of the capital stock of said company 5 per cent of the par value of such stock; such 5 per cent amounting to $25 on your five hundred shares of stock, payable immediately to Jean Francis AY ebb, the treasurer, at this office, address above given; and that such assess- ment, if not paid on or before the 2nd day of February, 1915, will be delinquent, and your stock, or BO much thereof as may be necessary to pay the assessment and cost of advertising, will be sold, the sale to take place on April 2, 1915, at the hour of 10 o 'clock A. M., as will be stated in the notice of sale. GEORGE NOLAN, Secretary. Notice of Assessment. The subject is further considered in Morrison's Corporation Manual, 2nd Ed., P. 189, which gives the form of advertise- ment of sale on delinquent stock. It is doubtful whether a by-law calling for forfeiture of delinquent mining stock instead of the sale provided in the statute would be valid. MINING CORPORATIONS, DOMESTIC. 407 Irregular Action. A company which has habitually neglected all formalities can not plead the want of them to escape liability. G. V. S. Min. Co. v. First Nat. Bank, 95 F. 23, 36 C. C. A. 633. So held where it allowed one director to assume entire management. Robinson Co. v. Johnson, 10 Colo. App. 135, 50 P. 215. A resolution of the Board is not necessary to bind the company where it has had value received with knowledge. McKenzie v. Poorman Mines, 88 F. Ill, 112, 31 C. C. A. 409. Where a corporation allows its president and general man- ager to practically control its business it is liable on a note given by such officer. McKinley v. Mineral Hill Co., 46 Wash. 162, 89 P. 495. A company note to which defendants added their signatures as trustees may be shown to be the debt of the corporation alone. Knippenberg v. Greenwood M. Co., 39 Mont. 11, 101 P. 159. Powers of President and Other Officers. The president of a company has the power to do what is inci- dental to his office. All other acts must be authorized by the board of directors. Cushman v. Clover Land Co., 170 Ind. 402, 127 Am. St. Rep. 391, 16 L. R. A. (N. S.) 1078, 84 N. E. 759. 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 his acts then bind it. Ross Oil Co. v. Eastham, 73 Kan. 464, 85 P. 531. The same as to its president. Wood v. Saginaw Co., 20 S. D. 161, 105 N. W. 101. The president and secretary alone have no right to appoint a general agent. Johnson v. Sage, 4 Ida. 758, 44 P. 641. Powers of Agents and Managers. Parties dealing with general agents of foreign corporations have the right to assume that he has full powers. Rath bun v. 408 MINING CORPORATIONS, DOMESTIC. Snow, 123 N. Y. 343, 10 L. R. A. 355, 25 N. E. 379. Superin- tendent has right to buy current supplies. Stuart v. Adams, 89 Gal. 367, 26 P. 970. May offset collection against wages. Hood v. Hampton Co., 106 F. 408. Principal can not accept benefits and repudiate agency. Genter v. Conglomerate Co., 23 Utah 165, 64 P. 362; Barnard v. Roane Co., 85 Term. 139, 17 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., 187 111. 32, 58 N. E. 289. Persons dealing with an agent when agent 's authority is in writing are bound to take notice thereof. Id. Mine manager has no power to bind the corporation for medical services to injured employees. Spelman v. Gold Co., 26 Mont. 76, 91 Am. St. Rep. 402, 55 L. R. A. 640, 66 P. 597. But see Mt. Wilson Co. v. Burbridge, 11 Colo. App. 487, 53 P. 826. A mine manager can not in general borrow money or pledge the credit of his company. Hawtayne v. Bourne, 1 M. R. 285, 7 M. & W. 595; Breed v. First Nat. Bank, 1 M. R. 467, 4 Colo. 481 ; Cons. Gregory Co. v. Eaber, 1 M. R. 405, 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. Ilardenlergh v. Bacon, 1 M. R. 352, 33 Cal. 356. 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. Crowley v. Genesee Co., 4 M. R. 71, 55 Cal. 273. Agent can not act for both parties without their consent. Finnerty v. Fritz, 1 M. R. 437, 5 Colo. 174. 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 other- wise notified. Adams Co. v. Senter, 1 M. R. 241, 26 Mich. 73. General power of attorney implies no power to make promis- MINING CORPORATIONS, DOMESTIC. 403 sory note. WasKburn v. Alden, 1 M. R. 320, 5 Gal. 463. The general manager has the power to hire and to discharge a superintendent. Manross v. Uncle Sam Co., 88 Kan. 237, Ann. Gas. 1914B, 827, 128 P. 385. Incorporators, Promoters, Prospectus. Incorporators are liable for preliminary expenses. Hersey v. Tully, 8 Colo. App. 110, 44 P. 854. See Hecla Co. v. O'Neill, 65 Hun 619, 19 N. Y. Supp. 592; Winters v. Rub Co., 57 F. 287. And the company may be held for the contracts of its pro- moters without formal adoption of the same by resolution of the board. Possell v. Smith, 39 Colo. 127, 88 P. 1064. Stock sales induced by the false statements of a prospectus and the conduct of the promoters will be set aside and the decree will go against the company itself and the guilty officers and promoters. The case fully defines what constitutes a pro- moter. Cox v. National C. Co., 61 W. Va. 291, 56 S. E/494. Vendors are not responsible for the false statements con- tained in the prospectus issued by the purchasing company. Wiser v. Laivler, 189 U. S. 260, 47 L. Ed. 802, 23 Sup. Ct. 624, 22 M. R. 630. Compensation to Officers Commissions. Corporate officers may recover on a quantum meruit for services in excess of their official duties. Gumaer v. Cripple Creek Co., 40 Colo. 1, 122 Am. St. Rep. 1024, 13 Ann. Gas. 781, 90 P. 81 ; Severson v. Bimetallic Co., 18 Mont. 13, 44 P. 79 ; Felton v. West Co., 16 Mont. 81, 40 P. 70 ; Ruby Co. v. Prentice, 25 Colo. 4, 52 P. 210. But must prove an express contract to recover for the usual official services. Dit^. 7; Montana Co., 192 F. 714. And a binding contract to pay for such services may *be proved without showing a resolution of the board to such effect. In re Gouverneur Co., 168 F. 113. 410 MINING CORPORATIONS, DOMESTIC. An agent acting in bad faith forfeits commissions. Wil- liams v. McKinley, 65 F. 4. Fraudulent Organization and Stock Sales. A company may sue its organizers where the real price paid is less than that represented to the stockholders. Pittsburg Co. v. Spooner, 74 Wis. 307, 42 N. W. 259, 17 Am. St. Rep. 149, 17 M. R. 226. Acts of directors distinguished from acts of the company. Summerlin v. Fronteriza Co., 41 F. 249. Bono, fide holder of stock issued on over valuation not liable to creditors. DM Pont v. Tilden, 42 F. 87. A corporation may be held in equity to refund price of stock sold on fraudulent prospectus and fraud of its pro- moters. Cox v. National C. & Oil Co., 61 W. Va. 291, 56 S. E. 494. Inexperienced persons buying stock have a right to rely upon the statements of the promoters, and a purchaser has his action where they falsely asserted that the mine was free from debt. Tinker v. Kier, 195 Mo. 183, 94 S. W. 501. Company presumed to know the fraud of its agents. Argentine Co. v. Benedict, 18 Utah 183, 55 P. 559. Distinction stated between treasury and promotion stock under Nevada Act of 1909. State v. Manhattan Co., 32 Nev. 474, 109 P. 442. Fraud Against the Company. Directors are liable to account for any secret profit made in the promotion of a company. Wills v. Nehalem C. Co., 52 Or. 70. 96 P. 528. directors deal with and make profit out of their cor- the burden is on them to show that the transaction waJhfair and open. Barker v. Montana Co., 35 Mont. 351, 89 P. 66. Where mining property is located or purchased by an officer of the corporation his liability to the company depends MINING CORPORATIONS, DOMESTIC. 411 upon whether or not he has been guilty of a breach of trust. Calumet Co. v. Phillips, 31 Colo. 267, 72 P. 1064, 22 M. R. 677 ; Lagarde v. Anniston Co., 126 Ala. 496, 20 M. R. 545, 28 So. 199. The manager's knowledge of value of ore shoots discovered in the mine is the property of his company. Clark v. Buffalo Hump Co., 122 F. 243, 58 C. C. A. 607, 22 M. R. 672. Complaint held good where a stockholder charged the com- pany with attempt to depress the value of the stock and of intention to not perform the annual labor and relocate the company's claims. Glover v. Manila M. Co., 19 S. D. 559, 104 N. W. 261. Where an agent bought a mine for $40,000 less than the price he represented to his principal, judgment for that amount was upheld regardless of the fact that the agent did not get the entire $40,000 himself. Great Western Co. v. Chambers, 155 Cal. 364, 101 P. 6. The agent of a mining company bought in its property at tax sale. The company refused to refund or redeem, and after several years' time and large expenditure a rich body of ore was struck in the mine. Held, that there was no trust and no equity in the company. Steinbeck v. Bon Jlomme M. Co., 152 F. 333, 81 C. C. A. 441. Reorganization Succession. 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 covenants of the old one. Higgins v. Cali- fornia Co., 122 Cal. 373, 55 P. 155, 147 Cal. 363, 81 P. 1070. Mine in Charge of Receiver. Where plaintiff improperly secures the appointment of a receiver of a mine, he may be charged with costs in excess of any fund liable for them. Hendrie & B. Mfg. Co. v. Parry, 37 Colo. 359, 86 P. 113. 412 MINING CORPORATIONS, DOMESTIC. The practice of issuing receiver's certificates to operate a mine under prior secured indebtedness, condemned, except within certain close limitations. International Trust Co. v. Decker Bros., 152 F. 78, 81 C. C. A. 302, 11 L. R. A. (N. S.) 152. A receiver has no authority to carry on mining unless so directed by the Court, and the Court has no power to allow his expense account to cut out a prior lien. Dalliba v. Win- schell (Biggs), 11 Ida. 364, 114 Am. St. Rep. 267, 82 P. 107 ; Hendrie & B. Co. v. Parry, supra. A party who secures the appointment of a receiver, and at whose instance the mine is worked at a loss is personally liable for the deficit. Harrington v. Union Oil Co., 144 F. 235; Hendrie & B. Co. v. Parry, supra. The receiver should pay for use of tools used by him in operating oil wells. Midland Oil Co. v. Turner, 179 F. 74, 102 C. C. A. 368. A receiver is entitled to compensation out of the fund to be ultimately chargeable against the losing party. Doddridge Co. v. Smith, 173 F. 386. On behalf of minority stockholders, a receiver may be ap- pointed where the mine has been collusively operated to the benefit of a hostile company. Ames v. Goldfield Co., 227 F. 292. Taking possession of mine under color of process by collu- sion with the Court itself considered with judicial condemna- tion of such high-handed proceedings. Tornanses v. Melsing, 106 F. 775, 45 C. C. A. 615. Amendment of Articles. This subject in Colorado is regulated by the Act of 1907. R. S. Sees. 878-886. A meeting of stockholders must be called for on 30 days' notice, and two- thirds must assent to the amendment. FOREIGN CORPORATIONS. 413 Dissolution. Provision is made for the dissolution of solvent corporations desiring to go out of business, by the publication and filing of notices, without judicial action thereon. R. S. Sec. 895. For consideration of the rights of stockholders when the company has quit business and has no known board of direc- tors, see Tennessee Co. v. Ayers (Tenn.), 43 S. W. 744. A mining or quarry company comes within the provisions of the Bankruptcy Acts. In re Mathews C. Slate Co., 144 F. 724; Burdick v. Dillon, 144 F. 737, 75 C. C. A. 603; In re Quincy G. Q. Co., 147 F. 279. 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 elsewhere by complying with certain statutory conditions for the protection of local creditors, such conditions usually including that it file a copy of its articles with 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 process 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 "incor- porated by certificate under any general incorporation law, a copy of such certificate and of such general incorporation law duly certified and authorized by the proper authority of such foreign State, Kingdom or Territory. ' ' That it file with the Secretary of State and in the office of the County Recorder a certificate designating its principal place of business and designating an agent residing at such principal place of business upon whom process may be served. Sees. 916, 917. 414 FOKEIGN COBPORATIONS. A failure to comply with either of the above requirements imposes personal liability on its officers, agents and stock- holders for the debts of the company. 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. Sec. 910. DESIGNATION OF PROCESS AGENT. STATE OF NEW YORK, County of New York: ss. It is hereby certified, That the Mohawk Mining Company, a corpora- tion organized under the laws of said State, doth hereby designate that the "principal place where the business of such corporation shall be car- ried on in the State of Colorado," is Central City, County of Gilpin, State of Colorado, and that Henry C. Seeker, residing at said principal place of business, is the authorized agent of said company, upon whom process may be served. Witness the corporate name and seal of said company, and the signa- tures of its President and Secretary, this 3d day of February, A. D. 1916. MOHAWK MINING COMPANY, [SEAL.] J. BKISBIN WALKER, President, CLARENCE GARY, 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 thfe within named corporation, who are personally known to me to be such President and Secretary of said corporation, personally appeared before me this day, and acknowledged 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 3d day of February, A. D. 1916. [SEAL.] Herbert E. Dickson, 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. Designation by title of office was held good where a cor- poration had stated that its "general manager" should be its process agent. Goodwin v. Colorado Co., 110 U. S. 1, 28 L. Ed. 47, 3 Sup. Ct. Rep. 473. TENANTS IN COMMON. 415 Discriminations Against Foreign Corporations. Besides the above special requirements it is declared that they "shall be subjected to all the liabilities, restrictions and duties which are or may be imposed on" domestic corporations. Where they mortgage their property they must give public notice so that prior creditors may protect themselves. They must file annual reports the same as domestic companies. And the re-organization or liquidation of foreign companies to the prejudice of local shareholders is attempted to be prohibited. E. S. Sees. 911, 917, 920. Domestic Charter Preferable. The provisions of the above and like statutes in other States, together with the fact that a foreign corporation is liable to attachment for debt as a non-resident, and must file special security for costs where a plaintiff, render a domestic organization preferable in most cases. In Colorado the incorporators are not required to be citizens or residents of the State. Humphreys v. Mooney, 4 M. R. 76, 5 Colo. 282. TENANTS IN COMMON. Right to Work the Mine. Two or more persons owning undivided interests in mining ground are tenants in common, but unless working it together by agreement are not partners. At common law each could work without accounting to the other. This was changed by the Statute of 4 Anne Ch. 16, Sec. 27. 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 common law right of each to 416 TENANTS IN COMMON. work at his own risk but to his own exclusive profit, the law seems to be: That any co-tenant may work the common property, at his own risk if he works to a loss, but must account to his co- tenants if he works to a profit. Where a single co-tenant works a mine he can not demand contribution from those not working, but if pay ore is taken out he can deduct their proper share for all expenditures which improve the value of the mine or lead to the discovery of ore, but not for the expenses of unsuccessful prospecting. Wolfe v. Childs, 42 Colo. 121, 126 Am. St. Rep. 152, 94 P. 292. The owner of the majority interest may, by statute in Idaho, work the mine, but may not exclude the minority from access to the property. Sweeney v. Hanley, 126 F. 97, 61 C. C. A. 153. Where the minority works, the majority may direct the man- agement. Hawkins v. Spokane Co., 3 Ida. 241, 28 P. 433, 3 Ida. 650, 33 P. 40. No pay for time nor compensation for lost profits, barring exceptional instances, is allowed one against the other. Wolfe v. Childs, supra; Uncle Sam Co. v. Richards, (Okla.) 158 P. 1187. 3^ Measure of Damages on Accounting. The measure of damages adopted has not been uniform. The rental value of the premises was allowed in the leading case of Early v. Friend, 16 Grat. 21, 78 Am. Dec. 649, 14 M. R. 271. The value of the coal in place was allowed in McGowan v. Bailey, 179 Pa. 470, 36 Atl. 325. "What is just and equitably due" is the measure of account- ing under Pennsylvania Statute. Fulmer's Appeal, 128 Pa. 24, 15 Am. St. Rep. 662, 18 Atl. 493. See full note to the case as reported in 17 M. R. 246. Another line of cases allows full share of the profits, which is not a just rule where a plaintiff has assumed none of the TENANTS IN COMMON. 417 risks. Williamson v. Jones, 43 W. Ya. 562, 64 Am. St. Rep. 891, 38 L. R. A. 694, 27 S. E. 411, 19 M. R. 19; Job v. Potion, L. R. 20 Eq. 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. Cecil v. Clark, 49 W. Va. 459, 39 S. E. 202. 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. Merrill, 37 N. J. Eq. 114 ; McCord v. Oakland Co., 64 Cal. 134, 27 P. 863, 49 Am. Rep. 686. In Illinois a single co-tenant working the mine was treated as a trespasser in Murray v. Haverty, 70 111. 318, 14 M. R. 325. And the law of Montana as to co-tenants was construed with almost equal severity in Anaconda Co. v. Butte Co., 17 Mont. 519, 43 P. 924; Bed Mountain Co. v. Esler, 18 Mont. 174, 44 P. 523. In Dettering v. Nordstrom, 148 F. 81, 78 C. C. A. 157, defendant suffered a harsh judgment and was not allowed expenses on technical points of pleading and evidence. One co-tenant may work the whole mine, but must account to his co-tenant for profits. He is not deprived of the right to deduct expenses by the fact that he intended to keep all the proceeds, nor can he be punished with compound interest for such intent. Silver King Co. v. Silver King Co., 204 F. 166, 122 C. C. A. 402. As to what is sufficient proof of co-tenancy, see Costello v. Cunningham, 16 Ariz. 447, 147 P. 701. Relations to the Common Title. A relocation by one operates for the benefit of all, even if made unknown to the others, and with a change of name of the claim. Fan Wagenen v. Carpenter, 27 Colo. 444, 445, 61 P. 698. See p. 156. A tax title acquired by one of the co-tenants enures to the benefit of all. Moragne v. Doe, 143 Ala. 459, 111 Am. St. Rep. 52, 5 Ann. Cas. 331, 39 So. 161. 418 INDIAN RESERVATION. Possession by a co-tenant is not adverse without notice to the co-tenant out of possession that his title is denied. Rich v. Victoria Co., 147 F. 380, 77 C. C. A. 558. And where the mineral and surface estates have been severed the possession of the surface owner is not possession of the minerals. Man- ning v. Kansas Co., 181 Mo. 359, 81 S. W. 140. They may deal with each other as with strangers as to their respective interests in the common property. Bissell v. Foss, 114 U. S. 252, 29 L. Ed. 126, 5 Sup. Ct. Rep. 851; Lichten- lerger v. Newhouse, 41 Utah 22, 123 P. 624. But they can not collude with one another or with strangers to deprive a co- tenant of his full share of purchase money. See citations, p. 355. A co-tenant is not bound to reveal his knowledge of mineral value when purchasing the interest of his associate. Richardson v. Heney (Ariz.), 157 P. 980. A co-tenant may not use the common property through which to work other property in which his co-owner has no interest People v. District Court, 20 M. R. 734, 27 Colo. 465, 62 P. 206 ; Butte Co. v. Montana Co., 24 Mont. 125, 60 P. 1039 ; Laesch v. Morton, 38 Colo. 171, 120 Am. St. Rep. 106, 87 P. 1081. INDIAN RESERVATION. An Indian reservation is not a part of the public domain open to exploration, or occupation, and a valid mining location can not be made upon it. French v. Lancaster, 2 Dak. 346, 47 N. W. 395; Gibson v. Anderson, 131 F. 39, 65 C. C. A. 277. Nor can both parties waive the point. 2 Dak. 346, 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 S. M. Co., 9 Colo. 349, 12 P. 198. But in Noonan v. Caledonia M. Co., 121 U. S. 393, 30 L. Ed. 1061. 7 Sup. Ct. 911, the Supreme Court of the United States have ruled that on the cession of the reservation the claim FOREST RESERVES. 419 becomes valid. This case was followed by the affirmance of the Kendall v. San Juan Co. case above cited (144 U. S. 658, 36 L. Ed. 583, 12 Sup. Ct. Rep. 779, 17 M. R. 475), where the Court adjudged that the original location, although not valid, might have been made good by record in the nature of a reloca- tion 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 can not be patented. Copp, M. L. 253. And the location of scrip thereon is void. U. S. v. Carpenter, 111 U. S. 347, 28 L. Ed. 451, 4 Sup. Ct. Rep. 435. The Court will protect a right to mine by license from the Indian nation. Oolagah Co. v. McCaleb, 68 F. 86, 15 C. C. A. 270. 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. 154. A location on an opened reservation is not avoided by the fact that the locator had been on the ground before it became open to entry. Le Glair v. Hawley, 18 Wyo. 23, 102 P. 853. FOREST RESERVES. NATIONAL FORESTS. By a series of acts beginning with the Act of March 3, 1891, the President was authorized to set apart by proclamation forest reserves on any part of the public lands. The original Act was a single section reading as follows: That the President of the United States may, from time to time, set apart and reserve, in any State or Territory having public land bearing forests, in any part of the public lands wholly or in part covered with timber or undergrowth, whether of commercial value or not, as public reservations, and the President shall, by public proclamation, declare the establishment of such reservations and the limits thereof. Sec. 24, 26 Stat. L. 1103; Compiled Laws 1901, page 1537. 420 FOEEST KESERVES. By Act of June 4, 1897, the Secretary of the Interior was authorized to "make such rules and regulations * * * as will insure the objects of such reservations, namely, to regulate their occupancy and use and to preserve the forests thereon from destruction," violation of such rules being punishable by fine and imprisonment. 30 Stat. L. 35. By Act of Febru- ary 1, 1905, the powers of the Secretary of the Interior were transferred to the Department of Agriculture. 33 Stat. L. 628. These acts seem to continue the right to dispose of the title or of easements with the Secretary of the Interior, but to give control of the Forest Reserves in all other respects to the Secretary of Agriculture. Under this authority the Secretary of Agriculture has issued what is known as the Use Book. Against the most plausible contention that it was delegated legislation and against the further contention that the location of a mining claim was a segregation of its area from the public domain, the power to inflict punishment for violation of these rules has been sus- tained. The point arose upon the prosecution of the claimant for keeping a saloon on his claim. U. S. v. Rizzinelli, 182 F. 675. The like ruling was made in a civil suit against a cattle owner in Light v. U. S., 220 U. S. 523, 55 L. Ed. 570, 31 Sup. Ct. Rep. 485. See also Cosmos Co. v. Gray Eagle Co., 190 U. S. 301, 47 L. Ed. 1064, 23 Sup. Ct. Rep. 692, 24 Sup. Ct. Rep. 860. We can not assume that such regulations will be maintained beyond the limitations contained in the A. C., but the Use Book goes beyond these limitations and far beyond anything heretofore known in the control of the public domain. These various acts reserve the right to use timber to the mining claimant, but the regulations go as far as possible to make the permission of little practical value. Under the original Act and its amendments vast tracts have been reserved in all parts of the West, some of the reservations being almost totally clear of timber and on most of them the timber found being of little or no commercial value. The Use Book for 1915 states that there are 154 forests with an area of 162,000,000 acres, which equals 263,125 square miles. FOREST RESERVES. 421 By Act of March 4, 1907, the authority to create new reser- vations or enlarge the old ones in Oregon, Washington, Idaho, Colorado and Wyoming was withdrawn. Comp. Laws of 1911, page 648. California was added to this list by 37 Stat. L. 497. In 1905 the name of "Forest Reserves" was changed to "National Forests." The acts allow the discovery and location of mining claims, both lode and placer, on the reserves, and a mining claim in a forest 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. In U. S. v. Lavenson, six patents on a forest reserve were cancelled because issued without consideration of the protest of the Forest Ranger, and because there was no mineral value on the property. 206 F. 755. The protest of the Forest Ranger had been apparently overlooked by the Land Office by its own negligence. The power of the Secretary to make rules on use of Forest Reserves and the power of the government to punish -viola- tion of the same as crimes against the United States were upheld by the Federal Supreme Court in U. S. v. Gnmaud, 220 U. S. 506, 55 L. Ed. 563, 31 Sup. Ct. Rep. 480; on re- argument after the Court had been evenly divided on the ques- tion in the same case. 216 U. S. 614, 54 L. Ed. 639, 30 Sup. Ct. Rep. 576. Loney v. Scott holds that claims may be located on a Forest Reserve, but that lands withdrawn for "irrigation works" are a permanent withdrawal and not open to mining location.- 57 Or. 378, 32 L. R. A. (N. S.) 466, 112 P. 172. All mining rights of way are allowed across the forests. 33 Stat. L. 628. The Department holds that it may, of its own motion, exam- ine into the legality of a location on the reserve. 38 L. D. 59. The United States has the right to dispose of infected timber on mining claims. Lewis v. Garlock, 168 F. 153. 422 THE WITHDRAWAL ACTS. The regulations of the department permit owners of mining claims to ,cut timber for actual mining purposes in connection with the particular claim for which the timber is cut. Par. 20, 30 L. D. 28. Jurisdiction over timber cutting on the reserve is vested IB the Department of Agriculture. 43 L. D. 465. Mill site locations on Forest Reserve held valid. 43 L. D. 257, 44 L. D. 197. In the location of a claim upon a Forest Reserve the dis- covery, staking, and record are perfected with no reference to the fact of its being upon such reserve; nor does the super- vision of the Forest Ranger affect the title or the possessory status, but his suggestions in regard to use of timber must be heeded. If there be no mineral value upon which to locate and the ranger assert such fact, it is not followed by any action on his part to set aside the claim, but when application for patent is made, a protest on this ground may be made on behalf of the parties or department supposed to be looking after the protection of the forests. THE WITHDRAWAL ACTS. By Act of June 25, 1910, the President was authorized at any time in his discretion to temporarily withdraw from settle- ment, location, sale or entry public land in any State, includ- ing Alaska, and reserve the same for water power sites, irriga- tion, classification of lands or other purposes. 36 Stat. L. 847.; Comp. Laws 1911, page 593. Vested rights were, of course, reserved in the Act and as to minerals it was provided that the withdrawn lands should remain open to exploration for minerals other than coal, oil, gas and phosphates, with a proviso that any boiia fide occu- pant or claimant of oil bearing lands who, at the date of withdrawal, was in diligent prosecution of work leading to dis- covery of oil or gas should not be affected or impaired by such THE WITHDRAWAL ACTS. 423 order so long as such occupant or claimant should continue in diligent prosecution of said work. By Act of August 24, 1912, the Act was amended with a repetition of the same saving clause as to rights of oil seek- ers. 37 Stat. L. 497. But the right to prospect and locate was now restricted to metalliferous minerals which prac- tically means that lode claims may be recorded upon such lands, but not placers. Under the power so conferred, immense tracts were with- drawn and, although the rights of oil seekers already on the ground were apparently protected, the policy of the govern- ment as to such oil seekers immediately became active, and by numerous suits they have been treated as trespassers upon the public domain and forced to bring themselves as defendants into full proof of such facts as would save their initiated rights by bringing themselves within the excepting clauses of the acts. The validity of the Withdrawal Acts was at once contested and such contest was upheld in the lower court. U. S. v. Mid- way N. Oil Co., 216 F. 802. But the National Supreme Court in a majority opinion reversed the lower Court and held the right of withdrawal to be valid on the ground that such had been the long estab- lished practice in dealing with the public domain. U. 8. v. Midwest Oil Co., 1 236 U. S. 459, 59 L. Ed. 673, 35 Sup. Ct. Rep. 309. Extent of U. S. Recovery. In the suit brought in California against the Midway and other oil companies to oust them from the oil lands they had developed, the lower Court at first held the withdrawals to be void and dismissed the suits. 216 F. 802, supra. But after the Midwest decision the cases were reinstated and a drastic decision handed down against them. 232 F. 619. The Court held that location of placer oil claims prior to the withdrawal without actual discovery of the oil gave the locators no rights under the saving clauses of the Act, and 424 THE WITHDKAWAL ACTS. that surface expenditures and outlays to bring water on the land which was absolutely necessary before even drilling could be begun was not sufficient diligence. That the companies were neither actual occupants nor in the diligent prosecution of work. (To same effect is The Pacific Midway case, 44 L. D. 420.) The land prior to the discovery was an arid desert of the nominal value of $3 per acre, but by the success of the wells became worth $2,000 per acre, and this immense accretion of value was due directly to the expenditures of the defendants in excess of $1,000,000. Although phosphate and other placer minerals are included in the withdrawals as mentioned later, the burden of the pressure of the acts is upon coal and gas. These pre-eminent equities in favor of the defendants were held by the Court mere circumstances of mitigation which would not prevent the government from securing the prop- erty itself and all its products, the increase in value and the profits of the risk but that they should allow to the oil com- panies the cost of "extracting and marketing the oil." The cost of drilling was not allowed on the accounting, but was to be allowed in case the government proved damages inci- dental to the trespass to the extent of the trespass damages, but no more. As there were no trespass damages this offset amounted to nothing. The rule that the occupant in good faith should be allowed for his improvements before restoration to the owner was held not to apply. The oil companies were allowed to remove their tools which, even if they had been willful trespassers, would have re- mained their property, and their movable fixtures were not confiscated. The later case of U. S. v. McCutcJien ruled like points with equal strictness. 234 P. 702. The department in the case of the Honolulu Oil Co., where Ihe applicants had expended large sums in prospecting and THE WITHDRAWAL ACTS. 425 had started drilling at the date of withdrawal, September 27, 1909, held that the facts brought the company within the sav- ing clauses and validated their entire group of twelve entries. This Honolulu case should be expected in 45 L. D. Subsequent discovery of oil, where work was not being prose- cuted at date of withdrawal, does not protect the claim. 40 L. D. 303. Amended location, taking up more ground, can not be made after withdrawal. 43 L. D. 232. It is obvious that the very general terms of the Withdrawal Acts implied that future legislation was necessary to control the ultimate disposition of such lands, but no provision for ultimate sale or lease has been made except as hereinafter noted. 44 L. D. 568. Severance of Surface and Mineral Titles Asphalt Acts. The original Act of 1910 was followed by certain acts intro- ducing a new policy for the granting of surface rights with reservation of minerals to the government. By General Act of July 17, 1914, 38 Stat. L. 509, "lands withdrawn or classified as phosphate, nitrate, potash, oil, gas or asphaltic minerals or which are valuable for those deposits," were declared open to entry under any of the non-mineral Land Office procedures, the patent to reserve such minerals to the United States with conditions for future prospecting of such minerals, and clauses for bonds and damages with pre- vision of the complications certain to follow such partnership between the United States and the prospector. Temporary Acts. By Act of March 2, 1911, 36 Stat. L. 1015, amended by Act of August 25, 1914, 38 Stat. L. 305, it was declared that pat- ents on oil and gas lands should not be denied because of any transfer by the locator before discovery if the lands had not been withdrawn, and provided for contracts between the Sec- retary of the Interior and the owner of a certain class of oil 426 THE WITHDRAWAL ACTS. and gas claims for division of the proceeds of the wells, which acts seem to have been of only temporary operation. Utah and Idaho. Two special acts, one confined to Idaho and one to Utah, provided for sale of such lands with reservation of certain minerals to the Government. Idaho, February 27, 1913, 37 Stat. L. 687 ; Utah, August 29, 1912, 37 Stat. L. 496. Recapitulation. The synopsis of the effect of the Withdrawal Acts upon the rights of prospectors upon the public domain seems to be: 1. That locations of lode claims may be made upon such lands the same as if they had not been withdrawn. 2. That placer locations upon any class of deposit are for- bidden. 3. That the right to the claimant of any kind of mining location was not affected where a possessory right was com- plete at the date of withdrawal. 4. That coal, oil and gas may not be located upon or claimed in any manner after date of withdrawal. 5. That the rights of oil and gas claimants at the date of withdrawal where they had not been perfected by discovery, are dependent upon their being actual occupants who had begun search and continued it with diligence. 6. That oil and gas lands may be patented as to the sur- face by homestead or other agricultural claimants, reserving to the government such minerals. Phosphate and Asphalt. By Act of January 11, 1915, location of phosphate lands before the withdrawal were validated. 38 Stat. L. 792. In the A. C. of 1914, above cited, phosphate, nitrate, potash and asphaltic lands were made open to agricultural entry with reservation of such minerals to the United States. For practice under this doctrine of severance see 44 L. D. 32, 45 L. D. 77. ORE CONTRACTS. 427 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 particular smelter. Arkansas Val. Sm. Co. v. Belden Co., 127 U. S. 379, 32 L. Ed. 246, 8 Sup. Ct. Rep. 1308 ; Winchester v. Davis Co., 67 F. 45, 14 C. C. A. 300 ; Wheeler v. Walton Co., 64 F. 664. Failure to receive pay justifies failure to make future de- liveries. Cherry Val Co. v. Florence Co., 64 F. 569, 12 C. C. A. 306. 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, 75 C. C. A. 472. 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., 108 Cal. 369, 41 P. 308. A, in Michigan, agreed to sell to plaintiff graphite ore to be delivered on cars in Mexico. Held, that cause of action for non-delivery accrued in Mexico. U. S. Graphite Co. v. Pacific Co., 68 F. 442. Construction of ore contracts calling for certain percentages of mineral and for special assay values with deductions for moisture Trotter v. Heckscher, 40 N. J. Eq. 612, 4 Atl. 83, 42 N. J. Eq. 251, 7 Atl. 353 ; Lehigh Co. v. Trotter, 43 N. J. Eq. 185, 7 Atl. 650, 10 Atl. 607, 608; Anvil Co. v. Humble, 153 U. S. 540, 38 L. Ed. 814, 14 Sup. Ct. Rep. 876, 18 M. R. 98; Martinez v. Earnshaw, 143 Pa. 479, 22 Atl. 668. Measure of damages for failure to deliver ore. Patrick v. Colorado Sm. Co., 20 Colo. 268, 38 P. 236. Amount of moisture is determinable by tests of like ore from same mine. Vietti v. Nesbitt, 22 Nev. 390, 41 P. 151, 18 M. R. 247. 428 ORE CONTRACTS. The smelter is not liable for mineral left in the tailings, there being no proof of negligence. Guild Co. v. Mason, 115 Cal. 95, 46 P. 901. Where an average of a certain assay is to be accounted for, one month may make up for another. Fox v. Mactcay, 125 Cal. 54, 57 P. 672, 20 M. K. 89. Construction of contract for delivery of ore "free from foreign substance." Worthington v. Gunn, 119 Ala. 44, 43 L. R. A. 382, 24 So. 739. Of ore breaking contract terminable when prejudicial to the development of the mine. Anvil Co. v. Humble, 153 U. S. 540, 38 L. Ed. 814, 14 Sup. Ct. Rep. 876, 18 M. R. 98. 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. 43, 65 C. C. A. 281. Contract construed to bind the seller to furnish the ore of its own mines. Shackelford v. Sloss Co., 36 So. 1005, 140 Ala. 329. A contract for the ore of a certain mine entitles the buyer to the run of the mine, although the ore tendered from another mine was not below the agreed assay. Globe Co. v. Tennessee Co., 27 Ky. Law Rep. 636, 85 S. W. 1177. A contract to fur- nish coal from a particular mine is not fulfilled by tender of coal from other mines though equally good. Hesser v. Chicago Co., 151 F. 211, 80 C. C. A. 263. Debts Payable Out of the Mine. A promise to pay a debt out of the proceeds of ore is not an equitable assignment of such proceeds. Silent Friend Co. v. Abbot, 1 Colo. App. 73, 42 P. 318. A contract or promise to pay out of the proceeds of a mine becomes an absolute promise after the lapse of a reasonable time. Mclntyre v. Ajax Co., 28 Utah 162, 77 P. 613 ; White v. Century Co., 28 Utah 331, 78 P. 868; Busby v. Century Co., 27 Utah 231, 75 P. 725. ORE CONTRACTS. 429 An agreement to pay out of the first net proceeds of the mine means the first excess of ore receipts above current ex- penses, and those outlays which constitute the capital are not to be deducted. Crocker v. Barteau, 212 Mo. 359, 110 S. W. 1062. Where the assignee of a mining lease agrees to pay a con- sideration therefor out of the net proceeds of the mine, such assignee is not bound to continue work at a loss after reasona- ble expenditures show that net proceeds can never be reasona- bly expected. Caley v. Portland, 18 Colo. App. 390, 71 P. 892, 22 M. R. 595. Where defendant agreed to pay plaintiff a certain propor- tion of the price of a mine, plaintiff is entitled to his propor- tion of stock received where the mine is paid for in stock. Kinard v. Jordan, 10 Cal. App. 219, 101 P. 696. A covenant to pay out of proceeds held to run with the mine. Hinchman v. Cons. Arizona Co., 198 F. 907. Where purchase price is to be paid from the gross output of the claims defendant can not escape performance by will- fully neglecting to w r ork. And if the mine \vas in fact barren the burden is on him to prove it. Pritchard v. McLeod. 205 F. 24, 123 C. C. A. 332. A party bought a fourth interest in mining claims, paying part of the consideration, the balance "to be part of the first money taken out of the ground." Held, that this meant the gross, not net, proceeds of the buyer's fourth interest. Lesamis v. Greenberg, 225 F. 449; Blanch v. Pioneer Co., (Wash.) 159 P. 1077. A promise by the owners to pay for service in operating a mine out of proceeds of sale is a joint and several contract. Bell v. Adams, 90 P. 118, 150 Cal. 772. 430 ORE BUYERS. ORE BUYERS. Ore Book to Be Kept. By Act of 1915, supplanting a prior similar act, every ore buyer is required to take out a State License and to keep a book, registering: First The name of the party on whose behalf such ores, concentrates, gold dust, gold or silver bullion, nuggets or specimens are delivered. Second The weight or amount, and a short description of each lot thereof. Third The name and location of the mine or claim from which it shall be stated that the same has been mined or procured. Fourth The name of the party delivering the same, the date of deliv- ery, and whether the party making the delivery is an owner, lessee, super- intendent, foreman or workman in such mine. These provisions supersede R. S. 4235 and are to be con- strued in connection with the sub-chapter on mines entitled, Ore Buyers, Sees. 4235-4256. Acts of 1915, p. 347. 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 include cases where possession had been taken by violence, contrary to the pro- visions of the Jumping Act. R. S. Sees. 4220, 4239. Bullion and Specimen Buyers. A similar act refers to buyers of gold 'dust, amalgam, bullion and gold specimens, the intent being to produce means to trace such property when stolen. R. S. Sees. 4252-4255. 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 ORE BUYERS. 431 some importance involving the question then pending in the Supreme Court, an act was passed providing for the ease 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 take 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: Denver, Colo., January 9, 1916. To The Taylor $ Brunton Sampling Works Company: Take notice that I am the claimant and owner and entitled to the possession of the Nightmare Lode Mining Claim, situate in Creede Mining District, County of Mineral, State of Colorado; That Bichard A. Parker and Thomas B. Crawford and persons under them are mining and ship- ping gold ore which is my property, from said claim under the name of the Pleasant Dream Lode, or under some other name. And you are hereby notified under the terms of the Statute in such case made and provided that you will be held responsible for all ores purchased and delivered from said mine by said Eichard A. Parker and Thomas B. Crawford, or either of them, or by any person for them, subsequent to the service of this notice. ERNEST LE NEVE FOSTEB. The person serving this notice must within five days there- after 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 ulti- mately prove title. If such notice is served and followed by obtaining the writ and the party warned persists in buying the ores in dispute, he is to be held responsible to the person ultimately adjudged the owner. If suit has been already brought when the notice is served, add to the above form: (Sec. 4238.) Suit is pending in the District Court of Mineral County to enjoin the further shipping or sale of ores by said parties 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. 432 PENAL PROVISIONS. Ore Mined Under Claim of Right. The suit above referred to, Omalia Co. v. Tabor, 16 M. R. 184, 13 Colo. 41, 16 Am. St. Rep. 185, 5 L. R. A. 236, 21 P. 925, was decided later, holding the ore buyers liable as tres- passers 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 be- comes marketable without regard to the ultimate decision on the question of who was the owner of the realty. Brown v. Caldwell, 12 M. R. 674, 10 Serg. & R. (Pa.) 114, 13 Am. Dec. 660; Smith v. Idaho Q. M. Co., 2 Cal. Unrep. 681, 11 P. 878; Mather v. Trinity Church, 14 M. R. 472, 3 Serg. & R. (Pa.) 509, 8 Am. Dec. 663; Lehigh Co. v. New Jersey Co., 55 N. J. L. 350, 26 Atl. 920, 17 M. R. 600 ; Harlan v. Harlan, 15 Pa. St. 507, 53 Am. Dec. 612 ; Anderson v. Hapler, 34 111. 436, 85 Am. Dec. 318; Page v. Fowler, 28 Cal. 605; National T. Co. v. Weston, 121 Pa. 485, 15 Atl. 569, 17 M. R. 143 ; Giffin v. South West Pipe Lines, 172 Pa. 580, 33 Atl. 578. See Pearce v. Aid- rich M. Co., 184 Ala. 610, 64 So. 321. Smelters' Rules. The rule of a smelting company that ore left for fifteen days without directions where to apply the proceeds should belong to the smelter without payment is arbitrary and un- reasonable. Cons. Kansas City Co. v. Gonzales, 50 Tex. Civ. 79, 109 S. W. 946. PENAL PROVISIONS. False Weights and Assays. There are in all the mining States penal statutes more or less alike in wording and intent prescribing punishment for such self-evident offenses as the using of fraudulent gold dust scales (Sec. 1851), or false ore buyers' weights and scales, or PENAL PROVISIONS. 433 the certifying to false assays or making false return of ore weight or value. -R. S. Colo. Sec. 4240. Debased Gold Dust. Sections 1708, 1709, make it penal to knowingly have or pass debased gold dust. In People v. Page, 1 Ida. 102, the defend- ant was convicted on indictment for having in possession instruments for manufacturing bogus gold dust. In People v. Sloper, 1 Ida. 158, and People v. Page, 1 Ida. 189, the offense of uttering 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 that will increase or in any way change the value of said ore, with the intent to deceive, cheat or defraud any person or persons, shall, on conviction thereof, be punished by a fine of not less than five hundred nor more than one thousand dollars, or by confinement in the penitentiary for a term not less than one nor more than fourteen years, or by both such fine and imprisonment. E. S. Colo. Sec. 1863. Ore Stealing from the Mine. If any person shall break, sever or separate 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 or 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, ledge, or dump, such person shall be deemed guilty of grand larceny, and upon conviction shall be punished as for grand larceny. E. S. Colo. Sec. 1680. The above section amends the Act of 1903, which was lim- ited to ore of the value of $20. By Colorado Act of 1909, p. 451, stealing ore or concen- trates from any smelter or reduction works is made grand larceny. Robbing a sluice box is an extraditable crime. Tiberg v. Warren, 192 F. 458, 112 C. C. A. 596. 434 PENAL PROVISIONS. Trespass Not Larceny. Except as modified by such statutes as said section 1680, the taking of ore by severing it from the realty accompanied by its immediate asportation, can in no case be considered larceny. People v. Williams, 35 Cal. 671, 4 M. R. 185 ; State v. Kerry- man, 8 Nev. 262, 4 M. R. 199 ; State v. Burt, 4 M. R. 190, 64 N. C. 619. This distinction is in some of the cases referred to as unsub- stantial and technical, although its force, as decided law, is not questioned. On the contrary, it is a distinction neces- sary to check the constant tendency to seek a criminal remedy where the civil remedy is ample. Excepting the instance of what is known as "high-grading" the severance is wholly without felonious intent. Injunction Against Buying High-grade. Such a writ was allowed against a purported assayer who in fact was a receiver for high-grade ore stolen from the mines at Goldfield, Nev.Goldfield Co. v. Richardson, 194 F. 198. But equity jurisdiction in a like case was denied in Daniels v. Portland M. Co., 202 F. 637, 121 C. C. A. 47, 45 L. R. A. (N. S.) 827. Moving Stakes. The malicious removal of location marks is made a mis- demeanor by the terms of R. S. Colo. Sec. 1899. Under a statute on this subject it was held that there must be proof of a lawful stake on a valid mining claim and that where the only proof of discovery was that the stake was posted after finding "quartz and vein matter," there was no proof of a valid location stake, such as the law was intended to protect Territory v. Mackeij (McKey), 8 Mont. 168, 19 P. 395. PENAL PROVISIONS. 435 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 element of malice or other criminal intent, making the cutting of timber or removing of buildings a misdemeanor. Sfccs. 4222, 4223. The strictest construction against it has been heretofore given to a statute of similar wording. Bradley v. People, 8 Colo. 599, 9 P. 783. Jumping Claims by Stealth or Violence. R. S. Colo. 4220, passed in 1874, prohibits acts of this char- acter. The Act consists of a single paragraph of interminable length. It makes the association pf 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 "jump- ing," which word is met with in some of the old statutes as well as in the district rules, and occasionally in law reports. Arnold v. Baker, 1 M. R. Ill, 6 Neb. 134; Murphy v. Cobb, 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. 471. Coal Mines Are Regulated by Detailed Local Statutes in almost every State involving inspection and attempting to guard against explosions and other dangers. R. S. Colo. Sees. 638-660. Such regulations are generally upheld as ^constitu- tional. .Ratf & River Coal Co. v. Yaple, 236 U. S. 338, 59 L. Ed. 607, 35 Sup. Ct. Rep. 359. f 436 EJECTMENT. Oil Wells Are Required to Keep Their Products from emptying into any natural water course. R. S. Colo. 1818. Ventilation Children. The Colorado Constitution, Art. 16, Sec. 2, requires the passage of laws securing safety escapes and ventilation in mines. The acts on these subjects are cited under BUREAU OF MIXES, p. 481. The employment of children under fourteen years of age is forbidden by K. S. Sec. 547. The eight-hour law applies to underground miners, to smelt- ers and other ore-treating processes. EJECTMENT. Pleadings. Under Code practice the names of the various actions are abolished, but the distinctions being inherent, the term eject- ment has its specific application the same as formerly. Section 286 Colo. Code requires a concise statement in the complaint of the nature of the title when possessory. The case of National M. Co. v. Piccolo clearly states the essentials and non-essentials of a complaint in ejectment. 54 Wash. 617, 104 P. 128. Discovery need not be alleged in a pleading. It is a matter of evidence. Protective Co. v. Forest City Co., 51 Wash. 643, 99 P. 1033. Ground, Mineral or Non-Mineral. In Duffield v. San Francisco Chemical Co., 198 F. 942, the Court refused to allow any evidence as to whether the ground EJECTMENT. 437 was properly locatable as a placer or as a lode claim, holding that issue to be exclusively triable in the Land Office. See p. 252. But in a later suit between the same parties concern- ing other ground, the Circuit Court of Appeals, without citing the former case, held that determination of this point was necessarily involved and must be determined as it was by the Court. Sa n Francisco Chemical Co. v. Duffield, 201 F. 830, 120 C. C. A. 160. 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, 13 P. 906; Burke v. McDonald, 2 Ida. 310, 13 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, Go., 1 M. R. 120, 12 Nev. 312. Or each party may be in possession of a part of the contested premises. Rose v. Richmond Co., 17 Nev. 25, 27 P. 1105. Notifying defendant not to work is an ouster. Bramlett v. Flick, 23 Mont. 95, 57 P. 869, 20 M. R. 103. The object of the suit is to determine the right of possession, and the result is to decide which party is entitled to a patent from the United States. The government being thus an inter- ested party, each side must prove its own case affirmatively, and to either recover or successfully defend must show a valid location. Bay Stale Co. v. Brown, 21 F. 167; Jackson v. Roly, 109 U. S. 440, 27 L. Ed. 990, 3 Sup." Ct. Rep. 301; McGinnis v. Egbert, 8 Colo. 41, 5 P. 652, 15 M. R. 329 ; Rosen- thai v. Ives, 15 M. R. 324, 2 Ida. 265, 12 P. 904. Neither party is entitled to a verdict upon mere proof of prior possession alone as is the rule in a contest where individuals only are interested. Sears v. Taylor, 5 M. R. 318, 4 Colo. 38. But possession alone is good against an intruder, especially one who enters by violence. Haws v. Victoria Co., 160 U. S. 303, 40 L. Ed. 436, 16 Sup. Ct. Rep. 282. Possession may become incidentally a material issue in the case. See ADVERSE CLAIM. 438 EJECTMENT. Averment of Suit Brought in Time. In a complaint carefully and technically drawn there will be an averment that the adverse claim was filed within the period of publication and the suit brought within the 30 days, but both the right of the thing and the weight of authority are that they are not essential averments. If, in fact, the adverse claim was not filed or the suit not brought within these respective limited periods it is a matter of defense to be raised by the answer. Providence Co. v. Marks, 7 Ariz. 74, 60 P. 938 ; MarsJiall Co. v. Kirtley, 12 Colo. 410, 417, 21 P. 492, 16 M. R. 6 ; Altoona Co. v. Integral Co., 45 P. 1047, 114 Cal. 100 ; Penn- sylvania Co. v. Bales, 18 Colo. App. 108, 70 P. 444, 22 M. R. 436 ; Rain v. Mattes, 34 Colo. 345, 83 P. 127. No Second Suit. If suit be dismissed a second suit can not be brought after the expiration of the thirty days. Steves v. Carson, 16 M. R. 12, 42 F. 821 ; and if not filed in time the suit can not be supported as an ordinary ejectment. Hunt v. Eurekp Gulch Co., 14 Colo. 451, 24 P. 550, 17 M. R. 340. Second Trial. At common law a verdict in ejectment was not res adjudicata of the title, and repeated suits were liable to be brought. As a compromise on this point some States allowed a second trial as of right on payment of costs of the first suit, the judgment in such second suit to be final if in favor of the same party. In other words, there must be two verdicts for the same party to make the adjudication decisive. Such statutory new trial in Colorado has been abolished since 1899 and is not generally now provided for elsewhere. A second trial for errors of law may of course be granted. Possession Without Location Location Without Discovery. The Congressional Act, Sec. 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 EJECTMENT. 439 valid location there can be no rightful possession. Belk v. Meagher, 1 M. E. 510, 104 U. S. 279, 26 L. Ed. 735 ; Sweet v. WeUer, 1 Colo. 443, 450, 4 P. 752; Cook v. Klonos, 164 F. 529, 90 C. C. A. 403. 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, 4 F. 702, 2 McCrary 44, 9 M. R. 515. But only by compliance with the statute (by a valid location) can he prevent other prospectors from entering upon any ground except that in his actual occu- pation. tfecfcer v. Pugh, 15 M. R. 304, 9 Colo. 589, 13 P. 906. The posting of notice without discovery or indications of mineral can not warn off other prospectors. Erhardt v. Boaro, 113 U. S. 537, 28 L. Ed. 1116, 5 Sup. Ct. 565, 15 M. R. 447. He may protect himself 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 against another miner, where neither has discovered a vein, he has the better right Field v. Grey, 1 Ariz. 404, 25 P. 793. The question which these citations lead up to is this : Can a prospector, before discovering mineral, stake off a full claim and keep off all other prospectors 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 already set will be found to cover the legal width on each side f Can he, in spite of the law which says he can not, make a valid location before dis- covery; or, which is the same thing, have all the practical benefits of a location, before such discovery? The cases go to the length of protecting his actual workings and this would prevent encroachment so close as to hinder work or threaten a breach of the peace. The Boaro case seems to intimate that he may protect himself when at work on float, or after substantial assurance of the proximity of the lode. In the Field case the point is approached and almost decided, that he may hold by location without discovery. The burden of the other cases and the text of the law are .against the proposition that staking a claim before discovery excludes other prospectors. All have 440 EJECTMENT. the same right to seek till one has found ; no one has a right to fence out others from the right of seeking what he himself is only seeking. See pp. 27, 34. The party who is the first to comply with the law though he may not be the first discoverer holds the first title. Sisson v. Sommers, 19 M. R. 644, 24 Nev. 379, 77 Am. St. Rep. 815, 55 P. 829 ; Lockhart v. Johnson, 181 U. S. 516, 527, 45 L. Ed. 979, 985, 21 Sup. Ct. 665; Copper Globe Co. v. Allman, 21 M. R. 296, 23 Utah 410, 64 P. 1019 ; Gregory v. Pershbaker, ]5 M. R. 602, 73 Gal. 109, 14 P. 401; Ferns v. McNally, 45 Mont. 20, 121 P. 889, 890. Prior possession is better title than an invalid location. Connolly v. Hughes, 18 Colo. App. 372, 71 P. 681. The right of possession is a transferable interest. Eooney v. Barnette, 200 F. 700, 119 C. C. A. 116. When neither party has a valid location possession is good title in the claimant. Protective Co. v. Forest City Co., 51 Wash. 643, 99 P. 1033. Possession How Proved. A person who has purchased a mining claim which has 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 possession is a possessio pedis, extend- ing to the boundary lines of the claim. North Noonday Co. v. Orient Co., 1 F. 522, 6 Sawy. 299, 9 M. R. 529, 531. Digging a shaft, building a cabin, etc., held proof of possession. Koons v. Bryson, 69 F. 297, 16 C. C. A. 227. Actual occupation of a part of the claim under papers call- ing for the entire tract by metes and bounds, or by the name of the claim, gives constructive possession of the entire tract. Harris v. Equator Co., 12 M. R. 178, 8 F. 863, 3 McCrary 14 ; Attwood v. Fricot, 17 Cal. 37, 38, 76 Am. Dec. 567, 2 M. R. 305 ; Hess v. Winder, 12 M. R. 217, 30 Cal. 349. EJECTMENT. 441 Possession is a question of law. Jordan v. Duke, 4 Ariz. 278, 36 P. 896. A witness must testify to facts, and it is for the Court to say whether these facts amount to possession. Thistle v. Frostburg Co., 10 Md. 129. But the uniform holding of the United States Court, at Denver, has been that the question as to possession 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 pos- session of the vein wherever the dip may carry it Montana Co. v. St. Louis Co., 102 F. 430, 431, 42 C. C. A. 415, 20 M. R. 507. A prospector drilling for oil is in possession .and eject- ment is the remedy to test his right of possession. Cosmos Co. v. Gray Eagle Co., 112 F. 4, 50 C. C. A. 79, 61 L. R. A. 230 ; Aff'd 190 U. S. 301, 47 L. Ed. 1064, 23 Sup. Ct. 692, 24 Sup. Ct. 860. The owner of a patented claim is presumed to be in posses- sion of all the surface within the patent lines. Original C. Co. v. Abbott, 167 F. 681. After location is completed the locator is not bound to remain in actual possession of the property. Holdt v. Hazard, 10 Cal. App. 440, 102 P. 540. 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, 61 C. C. A. 63. A mine claim- ant is in possession to his boundaries, although he may not know where his boundaries are. Molina v. Luce, 9 Ariz. 29, 76 P. 602. A party may be in legal possession, though not person- ally on the land at the time of a stranger's entry. Davis v. Dennis, 43 Wash. 54, 85 P. 1079. Living in a tent on the claim and working on the same con- stitute actual possession' of mining ground. Lange v. Robin- son, 148 F. 799, 79 C. C. A. 1. 442 EJECTMENT. What Is Not Possession. Surreptitious running of a drift under the lines of the claim of another does not constitute possession 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 pos- session. Costello v. Muheim, 9 Ariz. 422, 84 P. 906. Digging of test pits by claimant of the severed mineral estate is not such possession as amounts to notice. Kendrick v. Col- yar, 143 Ala. 597, 42 So. 110. Right to Defend Possession. A party in possession may defend by force against persons claiming the premises and attempting to oust him, and even the rightful owner can not invade such possession by force. Hickey v. U. 8., 168 F. 536, 93 C. C. A. 616, 22 L. R. A. (N. S.) 728. An Equitable Defense May Be Set Up in Ejectment. South End Co. v. Tinney, 22 Nev. 19, 35 P. 89. Such defense must be specially pleaded. Brady v. Husby, 21 Nev. 453, 33 P. 801. A mine owner's admission that he had no title may be explained by his misapprehension of the law of the case. Crary v. Dye, 208 U. S. 515, 52 L. Ed. 595, 28 Sup. Ct. 360. Title in Third Party. The rule that plaintiff must recover on the strength of his own title does not prevail in an action between possessory claimants. Strepey v. Stark, 7 Colo. 614, 622, 5 P. Ill, 17 M. R. 28 ; Murray Co. v. Havenor, 24 Utah 73, 66 P. 762, 21 M. R. 668. Otherwise, as to parties claiming under patent, or in ordinary contests as to legal title. Dyke v. Whyte, 17 Colo. 296, 29 P. 128. A patentee has no right to disturb any person in possession of ground under, but excluded from, his patent. EJECTMENT. 443 Reynolds v. Iron Silver Co., 15 M. R. 591, 116 U. S. 637, 29 L. Ed. 774, 6 Sup. Ct. 601. The Location Certificate as Evidence Presumption of Loca- tion. Where a plaintiff has been in actual possession of his claim for the full period of the Statute of Limitations a presumption may be indulged as against a wrongdoer at least, that his loca- tion was regularly made, without putting him to proof of its successive steps. Harris v. Equator Co., supra; cited and approved in Vogel v. Warsing, 146 F. 949, 77 C. C. A. 199. 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. 263, 42 F. 98; Yreka Co. v. Knight, 133 Cal. 544, 65 P. 1091, 21 M. R. 478. In Cheesman v. Shreeve, 40 F. 787, 791, 17 M. R. 260, it was held presumptive evidence of dis- covery. It is evidence of the performance of all things which the statute requires it to recite. Bismarck Co. v. N. Sunbeam Co., 14 Ida. 516, 95 P. 14; Strepey v. Stark, 1 Colo. 614, 619, 5 P. Ill, 17 M. R. 28. Exact evidence of all details is not to be expected in proof of discovery and location made many years before the time of trial. Becker v. Pugh, 17 Colo. 243, 245, 29 P. 173 ; Yreka Co. v. Knight, 21 M. R. 478, 65 P. 1091, 133 Cal. 544. But in the absence of a statute to such effect and barring the above exceptional instances it does not prove discovery or the several acts of location. Niles v. Kennan, 27 Colo. 502, 62 P. 360, 21 M. R. 33 ; Mutchmor v. McCarty, 149 Cal. 603, 87 P. 85 ; Thomas v. South Butte Co., 211 F. 105, 106, 128 C. C. A. 33; Childers v. Laliann, 19 N. M. 301, 142 P. 924. By statute in Nevada and Montana the location certificate is prima facie evidence of location. Supplemental Record in California. By the statute of California, in force since July 1, 1909, it is provided (Sec. 1426 I.), that the holder of a possessory claim 444 EJECTMENT. may have his boundaries and corners established by a U. S. Deputy Mineral Surveyor, or a licensed surveyor of the State, and his claim connected with some corner of a United States survey. He may then record a declaratory statement (equiva- lent to a second location certificate) containing the field notes of such survey with the certificate of the surveyor stating : First, that said survey was actually made by him, giving the date thereof. Second, the name of the claim surveyed and the location thereof. Third, that the description incorporated in the declaratory statement is sufficient to identify. Such record is made prima facie evidence "of the facts therein contained," i. e., it becomes prima facie proof of the discovery and all acts of location. Right to Jury Trial. Where a party is in peaceable possession of real estate under contention that he is the lawful owner of the same, he has the conceded right to trial by jury before he can be legally ousted therefrom. Atkinson v. J. R. Crowe M. Co., 80 Kan. 161, 18 Ann. Gas. 242, 39 L. R. A. (N. S.) 31, 102 P. 50, 106 P. 1052. But where he is, at the same time, removing mineral from the land he may become the defendant in an injunction suit which is, of course, an equity proceeding. Conceding the jurisdiction of an equity court in such case to proceed without trial by jury to afford the injunctive relief, does the mere fact that equity has jurisdiction to preserve the property give it the right to try the title also and deny to defendant his right of trial by jury ? Such question, it seems to us, ought to answer itself that the plaintiff by mere choice of his form of action can not deprive the defendant of his right of jury trial. Golden Cycle Co. v. Christmas Co., 204 F. 939, 123 C. C. A. 261. But there are cases which seem to allow the prayer for injunctive relief to take away the defendant's constitutional right of trial by jury.Essetslyn v. U. S. Corp., 59. Colo. 294, 149 P. 93. EJECTMENT. 445 Jurisdiction in equity to enjoin does not give jurisdiction to quiet title in favor of a plaintiff out of possession. United States Min. Co. v. Lawson, 115 F. 1005. But the right to jury trial may be waived when objection is not made below. El Dora Oil Co. v. United States, 229 F. 946. Maps and Models. Where evidence can be understood only by reference to maps and the maps are not preserved in the bill of exceptions, the bill does not contain all the evidence, notwithstanding its asser- tion to that effect. Diamond Co. v. Cutjibertson, (Ind. App.) 67 N. E. 558. Cost of map may be taxed as costs. Kelly v. Butte, 44 Mont. 115, 119 P. 171. A map made for a party to the suit may be used as evidence against it. Liberty Bell Co. v. Smuggler Union Co., 203 F. 795, 796, 122 C. C. A. 113. The jury should be allowed to take the model to the jury room. Illinois Co. v. Raff, 1 N. M. 336, 34 P. 544. Ejectment Lies to Recover Ditch and Water Rights. Integral Co. v. Altoona Co., 75 F. 379, 21 C. C. A. 409. Non-Joinder of Co-Tenant. It is no defense that all of plaintiff's co-owners are not made parties to the suit. Weese v. Barker, 7 Colo. 178, 2 P. 919 j Erliardt v. Boaro, 15 M. R. 472, 473, 113 U. S. 527, 28 L. Ed. 1113, 5 Sup. Ct. 560. One co-tenant may recover the whole estate in ejectment against strangers. King Solomon Co. v. Mary Verna Co., 22 Colo. App. 528, 127 P. 129, 130. Allowance for Improvements. A defendant holding by bona fide claim of title is by statute in instances to be allowed for improvements. But mining is not necessarily an improvement. Bacon v. Thornton, 16 Utah 138, 51 P. 153. Such allowance is expressly forbidden by Colorado Code, Sees. 277, 291. 446 FORCIBLE ENTRY MEASURE OF DAMAGES. FORCIBLE ENTRY. The acts concerning forcible entry and unlawful detainer apply to possessory as well as other claims ; but those acts are so involved, and so abrupt and cruel in their attempt to sub- stitute haste for deliberation, that they result in driving to appeals and 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 attempts by sum- mary process to deprive a defendant of his day in court under pretense of doing speedy justice are open to the same com- ment. Except as against a tenant holding over in defiance of his lease or refusing the payment of royalty or rent, this action will always be found a dangerous substitute for the ordinary action of ejectment. Especially is this the case where actions are commenced before justices of the peace, before whom pro- ceedings 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 remedy for any wrong, in any form of action, before them. MEASURE OF DAMAGES. Trespass for Ore Taken. The true measure of damages depends upon circumstances of aggravation, ranging from the profits of working to the gross value of the ore after breaking from the stope, or even down to its value in place before breaking. Empire Co. v. Bonanza Co., 67 Cal. 406, 7 P. 810 ; In re United Merthyr Co., 10 M. R. 153, L. R. 15 Eq. 46 ; Ege v. Kille, 84 Pa. 333, 10 M. R. 212 ; Liberty Bell Co. v. Moorhead Co., 58 Colo. 308, 145 P. 686. The cost of mining should be deducted from the value of the ore in all cases where neither fraud nor culpable negligence MEASURE OF DAMAGES. 447 constitutes any element of the case. Waters v. Stevenson, 13 Nev. 157, 10 M. R. 240, 29 Am. Rep. 293; Durant Co. v. Percy Co., 93 F. 166 ; Hall v. Abraham, 44 Or. 477, 75 P. 882 ; Leivis v. Virginia Co., 69 S. C. 364, 104 Am. St. Rep. 806, 48 S. 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., 125 Ky. 278, 101 S. W. 319, 102 S. W. 320 ; Kingston v. Lehigh Val. Co., (Pa.) 88 Atl. 768 Stark v. Penn. Co., (Pa.) 88 Atl. 770. 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. Ches- nutt, 86 Tenn. 1, 5 S. W. 444 ; Coal Creek Co. v. Moses, 15 Lea (Tenn.) 300, 54 Am. Rep. 415, 15 M. R. 544; Ege v. Kille, supra; Dyke v. Nat. Tr. Co., 22 App. Div. 360, 49 N. Y. Supp. 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, 70 P. 294, 70 C. C. A. 128; New Dunderberg Co. v. Old, 97 F. 150, 38 C. C. A. 89; Moragne v. Doe, 143 Ala. 459, 11 Am. St. Rep. 52, 5 Ann. Gas. 331, 39 So. 161 ; Turner v. Seep, 167 F. 646; Pioneer Co. v. Mitchell, 190 F. 937, 111 C. C. A. 571. In willful trespass, or where the defendant has mingled the ore or taken any steps to prevent ultimate proof of its value, these acts are to be taken against the defendant. Cheesman v. Shreeve, 40 F. 788, 17 M. R. 260 ; even so far as to throw the burden of proving the value upon the defendant. Little Pittsburg Co. v. Little Chief Co., 11 Colo. 223, 7 Am. St. Rep. 226, 17 P. 760, 15 M. R. 655 ; St. Glair v. Cash Co., 9 Colo. App. 235, 47 P. 466, 18 M. R. 523; and in cases of fraud a co-tenant may even be denied plaintiff's share of legitimate expenses. Foster v. Weaver, 15 M. R. 551, 118 Pa. 42, 4 Am. St. Rep. 573, 12 Atl. 313. A wrongdoer is not entitled to cost of mining. Benson Co. v. Alta Co., 145 U. S. 428, 12 Sup. Ct. Rep. 877, 36 L. Ed. 762, 17 M. R. 488 ; Sunny side Co. v. Reitz, 14 Ind. App. 478, 39 N. E. 541, 43 N. E. 46. 448 MEASURE OF DAMAGES. Full value allowed where an adjoiner has willfully over- stepped his ground. Lightner Co. v. Lane, 161 Cal. 689, Ann. Cas. 1913E, 1093, 120 P. 771. In trespass the presumption is that the taking was willful. Liberty Bell Co. v. Smuggler Co., 203 F. 796, 122 C. C. A. 113 ; Central Co. v. Penny, 173 F. 340, 97 C. C. A. 600. But where claim of right is shown the measure of damages is reduced to the value of the mineral or timber in its original place and no more. Central Co. v. Penny, supra. A lessee holding over under claim of right is not a willful trespasser and is to be allowed the cost of mining. Montro- zona Co. v. Tliatcher, 19 Colo. App. 371, 75 P. 595. . Negligence to ascertain boundaries does not make neces- sarily a willful trespasser, but a deliberate intention to remain ignorant of boundaries does so. Resurrection Co. v. Fortune Co., 129 F. 668, 64 C. C. A. 180. Plaintiff may prove assays of ore left standing and com- putations of what was taken from the stopes but an averag- ing estimate of how much each miner might have broken is too remote. Golden B. Co. v. Buxton Co., 97 F. 413, 38 C. C. A. 228. Value of ore elsewhere on same lode is admissible in proving damages for ore taken. Montana M. Co. v. St. Louis Co., 183 F. 51, 105 C. C. A. 343. In Omaha Co. v. Tabor, 16 M. R. 184, 13 Colo. 41, 16 Am. St. Rep. 185, 5 L. R. A. 236, 21 P. 925, the Court adopted the value of the ore when it became a chattel by severance from the realty. That is the rule where there was no bona fide claim of right, and under the circumstances of that case was an extreme ruling and against the almost unbroken weight of authority. Central Coal Co. v. Penny, 173 F. 340, 97 C. C. A. 600, is a case reviewing the items of mitigation to reduce the damages. Instructions in trespass for recovery of value of ores taken, reviewed and held to be correct. Montana M. Co. v. St. Louis M. Co., 147 F. 897, 78 C. C. A. 33. MEASURE OF DAMAGES. 449 Where tlue Mine Is Under Lease and Ore Is Taken by trespass, the lessee can recover in trover or trespass. Hart- ford Co. v. Cambria Co., 93 Mich. 90, 32 Am. St. Rep. 488, 17 M. R. 515, 53 N. W. 4; Attersoll v. Stevens, 10 M. R. 67, 1 Taunt. 183. And the lessor may recover to the extent of his royalty. Stockbridge Co. v. Cone Works, 6 M. R. 317, 102 Mass. 80. Where the lessor treats disputed ground as his own he is liable to the owner for coal taken by his lessee. Dundas v. Muhlenberg, 14 M. R. 437, 35 Pa. 351. The same as to an oil lease to the full value of the leasehold interest. Duffield v. Rosenziceig, 144 Pa. 520, 23 Atl. 4. Where the lessor accepts royalties knowing the lessee has overstepped his bounds, both may be held in the same action and the proceeds of ores held by the smelter may be treated as a fund to secure the payment. Zobel v. Fannie Eawlings Co., 49 Colo. 134, 111 P. 843. Suit by Ousted Lessee. A lessee wrongfully ousted by his lessor is entitled to recover the profits he would have realized on adequately proving the same. Smuggler Union Co. v. Kent, 47 Colo. 320, 112 P. 223. The case discusses the difficulty of proving such fact and re- versed the lower Court for allowing inadmissible evidence. See also Providence Co. v. Nicholson, 178 F. 29, 101 C. C. A. 157. In Hoosac Co. v. Donat, 10 Colo. 529, 16 P. 157, the opinion on this point is abrupt and fails to compensate the lessee. Where the lessor later mined out the ground, such evidence was under the defendant's control, and in such case every reasonable intendment will be made to support a verdict against the lessor. Isabella M. Co. v. Glenn, 37 Colo. 165, 86 P. 349. By Licensee. A licensee (a buyer holding under executory contract of purchase) has no right of action for coal taken by trespass, 450 MM A Si: HE OF DAMAGKS. except for the coal actually mined by the licensee. Caledonian Co. v. Rocky Cliff C. Co., 16 N. M. 517, 120 P. 716. The sale of land does not convey the right of action for trespasses committed before the sale. Id. In a California case a plaintiff in possession under deed in escrow not delivered was allowed to recover against an ad- joiner who had taken ore from the claim. Light ner Co. v. Lane, 161 Gal. 689, Ann. Gas. 1913E, 1093, 120 P. 771. Special If-juiy to the Mine Can Not, in Trespass, Ee Proved as damages, unless specially declared for. Patdicn v. Keclcy, 19 Nev. 404, 14 P. 347. Confusion. Mixture of ore got by trespass with ore rightfully mined does not necessarily bring the case within the rule as to confusion of gccds.Maloney v. King, 30 Mont. 158, 76 P. 4. Natural gas company held to extreme measure of damages where it had fraudulently mingled lessors' gas without keep- ing any account of it. Stone v. Marshall Co., 208 Pa. 85, 101 Am. St. Rep. 904, 65 L. R. A. 218, 57 Atl. 183; Great S. Co. v. Logan Co., 155 F. 114, 83 C. C. A. 574. IVTesne Profits Accounting. At common law a plaintiff out of possession could not recover for the ore taken until he had recovered possession by eject- ment. Ilugunin v. McCunniff, 14 M. R. 463, 2 Colo. 367. 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, Sec. 291. The case of Ghost v. Shuvian, 4 Colo. App. 88, 34 P. 733, which holds that they must be recovered in the original action, entirely overlooks this section. Where there v;ere t'.vo r.t 1 .;; inin^ claims with conflicting apex rights, iu u,v,...r ' . .j Lot c. :i t!:e:u for ores taken, cost of min- MEASURE OF DAMAGES. 451 ing is to be deducted, and the rise in value of the price of ore is not to be added to the recovery. Clark Montana Co. v. Butte Co., 233 F. 548. Venue in Trespass. Whether trespass on real estate is a local or a transitory action whether it can be brought in one State for injuries done in another depends on the legislation or decisions of the particular State. The question is fully discussed in Peyton v. Desmond, 129 F. 1, 63 C. C. A. 651. Miscellaneous Cases. For the measure of damages on refusal to accept deed, see Gilpin M. Co. v. Drake, 8 Colo. 586, 9 P. 787. On breach of contract to lease. Chambers v. Brown, 69 la. 213, 28 N. W. 561. In cases of negligence. Moody v. McDonald, 4 Cal. 297, 2 M. R. 185, 187. On tunnel contract. Monroe v. Northern P. Co., 5 Or. 509, 2 M. R. 652. Against lessor for mining the ground leased. Chamberlain v. Collinson, 9 M. R. 37, 45 Iowa 429. Against lessee for breach of covenants to mine. Cleo- patra Co. v. Dickinson, 28 Wash. 211, 68 P. 456 ; Colorado Fuel Co. v. Pry or, 25 Colo. 540, 57 P. 51, 19 M. R. 544; Macon v. Trowbridge, 38 Colo. 330, 87 P. 1147. Against smelter fumes. Park v. Northport 8m. Co., 47 Wash. 597, 92 P. 442. On a contract to make a mine a "dividend producer" with stock deposited as forfeit, plaintiff was not allowed to recover damages in addition to the forfeit. Catterlin v. Voney, 177 F. 527. On contract to furnish funds to drill for coal and to form a company and issue stock in payment for land. Eisleben v. Brooks, 179 F. 86, 102 C. C. A. 380. 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. S. 125, 10 Sup. Ct. Rep. 39, 33 L. Ed. 279, 16 M. R. 159; Warner v. Benjamin, 89 Wis. 290, 452 NEGLIGENCE. ACCIDENTS. 62 N. W. 179; Stratton's Ind. v. Dines, 135 F. 449, 68 C. C. A. 161. Conversion of stock of no fixed market value. Moynahan v. Prentiss, 10 Colo. App. 295, 51 P. 94. On sale of coal. Osgood v. Bander, 75 la. 550, 1 L. R. A. 655, 39 N. W. 887. For stoppage of work on contract to sink, before shaft complete. Mooney v. York Co., 82 Mich. 263, 46 N. W. 376. Heavy verdict sustained for breach of contract to drive drainage tunnel. Occidental M. Co. v. Comstock T. Co., 125 F. 244. The measure of damages for breach of contract by lessor to drain the mine is the cost of restoring it to its condition before injury accrued, but this can not exceed the value of the un- expired portion of plaintiff's term. Carter v. Cairo Co., 240 111. 152, 88 N. E. 493. NEGLIGENCE. ACCIDENTS. The same rule governs the liabilities of owners, lessees and contractors in case of accident to employees, as controls in other cases where the relation of master and servant exists, and negligence is the foundation of the action. Quincy Co. v. Hood, 12 M. R. 148, 77 111. 68 ; Strahlendorf v. Rosenthal, 10 M. R. 676, 30 Wis. 674; Central C. Co. v. Williams, 173 F. 337, 97 C. C. A. 597. Safe place to work defined. Dolese Co. v. Kahl, 203 F. 627, 122 H. C. A. 23. Mining is a dangerous business and subject to State regulation under its police power. Barrett v. Indi- ana, 229 U. S. 26, 33 Sup. Ct. Rep. 692, 57 L. Ed. 1050. Com- pelling owner to leave barriers is no unreasonable exercise of such power. Plymouth Co. v. Com., 232 U. S. 531, 34 Sup. Ct. Rep. 359, 58 L. Ed. 713. The servant assumes only risks which are obvious after the master has performed his duty. NEGLIGENCE. ACCIDENTS. 453 Blair v. Spokane, 66 Wash. 399, 119 P. 839. The miner does not forfeit his right to protection during intervals of labor. Mammoth M. Co. v. Thomas, 201 F. 297, 119 C. C. A. 535. The mine operator is chargeable with implied notice of facts upon which danger may be predicated, without proof of actual notice. Kinsel v. North Butte Co., 44 Mont. 445, 120 P. 797. The Degree of Care Required of the Master Is Fully Stated in Southwest Co. v. Smith, 85 Va. 306, 17 Am. St. Rep. 59, 7 S. E. 365. The miner has no recovery for the ordinary and unavoidable risks of the business. Cherokee Co. v. Britton, 3 Kan. App. 292, 45 P. 101. Instances of Responsibility. The employer is liable for failure to timber dangerous ground. Triliay v. Brooklyn Co., 15 M. R. 535, 4 Utah 468, 11 P. 612; Sampson Co. v. Schaad, 15 Colo. 197, 25 P. 89, 11 M. R. 362; Mountain Cop. Co. v. Van Buren, 133 F. 1, 66 C. C. A. 151. Or for failure to observe his own code signals. Silver Cord Co. v. McDonald, 14 Colo. 191, 23 P. 346, 16 M. R. 171. Or defective rope or hoisting gear. New York Co. v. Rogers, 11 Colo. 6, 7 Am. St. Rep. 6, 16 P. 719, 17 M. R. 123 ; Myers v. Hudson Co., 150 Mass. .125, 15 Am. St. Rep. 176, 22 N. E. 631 ; Donnelly v. Booth Co., 90 Me. 110, 37 Atl. 874. Or for scales, the fall of which should have been foreseen. Buck- ley v. Port Henry Co., 2 N. Y. Supp. 133, 49 Hun 609 ; Union P. Ry. v. Jarvi, 53 F. 65, 3 C. C. A. 433 ; Wilson v. Alpine Co., 118 Ky. 463, 81 S. W. 278; La Follette Co. v. Minton, 117 Tenn. 415, 11 L. R. A. (N. S.) 478, 101 S. W. 178. For a pre- ventable cave. James v. Emmett Co., 55 Mich. 335, 21 N. W. 361 ; Pantzar v. Tilly Co., 99 N. Y. 368, 2 N. E. 24. For rotten or broken ladder. Reese v. Morgan Co., 17 Utah 489, 54 P. 759 ; Gold Hunter Co. v. Johnson, 233 F. 849. For sending men into a blind upraise known to be filled with bad air. Portland Co. v. Flaherty, 111 F. 312, 49 C. C. A. 361, 21 M. R. 555. 454 NEGLIGENCE. ACCIDENTS. The mine owner must look to the proper support of his gang- ways and to the timbering and to the machinery above. Quincy Co. v. Hood, supra; Strahlendorf v. Rosentlwl, supra; Ardesco Co. v. Gilson, 63 Pa. 146, 10 M. R. 669 ; Soyer v. Great Falls Co., 15 Mont. 1, 37 P. 838. Failure to examine gangways. Ashland Co. v. Wallace, 101 Ky. 626, 42 S. W. 744, 43 S. W. 207. The master's negligence is not one of the risks which the miner assumes. Southern C. Co. v. Swinney, 149 Ala. 405, 42 So. 808. That an engineer disobeyed orders in doing what brought about the accident is no defense. Lewis v. Mammoth M. Co., 33 Utah 273, 15 L. R. A. (N. S.) 439, 93 P. 732. The miner has a right to assume that the roof is safe. Vanesse v. Catsburg Co., 159 Pa. 403, 28 Atl. 200. The same as to the machinery. Myers v. Hudson Co., 150 Mass. 125, 15 Am. St. Eep. 176, 22 N. E. 631. The same as to mine passage ways. Jackson v. Tak M. Co., 51 Colo. 551, 119 P. 1058. The master 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. & S. 437. And generally where traceable to the fault of the superintendent or foreman. He is liable for overspeeding the cage. Jos. Taylor Co. v. Dawes, 220 111. 145, 77 N. E. 131. And for failure to lag where lagging was customary and necessary. Friel v. Eim- lerly-Montana Co., 34 Mont. 54, 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, 106 Va. 83, 9 Ann. Gas. 1177, 55 S. E. 532; Pocalwntas Co. v. Williams, 105 Va. 708, 54 S. E. 868. Degree of care required of owner of pipe line to prevent the oil catching fire. Jennings v. Davis, 187 F. 703, 109 C. C. A. 451. NEGLIGENCE. ACCIDENTS. 455 Blasting Explosions Gas. It is the absolute duty of the master to give warning of a Wast.Hjelm v. Western Gr. Co., 94 Minn. 169, 102 N. W. 334; Bellevue Co. v. Mooney, 61 N. J. L. 253, 39 L. R. A. 834, 39 Atl. 764, 19 M. R. 264. The owner is liable for accidents resulting from experiment- ing with new and untried fuse or explosives. Smith v. Oxford Co., 42 N. J. L. 467, 36 Am. Rep. 535, 2 M. R. 208; Cham- bers v. Chester, 172 Mo. 461, 72 S. W. 904; Hedlun v. Holy Terror Co., 16 S. D. 261, 92 N. W. 31. Or for setting new employees at work fitting caps. Rillston v. Mather, 44 F. 743 ; Mather v. Rillston, 156 U. S. 391, 15 Sup. Ct. Rep. 464, 39 L. Ed. 464, 18 M. R. 165. Or storing magazines too close to works. Bean v. Pioneer Co., 66 Cal. 451, 56 Am. Rep. 106, 6 P. 86 ; Asbestos Co. v. Durand, 20 M. R. 452, 30 Canada 285. He must use all appliances readily obtainable known to science to prevent gas explosions. Western Co. v. Berberich, 94 F. 329, 36 C. C. A. 364. The duty of the master to warn against a blast is one that can not be delegated to a fellow servant. Hendrickson v. U. S. Gypsum Co., 133 Iowa 89, 12 Ann. Gas. 246, 9 L. R. A. (N. S.) 555, 110 N. W. 322. Inexperienced miners have the right to be instructed as to the dangerous character of dynamite. Pinney v. King, 98 Minn. 160, 107 N. W. 1127. Furnishing a steel bar to tamp powder is gross negligence. Pitts v. Wells, 31 Ky. L. 208, 101 S. W. 1192. Action for gas explosion. Plaintiff is not bound to show how the gas was lighted. Luengene v. Consumers Co., 86 Kan. 866, 122 P. 1032. In blasting near houses the blast should be smothered. Kimberly v. Rowland, 143 N. C. 398, 7 L. R. A. (N. S.) 545, 55 S. E. 778. And in Louden v. Cincinnati it was held that the city was liable whether it used due care or not. 90 Ohio St. 456 NEGLIGENCE. ACCIDENTS, 144, Ann. Cas. 19160, 1171, L. R. A. 1915E, 356, 106 N. E. 970. Misfire. Consideration of what is reasonable time to wait for blast. Eureka Co. v. Bass, 81 Ala. 200, 6 Am. Rep. 152, 8 So. 216. Full case on. Anderson v. Daly Co., 16 Utah 28, 50 P. 815. Examination should be made and new shift notified of missed shot. Lane Co. v. Bauserman, 103 Va. 146, 106 Am. St. Rep. 872, 48 S. E. 857 ; Harris v. Balfour Co., 137 N. C. 204, 49 S. E. 95; Allen v. Bell, 32 Mont. 69, 79 P. 582. Defendant held for allowing green hand to pick missed shot. Peters v. George, 154 F. 635, 83 C. C. A. 408. An employer is liable where, neglecting his unvarying cus- tom, he fails to investigate for a misfire. Bjorklund v. Gray, 106 Minn. 42, 118 N. W. 59. Whether it is negligence to fire several shots so as to go off with one report and so render it impossible to tell whether one or more were missed shots, is a question of fact for the jury. Jobe v. Spokane Co., 73 Wash. 1, 48 L. R. A. (N. S.) 931, 131 P. 235. Safeguarding Shafts. Construction of the Colorado Act requiring abandoned shafts to be safeguarded. Richardson v. El Paso M. Co., 51 Colo. 440, 449, 118 P. 982. The miner assumes only known dangers or those which he should have ascertained. The case was: Falling into an un- guarded ore shoot. Gregoric v. Percy-La Salle Co., 52 Colo. 495, Ann. Cas. 1913E, 1030, 122 P. 785. The Lessor Is Not Liable for the Lessee's Negligence. Smith v. Belshaw, 89 Cal. 427, 26 P. 834. Otherwise, when he lets machinery already out of condition. 1 Thomp. Neg. 317. NEGLIGENCE. ACCIDENTS. 457 Under Contractor. The mine owner is not in general liable for accidents occur- ring under a contractor. Lendberg v. Brotherton Co., 75 Mich. 84, 42 N. W. 675; Welsh v. Lehigh Co. (Pa.), 5 Atl. 48. But is liable where contractor is known to be incompetent. Huntt v. M'Namee, 141 F. 293, 72 C. C. A. 441. Or where the owner reserves control of the work. Tennessee Co. v. Burgess, 158 Ala. 519, 47 So. 1029. Contributory Negligence Co-Employee. The mine owner, as a general rule, is not liable when the accident was in whole or in part attributable 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., 70 Cal. 392, 11 P. 740; Ardesco Co. v. Gilson, 63 Pa. 146, 10 M. R. 669 ; Berea Co. v. Kraft, 31 Ohio St. 287, 27 Am. Rep. 510, 10 M. R. 16; Trihay v. Brooklyn Co., 15 M. R. 535, 4 Utah 468, 11 P. 612; Colorado Midland Ey. Co. v. O'Brien, 16 Colo. 220, 27 P. 701. It is not necessarily contributory negligence to use fire for com- fort when dynamite is being thawed. Bertha Co. v. Martin, 93 Va. 791, 70 L. R. A. 999, 22 S. E. 869. Knowledge of danger is not always contributory negligence. Blaire v. Spokane, 66 Wash. 399, 119 P. 839. Contributory negligence is no defense to accident caused by willful neglect of statutory duty. Chicago Co. v. Fidelity Co., 130 F. 957 ; Fulton v. Wilmington Co., 133 F. 193, 68 L. R. A. 168, 66 C. C. A. 247. Miners working under different superintendents are not fellow servants. Uren v. Golden T. Co., 24 Wash. 261, 64 P. 174, 21 M. R. 243. Negligence of fellow servant is no defense if the master knew of the danger. Hancock v. Keene, 5 Ind. App. 408, 32 N. E. 329. That the accident was chargeable to a co-employee is no longer a defense in Colorado. R. S. Sees. 2064, 2065. 458 NEGLIGENCE. ACCIDENTS. Assumption of risk and contributory negligence must be specially pleaded. Foley v. Pioneer Co., 144 Ala. 178, 40 So. 274. An employee does not assume the risk arising from the em- ployment of an incompetent fellow servant. Majestic Co. v. McCoy, 132 Ky. 533, 116 S. W. 738. Remaining in Employ After Danger Known Is Held in instances to be a defense. Lord v. Pueblo Co., 12 Colo. 390, 21 P. 148; Davis v. Graham, 2 Colo. App. 210, 29 P. 1007. It is technically classed as contributory negligence, though this is a mere abuse of terms ; it is only acquiescence perhaps from moral necessity, in the negligence of the master, perhaps crim- inal in degree. It is hard for the reasoning powers of man to conclude that this does not amount to a premium on .negli- gence. If the master promise to repair, the workman may rely on the promise and remain. Highland Boy Co. v. Pouch, 124 F. 148, 154, 61 C. C. A. 40 ; Gold Hunter Co. v. Johnson, 233 F. 849. A miner may know of the facts which bring about danger without necessarily knowing that danger exists. Bird v. Utica M. Co., 2 Cal. App. 674, 84 P. 256 j Mascot Co. v. Garrett, 156 Ala. 290, 47 So. 149. First Aid to Injured. It is the duty of a mining company to render first aid to those injured in its employ. Cushman v. Cloverland C. Co., 170 Ind. 402, 127 Am. St. Rep. 391, 16 L. E. A. (N. S.) 1078, 84 N. E. 759. REPLEVIN INJUNCTION. 45U REPLEVIN. Ore Taken Under Claim of Title. Where a party is in possession of a -mine under a "bona fide claim of title, the party out of possession can not maintain replevin, or an action under the code in the nature of replevin, for the ore taken 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. 432. In a case of replevin for ore in Montana which brought up the question of apex right, the Court took the novel and inde- fensible position that it involved no dispute as to title and was only a matter of boundaries. Driscoll v. Dunwoody, 1 Mont. 394, 16 P. 726. Defendant can not re-replevin ore. Morris v. DeWitt, 12 M. R. 680, 5 Wend. (N. Y.) 71. 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 the prayer for an injunction is always to a certain extent ad- dressed to the discretion of the Court, but the exercise of this discretion does not imply the total absence of principles applicable to the exercise of discretion. The Ground of the Application for Injunctive Relief Is that the property may be preserved pending litigation for the ultimate use of the rightful owner and may not in the mean- while be destroyed by a trespasser. But the pendency of litiga- tion is not of itself sufficient ; the complainant must go farther and show that his case is based upon substantial facts, and that there is a probability of a decision in his favor when the 460 INJUNCTION. 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 pro- tection ; 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., 1 M. R. 263, 3 N. J. Eq. 467 ; Clavering v. Clavering, 14 M. E. 358, 2 P. Wms. 388 ; Irwin v. Davidson, 7 M. R, 237, 3 Ir. Eq. 311. Parties. One who has a contract to sink an oil well entered into be- fore the suit, is not bound by an injunction against his em- ployer. Dunham v. Seilerling, 12 Ind. App. 210, 39 N. E. 1044. Lessees should be made parties. High Inj., Sec. 690; Doctor Co. v. Marsh, 216 F. 261. A lessee or licensee may be entitled to the protection of the writ even against the owner. Lytle v. James, 98 Mo. App. 337, 73 S. W. 287 ; Jack Harvard Co. v. Continental Co., 106 Mo. App. 66, 80 S. W. 12. The Right of Lessees to Protection Against the Owner and those working adjoining works is construed in Peterson v. Bul- lion Co., 32 Utah 20, 14 Ann. Cas. 1122, 91 P. 1095, 41 Utah 364, 126 P. 310. Laches. To entitle him to injunctive relief the complainant must not have been guilty of unreasonable delay nor have allowed the defendant to proceed without objection to expend money in good faith upon the property. Klein v. Davis, 11 Mont. 155, 27 P. 511 ; Parrott v. Palmer, 3 M. & K. 632 ; Real del Monte Co. v. Pond Co., 1 M. R. 452, 23 Cal. 82 ; Emma Mine case, 2 Leg. Gaz. 81, 7 M. R. 493 ; Field v. Beaumont, 1 Swanst. 204, 7 M. R. 257j Mammoth Co.'s Appeal, 54 Pa. 183, 7 M. R. 460; INJUNCTION. 461 Patterson v. Hewitt, 11 N. M. 1, 55 L. R. A. 658, 66 P. 552; Consumers' Co. v. American Co., 162 Ind. 393, 68 N. E. 1020. The Solvency or Insolvency of the Defendant, as Well as many other circumstances applicable to particular 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. (Md.) 34; Sierra Co. v. Sears, 1 M. R. 549, 10 Nev. 346 ; Moore v. Ferrell, 1 Ga. 7, 7 M. R. 281 ; Irwin v. Davidson, 3 Ir. Eq. (38 N. C.) 311 ; Parker v. Furlong, 37 Or. 248, 62 P. 490. Discretion. The granting of the writ is so largely in the discretion of the lower Court that only in an extreme case will the Appellate Court interfere with the order allowing or refusing it. Par- rot S. Co. v. Heinze, 24 Mont. 485, 62 P. 818, 21 M. R. 98; Cardelli v. Comstock Co., 21 M. R. 699, 26 Nev. 284, 66 P. 950; Vogel v. Warsing, 146 F. 949, 77 C. C. A. 199; Bush v. Pioneer Co., 154 F. 480, 83 C. C. A. 320. In doubtful cases the courts favor the writ. Stewart Co. v. Ontario Co., 23 Ida. 280, 129 P. 932. The Court has power to withhold the writ when the plain- tiff refuses to do equity or where it would place one party in the power of the other. Strobel v. Kerr Salt Co., 164 N. Y. 303, 79 Am. St. Rep. 643, 51 L. R. A. 687, 58 N. E. 142, 21 M. R. 39. Title in Issue. In cases where a determination of the legal title is necessary to finally decide the rights of the parties, the complaint should be framed to procure an issue of that sort ; or a previous suit must be pending which will result in determining the title ; or a separate action must be brought for such purpose. If no suit be pending to try title, the Court may order such suit to 462 INJUNCTION. be brought as a condition precedent to the granting of the writ. V. 8. v. Parrott, Fed. Cas. No. 15,998, McAll. 271, 7 M. R. 335 ; Grey v. Northumberland, 13 Ves. 235, 7 M. R. 250 ; Old Telegraph Co. v. Central Co., 1 Utah 331, 7 M. R. 555. And such has been the common practice in the Federal Court. Stevens v. Williams, 5 M. R. 449. A plaintiff in possession is not required to bring his action at law. Allen v. Dunlap, 24 Or. 229, 33 P. 675. The writ may issue to preserve the property when the issue is between con- testants in an equity case. St. Louis Co. v. Montana Co., 58 F. 129, 17 M. R. 658. The writ will not go when the plaintiff's title is not clear and the legal remedy is adequate. Smith v. Jameson, 91 Mo. 13, 3 S. W. 212. Where there is one case pending which brings up all ques- tions of apex rights between the parties, the filing of future actions raising such issues will be enjoined. Maloney v. King, 30 Mont. 414, 76 P. 939. Preservation of the Property. The gist of the case and the foundation of equity jurisdiction is to save the property from destruction pending the litiga- tion. Thomas v.' Oakley, 1 M. R. 254, 18 Ves. 184; Hess v. Winder, 34 Gal. 270 ; West Point Co. v. Reymert, 45 N. Y. 703, 7 M. R. 528 ; Hoy v. Altoona Co., 136 F. 483 ; McGuire v. Boyd C.Co., 236 111. 69, 86 N. E. 174. The United States may protect its oil lands by injunction. El Dora Co. v. U. S., 229 F. 946. ' Case Sufficient to Warrant Injunction. To reduce the matter to terms it may be stated as a proposi- tion, supported everywhere by authority, 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 and better possessory title; or at least such showing of title as would, if proved as INJUNCTION. 463 stated in the bill, support the verdict of a jury in an action of eject- ment; and where the defense suggested in the answer does not show a recovery by plaintiff impossible as a proposition of law; and the affidav- its or depositions being considered the weight of evidence is with com- plainant upon the question of fact; and that the defendant is in posses- sion taking out ore (which of itself is a destruction of the estate) in such considerable quantity as to threaten irreparable injury. St. Louis Co. v. Montana Co., 58 F. 129, 17 M. R.. 658 : Par- rot Co. v. Heinze, 24 Mont. 485, 62 P. 818, 21 M. B. 98 ; More v. Massini, 32 Cal. 590, 7 M. R. 455; Magnet Co. v. Page Co., 9 Nev. 346, 7 M. R. 540; Lockwood v. Lunsford, 56 Mo. 68, 7 M. R. 532 ; Bettmann v. Harness, 42 W. Va. 433, 36 L. R. A. 566, 26 S. E. 271, 18 M. R. 500; Erliardt v. Boaro, 15 M. R. 447, 113 U. S. 537, 5 Sup. Ct. Rep. 565, 28 L. Ed. 1116 ; Ana- conda Co. v. Butte Co., 17 Mont. 519, 43 P. 924. 2. That the bill was brought without needless delay, and that the defendant has not been allowed or encouraged to expend large sums of money upon the property, which it was in the power of complainant to prevent. Ernest v. Vivian, 33 L. J. Ch. 513, 8 M. R. 205; Klein v. Davis, 11 Mont. 155, 27 P. 511, and other cases above cited. And as matters more particularly addressed to the discre- tion of the Court are the insolvency of defendant, threats of violence and danger of personal collisions, the fact of reck- less mining, without regard to the permanent preservation of the mine, etc. The above propositions are made upon the supposition of an application for injunction after notice, appearance and answer. Insufficient Case. An injunction should not issue where defendant will suffer greater injury by the writ than the plaintiff by the wrong. Lloyd v. Catlin Co. 210 111. 460, 71 N. E. 335; Berkey v. Ber- u-ind-White Co., 220 Pa. 65, 16 L. R. A. (N. S.) 851, 69 Atl. 329. Where defendants are solvent and injury slight or capable of redress at law, injunction should be denied. King v. Mul- 464 INJUNCTION. tins, 27 Mont. 364, 71 P. 155 ; Harley v. Montana Co., 27 Mont. 388, 71 P. 407, 22 M. R. 550 ; Hicks v. American Co., 207 Pa. 570, 65 L. E. A. 209, 57 Atl. 55. It is an abuse of discretion to enjoin the working of a vein on the mere chance that it may apex outside of defendant's ground. Montana Co. v. Boston Co., 22 Mont. 159, 56 P. 120, 20 M. B. 1. The courts will not forbid working for exploration purposes. 8t. Louis Co. v. Montana Co., 58 F. 129, 17 M. R. 658. And it is assumed as matter of course that courts will not enjoin a mere prospect, but such case rarely reaches the Appellate Court so as to be reported and cited. Courts will not enjoin in cases charged with doubt or where, on the plaintiff's showing, final relief would not be granted. Crescent Co. v. Silver King Co., 14 Utah 57, 45 P. 1093. Though to enjoin they will not require so strong a case as on final hearing. Buskirk v. King, 72 F. 22, 18 C. C. A. 418. And it may be allowed although the proving up is not yet complete. Maloney v. King, 25 Mont. 188, 64 P. 351, 21 M. R. 278. 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 remediable only at law is well stated in Gray Lumber Co. v. Gaskin, 122 Ga. 342, 50 S. E. 164. An oil well which as yet has struck nothing is not doing irreparable injury. Martin v. Danziger, 21 Cal. App. 563, 132 P. 284. Inspecific Decree. A writ will not be allowed against "working any vein hav- ing its apex in complainants' claim." This would require defendants to ascertain from what acts they are enjoined. St. Louis Co. v. Montana Co., supra. But in Clark, Montana Co. v. Butte Co., a suit to quiet title, it was held that the de- cree could not be more specific in such a case than the develop- ment on surface, and was allowed in general terms. 233 F. 548. INJUNCTION. 465 Injuries Other Than Mining Ore. An injunction will issue to restrain the destruction of flumes or ditches. Power v. Klein, 11 Mont. 159, 27 P. 513 ; Miocene D. Co. v. Jacobsen, 146 P. 680,. 77 C. C. A. 106. Or a pipe line. Brookshire Oil Co. v. Casmalia Co., 151 Cal. 577, 91 P. 383. Or to stay the running of an incline drift to cut off an ad- versary's tunnel. Montana Co. v. Clark, 16 M. E. 81, 42 P. 626. Against assaulting workmen and threats to blow up the mine. Rankings Appeal (Pa.), 16 Atl. 82. Against sale of mining stock on the ground of its fluctuating value. McLure v. Sherman, 70 P. 190; Currie v. Jones, 138 N. C. 189, 50 S. E. 560. Refused against cutting timber on claim where defendant solvent and the timber of no special need to the mine. Heaney v. Butte Co., 10 Mont. 590, 27 P. 379. Refused against use of adits underlying plaintiff's ground. Boston Co. v. Montana Co., 23 Mont. 557, 59 P. 919. It may be allowed against an option holder in default in his installments. Williams v. Long, 129 Cal. 229, 61 P. 1087, 20 M. R. 738. A defendant can not be enjoined from '"entering or trespassing upon" ground of which he is already in pos- session. Id. Defendant enjoined from dumping with election to remove the deposited waste or pay damages. White v. Lansing, 119 App. Div. 584, 103 N. Y.'Supp. 1040. Where a claim had been located over plaintiff's right of way, the title being in dispute, the Appellate Court modified the injunction against the miners so as to allow both mine and road to be operated pending the trial. Chicago Ry. v. F err ell, 20 Ida. 680, 119 P. 703. The diversion of water previously appropriated for power purposes should be enjoined; decree quieting complainant's title is not adequate relief. Trade Dollar M. Co. v. Fraser, 148 P. 585, 79 C. C. A. 37. A party against whom a judgment in trespass for taking ore is being sought may be enjoined for the protection of the an- 466 INJUNCTION. ticipated judgment. Montana Co. v. St. Louis Co., 168 F. 514, 93 C. C. A. 536. Negative covenants in coal lease enforced by injunction. Sharum v. Whitehead, 223 F. 282, 138 C. C. A. 524. Nuisance Cases Tailings and Fumes. In a proper case an injunction should issue to restrain de- posit of tailings. Fuller v. Swan River Co., 12 Colo. 12, 19 P. 836, 16 M. R. 252. Refused against upper mill where it is using all possible effort to restrain its tailings. Otahcite Co. v. Dean, 102 F. 929, 20 M. R. 688. Injunction against pollution of stream, with leave to defend- ant to apply for modification. Arizona Copper Co. v. Gil- lespie, 230 U. S. 47, 33 Sup. Ct. Rep. 1004, 57 L. Ed. 1384. The case of Bliss v. Anaconda Co., 167 F. 342, was a test case by the farming interests against the immense copper smelter at Butte. The Court refused the injunction prayed for, but held the case open in hope of an equitable adjustment. For another instance where the relief prayed for would in- volve the destruction of large vested interests, see McCarthy v. Bunker Hill Co., 164 F. 927, 92 C. C. A. 259. Practice Answer Not Conclusive. As a rule, in equity pleading where the defendant 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 mischief 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 the controversy and as a rule limited in its applica- tion to mining cases and others standing on analogous facts, where the substance and not merely the use 'is in jeopardy the answer is not to be taken as conclusive, if there remain to the complainant such a showing as is above stated. INJUNCTION. 467 Plaintiff held entitled to injunction against violence, al- lliouLih all allegations of complaint denied by the answer. The practice in mining litigation is liberal to enjoin to prevent either party from getting unfair advantage. S afford v. Flem- ming, 13 Ida. 271, 89 P. 827. The Venue Is Usually Fixed by the Code and Commonly in the county where the land lies. When not so fixed, the Court having jurisdiction over the person may enjoin the working of a mine in another county. Jennings v. Beale, 158 Pa. 283, 27 Atl. 948. But not in another State. Lindsley v. Union Co., 26 Wash. 301, 66 P. 382, 21 M. R. 586 ; Johnstown Co. v. Butte Co., 60 App. Div. 344, 70 N. Y. Supp. 257. Compare Butter- field v. Nogales Co., 9 Ariz. 212, 80 P. 345. Notice. The usual period of notice to defendant is five days, but the statute merely requires a notice "in proportion to the urgency of the case." Code, Sec. 164. And where the defendant prays further time to answer, it is usual, on slight showing, to grant a restraining 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 defendant opportunity to file his answer; so that the argu- ment is heard usually upon the original motion for an injunc- tion and not upon the motion to dissolve. FORM OF INJUNCTION NOTICE. STATE OF COLORADO, County of Lake: ss. In the District Court of said County. Benjamin S. Phillips, Plaintiff, v. Frank M. Taylor and Thomas L. Wood, Defendants. Injunction. To the above-named Defendants: You and each of you will take notice that the said plaintiff will apply to Hon. Charles Mott Cavender, Judge of said Court, at the court house, 468 INJUNCTION. in Bed Cliff, County of Eagle, in said state, at the hour of two o'clock p. m., on the 10th day of January, A. D. 1916, or as soon thereafter as counsel can be heard, when and where you may attend as you see fit for a writ of injunction to restrain and enjoin you and each of you, your agents, attorneys, lessees, sub-lessees, employees, and all persons under or in privity with you, from working, mining, extracting or carrying away ore from the Fair Deceiver Lode Mining Claim, situate on Car- donate Hill, in California Mining District, in said County of Lake, and for other relief; and that plaintiff will support the application by the complaint, affidavits, maps and documentary evidence. Cripple Creek, January 4, 1916. WM. N. VAILE, Attorney for Plaintiff. Ex Parte Writs to Enjoin the Working of a Mine Are For- bidden by statute. Code, Sec. 164. It has been ruled that to enjoin the sale or removal of the ore is not an injunction against mining. Benton v. Hopkins, 31 Colo. 518, 74 P. 891. This was an exceptional case, but it is obvious that in most instances 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 of 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 advisable. 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 affidavits, or refer the matter to a master or referee to take testimony. INJUNCTION. 469 The Court may award damages for the ore taken, with the writ on the final hearing. Mitchell v. Big Six Co., 186 F. 552. Working Under View of Court. Where the defendant is solvent and working in miner-like 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 inter- vals, and of submitting to the inspection of some person on behalf of plaintiff and paying the net or gross proceeds into Court, according to the nature of the case and the framing of the order. An indemnity bond may be required when the defendant is allowed to keep at work. Stewart Co. v. Ontario Co., 23 Ida. 280, 129 P. 932. 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., 26 Mont 146, 66 P. 752. 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. Eureka Co., 5 Utah 182, 12 P. 660; Maloney v. King, 27 Mont. 428, 71 P. 469. And in such case the Supreme Court will not interfere with itSheaffer's Appeal, 100 Pa. 379. But the appeal itself does not stay the writ or the suspension of the writ. Bullion Co. v. Eureka Co., 15 M. R. 449, 5 Utah 151, 13 P. 174. The Appellate Court on remanding may direct the lower Court to order the property preserved by injunction. Er- Jiardt v. Boaro, 113 U. S. 537, 28 L. Ed. 1113, 15 M. R. 447 ; Lockhart v. Leeds, 195 U. S. 427, 25 Sup. Ct. Rep. 76, 49 L. Ed. 263. The Appellate Court may enjoin. Ajax Co. v. Triumph Co., 30 Colo. 115, 69 P. 523, 22 M. R. 259. But it will generally 470 INJUNCTION. leave the matter to the discretion of the Court below. Steams- Roger Co. v. Brown, 114 F. 940, 52 C. C. A. 559 ; McCarthy v. Bunker Hill Co., 164 F. 927, 92 C. C. A. 259. On appeal from an order dissolving an injunction a super- sedeas continues the writ in force. New River Co. v. Seeley, 117 F. 981. Malicious Prosecution Will Lie for Suing Out the Writ without probable-cause, and damages, even to the loss of antici- pated profits, may be allowed. Newark Co. v. Upson, 40 Ohio St. 17. But it will not lie where there was probable cause. Wright v. Ascheim, 5 Utah 480, 17 P. 125. Abuse of the Writ. Where plaintiff, having obtained injunction against defend- ant's mining, entered upon and took possession of the defend- ant's works, restoration was ordered on motion. Van Zandt v. Argentine Co., 48 F. 770, 2 McCrary 642, 7 M. E. 634. Verification. Both bill and answer should be verified, and the answer must be sworn to even where the oath of 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. Montana Co., 24 Mont. 125, 60 P. 1039. 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 ultimate vindication of the right : it is no lien; the measure of damages is vexed and unsettled. Donahue v. Johnson, 9 Wash. 187, 37 P. 322; Coosaic Co. v. INJUNCTION. 471 Carolina Co., 75 F. 860. In the Federal Courts the damages may be assessed upon dissolution of the writ. Coosaw Co. v. Farmers Co., 51 F. 107. There can be no recovery on the bond where the writ was rightfully issued. Yarwood v. Cedar Canyon Co., 37 Wash. 56, 79 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. Silka, 19 Colo. App. 507, 76 P. 555. Measure of damage where coal mining had been stayed. Quinn v. Baldwin Co., 19 Colo. App. 497, 76 P. 552. Extension of Term. In Stahl v. Van Vleck an oil lessee had been allowed five years to complete his well, but the lessor enjoined and kept his work enjoined for a long time. The Court ruled that at the conclusion of the litigation he was entitled to as much time as he had wrongfully lost by the writ. 53 Ohio St. 136, 41 N. E. 35, 18 M. R. 231. The same ruling was made in Halla v. Rogers, where a placer lessee had his term extended by the Court to enable him to work out the ground which the lessor's injunction had stayed. 176 F. 709, 34 L. R. A. (N. S.) 120, 100 C. C. A. 263, 187 F. 778, 109 C. C. A. 626. Mandatory Writ. Section 175 of the Colorado Code provides that where pos- session of a mine is taken by violence or during intervals of labor, a mandatory writ restoring possession shall issue. This act, passed originally 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, 1 Colo. App. 171, 28 P. 142. A similar act has been sustained by the Supreme Court of Dakota. Cole v. Cady, 2 Dak. 29, 3 N. W. 322. 472 INJUNCTION. A hearing under this act goes only to the matter 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 issued. An injunction mandatory in effect and implying affirmative acts from the defendants or the surrender of possession of premises is an unusual sort of relief, to be granted with great caution, but is not without precedent, even as the result of an interlocutory decree, and without the aid of any such statute. Cole Co. v. Virginia Co., Fed. Gas. No. 2990, 7 M. R. 516, 1 Sawy. 685; Lehigh Co. v. Trotter, 43 N. J. Eq. 185, 7 Atl. 650, 10 Atl. 608 j Horsky v. Helena Co., 13 Mont. 229, 33 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 pos- session, has been ousted by force or fraud, without regard to any question, except the fact and manner of dispossession, and for this object it has been held valid and not unconstitutional by all or nearly all the Judges at nisi prius, and has remedied one of the greatest evils ever complained 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 laid down in the later case of Aspen Co. v. Bucker, 28 F. 222, 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 validity, seeming to take away all judicial discretion, but whatever be its proper construction, the other provisions 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 INSPECTION AND SURVEY, 473 of such a writ in favor of a party who procured his own pos- session by violation of the spirit of the act. In framing bills under this act it is not advisable to pray any relief further than the preliminary writ and the restora- tion of possession. At least five days' notice of application must be given; the form on page 467 is sufficient to the words "Writ of Injunc- tion, ' ' after which conclude as follows : Having the force and effect of a writ of Restitution, restoring plaintiff to the possession of the Fatality Lode Mining Claim, situated in Grand Island Mining District, County of Boulder, and for a Temporary Injunction restraining the working of said claim in accordance with the terms of Section 175 of the Code, and that plaintiff will support the application by the complaint and affidavits. Boulder, January 4, 1916. LEWIS S. YOUXG, Attorney for Plaintiff. County courts are forbidden by Colorado Statute to inter- fere with the enjoyment, working or possession of a mining claim. R. S. Sec. 1530. INSPECTION AND SURVEY. Under section 398 of the Colorado Code (see also R. S. Sees. 4218, 4230), either party, after suit is commenced, is allowed the privilege of a survey and inspection of the prem- ises 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 involved and turgid composition ever found on a statute bock. 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. 2. The opposite party has three days in which to consent to or refuse this demand. 474 INSPECTION AND SURVEY. 3. A refusal being had and the three days elapsed, the party presents to the Court or Judge a petition under oath in which he must set forth his interest in the premises and "the reason why it is necessary" that he should have such survey and inspection; stating the demand made and the refusal, and praying an order for survey and inspection. 4. The Court or Judge then fixes a time and place for hear- ing this petition and orders notice thereof to be served at least three days before the hearing. 5. On the day set the 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 contempt 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. Ennor v. Barwell, 12 M. R. 101, 1 DeG. F. & J. 529 ; Lonsdale v. Curwen, 3 Bligh 0. S. 168, 7 M. R. 693 ; Thornburgh v. Savage Co., Fed. Cas. No. 13986, 7 M. R. 667 ; Dugdale v. Robertson, 13 M. R. 662, 3 Kay & J. 695 ; Lewis v. Marsh, 8 Hare 97, 8 M. R. 14 ; Ben- nitt v. Whitehouse, 28 Beav. 119, 8 M. R. 17 ; Stockbridge Co. v. Cone Works, 6 M. R. 317, 102 Mass. 80. A statute giving power to compel inspection is not unconsti- tutional or oppressive. St. Louis Co. v. Montana Co., 9 Mont. 288, 23 P. 510, 17 M. R. 283 ; Montana Co. v. St. Louis Co., 152 U. S. 160, 14 Sup. Ct. Rep. 506, 38 L. Ed. 398 ; In re Carr, 52 Kan. 688, 35 P. 818; Howe's Co. v. Howe's Ass'n, 34 N. Y. Supp. 848. And it may be ordered without statute. Blue Bird Co. v Murray, 9 Mont. 468, 23 P. 1022. It is now the recognized practice in mining contests, on the application of the party out of possession, to direct a survey of the mine. Penny v. Central Coal Co., 138 F. 769, 71 C. C. A. 135. INSPECTION AND SURVEY. 475 Cost of pumping compelled by Court to aid inspection, allowed to defendant in suit on injunction bond. Tyler Co. v. Last Chance Co., 90 F. 16, 32 C. C. A. 498, 19 M. R. 525. Inspection should be allowed to keep pace with development ; and it piay be allowed through opposing parties' shaft. State v. District Court, 29 Mont. 105, 74 P. 132. Defendants to prove that their discovery was on a vein formation gave evi- dence 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 at the trial. Ambergris M. Co. v. Day, 12 Ida. 108, 85 P. 109. The inspection should be confined to the premises in con- troversy, except where examination further is shown to be material, and the Court can not exclude evidence as a penalty for refusing to allow an inspection. Smuggler Union Co. v. Kent, 47 Colo. 320, 112 P. 223. In California a stockholder has the right to examine the mine and to take an expert with him. Hobbs v. Davis, 168 Cal. 556, 143 P. 733. In Kinard v. Ward the penalty against officer refusing permission was recovered. 21 Cal. App. 85, 130 P. 1196. The statutory right to inspect includes the right to take samples for assay. Symmes v. Sierra Nevada Co., 171 Cal. 427, 153 P. 710. Inspection may be ordered of gas wells. Culbertson v. lola Co., 87 Kan. 529, Ann. Cas. 1914A, 610, 125 P. 81. Survey Without Suit. A statute of Montana authorizes a survey by order of Court without institution of suit and it has been held that this is due process of law. Montana Co. v. St. Louis Co., 152 U. S. 160, 14 Sup. Ct. Rep. 506, 38 L. Ed. 398. But it requires an express statute to allow of any such unusual procedure. State v. Dist. Court, 26 Mont. 396, 68 P. 570. 69 P. 103; National Co. */( INSPECTION AND SURVEY. ? v. Dist. Court, 34 Nev. 67, 116 P. 996. And the Colorado Stat- ute can not be construed to allow it without a supporting suit already begun. People v. De France, 29 Colo. 309, 68 P. 267, 22 M. K. 61. In later cases from Montana, the Court defines the essential limitations and conditions which should be imposed on petitions of this kind. State v. District Court, 28 Mont. 528, 73 P. 230, 30 Mont. 206, 76 P. 206. It may be allowed when defendant's secret workings are approaching plaintiff's. State v. District Court, 26 Mont. 483, 68 P. 861. View by Court or Jury. Under the Colorado Code, Sec. 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 unfair- ness 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 Appellate Court may con- sider it conclusive as to what the jury saw on the ground. Ormund v. Granite Mt. Co., 11 Mont. 303, 28 P. 289 ; McCor- mick v. Parriott, 33 Colo. 382, 80 P. 1044; Elner Co. v. Alaska Co., 210 F. 599, 127 C. C. A. 235 ; Esselstyn v. U. S. Corp., 59 Colo. 294, 149 P. 93. But see White v. Barling, 36 Mont. 413, 93 P. 348. A party to the suit may be appointed a guide to show the jury the mine. Wilson v. Harnette, 32 Colo. 172, 75 P. 395. In Golden v. Murphy, 27 Nev. 379, 75 P. 625, 76 P. 29, 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, con- tended that this took the facts from the jury, but the Appellate Court sustained the judgment on other grounds. In Wall v. U. 8. M. Co., 232 F. 613, is stated the effect as evidence of a personal view by the trial Judge, holding that the weight of authority is that it adds evidence instead of being STATUTE OP LIMITATIONS. 477 merely for the better understanding of the testimony. Both in this case and in Clark Co. v. Butte Co., 233 F. 547, 568, there was such a view, and the consideration of both cases shows what little value is to be expected from such practice. STATUTE OF LIMITATIONS. Suit to Annul Patent. Sec. 8. That suits by the United States to vacate and annul any patent heretofore issued shall only be brought within five years from the passage of this act, and suits to vacate and annul patents hereafter issued shall only be brought within six years after the date of the issuance of such patents. * A. C. March 3, 1891, S6 Stat. L. 1099, 2 Comp. St. p. 1521. The above section was enforced in Peabody Co. v. Gold Hill Co., 106 F. 241, 21 M. R. 151. But held not to apply where the fraud had been concealed. U. 8. v. Exploration Co., 203 F. 387, 121 C. C. A. 491, 225 F. 854, 235 F. 110. Possessory Title Perfected by Time. Section 2332 of the United States Statutes expressly recog- nizes possession of a mining claim during the period fixed by the State Act as sufficient to 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, 127 U. S. 472, 8 Sup. Ct. Rep. 1214, 32 L. Ed. 172, 17 M. R. 127. Such title by continued possession is equiv- alent to location. Altoona Co. v. Integral Co., 114 Cal. 100, 45 P. 1047. The apparently clear construction of Sec. 2332 is that in ex parte cases an applicant for patent may rely on his con- tinued 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 478 STATUTE OF LIMITATIONS. possession until defeated by the production of some superior title. And such is the import of 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. Maclay, 16 Mont. 234, 40 P. 602 ; Cleary v. Skiffich, 21 M. R. 284, 28 Colo. 362, 89 Am. St. Rep. 207, 65 P. 59. Bismarck Mtn. Co. v. N. Sunbeam Co., an adverse claim suit, cites the Skiffich case, and decides that possession for the statu- tory period makes good title. 14 Ida. 516, 95 P. 14. Adverse possession for the statutory period gives title. Cox v. Clough, 70 Cal. 345, 11 P. 732 ; Herriman Co. v. Butter- field Co., 19 Utah 453, 57 P. 537, 51 L. R. A. 930 ; Lavagnino v. Uhlig, 26 Utah 1, 99 Am. St. Rep. 808, 71 P. 1046, 22 M. R. 610. Seven years complete the bar of the statute in Colorado (R. S. Sees. 4084-4093), but all taxes must be paid. Eber- ville v. Leadville Co., 28 Colo. 241, 64 P. 200. The period varies in every State, in Nevada being as low as two years. South End Co. v. Tinney, 22 Nev. 19, 35 P. 89, 22 Nev. 221, 38 P. 401. Twenty years' continuous occupation presumes a grant and gives complete title. Central Co. v. Penny, 173 F. 340, 97 C. C. A. 600. The statute of limitations does not begin to run while the title is in the United States, except as between parties both of whom claim by possessory title only. King v. Thomas, 6 Mont. 409, 12 P. 865 ; Wedbold v. Davis, 1 Mont. 107, 14 P. 865. Nor until the patent actually issues. South End Co. v. Tinney, 22 Nev. 221, 38 P. 401 ; Clark v. Barnard, 15 Mont. 176, 38 P. 834. In the case of Harris v. Equator Co., cited p. 443, it was intimated in the opinion of the Court, that where a party had been in possession of a mining claim for the period of the statute of limitations, such fact raised a presumption, at least against a wrongdoer, that he held under a valid location, STATUTE OF LIMITATIONS. 479 without proof of the various acts of location, and such must from the nature of things be the ultimate decision of all Courts upon this point. deary v. Skiffich, 28 Colo. 362, 89 Am. St. Rep. 207, 65 P. 59, 21 M. R. 284. Mining Proves Possession. The continuous working of a mine, or even its working dur- ing successive seasons with intervening seasons during which the mine is left idle, according to the custom of the country, is as complete an adverse possession as could be gained by agricultural operations or other acts of possession. Stephen- son v. Wilson, 37 Wis. 482, 13 M. R. 408 ; Wilson v. Henry, 1 M. R. 152, 35 Wis. 241, 1 M. R. 157, 40 Wis. 594; 420 M. Co. v. Bullion Co., Fed. Gas. No. 4989, 11 M. R. 608, 3 Sawy. 634; Bell v. Denson. 56 Ala. 444. Gordon v. Park, 219 Mo. 600, 117 S. W. 1163, is a full case on the issue of adverse possession between the surface owner and the mineral claimant. Digging prospect holes and desultory work, though contin- ued for the statutory period, is not such possession as the law requires. Pacific Co. v. Pioneer Co., 205 F. 577, 123 C. C. A. 593. Elements of Adverse Possession. To make adverse possession available there must be : First The occupation or use of the land. Second Claim and color of title. It has been ruled that a party following a patented vein on its strike beyond its side lines has not sufficient color of title to maintain such defense. Lebanon Co. v. Rogers, 8 Colo. 34, 5 P. 661. And that mining on a vein apexing outside the party's claim is not adverse possession. Davis v. Shepherd, 31 Colo. 141, 72 P. 57, 22 M. R. 575. Possession under title bond gives claim and color after pay- ment of purchase money. Woods v. Montevallo Co., 84 Ala. 560, 5 Am. St. Rep. 393, 3 So. 475. 480 STATUTE OF LIMITATIONS. In instances the title may ripen without being initiate on any paper. Minnesota Co. v. Brasier, 18 Mont. 444, 45 P. 632 ; Risch v. Wiseman, 36 Or. 484, 78 Am. St. Rep. 783, 59 P. 1111, 20 M. R. 409. Possession under an invalid location makes color of title. Protective Co. v. Forest City Co., 51 Wash. 643, 99 P. 1033. The possession of the claim must be open and notorious. Hamilton v. Southern Nevada Co., 15 M. R. 314, 33 F. 562, 13 Sawy. 113. And exclusive and hostile. Tyee M. Co. v. Langstedt, 121 F. 710, 58 C. C. A. 129. Secret underground mining will not start the bar. Pierce v. Barney, 209 Pa. 132, 58 Atl. 152. In Trespass. As to actions of trespass for coal or ore taken but the fact not ascertained by plaintiff within the statutory period, see Lewey v. Prick Co., 166 Pa. 536, 45 Am. St. Rep. 684, 28 L. R, A. 283, 31 Atl. 261, 18 M. R. 179; Williams v. Pomeroy Co., 6 M. R. 195, 37 Ohio St. 583; Bullion Co. v. Eureka Hill Co., 36 Utah 329, 103 P. 881. And as to that class of cases (as in secret undermining) where a long interval may elapse before the resulting injury, see Hall v. Duke of Norfolk, L. E. (1900), 2 Ch. 493; Sterrett v. Northport Co., 30 Wash. 164, -70 P. 266; Noonan v. Pardee, 21 M. R. 517, 200 Pa. 474, 86 Am. St. Rep. 722, 55 L. R. A. 410, 50 Atl. 255. In Lightner Co. v. Lane, 161 Cal. 689,- Ann. Gas. 1913C, 1093, 120 P. 771, it was held, construing the Statute of Cali- fornia, that it did not begin until plaintiff had knowledge of the secret underground trespass. Surface Support Cases. In Pennsylvania it was held that the statute began to run "when the support of the surface was so weakened that if might fall." Tischler v. Penn. C. Co., 218 Pa. 82, 66 Atl. 088. BUREAU OF MIXES. 481 In a surface support case the statute does not begin to run until actual injury has begun to occur. West Pratt Co. v Dorman, 161 Ala. 389, 135 Am. St. Rep. 127, 18 Ann. Cas. 750, 23 L. R. A. (N. S.) 805, 49 So. 849. Miscellaneous Cases. As to the running of the statute where money is to be paid out of the proceeds of the mines, see Charter Oak Co. v. Stephens, 5 Utah 319, 15 P. 254. Where a mine has been flooded by the negligence of an adjoiner, the statute begins to run from the date of the flood- ing. Duff v. U. S. Gypsum Co., 189 F. 234. Apex Rights. Adverse possession for the legal period gives the claimant all lodes apexing within his lines and the right to follow these on the dip, but whether a lode excluded from a town site patent could claim extralateral rights was not decided. Golden v. Murphy, 31 Nev. 395, 103 P. 394, 105 P. 99. BUREAU OF MINES. By R. S. Colo. Sees. 4259-4306, are prescribed the duties of the Bureau of Mines, of the Commissioner of Mines and three inspectors of metalliferous mines, with strict provisions for safeguarding. They regulate the storage of explosives, escape ways, com- partment shafts, signals and ventilators, and forbid the use of iron tamping bars. They require all serious accidents to be reported and investi- gated and provide penalties for failure to comply with the provisions of the act. Other States have like legislation, and a Federal Bureau of Mines was established by A, C. of 1910. 36 St. L. 369, 37 Id. 681. 482 ASSAYS. 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 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. Supposing 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 assays are 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 "sample." Between buyer and seller ore is usually sampled by the former, under supervision of the latter, if he choose to be present. The sample taken (pulverized) is divided into por- tions 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 duplicate) 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 ounces silver or two-tenths ounce gold except where the ore contains much free gold, native silver or silver glance, the particles of which can not be reduced to exact evenness, ASSAYS. 483 and make assays of these classes of ore treacherous. In case of disagreement, 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 varia- tion as to suggest the necessity of resampling. The fire assay shades slightly in favor of the buyer, but all processes pretending to secure substantially more gold than that shown by the fire assay are frauds. 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, 18 Nev. 133, 15 M. R. 350, 1 P. 669. 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. & S. 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, 40 N. J. Eq. 612, 4 All. 83, 42 N. J. Eq. 251, 7 Atl. 353. As to deductions for moisture, see this litigation continued in Lehigh Co. v. Trotter, 42 N. J. Eq. 661, 9 Atl. 694. Sufficient proof by assay that samples were salted with powdered silver. Mudsill Co. v. Watrous, 61 F. 163, 9 C. C. A. 415, 18 M. R. 1. By assay with litharge, a trace of silver may be shown in any kind of rock. Ormund v. Granite Mt. Co., 11 Mont. 303, 28 P. 289. An assay of two lots is no proof of the value of a series of shipments. Pittsburg Co. v. Glick, 1 Colo. App. 43, 42 P. 188. Method of sampling and assay on ore sales described. Chisholm v. Eagle Ore Co., 144 F. 670, 75 C. C. A. 472. A purchaser of phosphate rock is entitled to deductions for its falling below agreed assay, and is not bound to accept at all if materially short. Stono Mines v. Southern Co., 76 S. C. 327, 56 S. E. 982. Mill samples control car samples. Vietti v. Neslitt, 22 Nev. 390, 41 P. 151, 18 M. R. 247; Fox v. Hale Co., 108 Cal. 369, 41 P. 308. The "assay value" of gold means its universal standard value and not the value of local gold bullion. Id. 484 SCHOOL OF MINES. But a contract to pay 95 per cent of the silver contents 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. 8m. Co., 122 N. C. 542, 29 S. E. 940, 19 M. R. 339. An assay is material proof on an issue as to whether certain rock is mineral bearing. Healey v. Rupp, 28 Colo. 102, 63 P. 319, 21 M. R. 117. In Richardson v. National Reduction Co. the Supreme Court of Nevada say they will take judicial notice of the fact that amalgamating and cyaniding will not effect an extraction of 100 per cent of the fire assay of the metallic content. But it is a well know r n fact that the smelters will extract full 100 per cent of the fire assay of certain gold ores. - - A Proof of Assay. An assay certificate does not prove itself; nor can it be proved by one of the assaying firm who had no personal knowl- edge of the assay. People v. Wlialen, 154 Cal. 472, 98 P. 194. But in Carter v. BeU, LEWIS, J., in the U. S. Circuit Court, Denver, ruled that wiiere ore had been paid for on the strength of an ore buyer's assay, the assay proved itself, and the assayer need not be called. SCHOOL OF MINES. The General Assembly may provide that the science of mining and metallurgy be taught in one or more of the insti- tutions of learning under the patronage of the State. Colo. Const., Art. 16, Sec. 4. Under the above provision the ' ' School of Mines ' ' at Golden is especially incorporated, and is supported by the State. Its declared object is to furnish "such instruction as is pro- vided for in like technical schools of a high grade," and it is authorized to confer degrees. LAND OFFICE RULES. 485 The course includes four years of two terms each. These are divided, after the second year, into mining and metallur- gical engineering. Similar State schools are established at Rolla, Missouri; Hought on, Michigan ; Rapid City, South Dakota ; Butte, Mon- tana ; Moscow, Idaho ; Virginia City, Nevada ; Blake, Utah, and Socorro, New Mexico. The Universities of Arizona, California, Nevada, North Dakota and Wyoming have special departments covering the same ground. LAND OFFICE REGULATIONS. Re-Issued by the General Land Office, August 6, 1915.* NATURE AND EXTENT OF MINING CLAIMS. 1. Two Classes of Claims. Mining claims are of two dis- tinct 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 the claim is enlarged by sections 2322 and 2328, by investing the locator, his heirs or assigns, with the right to follow, upon the conditions stated therein, all veins, lodes, or ledges, the top or apex of which lies inside of the surface lines of his claim. 3. Possessory Right Prior to May 10, 1872. It is to be distinctly understood, however, that the law limits the possessory right to veins, lodes, or ledges, other than the one named in the original location, to such as were not adversely claimed on May JO, 1872, and that where such other vein or ledge was so adversely claimed at that date the right of the party so adversely claiming is in no way impaired by the provisions of the Revised Statutes. These rules have been repeatedly reissued and alterations made in and additions to particular rules, but their numbers have not been changed since the issue of 1901. They are printed in full in 44 L. D. 285. For rules of practice in contest cases see 44 L. D. 395. 486 LAND OFFICE RULES. 4. Who May Locate. From and after the 10th May, 1872, any person who is a citizen of the United States, or who has declared his intention to become a citizen, may locate, record, and hold a mining claim of "fifteen hundred linear feet along the course of any mineral vein or lode subject to location; or an association of persons, severally qualified as above, may make joint location of such claim of fifteen hundred feet, but in no event can a location of a vein or lode made after the 10th day of May, 1872, exceed fifteen hundred feet along the course thereof, what- ever may be the number of persons composing the association. 5. Width Surface Ground. With regard to the extent of surface ground adjoining a vein or lode, and claimed for the con- venient working thereof, the Revised Statutes provide that the lateral extent of locations of veins or lodes made after May 10, 1872, shall in no case exceed three hiindred feet on each side of the middle of the vein at the surface, and that no such surface rights shall be limited by any mining regulations to less than twenty-five feet on each side of the middle of the vein at the surface, except where adverse rights existing on the 10th May, 1872, may render such limitation necessary; the end lines of such claims to be in all cases parallel to each other. Said lateral measurements can not extend beyond three hundred feet on either side of the middle of the vein at the surface, or such distance as is allowed by local laws. For example: 400 feet can not be taken on one side and 200 feet on the other. If, however, 300 feet on each side are allowed, and by reason of prior claims but 100 feet can be taken on one side, the locator will not be restricted to less than 300 feet on the other side; and when the locator does not determine by exploration where the middle of the vein at the surface is, his discovery shaft must be assumed to mark such point. 6. Size of Claim. By the foregoing it will be perceived that no lode claim located after the 10th May, 1872, can exceed a par- allelogram fifteen hundred feet in length by six hundred feet in width, but whether surface ground of that width can be taken depends upon the local regulations or State or Territorial laws in force in the several mining districts; and that no such local regulations or State or Territorial laws shall limit a vein or lode claim to less than fifteen hundred feet along the course thereof, whether the location is made by one or more persons, nor can surface rights be limited to less than fifty feet in width unless adverse claims existing on the 10th day of May, 1872, render such lateral limita- tion necessary. 7. Location Certificate. Locators can not exercise too much care in defining their locations at $he outset, inasmuch as the law requires that all records of mining locations made subsequent to May 10, 1872, shall contain the name or names of the locators, the date of the location, and such a description of the claim or claims located, by refer- LAND OFFICE RULES. 487 ence to some natural object or permanent monument, as will identify the claim. 8. No lode claim shall be located until after the discovery of a vein or lode within the limits of the claim, the object of which provision is evidently to prevent the appropriation 'of presumed mineral ground for speculative purposes, to the exclusion of bona fide prospectors, before sufficient work has been done' to determine whether a vein or lode really exists. 9. Discovery Ties Description. The claimant should, therefore, prior to locating his claim, unless the vein can be traced upon the surface, sink a shaft or run a tunnel or drift to a sufficient depth therein to discover and develop a mineral-bearing vein, lode, or crevice; should determine, if possible, the general course of such vein in either direction from the point of discovery, by which direction he will be governed in marking the boundaries of his claim on the surface. His location notice should give the course and distance as nearly as practicable from the discovery shaft on the claim to some permanent, well-known points or objects, such, for instance, as stone monuments, blazed trees, the confluence of streams, point of intersection of well-known gulches, ravines, or roads, prominent buttes, hills, etc., which may be in the immediate vicinity, and which will serve to perpetuate and fix the locus of the claim and render it susceptible of identification from the descrip- tion thereof given in the record of locations in the district, and should be duly recorded. 10. Adjoining Claims Staking Location Notice. In addition to the foregoing data, the claimant should state the names of adjoining claims, or, if none adjoin, the relative positions of the nearest claims; should drive a post or erect a monument of stones at each corner of his surface ground, and at the point of discovery or discovery shaft should fix a post, stake, or board, upon which should be designated the name of the lode, the name or names of the locators, the number of feet claimed, and in which direction from the point of discovery, it being essential that the location notice filed for record, in addition to the fore- going description, should state whether the entire claim of fifteen hundred feet is taken on one side of the point of discovery, or whether it is partly upon one and partly upon the other side thereof, and in the latter case, how many feet are claimed upon each side of such discovery point. 11. The location notice must be filed for record in all respects as required by the State or Territorial laws and local rules and regulations, if there be any. 12. Annual Labor. In order to hold the possessory title to a mining claim located prior to May 10, 1872, the law requires that 488 LAND OFFICE KULES. ten dollars shall be expended annually in labor or improvements for each one hundred feet -in length along the vein or lode. In order to hold the possessory right to a location made since May 10, 1872, not less than one hundred dollars' worth of labor must be performed or improvements made thereon annually. Under the provisions of the Act of Congress approved January 22, 1880, the first annual expenditure becomes due and must be performed during the calendar year succeeding that in which the location was made. Where a number of contiguous claims are held in common, the aggregate expenditure that would be necessary to hold all the claims may be made upon any one claim. Cornering locations are held not to be contiguous. 13. Same Failure to Perform. Failure to make the expenditure or perform the labor required upon a location made before or since May 10, 1872, will subject a claim to relocation, unless the original locator, his heirs, assigns, or legal representatives have resumed work after such failure and before relocation. 14. Same Not Required After Entry. Annual expendi- ture is not required subsequent to entry, the date of issuing the patent certificate being the date contemplated by statute. 15. Forfeiture to Co-Owner. Upon the failure of any one of several co-owners to contribute his proportion of the required expendi- tures, the co-owners, who have performed the labor or made the improve- ments as required, may, at the expiration of the year, give such delinquent co-owner personal notice in writing, or notice by publication in the news- paper published nearest the claim for at least once a week for ninety days; and if upon the expiration of ninety days after such notice in writing, or upon the expiration of one hundred and eighty days after the first newspaper publication of notice, the delinquent co-owner shall have failed to contribute his proportion to meet such expenditures or improve- ments, his interest in the claim by law passes to his co-owners who have made the expenditures or improvements as aforesaid. Where a claimant alleges ownership of a forfeited interest under the foregoing provision, the sworn statement of the publisher as to the facts of publication, giving dates, and a printed copy of the notice published, should be furnished, and the claimant must swear that the delinquent co-owner failed to contribute his proper proportion within the period fixed by the statute. 16. The effect of section 2323, Revised Statutes, is to give the proprietors of a mining tunnel run in good faith the possessory right to fifteen hundred feet of any blind lodes cut, discovered, or intersected 6y such tunnel, which were not previously known to exist, within three thousand feet from the face or point of commencement of such tunnel, LAND OFFICE EULES. 489 and to prohibit other parties, after the commencement of the tunnel, from prospecting for and making locations of lodes on the line thereof and within said distance of three thousand feet, unless such lodes appear upon the surface or were previously known to exist. The term "face," as used in said section, is construed and held to mean the first working face formed in the tunnel, and to signify the point at which the tunnel actually enters cover; it being from this point that the three thousand feet are to be counted upon which prospecting is prohibited as aforesaid. 17. Tunnel Notice Staking. To avail themselves of the benefits of this provision of law, the proprietors of a mining tunnel will be required, at the time they enter cover as aforesaid, to give proper notice of their tunnel location by erecting a substantial post, board, or monument at the face or point of commencement thereof, upon which should, be posted a good and sufficient notice, giving the names of the parties or company claiming the tunnel right; the actual or proposed course or direction of the tunnel, the height and width thereof, and the course and distance from such face or point of commencement to some permanent well-known objects in the vicinity by which to fix and deter- mine the locus in manner heretofore set forth applicable to locations of veins or lodes, and at the time of posting such notice they shall, in order that miners or prospectors may be enabled to determine whether or not they are within the lines of the tunnel, establish the boundary lines thereof, by stakes or monuments placed along such lines at proper inter- vals, to the terminus of the three thousand feet from the face or point of commencement of the tunnel, and the lines so marked will define and govern as to specific boundaries within which prospecting for lodes not previously known to exist is prohibited while work on the tunnel is being prosecuted with reasonable diligence. 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 their predecessors in interest in prosecuting work thereon; the extent of the work performed, and that it is bona fide their intention to prosecute work on the tunnel so located and described with reasonable diligence for the development of a vein or lode, or for the discovery of mines, or both, as the case may be. This notice of location must be duly recorded, and, with the said sworn statement attached, kept on the recorder's files for future reference. 490 LAND OFFICE KULES. PLACER CLAIMS.* 19. But one discovery of mineral is required to support a placer location, whether it be of twenty acres by an individual, or of one hundred and sixty acres or less by an association of persons. 20. Building Stone School Lands. The Act of August 4, 1892, extends the mineral-land laws so as to bring lands chiefly valuable for building stone within the provisions of said law by authorizing a placer entry of such lands. Registers and receivers should make a, refer- ence to said act on the entry papers in the case of all placer entries made for lands containing stone chiefly valuable for building purposes. Lands reserved for the benefit of public schools or donated to any State are not subject to entry under said act. 21. Petroleum Oils. The Act of February 11, 1897, pro- vides for the location and entry of public lands chiefly valuable for petroleum or other mineral oils, and entries of that nature made prior to the passage of said act are to be considered as though made thereunder. 22. Same Field Examinations. Upon the presentation of every case within the purview of the Act of March 2, 1911 (36 Stat. L., 1015), the local officers must advise the chiefs of field division, in order that the latter may make such field examinations as are advisable or neces- sary, particularly if the land involved has been embraced in a withdrawal, as to the time when the development work was begun, and be prepared to submit the results, if possible, before entry is allowed. Each such case will be considered and adjudicated upon its record in the regular manner. Observing that the operation of the act is retrospective only, being confined to locations made prior to the date thereof, you will, upon the presentation of any application for patent affected by the provisions of said act, immediately communicate to the proper chief of field division due and full information thereof, to the end that he may procure to be made such investigations as may be necessary to ascertain the facts concerning the inception and subsequent prosecution of development operations, the extent and character of such works, and any other facts bearing upon and affecting the validity of the claim, including the continuousness and diligence with which development proceeded from the date of inception. Report made of the results of such examinations will be submitted to this office, upon receipt of which the local officers will be advised as to the action to be taken; (Instructions, May 17, 1911, approved, July 11, 1912.) *See, also, Regulations 58-60. LAND OFFICE RULES. 491 23. Ten-Acre Tracts. By Sec. 2330 authority is given for subdividing forty-acre legal subdivisions into ten-acre tracts. These ten- acre tracts should be considered and dealt with as legal subdivisions, and an applicant having a placer claim which conforms to one or more of such ten-acre tracts, contiguous in case of two or more tracts, may make entry thereof, after the usual proceedings, without further survey or plat. 24. Description Improvements. A ten-acre subdivision may be described, for instance if situated in the extreme northeast of the section, as the "NE. % of the NE. % of the NE. %" of the section, or, in like manner, by appropriate terms, wherever situated ; but, in addi- tion to this description, the notice must give all the other data required in a mineral application, by which parties may be put on inquiry as to the land sought to be patented. The proofs submitted with applications must show clearly the character and extent of the improvements upon the premises. 25. The proof of improvements must show their value to be not less than five hundred dollars and that they were made by the applicant for patent or his grantors. This proof should consist of the affidavit of two or more disinterested witnesses. The annual expenditure to the amount of $100, required by Sec. 2324, Kevised Statutes, must be made upon placer as well as lode locations. 26. Lode in Placer. Applicants for patent to a placer claim, who are also in possession of a known vein or lode included therein, must state in their application that the placer includes such vein or lode. The published and posted notices must also include such statement. If veins or lodes lying within a placer location are owned by other parties, the fact should be distinctly stated in the application for patent and in all the notices. But in all eases, whether the lode is claimed or excluded, it must be surveyed and marked upon the plat, the field notes and plat giving the area of the lode claim or claims and the area of the placer separately. An application which omits to claim such known vein or lode must be construed as a conclusive declaration that the applicant has no right of possession to the vein or lode. Where there is no known lode or vein, the fact must appear by the affidavit of two or more witnesses. 27. Size of Claim. By Sec. 2330 it is declared that no location of a placer claim made after July 9, 1870, shall exceed one hundred and sixty acres for any one person or association of persons, which location shall conform to the United States surveys. 28. Conform to Public Survey. $er. 2331 provides that all placer-mining claims located after May 10, 1872, shall conform as nearly as practicable with the United States system of public land surveys 492 LAND OFFICE EULES. and the rectangular subdivisions of such surveys, and such locations shall not include more than twenty acres for each individual claimant. 29. Location by an Association. The foregoing provisions of law are construed to mean that after the 9th day of July, 1870, no location of a placer claim can be made to exceed one hundred and sixty acres, whatever may be the number of locators associated together, or whatever the local regulations of the district may allow; and that from and after May 10, 1872, no location can exceed twenty acres for each individual participating therein; that is, a location by two persons can not exceed forty acres, and one by three persons can not exceed sixty acres. 30. How Located. The regulations hereinbefore given as to the manner of marking locations on the ground, and placing the same on record, must be observed in the case of placer locations so far as the same are applicable, the law requiring, however, that 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. Conformity to the public land surveys and the rectangular subdivisions thereof will not be required where compliance with such requirement would necessitate the placing of the lines thereof upon other prior located claims or where the claim is surrounded by prior locations. Where a placer location by one or two persons can be entirely included within a square forty-acre tract, by three or four persons within two square forty-acre tracts placed end to end, by five or six persons within three square forty-acre tracts, and by seven or eight persons within four square forty-acre tracts, such locations will be regarded as within the requirements where strict conformity is impracticable. Whether a placer location conforms reasonably with the legal sub- divisions of the public surveys is a question of fact to be determined in each case, and no location will be passed to patent without satisfactory evidence in this regard. Claimants should bear in mind that it is the policy of the government to have all entries whether of agricultural or mineral lands as compact and regular in form as reasonably practicable, and that it will not permit or sanction entries or locations which cut the public domain into long narrow strips or grossly irregular or fantastically shaped tracts. (Snow Flake Fraction Placer, 37 L. D. 250.) REGULATIONS UNDER SALINE ACT. 31. Only One Location to Same Person, Under the act approved January 31, 1901, extending the mining laws to saline lands, the provisions of the law relating to placer-mining claims are extended to all States and the Territory of Alaska, so as to permit the location 'and LAND OFFICE RULES. 493 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 person shall not locate or enter more than one claim hereunder." 32. Rights Assignable. 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 holding as assignee may make entry in his own name : Provided, He has not held under this act, at any time, either as locator or entryman, any other lands; his right is exhausted by having held under this act any particular tract, either as locator or entryman, either as an individual or as a member of an associa- tion. It follows, therefore, that no application for patent or entry, made under this act, shall embrace more than one single location. 33. Affidavit to Location Certificate. In order that the conditions imposed by the proviso, as set forth in the above paragraph, may duly appear, the application for patent must contain or be accom- panied by a specific statement under oath by each person whose name appears therein that he never has, either as an individual or as a member of an association, located or entered any other lands under the provisions of this act. The application for patent should also be accompanied by a showing under oath, fully disclosing the qualifications as defined by the proviso, of the applicants' predecessors in interest. (As amended June 4, 1912.) PROCEDURE TO OBTAIN PATENT TO MINERAL LANDS. LODE CLAIMS. 34. Official Survey. The claimant is required, in the first place, to have a correct survey of his claim made under authority of the surveyor general of the State or Territory in which the claim lies, such survey to show with accuracy the exterior surface boundaries of the claim, which boundaries are required to be distinctly marked by monuments on the ground. Four plats and one copy of the original field notes in each ease will be prepared by the surveyor general; one plat and the original field notes to be retained in the office of the surveyor general; one copy of the plat to be given the claimant for posting upon the claim; one plat and a copy of the field notes to be given the claimant for filing with the proper register, to be finally transmitted by that officer, with other papers in the case, to this office, and one plat to be sent by the surveyor general to the register of the proper land district, to be retained on hia files for future reference. As there is no resident surveyor general for the State of Arkansas, applications for the survey of mineral claims in said State should be made to the Commissioner of this office, who, under the law, is ex offlcio the United States surveyor general. 494 LAND OFFICE RULES. The surveyor general will prepare the original plat on Form 4-675. All lines clear and sharp in black. All letters and figures clear and sharp in black. The original plat, so prepared, will be signed and dated by the sur- veyor general and forwarded to the General Land Office flat or in tube and unmounted. As to plats of survey of mining claims outside of the Territory of Alaska, the Commissioner will have three photolithographic copies made upon drawing paper, which copies, with the original plat, will be for- warded to the surveyor general, the duplicate, triplicate, and quadrupli- cate to be signed by him, and the four plats to be filed and disposed of in the same manner as provided in paragraph 34 of the Mining Regula- tions, viz.: One plat and the original field notes to be retained in the office of the surveyor general; one copy of the plat to be given the claim- ant for posting upon the claim ; one plat and a copy of the field notes to be given the claimant for filing with the proper register, to be finally transmitted by that officer, with other papers in the case, to this 1 office, and one plat to be sent by the surveyor general to the register of the proper land district, to be retained on his files for future reference. As to plats of survey of mining claims in the Territory of Alaska, the Commissioner will have three photolithographic copies made upon drawing paper, two copies of which, with the original plat, will be forwarded to the surveyor general, the duplicate and triplicate to be signed by him, and the three plats to be filed and disposed of as follows: One plat and the original field notes to be retained in the office of the surveyor gen- eral; one plat and a copy of the field notes to be given tlie claimant, for filing with the proper register, to be finally transmitted by that officer, with other papers in the case, to this office, and one plat to be sent by the surveyor general to the register of the proper land district to be retained in his files for future reference. The Commissioner will mail one photo- lithographic copy of the plat, made upon drawing paper, direct to the applicant for survey, or to his agent or attorney, when the application is made by agent or attorney, at his record address, to be used for posting on the land. A certain number of photolithographic copies will be furnished the surveyor general for sale at a cost of 30 cents each, and a photolitho- graphic copy printed on tracing paper .will be furnished the surveyor gen- eral, from which blue prints may be made, to be sold at cost. (Instruc- tions, July 29, 1911, as amended October 8, 1912.) 35. Same None Before Record. The survey and plat of mineral claims required to be filed in the proper land office with appli- cation for patent must be made subsequent to the recording of the loca- tion of the claim (if the laws of the State or Territory or the regula- tions of the mining district require the notice of location to be recorded ) . LAND OFFICE RULES. 495 and wlien the original location is made by survey of a United States mineral surveyor such location survey can not be substituted for that required by the statute, as above indicated. 36. Numbering Surveys Ties to Government Corners. The surveyors general should designate all surveyed mineral claims by a progressive series of numbers, beginning with survey No. 37, irrespective as to whether they are situated on surveyed or unsurveyed lands, the claim to be so designated at date of issuing the order therefor, in addi- tion to the local designation of the claim; it being required in all cases that the plat and field notes of the survey of a claim must, in addition to the reference to permanent objects in the neighborhood, describe the locus of the claim with reference to the lines of public surveys by a line connecting a corner of the claim with the nearest public corner of the United States surveys, unless such claim be on unsurveyed lands at a dis- tance of more than two miles from such public corner, in which latter case it should be connected with a United States mineral monument. Such connecting line must not be more than two miles in length, and should be measured on the ground direct between the points, or calculated from actually surveyed traverse lines if the nature of the country should not permit direct measurement. If a regularly established survey corner is within two miles of a claim situated on unsurveyed lands, the connection should be made with such corner in preference to a connection with a United States mineral monument. The connecting 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) Report to Land Office. Promptly upon the ap- proval of a mineral survey the surveyor general will advise both this office and the appropriate local land office, by letter (Form 4-286), of the date of approval, number of the survey, name and area of the claim, name and survey number of each approved mineral survey with which actually in conflict, name and address of the applicant for survey, and name of the mineral surveyor who made the survey; and will also briefly describe 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. Agricultural Fractions. (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 applications have been filed and which residue has been already reallotted in accordance therewith, the local officers will 496 LAND OFFICE EULES. accept and approve the application as usual, if found to be regnlr.r. When such an application is filed for any such original lot or subdivision. reduced in available area by duly asserted mining claims but not yet relotted accordingly, the local officers will promptly advise this office thereof; and will also report and identify any pending application for mineral patent affecting such subdivision which the agricultural appli- cant does not desire to contest. The surveyor general will thereupon be advised by this office of such mining claims, or portions thereof, as are proper to be segregated, and directed to prepare at once, upon the usual drawing-paper township blank, diagram of amended township survey of such original lot or legal forty-acre subdivision so made fractional by such mineral segregation, designating the agricultural portion by appro- priate lot number, beginning with No. 1 in each section and 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 reservation of all rights of the applicant if continuously asserted by him, and upon receipt of amended township diagram will approve the application (if then otherwise satisfactory) as of the date of filing, corrected to describe the tract as designated in the amended survey. (c) The register and receiver will allow no agricultural 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 surveys of mining claims and for which applications for patent have 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 applica- tions to have lands asserted to be mineral, or mining locations, segre- gated by survey, with the view to agricultural appropriation of the remainder, will be made to the register and receiver for submission to the Commissioner of the General Land Office, for his consideration 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 such case, such original lot or legal subdivision will be subject to agricultural appropriation only. When any such showing shall be found to be satisfactory and the neces- sary survey is had, amended township diagram will be required aiid made as prescribed in the preceding section. 38. The following particulars should be observed in the survey of every mining claim: (1) The exterior boundaries of the claim, the number of feet claimed along the vein, and, as nearly as can be ascertained, the direction of the vein, and the number of feet claimed on the vein in each direction from LAND OFFICE RULES. 497 the point of discovery or other well-defined place on the claim should be represented on the plat of survey and in the field notes. (2) The intersection of the lines of the survey with the lines of con- flicting prior surveys should be noted in the field notes and represented upon the plat. (3) Conflicts with unsurveyed claims, where the applicant for survey does not claim the area in conflict, should be shown by actual survey. (4) The total area of the claim embraced by the exterior boundaries should be stated, and also the area in conflict with each intersecting sur- Vey, substantially as follows: Acres. Total area of claim 10.50 Area in conflict with survey No. 302 1.56 Area in conflict with survey No. 948 2.33 Area in conflict with Mountain Maid lode mining claim, unsurveyed 1.48 It does not follow that because mining surveys are required to exhibit all conflicts with prior surveys the areas of conflict are to be excluded. The field notes and plat are made a part of the application for patent, and care should be taken that the description does not inadvertently exclude portions intended to be retained. The application for pa'tent should state the portions to be excluded in express terms. 39. Posting Plat. 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 the survey, the mining district and county, and the names of adjoining and conflicting claims as shown by the plat survey. Too much care can not be exercised in the preparation of this notice, inasmuch as the data therein are to be 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. Same, in Alaska. (a) The notices of applications for patent for lands in Alaska are, in many cases, not sufficient to apprise adverse claimants and the public generally of the location of the land applied for, and therefore do not serve the purpose for which such notices are required; nor can the loca- tion of the land be ascertained from the application papers themselves and without obtaining information from other sources. This is due prin- cipally to the large area of unsurveyed land in the district and remote- ness from centers of population of much of the country. In order to give a more definite description of the land applied for the following special instructions with reference to the Territory of Alaska are issued. 498 LAND OFFICE RULES. which are supplemental to but do not change or modify existing regula- tions: Field Notes and Ties in Alaska. (b) The field notes of survey of all claims within the Territory of Alaska, where the survey is not tied to a corner of the public survey, shall contain a description of the location or mineral monument to which the survey is tied, by giving its latitude and longitude, and its position with reference to rivers, creeks, mountains or mountain peaks, towns, or other prominent topographical points or natural objects or monuments, giving the distances and directions as nearly accurate as possible, especially with reference to any well-known trail to a town or mining camp, or to a river or mountain appearing on the map of Alaska, which description shall appear in the field notes regardless of whether or not tho survey be tied to an existing monument, or to a monument established by the surveyor when making the survey in accordance with existing regulations with ref- erence to the establishment of such monuments. The description of such monument shall appear in a paragraph separate from the description of the courses and distances of the survey. (c) All notices of applications for patent for lands in the Territory of Alaska, where the survey on which the application is based is not tied to a corner of the public survey, shall, in addition to the description required to be given by existing regulations, describe the monument to which the claim is tied by giving its latitude and longitude and a refer- ence by approximate course and distance to a town, mining camp, river, creek, mountain, mountain peak, or other natural object appearing on the map of Alaska, and any other facts shown by the field notes of survey which shall aid in determining the exact location of such claim without an examination of the record or a reference to other sources. The registers and receivers will exercise discretion in the matter of such descriptions in the published notices, bearing in mind the object to be attained, of so describing the land embraced in the claim as to enable its location to be ascertained from the notice of application. (Instruc- tions, December 23, 1913.) 40. Proof of Posting. After posting the said plat and notice upon the premises, the claimant will file with the proper register and receiver a copy of such plat and the field notes of survey of the claim, accompanied by the affidavit of at least two credible witnesses that such plat and notice are posted conspicuously upon the claim, giving the date and 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 ho lias the possessory right to the premises therein described, in virtue of a com- LAND OFFICE RULES. 499 pl'ance 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 Con- gress ; such sworn statement to narrate briefly, but as clearly as possible, the facts constituting such compliance, the origin of his possession and the basis of his claim to a patent. The application should contain a full description of the kind and character of the vein or lode and should state whether ore has been extracted therefrom, and, if so, in what amount and of what value. It should also show the precise place within the limits of each of the locations embraced in the application where the vein or lode has been exposed or discovered and the width thereof. The showing in these regards should contain sufficient data to enable repre- sentatives of the Government to confirm the same by examination in the field and also enable the land department to determine whether a valuable deposit of mineral actually exists within the limits of each of the loca- tions embraced in the application. Applications in Alaska. (a) The register and receiver will require each person applying to enter or in any manner acquire title to any of the lands in Alaska, under any law of the United States, to file a corroborated affidavit to the effect that none of the lands covered by his application are embraced in any pending application for an allotment under the act of May 17, 1906 (34 Stat. 197), or in any pending allotment; that no part of said land waa at the date of the location of the land claimed under the mining law occupied or claimed by any Indian, whose occupancy or claim existed on the date of the acts granting to natives of Alaska the right to hold land used, occupied, or claimed by them (Acts of Congress of May 17, 1884, 23 Stat. 24, and June 6, 1900, 31 Stat. 330), and had been continued down to and including date of location; that such land is in the bona fide legal possession of the applicant; and that no part of such land is in the bona fide legal possession of or is occupied by any Indian or native. (37 L. D. 616, and 43 L. D. 88, 272.) 42. Abstract of Title. This sworn statement must be sup- ported by a copy of each location notice, certified by the legal custodian of the record thereof, and also by an abstract of title of each claim certi- fied by the legal custodian of the records of transfers, or by a duly authorized'abstracter of titles. The certificate must state that no convey- ances affecting, or purporting to affect, the title to the claim or claims appear of record other than those set forth. Outside of the Territory of Alaska, the application for patent will be received and filed if the abstract is brought down to a day reasonably near the date of the presentation of the application and shows full title in the applicant, who must as soon as practicable thereafter file a supple- 500 LAND OFFICE KULES. mental abstract brought down so as to include the date of the filing of the application. Publication will not be ordered until the showing as to title is thus completed and the local land officers are satisfied that full title was in the applicant on the day of the filing of the application. Alaska Abstracts of Title. In the Territory of Alaska the application for patent will be received and filed and the order for publication issued if the abstract showing full title in the applicant is brought down to a day reasonably near the date of the presentation of the application. A supplemental abstract of title brought down so as to include the date of the filing of the application must be furnished prior to the expiration of the 60-day period of publica- tion. No certificate from an abstracter or abstract company will be accepted until approval by the Commissioner of the General Land Office of a favorable report of the chief of field division, or United States district attorney whose division or district embraces the lands in question, as to the reliability and responsibility of such abstracter or company. (As amended January 9, 1912.) 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 evidence of possessory title will be received, which may consist of the affidavit of the claimant, supported by those of any other parties cognizant of the facts relative to his location, occupancy, possession, improvements, etc.; and in such case of lost rec- ords, any deeds, certificates of location or purchase, or other evidence which may be in the claimant's possession and tend to establish his claim, should be filed. 44. Two Applications for Same Land Railroad Lands. Before approving for publication any notice of an application for min- eral patent, local officers will be particular to see that it includes no land which is embraced in a prior or pending application for patent or entry, or for any land embraced in a railroad selection, or for which publication is pending or has been made by any other claimants, and if, in their opinion, after investigation, it should appear that notice of a mineral application should not, for this or other reasons, be approved for publication, they should formally reject the same, giving the reasons therefor, and allow the applicant 30 days for appeal to this office under the Rules of Practice. (As amended August 9, 1911.) Local officers will give prompt and appropriate notice to the railroad grantee of the filing of every application for mineral patent which embraces any portion of an odd-numbered section of surveyed lands within the primary limits of a railroad land grant, and of every such LAND OFFICE RULES. 501 application embracing any portion of unsurveyed lands within such limits (except as 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 Eailroad Company, which have been classified as mineral under the Act of February 26, 1895, without protest by the company within the time limited by the statute or the mineral classification whereof has been approved). Should the railroad grantee file protest and apply for a hearing to determine the character of the land involved in any such application for mineral patent, proceedings thereunder will be had in the usual manner. Any application for mineral patent, however, which embraces lands previously listed or selected by a railroad company will be disposed of as provided by the first section of this paragraph, and the applicant afforded opportunity to protest and apply for a hearing or to appeal. Notice should be given to the duly authorized representative of the railroad grantee, in accordance with the Eules of Practice. When the claims applied for are upon unsurveyed land, the burden of proving that they are situate within prospective odd-numbered sections will rest upon the railroad. Evidence of service of notice should be filed with the record in each ease. 45. Publication Publisher's Agreement. Upon the receipt of these papers, if no reason appears for rejecting the application, the register will, at the expense of the claimant (who must- furnish the agreement of the publisher to hold applicant for patent alone responsible for charges of publication), publish a notice of such application for the period of sixty days in a newspaper published nearest to the claim, and will post a copy of such notice in his office for the same period. When the notice is published in a weekly newspaper, nine consecutive insertions are necessary; w 7 hen in a daily newspaper, the notice must appear in each issue for sixty-one consecutive issues. In both cases the first day of issue must be excluded in estimating the period of sixty days. 46. Data in Notices. 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 min- eral monument or a corner of the public survey, and thence the boundaries of the claim by courses and distances. (See also par. 39 (a), (6), (c).) 47. Register Designates Newspaper. The register shall publish the notice of application for patent in a paper of established 602 LAND OFFICE RULES. character and general circulation, to be by him designated as being the newspaper published nearest the land. 48. Surveyor General's Certificate of $500 Improve- ments. The claimant at the time of filing the application for patent, or at any time within the sixty days of publication, is required to file with the register a certificate of the surveyor general that not less than five hundred dollars' worth of labor has been expended or improve- ments made, by the applicant or his grantors, upon each location embraced in the application, or if the application embraces several contiguous loca- tions held in common, that an amount equal to five 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 the survey, as filed, furnish such an accurate description of the claim as will, if incorporated in a patent, serve to identify the premises fully, and that such reference is made therein to natural objects or per- manent monuments as will perpetuate and fix the locus thereof: Pro- vided, That as to all applications for patents made and passed to entry before July 1, 1898, or which are by protests or adverse 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 expendi- ture of that amount need not be shown to have been made upon, or for the benefit of, each location embraced in the application. 49. Same Source of Information. The surveyor general may derive his information upon which to base his certificate as to the value of labor expended or improvements made from the mineral sur- veyor who actually makes survey and examination of the premises, in so far as such matters rest in the personal knowledge of the mineral sur- veyor. The mineral surveyor should specify with particularity and full detail the character and extent of such improvements. As to when and by whom the improvements were made and other essential matters not within such mineral surveyor's personal knowledge, recourse may be had by the surveyor general to corroborated affidavits by persons possessing such personal knowledge, or the best evidence in this behalf otherwise obtainable. This showing should accompany the report of the mineral surveyor as to improvements. (As amended April 9, 1915.) 50. Certificate on Plat and Field Notes. It will be con- venient to have this certificate indorsed by the surveyor general, both upon the plat and field notes of survey filed by the claimant as afore- said. 51. Proof of Publication and of Plat Remaining 1 Posted. After the sixty days' period of newspaper publication has expired, the LAND OFFICE RULES. 603 claimant will furnish from the office of publication 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. 52. 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 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 issuing the usual receipt therefor. The claimant will also make a sworn statement of all charges and fees paid by him for publication and surveys, together with all fees and money paid the register and receiver of the land office, after which the complete record will be forwarded to the Commissioner of the General Land Office and a patent issued thereon if found regular. 53. Protest. At any time prior to the issuance of patent protest may be filed against the patenting of the claim as applied for, upon any ground tending to show that the applicant has failed to comply with the law in any matter essential to a valid entry under the patent proceedings. Such protest can not, however, be made the means of pre- serving a surface conflict lost by failure to adverse or lost by the judg- ment of the Court in an adverse suit. One holding a present joint interest in a mineral location included in an application for patent who is excluded from the application, so that his interest would not be pro- tected by the issue of patent thereon, may protest against/ the issuance of a patent as applied for, setting forth in such protest the nature and extent of his interest in such location, and such a protestant will be deemed a party in interest entitled to appeal. This results from the holding that a co-owner excluded from an application for patent does not have an "adverse" claim within the meaning of sections 2325 and 2326 of the Revised Statutes. (See Turner v. Sawyer, 150 U. S. 578-586, 14 Sup. Ct. 192, 37 L. Ed. 1189, 17 M. B. 683.) 54. Application by Trustee. Any party applying for pat- ent as trustee must disclose fully the nature of the trust and the name of the cestui que trust; and such trustee, as well as the beneficiaries, must furnish satisfactory proof of citizenship; and the names of beneficiaries, as well as that of the trustee, must be inserted in the final certificate of entry. 55. Annual Labor Solely a Question Between Adverse Claimants. The annual expenditure of one hundred dollars in labor or improvements on a mining claim, required by section 2324 of 504 LAND OFFICE RULES. the Revised Statutes, is, with the exception of certain phosphate placer locations, validated by the Act of January 11, 1915 (see regulations thereunder, dated March 31, 1915, in Addenda, p. 92), solely a matter between rival or adverse claimants to the same mineral land, and goes only to the right of possession, the determination of which is com- mitted exclusively to the courts. 56. Failure to Prosecute Application Diligently. The failure of an applicant for patent to a mining claim to prosecute his application to completion, by filing the necessary proofs and making pay- ment for the land, within a reasonable time after the expiration of the period of publication of notice of the application, or after the termina- tion of adverse proceedings in the courts, constitutes a waiver by the applicant of all rights obtained by the earlier proceedings upon the appli- cation. 57. Same Prosecution Delayed by Adverse. The pro- ceedings necessary to the completion of an applicatidh for patent to a mining claim, against which an adverse claim or protest has been filed, if taken by the applicant at the first opportunity afforded therefor under the law and departmental practice, will be as effective as if taken at the date when, but for the adverse claim or protest, the proceedings on the application could have been completed. PLACER CLAIMS.* 58. On Surveyed Lands. The proceedings to obtain pat- ents for placer claims, including all forms of mineral deposits excepting veins of quartz or other rock in place, are similar to the proceedings pre- scribed for obtaining patents for vein or lode claims; but where a placer claim shall be 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. 59. Price. The proceedings for obtaining patents for veins or lodes having already been fully given, it will not be necessary to repeat them here, it being thought that careful attention thereto by applicants and the local officers will enable them to act understandingly in the matter, and make such slight modifications in the notice, or other- wise, as may be necessary in view of the different nature of the two classes of claims; the price of placer claims being fixed, however, at two dollars and fifty cents per acre or fractional part of an acre. 60. Statements in Application for Patent. In placer applications, in addition to the recitals necessary in and to both vein or See, also, Regulations 19-30. LAND OFFICE RULES. 505 lode and placer applications, the placer application should contain, in detail, such data as will support the claim that the land applied for is placer ground containing valuable mineral deposits not in vein or lode formation and that title is sought not to control water courses or to obtain valuable timber but in good faith because of the mineral therein. This statement, of course, must depend upon the character of the deposit and the natural features of the ground, but the following details should be covered as fully as possible: If the claim be for a deposit of placer gold, there must be stated the yield per pan, or cubic yard, as shown by prospecting and development work, distance to bedrock, formation and extent of the deposit, and all other facts upon which he bases his allega- tion that the claim is valuable for its deposits of placer gold. If it be a building stone or other deposit than gold claimed under the placer laws, he must describe fully the kind, nature, and extent of the deposit, stating the reasons why same is by him regarded as a valuable mineral claim. He will also be required to describe fully the natural features of the claim ; streams, if any, must be fully described as to their course, amount of water carried, fall within the claim; and he must state kind and amount of timber and other vegetation thereon and adaptability to min- ing or other uses. If the claim be all placer ground, that fact must be stated in the application and corroborated by accompanying proofs; if of mixed plac- ers and lodes, it should be so set out, with a description of all known lodes situated within the boundaries of the claim. A specific declaration, such as is required by section 2333, Revised Statutes, must be furnished as to each lode intended to be claimed. All other known lodes are, by the silence of the applicant, excluded by law from all claim by him, of whatsoever nature, possessory or otherwise. While these data are required as a part of the mineral surveyor's report under paragraph 167, in case of placers taken by special survey, it is proper that the application for patent incorporate these facts under the oath of the claimant. Inasmuch as in case of claims taken by legal subdivisions, no report by a mineral surveyor is required, the claimant, in his application in addi- tion to the data above required, should describe in detail the shafts, cuts, tunnels, or other workings claimed as improvements, giving their dimen- sions, value, and the course and distance thereof to the nearest corner of the public surveys. As prescribed by paragraph 25, this statement as to the description and value of the improvements must be corroborated by the affidavits of two disinterested witnesses. Applications awaiting entry, whether published or not, must he made to conform to these regulations, with respect to proof as to the character of the land. Entries already made will be suspended for such additional proofs as may be deemed necessary in each case. 506 LAND OFFICE RULES. Local land officers are instructed that if the proofs submitted in placer applications under this paragraph are not satisfactory as showing the land as a whole to be placer in character, or if the claims impinge upon or embrace water courses or bodies of water, and thus raise a doubt as to the bona -fides of the location and application, or the char- acter and extent of the deposit claimed thereunder, to call for further evidence, or if deemed necessary, request the specific attention of the Chief of Field Service thereto in connection with the usual notification to him under the circular instructions of April 24, 1907,* and suspend further action on the application until a report thereon is received from the field officer. Placer Claims in Alaska. Attention is directed to the Act of Congress approved August 1, 1912 (37 Stat. L. 242), entitled ' ' An act to modify and amend the mining laws in their application to the Territory of Alaska, and for other purposes." In administering this act the foregoing regulations should be followed in so far as they are applicable, and these additional instructions of October 29, 1912, are prescribed : It is important to note that ifyis act applies exclusively to placer mining claims located in Alaska on or after August 1, 1912. It does not in any manner relate to lode mining claims, or to placer mining claims located prior to said date. The terms of the act lay strict limitations and conditions with respect to placer locations made upon or after said date. Section 1 of the act provides that no association placer claim shall be located after August 1, 1912, in excess of 40 acres. This limitation is positive whatever may be the number of persons associated together or whatever the local district rules or regulations may permit. Said section further provides that on every placer mining claim located in Alaska after the passage of the act, and until patent therefor has been issued, not less than $100 worth of labor must be performed or improvements made during each year, including the year of location, for each and every 20 acres or excess fraction thereof included in the claim. This means that the first annual expenditure on such a placer mining location must be accomplished for and during the calendar year in which the claim is located, instead of during the calendar year succeeding that in which the location is made. Moreover, the amount of annual expendi- ture is dependent upon the size of the claim, it being required that at least $100 must be expended for each 20 acres, or excess fraction thereof, embraced in the location. Rule 7 of this circular amended October 30, 1913. (See 42 L. D. 474.) LAND OFFICE RULES. 50V By section 2 it is provided that no person, as attorney or agent for another, may locate any placer mining claim unless duly authorized by a power of attorney properly acknowledged and recorded in some recorder's office within the judicial division where the location is made. Further- more, an authorized agent or attorney can act in making locations of placer mining claims for only two individual principals or one associate principal during any calendar month and during that period may not lawfully locate more than two claims for any one principal either indi- vidual or association. No placer claim can lawfully be located except in compliance with and under the limitations of the act. In order that the land department may be fully advised in the prem- ises, the following requirements must be met with regard to applications for placer mining claims located in Alaska on or after August 1, 1912 : (a) Where location is made by agent or attorney the power of attor- ney must be in writing and must be executed and acknowledged in accordance with the laws of the Territory of Alaska or of the State, Ter- ritory, or District in which it shall be executed. It must be recorded in the proper recorder's office, as prescribed by the act. The application for patent must be accompanied by a certified copy of such power of attorney which must show the recordation thereof; but it will be suf- ficient if such certified copy is attached to and made a part of the abstract of title. (&) One of the principal purposes of the act is to limit the number of placer mining locations made in Alaska through agents or attorneys. An agent or attorney can not at one time represent more than two individ- uals or one association under powers of attorney. A duly authorized agent may make two locations for each of two individual principals, or for one association principal, during any calendar month, but he can make no further locations during that month for those or other prin- cipals. The application for patent should accordingly be accompanied by the sworn statement of the agent or attorney setting forth specifically the names of all placer mining claims, together with the date of location and names of the locators, which were located or attempted to be located by him under powers of attorney during the calendar month in which the placer claim applied for was located. (c) By section 3 it is prescribed that no person shall directly locate, or through an agent or attorney cause or procure to be located, for him- self more than two placer mining claims in any calendar month: Pro- vided, however, That one or both of such locations may be included in an association claim. Whenever a person or an association has participated in the locating of placer mining claims in Alaska to the extent of two such claims in any calendar month, such person or such association thereby exhausts the 508 LAND OFFICE RULES. right to make placer location for that month. The application for pat- ent, therefore, for a placer mining claim located in Alaska on or after August 1, 1912, must contain or be accompanied by a specific statement, under oath, as to each locator who had an interest therein, showing spe- cifically and in detail all placer locations made by him, or in which he was associated, either directly or through any agent or attorney, during the calendar month in which the claim applied for was located. If no locations in excess of those permitted by law were made during such calendar month a specific statement, under oath, to that effect, should be submitted. This showing must be made in addition to that hereinabove required of the agent himself. Section 4 of the act prohibits the patenting of any placer mining claim located in Alaska after the passage of the act, which contains a greater area than that fixed by law or which is longer than three times its greatest width. The surveyor general will be careful to observe the above requirements and will not approve any survey of a placer location which does not in area and dimensions conform to the provisions of law. By section 5 of the act it is declared that any placer mining claim attempted to be located in violation of the provisions and limitations of the act shall be null and void and the whole area covered by such attempted location may be located by any qualified person the same as if no such prior attempted location had been made. Consequently, any attempted placer location not made in conformity with the act is a nullity and the land covered thereby is open for and subject to proper location at any time. It will be observed that the act does not affect the number of claims, lode or placer, and if placer whether located before or after the passage of the act, which may be included in a single application proceeding. 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 min- eral claims, and as section 2337, which provides for the patenting of mill sites, is embraced in the chapter of the Eevised Statutes relating to min- eral lands, they are therefore included in this circular. 62. Non-Contiguous Independent Application. To avail themselves of this provision of law, parties holding the possessory right to a vein or lode claim, and to a piece of non-mineraj land not con- tiguous thereto for mining or milling purposes, not exceeding the quan tity allowed for such purpose by section 2337, or prior laws, under which the land was appropriated, the proprietors of such vein or lode may file 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 include, embrace, and describe, in addition to LAND OFFICE EULES. 509 the vein or lode claim, such non-contiguous mill site, and after due pro- ceeil'ngs as to notice, etc., a patent will be issued conveying the same aa one claim. The owner of a patented lode may, by an independent appli- cation, secure a mill site if good faith is manifest in its use or occupa- tion in connection with the lode and no adverse claim exists. 63. Sur. Nos. "A" and "B." Where the original survey includes a lode claim and also a mill site the lode claim should be described in the plat and field notes as "Sur. No. 37, A," and the mill site as "Sur. No. 37, B," or whatever may be its appropriate numerical designation; the course and distance from a corner of the mill site to a 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 of sixty days. In making the entry no separate receipt or certificate need be issued for the mill site, but the whole area of both lode and mill site will be embraced in one entry, the price being five dollars for each acre and fractional 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 claimant of a vein or lode claim the law permits him to make application therefor in the same manner prescribed herein for mining 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. Proof of Non-Mineral Character. In every case there must be satisfactory proof that the land claimed as a mill site is not mineral in character, which proof may, where the matter is unquestioned, consist of the sworn statement of two or more persons capable, from acquaintance with the land, to testify understandingly. CITIZENSHIP. 66. Proof How Made. The proof necessary to establish the citizenship of applicants 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 asso- ciation, must be submitted. This affidavit must be accompanied by a power of attorney from the parties forming such association, author! /.in>,"' and Republican lodes. A granite stone 8x14x26 ins. set 12 ins. in the ground with mound of stone chiseled R.M.S. 2-21000 B., whence no bearings available. Thence S. 51 8' W. 126.06 Intersect the S. boundary See. 24 at S. 89 47' E. 2069.88 ft. from S.W. Cor. said Section. 257.51 Mosquito Creek, 4 ft. wide, 4 ins. deep, course East. 350. To Cor. No. 3. On line 1-2, Sur. No. 21000 A., Busy Bee lode. A quartz stone 8x8x26 ins. set 14 ins. in the ground with mound of earth and stone chiseled R.M.S. 3-21000 B., whence No bearings available. Thenee S. 38 52' E. 355.07 To Cor. No. 4. A granite stone 8x14x26 ins. set 14 ins. in the ground with mound of earth and stone chiseled R.M.S. 4-21000 B., whence A pine stump 20 ins. in diameter showing 16 ins. above ground, scribed B.xS., R.M.S. 4-21000 B., bears S. 50 21' W. 17 ft. Thence N. 51 8' E. 500. Mosquito Creek, 4.5 ft. wide, 4 ins. deep, course Easterly. 661.25 Intersect the S. boundary Sec. 24 at N. 89 47' W. 10.76 ft. from S. % Cor. said Section. 876.56 To Cor. No. 1, the place of beginning. Variation at all corners, 14 15' E. Containing 5 acres. The surveys of the Busy Bee and Republican lodes and the Eepublican mill site are identical with their respective locations as staked upon the ground. 550 APPLICATION FOR PATENT. Location. This claim is located in the S. V 2 Sec. 24 and the N.W. *4 Sec. 25, T. 2 S., K. 74 W. of the 6th P. M. Expenditure of Five Hundred Dollars. I certify that the value of the labor and improvements made upon or for the benefit of each of the lode locations embraced in said mining claim by the claimant or his grantors is not less than five hundred dollars and that said improvements consist of: No. 1. The discovery shaft of the Busy Bee lode, the center of which being the discovery point is on the center line 665 ft. from the center of line 4-1 3^x7 ft. in the clear, 40 ft. deep timbered. Value $500. No. 2. A shaft, the center of which bears N. 39 15' E. 430 ft. from Cor. No. 2, Busy Bee lode, 4%x7 ft., 15 ft. deep. Value $100. No. 1. The discovery shaft of the Eepublican lode, the center of which being the discovery point, is on the center line 750 ft. from the center of line 4-1, 4x6 ft., 25 ft. deep in earth and rock. Value $275. No. 2. A shaft which bears from Cor. No. 1, Eepublican lode, N. 86 10' W. 684 ft., 5x8 ft., 25 ft. deep, timbered. Value $300. No. 3. A shaft which bears from Cor. No. 1, Eepublican lode N. 88 W. 745 ft., 4x6 ft., 40 ft. deep, timbered. Value $500. No. 4. A shaft which bears from Cor. No. 1, Eepubliean lode N. 84 25' W. 690 ft., 3x5 ft., 10 ft. deep in earth and rock. Value $100. A tunnel, the mouth of which bears from Cor. No. 2, Busy Bee lode, N. 48" 15' E. 333 ft., 3y 2 x6 ft., running N. 23 E. 90 ft.; thence N. 60 30' E. 90 ft.; thence S. 78 E. 100 ft. to breast. Value $4,000. I am advised by the applicant that this tunnel has been constructed as a common improvement subsequent to the location of the Busy Bee and Republican lodes of this survey and the time since which contiguity and common ownership have prevailed as between said lodes, said lodes being all the lode locations owned by him and forming a contiguous group within the range of benefit and that no portion of or interest in the value of the tunnel has been heretofore credited or applied as patent expenditures. The surface rises rapidly from the mouth of the tunnel in a Northerly and Northeasterly direction, Cor. No. 4 of the Busy Bee lode being approximately 600 ft., and Cor. No. 4 of the Eepubliean lode being approximately 400 ft. above the tunnel level. The tunnel continued with drifts and cross-cuts run therefrom will economically and advantageously develop both lodes. An undivided one-half interest in the value of the tunnel is hereby credited as patent expenditure to each of the Busy Bee and Republican lodes. APPLICATION FOE PATENT. 551 Other Improvements. A mill building 20x25 ft., the N.W. Cor. of which bears from Cor. No. 2, Republican mill site, S. 6 20' E. 153 ft., course of long sides, N. 30 E. Claimant herein. A pit for water wheel, the N.W. Cor. of which bears from Cor. No. 2, Republican mill site, S. 5 30' E. 182.5 ft., 8x20 ft., 10 ft. deep, cribbed with logs. Course of long sides, N. 30 E. Claimant herein. Instrument. The surveys were made with a Peter Heer Light Mountain Transit. The courses were deflected from the true meridian as determined by direct solar observations. The distances were measured with 600 ft. and 100 ft. steel tapes. NOTE. The disagreements between these field notes and the location certificate of the Busy Bee lode as regards the courses of the lode and boundary lines and the position of the discovery shaft on the lode line and the disagreement between these field notes and the location certificate of the Republican lode as regards the position of the discovery shaft on the lode line, are due to errors in the certificates. Report. All lines and connections of these surveys were run direct upon the ground. I found the S. % Cor. Sec. 24, T. 2 S., B. 74 W. of the 6th P. M. to be a granite stone showing 5 ins. above ground marked ^4 on North face. Sur. No. 19900, Black Mask lode. . Cor. No. 2 is a granite stone 4x10 ins. showing 8 ins. above ground chiseled 2-19900, B.M. Sur. No. 19999, Climax lode. . Cors. Nos. 1, 2, 3 and 4 are granite stones properly set and marked and retain their correct relative positions as approved. From Cor. No. 1, the S. V* Cor. Sec. 24, T. 2 S., R. 74 W. of the 6th P. M. bears S. 62 37' W. 669.39 ft. instead of S. 62 30' W. 672 ft. as approved. FINAL OATHS OF SURVEYORS. LIST OP NAMES. A list of the names of the individuals employed by R. L. Chase, TTnited States Mineral Surveyor, to assist in running, measuring, and marking the 552 APPLICATION FOR PATENT. lines, corners, and boundaries described in the foregoing field notes ot the survey of the mining claim of Carroll Carter, known as the Busy Bee and Republican lodes and Republican mill site, and showing the respective capacities in which they acted. L. E. LEMEN, Chainman. OTTO SHATZ, Axman. FINAL OATHS OF ASSISTANTS. We, L. E. Lemen and Otto Shatz, do solemnly swear that we assisted E. L. Chase, United States Mineral Surveyor, in marking the corners and surveying the boundaries of the mining claim of Carroll Carter, known as the Busy Bee and Republican lodes and Republican mill site, repre- sented in the foregoing field notes as having been surveyed by said min- eral surveyor and under his direction; and that said survey has been in all respects, to the best of our knowledge and belief, faithfully and cor- rectly executed, and the corner and boundary monuments established according to law and the instructions furnished by the United States Surveyor General for Colorado. Jj. E. LEMEN, Chainman. OTTO SHATZ, A.xman. Subscribed and sworn to by the above-named persons before me this 10th day of February, 1916. My commission expires March 4, 1918. ALICE HATCH, (SEAL) Notary Public. FINAL OATH OF U. S. MINERAL SURVEYOR. I, R. L. Chase, U. S. Mineral Surveyor, do solemnly swear that, in pur- suance of instructions received from the United States Surveyor General for Colorado, dated January 10, 1916, I have, in strict conformity to the laws of the United States, the official regulations and instructions there- under, and the instructions of said Surveyor General, faithfully and cor- rectly executed the survey of the Mining Claim of Carroll Carter, known as the Busy Bee and Republican lodes and Republican mill site, situate in Wisconsin Mining District, Gilpin County, Colorado, in Sections 24 and 25, Township No. 2 S., Range No. 74 W. of the 6th P. M., and designated as Survey No. 21000 A. and B., as represented in the foregoing field notes, which accurately show the boundaries of said mining claim as distinctly marked by monuments on the ground, and described in the attached copy of each location certificate, which was received by me from the Surveyor General 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 I do further solemnly swear that the foregoing are the true and original field notes of said survey and my report therein, and that the labor expended and improve- ments made upon or for the benefit of each of the lode locations embraced in said mining claim by claimant or his grantors are as therein fully APPLICATION FOE PATENT. 553 stated, and that the character, extent, location, and itemized value thereof are specified therein with particularity and full detail, and that no portion of or interest in said labor or improvements so credited to this claim has been included in the estimate of expenditures upon any other claim. E. L. CHASE, U. S. Mineral Surveyor. Subscribed and sworn to by the said B. L. Chase, U. S. Mineral Sur- veyor, before me, a Notary Public in and for the City and County of Denver, Colorado, this 12th day of February, 1916. My commission expires March 4, 1918. ALICE HATCH, (SEAL) Notary Public. The preliminary Plat "C" and Field Notes "D" contain- ing, besides what are strictly the Field Notes, also the memo- randa of improvements, list of helpers, etc., with certificate and affidavit as above given, and the location certificates received by the surveyor with the order "B" are then for- warded to the Surveyor General, who compares the plat, reviews the notes, etc., and if errors appear, as they often do, or if he can not make the connections agree with his "con- nected plat," they are returned for correction, but if correct, the Field Notes are endorsed as follows: E. SURVEYOR GENERAL'S CERTIFICATE OF APPROVAL OF FIELD NOTES AND SURVEY OF MINING CLAIM. DEPARTMENT OF THE INTERIOR, Office of the U. S. Surveyor General, Denver, Colo., April 5, 1916. I, TJ. S. Surveyor General for Colorado, do hereby certify that the fore- going and hereto attached Field Notes and Eeturn of the Survey of the Mining Claim of Carroll Carter, known as the Busy Bee and Kepublican lodes and Eepublican mill site, situate in Wisconsin Mining" District, Gilpin County, Colorado, in Sections 24 and 25, Township No. 2 S., Eange No. 74 W. of the 6th P. M., designated as Survey No. 21000 A. and B., executed by E. L. Chase, U. S. Mineral Surveyor, February 8, 1916, under my instructions dated January 10, 1916, have been critically examined and the necessary corrections and explanations made, and the said Field Notes and Keturn, and the Survey they describe, are hereby approved. A true copy of the copy of each location certificate filed by the applicant for survey ia included in the field notes. JOHN B. MCGAUBAN, U. S. Surveyor General for Colorado. 554 APPLICATION FOR PATENT. The field notes "D" endorsed with the official approval "E " are then bound and kept permanently for reference in the Surveyor General's office after he has caused to be made from them F. THE FINAL PLAT. which is first sent by him to the General Land Office at Wash- ington in compliance with Regulation 34, where the Com- missioner has the necessary number of photolithographic copies made, which are, with the original plat, returned to the Sur- veyor General. The original is retained in the Surveyor Gen- eral's office, one copy is forwarded by the Surveyor General to the proper local land office and three copies are forwarded to the applicant or his agent or attorney; one for posting on the lode claims, one for posting on the mill site and one for filing in the local land office with the first set of papers. Extra photolithographic copies of the final plat may be obtained from the Surveyor General at nominal cost. The original and each copy of the final plat " F " is certified by endorsement thereon, as follows : G. SURVEYOR GENERAL'S APPROVAL OF SURVEY AND CERTIFICATE OF $500 IMPROVEMENTS. Dates of location, Busy Bee lode, June 23, 1894; Republican lode, Sept. 15, 1900; Republican mill site, Oct. 25, 1905. Mineral Survey No. 21000, Denver land district. Plat of the claim of Carroll Carter, known as the Busy Bee and Repub- lican lodes and Republican mill site,. Wisconsin mining district, Gilpin County, Colorado, containing an area of 8.058 acres. Scale of 200 feet to the inch. Variation 15 20' east. Surveyed by R. L. Chase, U. S. Mineral Surveyor, Feb. 8, 1916. The original field notes of the survey of the mining claim of Carroll Carter, known as the Busy Bee and Republican lodes and Republican mill site from which this plat has been made under my direction, have been examined and approved, and are on file in this office, and I hereby certify that they furnish such an accurate description of said mining claim as will, if incorporated into a 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 thereof. I further certify that five hundred dollars' worth of labor has been expended or improve- ments made upon said mining claim by claimant or his grantors and that APPLICATION FOR PATENT. ' 555 raid improvements consist of six shafts and a tunnel, 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 other claim. And I further certify that this is a correct plat of said mining claim made in conformity with said original field notes of the survey thereof, and the same is hereby approved. JOHN B. McGAURAN, U. S. Surveyor General for Colorado. U. S. Surveyor General's Office, Denver, Colo. April 5, 1916. "When the improvements are completed, pending publica- tion, the Surveyor General makes a separate certificate. See p. 595. The amount of improvements is to be found by the Surveyor General or his deputy, or from the testimony of witnesses. U. S. v. King, 83 F. 188, 27 C. C. A. 509. See L. 0. Eeg. 49. The certificate is not conclusive upon the department which may require further showing. 43 L. D. 152. Along with the three copies of the final plat "F," with its endorsement "G" the Surveyor General forwards to the claim- ant or his attorney or agent, the H. TRANSCRIPT OF FIELD NOTES, otherwise called "APPROVED FIELD NOTES." This instrument "H" is verbatim the same as "D," includ- ing all its exhibits, but not the Surveyor General's certifi- cate "G." Instead of the certificate "G" such transcript is certified as follows : L U. S. SURVEYOR GENERAL'S FINAL CERTIFICATE ON FIELD NOTES. DEPARTMENT OF THE INTERIOR, Office of U. S. Surveyor General, Denver, Colo., April 5, 1916. I, TJ. S. Surveyor General for Colorado, do hereby certify that the foregoing transcript of the Field Notes, return and approval of the survey of the mining claim of Carroll Carter, known as the Busy Bee and Republican lodes and Republican mill site, situate in Wisconsin mining district, Gilpin County, Colorado, in Sections 24 and 25, Township No. 2 556 APPLICATION FOR PATENT. S., Kange No. 74 W. of 6th P. M., and designated as Survey No. 21000 A. and B., has been correctly copied from the originals on file in this office; that said Field Notes furnish such an accurate description of said mining claim as will, if incorporated into a 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 thereof. And I further certify that five hundred dollars' worth of labor has been expended or improvements made upon or for the benefit of each of the lode locations embraced in said mining claim by claimant or his grantors, and that said improvements consist of six shafts and a tunnel, as appears by the affidavit of the mineral surveyor, and that no portion of or interest in said labor or improvements has been included in the estimate of expenditures upon any other claim. I further certify that the plat thereof, filed in the U. S. Land Office at Denver, is correct and in conformity with the foregoing Field Notes. JOHN B. MCGAUBAN, U. S. Surveyor General for Colorado. These matters are all preliminary to the application for patent proper which is made to the local land office, these pro- ceedings in the Surveyor General'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 surveyed and platted. Delivery of Papers to the Attorney. The above transcript "H" received from the Surveyor Gen- eral which is generally termed the "Approved Field Notes," the claimant then delivers, along with the plats or diagrams received from the same office, to his attorney, who is supposed to supervise the signing and filing of all the subsequent papers, and takes charge of the application from this point. Respective Duties of Surveyor and Attorney. The U. S. Mineral surveyors are not allowed to act as attor-, ne ys. R u ie 128. The surveyor's services seem properly to end with the preparation of papers for the Surveyor Gen- eral's office, Par. 12, Cir. p. 538. The attorney makes out and APPLICATION FOR PATENT. 557 supervises all papers intended for the land office. The sur- veyor's aid should not, however, be discarded pending the application, as with many of the forms he is more familiar than attorneys generally are. The profession ought not to object to surveyors filling out the ordinary blanks, especially in cases where no adverse claim is expected, nor to their attend- ing to posting, publication, proofs of citizenship, etc., if they will not attempt to make out the location and relocation cer- tificates which are strictly legal papers the interference of the surveyors in these matters generally leaving applicants in a position where they seriously need an attorney's advice, if not already too late to be of service. And in case of land office contest any interference by the surveyor would be officious and reprehensible. The claimant or his attorney then prepares five copies of "K": One for posting on the lode claim, one on the mill site, one to be attached to proof of posting, one for publication in newspaper and one for posting in Land Office, K. NOTICE OF APPLICATION FOR U. S. PATENT. SUEVEY NO. 21000 A. AND B. U. S. LAND OFFICE, Denver, Colo., April 15, 1916. Notice is hereby given that in pursuance of an Act of Congress, approved May 10, 1872, Carroll Carter, whose postoffice address is Denver, Colorado, has made application for a patent for 1500 linear feet on the Busy Bee and Republican lodes respectively, bearing gold and silver, the same being 835 feet southwesterly and 665 feet northeasterly on said Busy Bee lode, and 750 feet easterly and 750 feet westerly on said Repub- lican lode, from the respective discovery shafts thereon, with surface ground 150 feet in width on each of said lodes, and for the Republican mill site, all situate in Wisconsin mining district, Gilpin County, State of Colorado, and described by the official plat and by the field notes on file in the office of the register of Denver land district, Colorado, as follows, viz: BUSY BEE LODE, SURVEY NO. 21000 A. Beginning at corner No. 1, whence the S. *4 Cor. Sec. 24, T. 2 S., B. 74 W. of the 6th P. M., bears S. 26 2' 30" W. 853.47 feet. Cor. No. 1, Sur. No. 19999, Climax lode, claimant unknown, bears 8. 25 35' 10" E. 508.79 feet. 558 APPLICATION FOE PATENT. Thence S. 51 8' W. 1500 feet to Cor. No. 2. Thenee N. 38 52' W. 146.10 feet to Witness corner to Cor. No. 3, same course, 150 feet to Cor. No. 3 (not set because it falls in center of Mosquito Creek). Thence N. 51 8' E. 1500 feet to Cor. No. 4. Thence S. 38 52' E. 150 feet to Cor. No. 1, the place of beginning. REPUBLICAN LODE, SURVEY NO. 21000 A. Beginning at Cor. No. 1, whence the S. ^4 Cor. Sec. 24, T. 2 S., E. 74 W. of the 6th P. M., bears S. 74 1' 50" W. 630.15 feet. Thence S. 85 8' W. 1500 feet to Cor. No. 2. Thence N. 4 52' W. 150 feet to Cor. No. 3. Thence N. 85 8' E. 1500 feet to Cor. No. 4. Thence S. 4 52' E. 150 feet to Cor. No. 1, the place of beginning; containing 8.058 acres, exclusive of Sur. No. 19999, Climax lode. REPUBLICAN MILL SITE, SURVEY NO. 21000 B. Beginning at Cor. No. 1, whence S. % Cor. Sec. 24, T. 2 S., E. 74 W. of the 6th P. M., bears S. 49 15' 20" W. 207.07 feet. Thence S. 85 8' W. 635.14 feet to Cor. No. 2. Thence S. 51 8' W. 350 feet to Cor. No. 3. Thence S. 38 52' E. 355.07 feet to Cor. No. 4. Thence N. 51 8' E. 876.56 feet to Cor. No. 1, the place of beginning, containing 5 acres. Said claim forming a portion of the S. % of See. 24, and the N. W. ^ of Sec. 25, T. 2 S., E. 74 W. of the 6th P. M. Adjoining claim, as shown by the plat of survey, is the Climax lode, Survey No. 19,999. Date of posting this notice on claim, April 15, 1916. CARROLL CARTER. Witness: John C. Clark. B. F. Pinson. 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. If the notice is defective, as by insufficient description, the entry will be canceled. 31 L. D. 415 ; 37 L. D. 365. One of the notices ' ' K " should be at once posted on one of the lode claims, along with one of the certified diagrams APPLICATION FOE PATENT. 559 received from the Surveyor General, and a second notice "K" and a second diagram should be posted on the mill site; the notice and plat being loosely attached, or, as more usual, placed side by side, in some conspicuous place on the claim in presence of two persons who attach their signatures as shown upon form "K." Separate posting of the notice and plat on the mill site is required by Rule 63. Where two contiguous mill sites are applied for, a single notice on one of them is sufficient. 40 L. D. 313. Another of the notices "K" is attached to L. PROOF OF POSTING NOTICE AND DIAGRAM ON THE CLAIM. STATE OF COLORADO, | City and County of Denver, j John C. Clark and B. F. Pinson, each for himself, and not one for the other, being first duly sworn according to law, deposes and says, that he is a citizen of the United States, over the age of twenty-one years, and was present on the 14th day of April, 1916, when a plat representing the claim of Carroll Carter, and certified as correct by the United States Surveyor General of Colorado, and designated by him as lot No. 21000 A. and B. together with a notice of the intention of said Carroll Carter to apply for a patent for the mining claim and premises so platted was posted in a conspicuous place upon said mining claim and mill site, to wit: at the mouth of the tunnel on the Busy Bee lode and on the outside of the door of the mill on said mill site, where the same could be easily seen and examined. A copy of the notice so posted upon said claim, and upon said mill site, is herewith attached and made a part of this affidavit. JOHN C. CLARK, B. F. PINSON. Subscribed and sworn to before me this 16th day of April, A. D. 1916, and I hereby certify that I consider the above deponents credible and reliable witnesses, and that the foregoing affidavit and the attached notice were read by each of them before their signatures were affixed thereto, and the oath made by them. My commission expires March 4, 1918. ALICE HATCH, (SEAL) Notary Public. Rulings as to Posting. The notice "K" must remain posted on the land office bul- letin during the whole period of sixty days and the 60 days 560 . APPLICATION FOR PATENT. do not begin to run until it is posted. 1 L. D. 584, Rev. Ed. 572, 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. 0. 113, 22 Lr D. 624; enclosing notice and plat in oil-cloth envelope, although appropriately marked and tacked to a board over an open cut, held not to comply with the statute. 36 L. D. 199, over-ruling 33 L. D. 238; placing notice in a box on the ground among large boulders and not near shaft, held not a conspicuous place. 21 L. D. 336. The form "L" is subscribed and sworn to by at least two posting witnesses. The applicant does not sign it, and should not be one of the two witnesses. If the affidavit filed is defective because sworn to out of the land district, it can not be cured by the subsequent filing of a properly verified affidavit. 37 L. D. 155. Where the notice was posted outside the claim the entry was canceled. 43 L. D. 396. The fourth notice "K," signed by the applicant, but not by the witnesses, goes with the third of the plats received from the Surveyor General (page 554), when it is sent with the first set of papers to the land office, where the register attaches his attesting signature, and it will remain posted in the land office, while its fellow notice and plat are standing on the claim during the period of publication of the fifth notice "K." The next paper to be prepared is the M. APPLICATION FOE PATENT. STATE OF COLORADO, ) City and County of Denver, j Application for patent for the Busy See and Republican lode mining claims and the Republican mill site. To the Register and Receiver of the IT. S. Land Office at Denver, Colo- rado : Carroll Carter, whose P. O. address is Denver, Colorado, being duly sworn according to law, deposes and says that in virtue of a com- pliance with the mining rules, regulations and customs, by himself and his grantors, he, the applicant for patent herein, has become the owner APPLICATION FOR PATENT. 561 of and is in the actual, quiet and undisturbed possession of 1500 linear feet respectively of the Busy Bee and Republican veins, lodes or deposits, bearing gold and silver, together with surface ground 150 feet in width on each of said lodes for the convenient working thereof and ihe Republican mill site containing five acres as allowed by local rules and customs of miners, said mineral claims, veins, lodes or deposits and surface ground being situate in Wisconsin Mining District, county of Gilpin and State of Colorado, and being more particularly set forth and described in the official field notes of survey thereof, hereto attached, dated April 5, A. D. 1916, and in the official plat of said survey, now posted conspicuously upon said mining claim or premises, a copy of which is filed herewith. Deponent further states that the facts relative to the right of possession of himself, to said mining claims, veins, lodes or deposits and surface ground and said mill site so surveyed and platted are substantially as follows, to wit : The Busy Bee and Republican lodes and said mill site were located on June 23, 1894, September 15, 1900, and October 25, 1905, respectively, by James A. McFadden, who located the same as mining claims and as a mill site of the length, width and surface ground aforesaid in full com- pliance 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. 0. Baxter and Frank M. Taylor, who by divers intermediate con- veyances transferred the same to applicant, who thereupon took possession and is the sole present owner, which will more fully appear by reference to the copy of the original record of location and the abstract of title herewith filed; The value of the labor done and improvements made upon or for the benefit of each of the lode locations embraced in said mining claims by the applicant and his grantors being equal to the sum of five hundred dollars ; said improvements consist of six shafts and a tunnel, but expressly excepting and excluding from this application all that portion of the ground embraced in mining claim or survey designated as lot No. 19,999, Climax lode. That the veins in said lodes are well defined quartz veins in granite and are disclosed in their respective discovery shafts and in the tunnel which has been run to cut said lodes. The mineral contained in said veins is gold and silver bearing. About 100 tons of ore have been extracted from the vein on said Busy Bee lode, yielding a value of $10 per ton and a like quantity of ore has been extracted from the vein on the Republican lode yielding a value of $15 per ton. That a fifty-stamp mill has been erected on said mill site for the purpose of treating the ores to be extracted from said lode claims. In consideration of which facts, and in conformity with the provisions of Chapter six of Title thirty-two of the Revised Statutes of the United 562 APPLICATION FOB PATENT. States, application is hereby made for and in behalf of said Carroll Carter for a patent from the United States for the said Busy Bee and Republican mining claims, veins, lodes, deposits and the surface ground so officially surveyed and platted and the said Republican mill site. CARROLL CARTER. Subscribed and sworn to before me this 17th day of April, A. D. 1916, and I hereby certify that the foregoing affidavit, to which was attached the field notes of survey of the-said Republican mill site and Busy Bee and Republican mining claims, was read and examined by him before his signature was affixed thereto and the oath made by him. My commission expires March 4, 1918. ALICE HATCH, (SEAL) Notary Public. Where an application is filed in the land office without proof that the plat and notice have been posted on the claim as required by E. S. Sec. 2325, such application has been held void. 1 L. D. 557, Rev. Ed. 545, 34 L. D. 583. This application "M" is attached to the transcript "H," commonly styled "The Approved Field Notes." At the same time there should be prepared: N. The abstract of Title. 0. The proof of citizenship. P. The publisher's agreement. Q. The publication notice. Z. The non-mineral affidavit for mill site, page 581. AA. The proof of mill site used for mining or milling pur- poses. Page 581. These papers with those already referred to complete the first set of papers, to- wit : N. ABSTRACT OF TITLE. STATE OF COLORADO, > gg County of Gilpin. ) I, Frank G. Moody, Clerk and ex officio Eecorder of said County, do hereby certify that the foregoing is a true, full and correct abstract of title of the Busy Bee and Republican lodes and the Republican mill site therein described, as the same appears of record in my office, and shows all location certificates, deeds or other instruments appearing of record purporting to convey or affect the same. Witness my hand and the seal of said County, this 16th day of April, A. D. 1916. FRANK G. MOODY, (COUNTY SEAL) Recorder. APPLICATION FOE PATENT. 563 It should contain a memorandum of the location certificates, including any amended location certificates, and the usual memoranda of the deeds and other instruments appearing of record in his office, and should be brought down to a date rea- sonably near the date of presenting the application, and should be certified to by the Recorder or an abstract company. As soon as practicable a supplementary abstract to include the date of filing the application must be filed before publication will be ordered. Rule 42. The abstract often contains copies of the location certificates, and in such case the Recorder 's certificate should be varied to state that it contains true copies thereof; but the better prac- tice is to mail with the application papers, certified copies of the location certificates separately, and the abstract proper, in such case will contain only the memorandum of the location certificate with names, dates, etc., in the same manner as the memoranda of the separate deeds. When the applicant for patent is the original locator him- self (and there have been no transfers of title), he should file as his abstract, a copy of his location certificates certified as follows : STATE OF COLORADO, County of Gilpin. I, Frank G. Moody, Clerk and ex officio Recorder of said County, do hereby certify that the foregoing is a full, true and correct abstract of the title to the Busy Bee and Republican lodes and the Republican mill site therein described, as the same appears of record in said office, and that there are no deeds or other instruments appearing of record purport- ing to convey or affect the same except the certificates of location of which the foregoing are true copies. Witness my hand, etc., as above. The Abstract Should Show Title in Applicant. Rule 42. If it show title in several co-owners, all such co- owners should join as applicants. If it show a co-owner with- out interest in one or more claims of a group, the proceedings are a nullity as to such claims. 32 L. D. 217. If it show that there were co-owners who had been forfeited out for non-per- 564 APPLICATION FOB PATENT. formance of annual labor, this is considered equivalent to an abstract showing transfer by deed from them to the applicant. A break in the chain of title behind a relocation made in the usual form to take up abandoned claims may be disregarded. 10 L. 0. 119. But the department will take notice of a void sheriff's deed or other break in the title asserted and relied on by the applicant. 21 L. D ; 544. Where the names of co-ten- ants are inadvertently omitted in the application they have been allowed to be supplied and the patent issued to all. 10 L. 0. 206 ; but this is irregular. Where the entire title is not in claimant at the time of appli- cation, the entry may stand if he subsequently acquire com- plete title. 26 L. D. 484, 37 L. D. 715. When some of the applicants are without interest, they will be permitted to acquire title subsequent to entry. 29 L. D. 208. O. PROOF OP CITIZENSHIP. STATE or COLORADO, City and County of Denver, Carroll Carter, being first duly sworn according to law, deposes and says that he is the applicant for patent for the Busy Bee and Republican lode mining claims and the Republican mill site, situate in Gilpin Mining District, County of Denver, State of Colorado; (*) that he is a native born citizen of the United States, born in the County of , State of , in the year , and is now a resident of Denver, State of Colorado. CARROLL CARTER. Subscribed and sworn to before me this 16th day of April, A. D. 1916. My commission expires March 4, 1918. ALICE HATCH, (SEAL) Notary Public. When the applicant is not a native citizen the form after the (*) will proceed: That he is a naturalized citizen of the United States ; took out his final naturalization papers in the Circuit Court of the United States at Denver, Colorado, on the first day of May, 1900, and is now a resident of Denver, State of Colorado. If the applicant has not taken out his final papers, it will show, as required by Rule 68, when, where, and in what Court he took out his first papers : APPLICATION FOB PATENT. 565 That he declared his intention of becoming a citizen of the United States in the Circuit Court of the United States, at Denver, Colorado, on the first day of May, 1899, and is now a resident of Cheyenne, State of Wyoming. If the applicant claims under his father's naturalization, it will proceed: That he is a naturalized citizen of the United States, born in the Republic of Peru, 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 section 2172 of the Revised Statutes of the United States, and is now a resident of Aspen, County of Pitkin, State of Colorado. Serving in the army or navy does not complete citizenship of itself. Soldiers must comply with Sec. 2166 and sailors with Sec. 2174 of the Revised Statutes, or 28 Stat. L., p. 124. "Where there are several applicants each makes his own affi- davit of citizenship. Affidavit, Where Made. By Act of April 26, 1882, the affidavit of citizenship, 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 can not be procured the land office will allow proof of his citizenship by the affidavits of two disinterested witnesses. Rule 70. 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 corpora- tion or a corporation of some other State doing business in that State. Rule 66, 27 L. D. 351. 666 APPLICATION FOB PATENT. Or it may file a "Certificate of Incorporation" and the Land Office will not pass on the point that it is not by its arti- cles a corporation which could lawfully take title to mineral lands. 20 L. D. 116, 22 L. D. 83. In an adverse claim suit a corporation need not prove the citizenship of its stockholders. Duncan v. Eagle Rock Co., 48 Colo. 569, 139 Am. St. Rep. 288, 111 P. 588. Entry secured by fraudulently suppressing the fact that it was for the benefit of an alien corporation will be canceled and purchase price will not be refunded. 20 L. D. 379. 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 since the revision of 1901 such proof is no longer required 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. 69. P. PUBLISHER'S CONTRACT. I, the undersigned, publisher and proprietor of the Weekly Register Call, a weekly newspaper published in Central City, Gilpin County, State of Colorado, hereby agree to publish a notice dated U. S. Land Office, Denver, Colo., April 15, 1916, required by Act of Congress, approved May 10th, 1872, of the intention of Carroll Carter to apply for a patent for his claim on the Busy Bee and Republican Lode and Mill Site, situate in Wisconsin Mining District, County of Gilpin, State aforesaid, and to hold the said Carroll Carter alone responsible for the amount of our bill for publishing the same. And it is hereby expressly stipulated and agreed that no claim shall be made against the government of the United States, or its officers or agents, for such publication. Witness my hand this 16th day of April, A. D. 1916. G. M. LAIRD, Publisher. APPLICATION FOB PATENT. 667 In What Newspaper. The notice must be published in a newspaper to be by the Register designated as published nearest to the claim. R. S., Sec. 2325, 14 L. D. 138. When there are two or more in the nearest town, either may be designated. 2 L. D. 758, 40 L. D. 190; Cameron v. Seaman, 13 M. R. 584, 69 N. Y. 396, 25 Am. Rep. 212. The practice of the Register, where two or more local papers in the same town are published, 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 trav- eled route. The language of the act allows much discretion in the designation of the newspaper. 17 L. D. 560, 26 Id. 145, 34 Id. 281. But this discretionary power is subject to review by the department. 32 L. D. 359, 611. The notice must be continued in the same paper and can not 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. 2 L. D. 205, 758. The Register has a discretion in deciding what constitutes such a newspaper. 10 L. D. 655, 26 Id. 145. Q. PUBLICATION NOTICE. This is verbatim the same as "K" and amounts to a fifth copy of ' ' K, " except that it is not signed by the applicant nor by the witnesses but is forwarded in blank to the land office, where it receives the application number, is signed by the Reg- ister 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 568 APPLICATION FOB PATENT. 45 ; and while the notice is going through its newspaper pub- lication, it also stands posted on the claim, and tacked to the bulletin of the land office. Each of these methods of publica- tion is mandatory and essential. See p. 574. Publication once each week in a tri- weekly paper, is not suf- ficient 41 L. D. 369. Z. NON-MINERAL AFFIDAVIT. The non-mineral character of the mill site must be shown by the affidavit of two or more disinterested persons. Rule 65. For form of affidavit see p. 581. AA. PROOF OF SITE USED FOR MINING OR MILLING PURPOSES. Proof that the mill site is used for mining or milling pur- poses is specially required by the department. 32 L. D. 128, 34 L. D. 325. Proof is mad^ by the affidavit of the claimant and two disinterested witnesses. For form see p. 581. As to what is sufficient use see p. 297. 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 attached. M. Application for patent. N. Abstract of title. 0. Proof of citizenship. P. Publisher's agreement Q. Publication notice. Z. Non-mineral affidavit. AA. Proof of use which complete the first set of papers commonly called the "application papers," are all forwarded at one time by the attorney to the local land office. Upon receipt of the application papers, accompanied by the filing fee of ten dollars, the Register gives the papers an appli- APPLICATION FOR PATENT, 569 .; cation number, makes a record of the application in the nature of an index, attests the posting of notice "K" in his office, affixing the date, and returns to the attorney for claimant the notice for publication "Q" headed with the application num- ber, or sends it direct to the proper paper for publication. The return of the publication notice to the attorney or paper is an implied approval of the publisher's contract and a suf- ficient designation of that paper. RECAPITULATION 1 . 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. B, the order for survey, remains' in the hands of the sur- veyor, being his voucher against the applicant for the work done under it. E, G and I are mere certificates indorsed on other papers. 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 lode claim, and one on the mill site, 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 lode claim, and one on the mill site; one has been attached to the proof of posting ; 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; P, the pub- lisher's agreement, and Z and AA, the mill site proofs, have been filed in the land office. N, the abstract has been filed and 0, the proof of citizen- ship, if not yet filed may be filed at any time pending the pub- lication. 570 APPLICATION FOR PATENT. The Second Set or "Final Entry" Papers Which Remain to be filed after the publication is complete, consist of : R. Proof of continuous posting. S. Proof of publication. T. Proof of sums paid. U. Application to purchase. When the period of publication is complete, proofs of the notice having remained on the claim and of the publication are made as follows : B. PROOF THAT PLAT AND NOTICE REMAINED POSTED ON CLAIM DURING TIME OF PUBLICATION. STATE OF COLORADO, ) City and County of Denver, j Carroll Carter, being first duly sworn according to law, deposes and says, that he is the claimant of the Busy ~Bee and Republican lodes, and mill site, Wisconsin Mining District, Gilpin County, State of Colorado, official plats of which premises together with notices of his intention to apply for a patent therefor were posted thereon, on the 14th day of April, A. D. 1916, as fully set forth and described in the affidavit of John C. Clark and B. F. Pinson, dated the 16th day of April, 1916, which affidavit was duly filed in the office of the Register, at Denver, in this State; and that the plats and notices so mentioned and described, remained contin- uously and conspicuously posted upon said mining claim and upon said mill site from the 14th day of April, A. D. 1916, until and including the 19th day of June, A. D. 1916, including the sixty days' period during which notice of said application for patent was published in the news- paper. CARROLL CARTER. Subscribed and sworn to before me this 20th day of June, A. D. 1916, and I hereby certify that the foregoing affidavit was read to the said Carroll Carter, previous to his name being subscribed thereto. My commission expires March 4, 1918. ALICE HATCH, (SEAL) Notary Public. This affidavit of continuous posting the claimant may make from information derived from hearsay. 9 L. D. 503. When the posted notice has been destroyed the department requires a new posting and a repetition of the publication de novo. 37 L. D. 365. Batterton v. Douglas Co., 20 Ida. 763, 38 L. R. A. (N. S.) 1121, 120 P. 827. APPLICATION FOR PATENT. 571 (Copy of publication notice cutTfrom paper and pasted here.) The publisher 's re- ceipted bill is com- monly attached to this blank. 8. CERTIFICATE OF PUBLICATION. I, G. M. Laird, do certify that I am Publisher of the Weekly Register Call, a weekly newspaper pub- lished in Central City, in the County of Gilpin, and State of Colorado, and that the annexed notice was published in said paper once each and every week for nine consecutive weeks, the first publica- tion being on the 15th day of April, A. D. 1916, and the last publication being on the 17th day of June, A. D. 1916. G. M. LAIRD. Subscribed and sworn to before me, this 20th day of June, A. D. 1916. My commission expires March 3, 1920. (SEAL) JAMES M. SERIGHT, Notary Public. Together with these proofs of publication and posting, the claimant forwards, under one of the instructions of the depart- ment, the following: T. PROOF OF SUMS PAID. ' STATE OF COLORADO, ) City and County of Denver, j Carroll Carter, having been first duly sworn according to law, deposes and says that he is a citizen of the United States, over the age of twenty- one years; that he is the applicant for patent to the Busy Bee and Repub- lican lodes and the Eepublican mill site, in Wisconsin Mining District, Gilpin County, Colorado; that in the prosecution of such application he has paid the following sums of money, viz.: For office work in the Surveyor General 's office $ 70 To E. L. Chase, Mineral Surveyor, for surveying and platting 125 To Eegister and Eeceiver, for filing application in Land Office 10 To the Weekly Eegister Call, for publishing notice of application. . . 20 To the Receiver of the local Land Office, for land 70 $265 CARROLL CARTER. Subscribed and sworn to before me this 20th day of June, A. D. 1916. My commission expires March 4, 1918. ALICE HATCH, (SEAL) Notary Public. These are the official costs only; they do not include attor- ney's fees, notary's charges, nor cost of abstract. The total 572 APPLICATION FOB PATENT. expense of patenting one lode, without mill site, varies from $250 to $300. The filing of this paper, T, completes the prerequisites of entry and payment except the formal application to purchase, U, and the register's proofs, V and W. IT. APPLICATION TO PURCHASE. To the Register and Receiver United States Land Office, at Denver, Colorado : The undersigned, claimant under the provisions of the Revised Statutes of the United States, Chapter VI, Title 32, and legislation supplemental thereto, hereby applies to purchase that mining claim known as the Busy Bee and Republican lodes and the Eepublican mill site, located in Sections 24 and 25, Township No. 2 S., Range No. 74, west of the sixth principal meridian, designated as lot No. 21000 A and B, said lot No. 21000 A extending 1,500 feet in length along each of said lodes, but expressly excepting and excluding from this application all that portion of the ground embraced in mining claim or survey designated as lot No. 19999, Climax lode, and also all that portion of any vein or lode, the top or apex of which lies inside of said excluded ground, said lode mining claim embracing 8.058 acres and said mill site embracing 5 acres in the Wis- consin Mining District, in the County of Gilpin, and State of Colorado, as shown by the survey thereof, and hereby agrees to pay therefor seventy dollars, being the legal price thereof. CARROLL CARTER. Dated Denver, June 20, 1916. I, Mary Wolf Dargin, Register of the land office at Denver, Colorado, do hereby certify that the aforesaid mining claim or lot No. 21000 A and B as applied for above, is subject to entry by the above named applicant; the area of said lode mining claim being 8.058 acres and of said mill site five acres, and 'the legal price thereof seventy dollars. MARY WOLF DARGIN, June 20, 1916. Register. U does not need to be verified. Excluded Areas. The notice and the application must show what areas are ex- cluded and if the entry be of any such excluded areas a repub- lication and posting will be ordered. 22 L. D. 711, 28 Id. 436. Entry may embrace land excluded from application, but which, on adverse proceedings, was awarded to the applicant. 29 L. D. 71. May be amended to include a tract at first APPLICATION FOR PATENT. 573 excluded on account of defective title. 29 Id. 287. "Will not be allowed for land embraced in a prior subsisting entry. 29 Id. 62. Entry Cancellation Relinquishment. Entry canceled without notice must be reinstated. 23 L. D. 113, 31 Id. 51. Cancellation does not subject claim to relo- cation. 23 Id. 113, but republication and posting are required. 29 Id. 470, 31 Id. 37. Reinstatement will not be made when entryman 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 mis- take pending adverse will be canceled. 30 Id. 298. A relin- quishment during publication 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 there- after 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, although no adverse claim has been filed. Mineral Farm Co. v. Barrick, 33 Colo. 410, 80 P. 1055. The rejection of an application for patent or the cancella- tion of his receiver's receipt by the Land Office does not destroy the applicant's original title by location. Peoria Co. v. Turner, 20 Colo. App. 474, 79 P. 915 ; Rebecca Co. v. Bryant, 31 Colo. 119, 102 Am. St. Rep. 17, 22 M. E. 538, 71 P. 1110. Repayment. By A. C. March 26, 1908, provision is made for the repay- ment of purchase price when an application or entry is rejected, and applicant has not been guilty of any fraud. 36 L. D. 388. Register's Proof Completes Application. Upon receipt of the final entry papers (R U, Z and A A) accompanied by the purchase money (all other pn 5T4 APPLICATION FOR PATENT. regular) the Register makes his certificate that the notice "K" remained posted on his bulletin during the period that its duplicates were being posted on the claim and published, and makes his final certificate of entry. V. EEQISTEE 'S CERTIFICATE OF POSTING NOTICE FOE SIXTY DAYS. [Attached to Bulletin copy of K.~\ UNITED STATES LAND OFFICE, At Denver, Colorado, June 21, .1916. I hereby certify that the official plat of the Busy Bee and Republican lodes and Republican mill site, designated by the Surveyor General as lot No. 21000 A and B was filed in this office on the 17th day of April, A. D. 1916, and that a notice, of which the attached is a copy, of the intention of Carroll Carter to apply for a patent for the mining claim or premises embraced by said plat, and described in the field notes of survey thereof filed in said application, was posted conspicuously in this office on the 17th day of April, 1916, and remained so posted until the 20th day of June, 1916, being the full period of sixty consecutive days during the period of publication as required by law; and that said plat remained in this office during that time subject to examination and that no adverse claim thereto has been filed. MAEY WOLF DARQIN, Register. It is important that this bulletin notice, "K," should have been properly posted. The Land Office holds that it is essen- tial that the three notices, to-wit: By newspaper, by posting and by the bulletin should be concurrent, and in a case where the bulletin was not posted till the third day of advertise- ment they allowed an adverse on the 63rd day, holding that the double and contemporaneous publication was not until such day complete. The bulletin must be posted 60 days, and the newspaper notice does not begin to run until the bulletin is posted. 5 L. D. 510, 17 L. D. 282. If any one of the three notices is insufficient they are all rendered valueless. 29 L. D. 467. W. REGISTER'S FINAL CERTIFICATE OF ENTRY. Mineral Entry No. 09999. Lot No. 21000 A and B. UNITED STATES LAND OFFICE, At Denver, Colorado, June 21, 1916. It is hereby certified that in pursuance of the provisions of the Revised Statutes of the United States, Chapter VI, Title 32, and legislation sup- APPLICATION FOR PATENT. 575 plemental thereto, Carroll Carter, whose postoffice address is Denver, Colorado, on this day purchased that mining claim known as the Biisy Bee and Republican lodes and Republican mill site, in sections 24 and 25, in township No. 2 S., Range No. 74 W. of the sixth principal meridian, designated as lot No. 21000 A and B, said lot No. 21000 A and B extend- ing 1,500 feet in length along said Busy Bee and Bepublican 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. 19999, Climax 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 claims as entered, embracing 8.058 acres and said mill site five acres, in the Wisconsin Mining District in the County of Gilpin, and State of Colorado, as shown by the plat and field notes of survey thereof, for which the said party first above named this day made payment to the receiver in full, amounting to the sum of seventy dollars. Now, therefore, be it known that upon presentation of this certificate to the Commissioner of the General Land Office, together with the plat and field notes of survey of said claim and the proofs required by law, a patent shall issue thereupon to the said Carroll Carter if all be found regular. MAEY WOLF DARQIN, Register. Receiver's Receipt. The above certificate, generally known as the "Receiver's Receipt," was under former practice signed by the Receiver, but is now signed by the Register, who issues it in duplicate and files the original with the papers, and delivers or sends the duplicate to the claimant, and all the preliminary proceed- ings are now complete. This receiver's receipt or certificate of entry should be kept by the claimant until notice from Ihe local Land Office that patent has arrived at such local Land Office, as its surrender is required before the patent is deliv- ered. If mislaid, proof of loss must be made. X. AFFIDAVIT OF LOST "RECEIVER'S RECEIPT." STATE OF COLORADO, ) sg> City and County of Denver, j In the Denver Land District, Colorado. Before me, the subscriber, register of said land office, personally appeared John Best, who, being duly sworn, saith that he is the (*) applicant for a pateni on the Brelau lode mining claim survey lot No. 18000 in Wisconsin Mining District, County of Gilpin, State of 576 APPLICATION FOB PATENT. Colorado, and the same person who as such applicant made entry of said survey lot in the said land office on or about the first day of June, A. D. 1915. That on the date of said entry he received the duplicate register's final certificate of entry therefor. That said duplicate certificate is lost or mislaid. That deponent has made diligent search among his papers and can not find the same, and can not therefore surrender the same. That he never assigned or purported to assign said duplicate certificate 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 certificate of entry upon this his affidavit of loss. JOHN BEST. Sworn and subscribed to before me this eighth day of June, A. D. 1916. My commission expires March 4, 1918. ALICE HATCH, Notary Public. If the title has been transferred insert between the (*) (*) Owner by purchase of the Brelau lode, etc. (description), That he purchased the same since the same was entered for patent by deed from the party who made the entry. That he never received the duplicate register's final certificate of entry from his vendor, and does not know where the same can be found. That he has made diligent inquiry of the attorney and surveyor employed in the application for patent to said lode, who declare that they never had the same in their possession, and that the 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 forwarded 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 or defects are discovered after the Receiver's receipt issues, it may be, and often is, recalled and canceled, and if land entered as agricultural is shown to be mineral at any time before patent issues, the same result follows. 7 L. 0. 23. APPLICATION FOR PATENT. 577 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 attorney is, by letter from the local Land Office, notified to remedy the defect by further affidavit or certificate, as the case may be. Government Price $5 Per Acre. The application papers (p. 568) are accompanied by the money to be paid on the land, being $5 for each acre or frac- tional part of an acre of the surface ground. The extreme limit of claim being 1,500 feet long by 600 feet broad, such claim contains 20 and 66-100 acres; the fractional acre being paid for as one acre, makes the claim equivalent to 21 acres. The amount paid will therefore vary between $5 and $105 for a single lode location with no mill site. The price of placer ground is $2.50, and of mill site $5 per acre, or fraction of an Acreage of Lode Claims. In computing this acreage all interfering surveys which have been deducted, are excluded. The payment is based on the amount of claimed surface ground covered by the survey and not excluded in favor of prior applications. Claim 1500 z 600 feet contains 20.66 acres. 1500 x 300 1500 x 150 3000 x 50 1400 x 50 1600 x 50 10.33 5.16 3.44 1.60 1.83 Affidavits Where Made. All affidavits made in support of the application must be made within the land district R. S. Sec. 2335, 34 L. D. 314, 35 Id. 455. 42 L. D. 526. A possible exception to this is the 578 APPLICATION FOB PATENT. publisher's affidavit (S) where the paper "nearest the claim" happens to be a newspaper in another land district. 38 L. D. 131. Another exception is the affidavit of citizenship. See page 565. That the affidavit of posting was made outside the land dis- trict will not render the entry void. El Paso Co. v. McKnight, 233 U. S. 250, L. R. A. 1915A, 1113, 34 Sup. Ct. Rep. 498, 58 L. Ed. 943. 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 district they should be taken before a notary or the Clerk of a Court of Record. In all cases the official seal should be attached. Rule 69. A notary who has been retained as counsel for an interested party can not act. 42 L. D. 526. It had been ruled that any officer, as for instance the Clerk of the U. S. Court, whose jurisdiction extends over the terri- tory of the land district, may administer the oath anywhere within his jurisdiction. 3 L. 0. 195. But it was later held that such officer must be within the land district. 34 L. D. 314. 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 page 564. When a claim is owned in common, it is sometimes 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 securing 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 APPLICATION FOE PATENT. 579 to be patented is located, the application for patent and the affidavits required to be made in this section by the claimant for such patent may be made by his, her, or its authorized agent, where said agent is conver- sant with the facts sought to be established by said affidavits: * * * A. C. Jan. 22, 1880. Amendment to Sec. 2325. 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 can not delegate the power while he is present, by mere caprice or desire to avoid personal attention to the matter. Verification of application by agent where claimant is within the district makes the entry invalid. 41 L. D. 614, 42 L. D. 481. 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. FORM OP POWER OF ATTORNEY. KNOW ALL MEN BY THESE PRESENTS, That I, John Glenn, of Baltimore, State of Maryland, a citizen of the United States, do hereby constitute and appoint J. W. B. Smith, of Idaho Springs, County of Clear Creek, State of Colorado, my attorney-in-faet, for me and in my name, to make application for patent of the United States, in the proper land office, upon the Dragon lode mining claim, 1,500 feet in length by 150 feet in width, situate on Republican Mountain in Griffith Mining District, County of Clear Creelc, State 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 application, 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 adverse claim or suit in support thereof, either in the land office or in judicial proceedings, and in such judicial proceedings, 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 February, A. D. 1916. JOHN GLENN. (SEAL) Acknowledge according to form on p. 333. The mineral surveyor can not accept such power nor act directly or indirectly as agent. Rule 93. 580 APPLICATION FOR PATENT. In Each Affidavit Signed by Agent Should Be Inserted, 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 affiant is the duly authorized agent of said claimant, and is conversant with the facts sought to be established by eaid affidavit. Where a Corporation Applies All Papers are Signed by the president, or other officer designated as stated in the next para- graph; but more usually (and advisably), it executes the form Y to some resident person or agent. See page 579. "Where it does not adopt the latter plan the Land Office prac- tice requires proof that the officer purporting 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 direc- tors 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 (page 298). In such case the forms herein given are sufficient, changing the word "lode" to "mill site," and adding the two forms next follow- ing. The price per acre is also the same (page 294). 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. APPLICATION FOB PATENT. 681 Z. NON-MINERAL AFFIDAVIT. STATE OF COLORADO, ) gg County of Gilpin. j Clarence Jarbeau and Benj. C. Catren, Jr., each of lawful age and residents of Georgetown, in said County, being first duly sworn, each for himself, and not one for the other, saith: That he is a citizen of the United States; that he is well acquainted with the Republican mill site claim of Carroll Carter, situate in Wisconsin Mining District in Gilpin County, Colorado, upon which said Carroll Carter has applied for patent of the United States, and knows the character of said described land, having frequently been actually upon the same ; that his knowledge of the land is such as to enable him to testify understandingly with regard thereto; that there is not to his knowledge within the limits thereof, any vein or lode of quartz or other rock in place, bearing gold, silver, cinnabar, lead, tin or copper, or any placer, cement, or other valuable mineral deposits, or any deposit of coal; that the land contains no salt spring, or deposits of salt in any form sufficient to render it chiefly valuable there- for; that no portion of said land is claimed for mining purposes under the local customs or rules of miners or otherwise; that uo portion of said land is worked for minerals during any part of the year by any person or persons; that said land is essentially non-mineral land, and that he has no interest whatever in said claim, or in said application for patent. CLARENCE JARBEAU, BENJ. C. CATREN, JR. Verification as in form BB. The claimant is not required under the rules as amended to file his own affidavit to the same effect. Rule 65. Where a mill site is applied for either separately or in con- nection with a lode a second affidavit substantially according to the following form is required. 13 L. D. 175, 32 L. D. 128, 34 L. D. 325. AA. PROOF OF MILL SITE USED FOR MINING (OR MILLING) PURPOSES. STATE OF COLORADO, 1 County of Gilpin. / Before me, the subscriber, a notary public in and for said County, personally appeared Carroll Carter (claimant), and Harry Evans and James W. Eoss (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 said witnesses reside in said County. That he is familiar with the Republican mill site, survey lot No. 21000 B. for which the said Carroll Carter has applied for patent in the United States land office at Denver, 582 APPLICATION FOE PATENT. Colorado. That the ground embraced in said survey is used or occupied by sard claimant for mining and milling purposes, to wit: As a dump for the Busy Bee and Republican lodes, and contains a fifty-stamp mill and an ore house used in the working of said lodes; also a boarding house, used by miners engaged in working said lodes (etc., as the case may be). And the said Harry Evans and James W. Ross, severally say that they have no interest whatever in said mill site or in the application for patent therefor. CARROLL CARTER, HARRY EVANS, Verification as in form BB. JAMES W. Ross. As to contiguity of mill site see page 297. The improvements must be in the nature of mills, flumes, ditches, or other things incidental to milling or mining. Build- ings and roads not used for such purposes can not be consid- ered; otherwise if they are so used. See page 299. It is generally advisable to apply for a mill site in connec- tion 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 appli- cations are made. See pages 294, 299. 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 notice K posted on both lode and mill site ; if not posted on the latter, republication will be required. 25 L. D. 165, 27 Id. 373, Rule 63. The department has ruled that a lode intersected by a mill site or placer may be patented only to the edge of the inter- secting claim. 13 L. D. 146, 16 Id. 186, 26 Id. 675, 28 Id. 120 ; and that such a location is not valid as to ground on the other side of the mill site. 26 L. D. 675. But by a later ruling both parts may be patented if the vein has been dis- covered on both sides. 31 L. D. 359. Two mill sites not containing together more than five acres may be included in one application. 2 L. D. 755. It is inti- APPLICATION FOE PATENT. 583 mated that on sufficient showing more than one mill site may be patented with a group of .claims. 34 L. D. 327. See page 299. The Land Office distinguishes between a mere water right and a mill site. 5 L. D. 190. The use of a spring is not a mill site occupation. Id. The rejection of an application for a lode claim carries with it an included application for a mill site. 43 L. D. 548. Lodes and Placers Distinguished. Only metalliferous deposits in place are considered lodes under the mining act. 9 L. 0. 165. Everything else of a mineral character, t. e., lands containing a mineral substance rendering them of more value for the extraction thereof than for surface purposes, is treated as placer ground. The rulings on this point are cited on pages 260, 261. In addition to the cases there given it has been ruled that limestone for lime kiln purposes may be located as placer ground. 9 L. 0. 5 ; and it can not be located as a lode claim. 23 L. D. 353; Id. 395. Mica may be entered as a mining (presumably a placer) claim. 2 L. 0. 131. A deposit of brick-clay does not make placer ground. 6 L. D. 761, 31 L. D. 108. Sandstone formation bear- ing gold, should be located as a lode claim. 38 L. D. 294. Sedimentary sandstone carrying gold is rock in place upon which a lode claim can be made. 38 L. D. 294. Iron may be lode or placer according to the nature or form of the deposit, following the same distinction referred to in the asphaltum case cited on page 259. Copp. Min. Dec. 214, Dept. Letter MS. Aug. 31, 1909. Placer claims require a material subdivision into : First Claims located on unsurveyed lands. Second Claims located by adopting the governmental sub- divisions of lands already surveyed. Placer Patent on Unsurveyed Lands. In applying for patent on a placer claim located upon unsurveyed lands the foregoing forms, with obvious altera- tions, will suffice. 584 APPLICATION FOR PATENT. In addition to such forms used for lode applications there must be filed in the land office with the first set of papers, proof that the placer contains no lodes (BB) excepting, of course, such as are especially applied for in the application itself, or excluded therefrom as the property of others, and a certified copy of the Descriptive Report (CC) based on para- graph 60, Land Office Regulations. BB. PROOF THAT NO KNOWN VEINS EXIST IN PLACER CLAIM. STATE OF COLORADO, County of Gilpin. John C. Jenkins and Thomas H. Potter, each of lawful age, and resi- dent in Central City, in the said County, being first duly sworn, each for himself, and not one for the other, saith, that he is a citizen of the United States; that he is well acquainted with the Keystone Placer Min- ing Claim, situate in Gregory Mining District, County of Gilpin, State of Colorado, claimed by John Wardell, applicant for United States patent therefor; that for many years he has resided near to, and is well acquainted with the character of said land, having frequently passed over the same; that his knowledge of said land is such as to enable him to testify understandingly in regard thereto, and that there is not, to his knowledge, within the limits thereof, any known vein or lode of quartz or other rock in place, bearing gold, silver, cinnabar, lead, tin or copper, upon said claim or any part thereof, and further, that he has no interest whatever in the said placer claim. JOHN C. JENKINS. THOMAS H. POTTER. Subscribed and sworn to before me, this second day of May, A. D. 1916, and I hereby certify that the foregoing affidavit was read to the above named John C. Jenkins and Thomas E. Potter, previous to their names being subscribed thereto, and that deponents are reputable persons to whom full faith and credit should be given. My commission expires March 3, 1920. JAMES M. SERIGHT, (SEAL) Notary Public. This affidavit must be made by two or more witnesses (Rule 26) and filed in the land office, together with transcript FF, with the first set of papers. The descriptive report the surveyor makes out without spe- cial instructions on receipt of "B," the order for survey, and forwards it, with the field notes of the survey, to the Surveyor General. APPLICATION FOE PATENT. 685 CC. THE DESCRIPTIVE REPORT. Survey No. *20500. Under paragraph 60, General Mining Circular, approved August 8, 1915, upon the Placer Mining Claim, known as the Hyena placer, claimed by S. G. Shaw, situate in Spanish Bar Mining District, Clear Creek County, Colorado, embracing a total area of 9.468 acres in unsubdiiided township 3 S., range 73 W. of the 6th P. M. Examination made March 10, 1916, by Frank A. Maxwell, TJ. S. Mineral Surveyor. a. The soil is a black loam, varying from 3 to 6 inches in depth, under- laid 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. b. Beaver Creek, a small stream about 10 feet wide, flows in a north- easterly direction through the claim. Approximate average fall, 2 feet per hundred. c. The workings upon the claim consist of an open cut 90 feet long, 20 feet wide and 10 feet deep in earth and gravel to bed rock. Course N. 50 E. The center of the westerly end bears N. 5 W. 500 feet from corner No. 5. A ditch 475 feet long, '2 feet wide and 18 inches deep, average course N. 53 15' E., the head of which bears N. 71 .E. 50 feet* from corner No. 3. A shaft 3 by 6 feet, 10 feet deep in earth and gravel, bears from corner No. 4, N. 2 W. 200 feet. A shaft, 3 by 7 feet, 15 feet deep in earth and gravel, bears from corner No. 3, N. 19 W. 90 feet. A timbered drift, 3 by 6 feet in the clear, 18 feet long, course N. 28 E., the mouth of which bears from corner No. 1, S. 21 W. 170 feet. d. This claim is located about three miles in a southeasterly direction from the town of Maysville and one mile west of Clear Creek Junction. e. The northwest boundary line, 1-2, is common with the southeast side line of the Wetzel lode, unsurveyed. The northeast boundary line, 6-1, is common with the southwest side line of the Silvester lode claim, unsur- veyed, and a portion of the southeast boundary line 5-6, is common with the northwest side line of the Cement Creek lode unsurveyed. The above specified lode claims are in close proximity to and form part of well known systems of lode deposits surrounding this placer on the north, west and east. f . This claim is well adapted for placer mining purposes. Water has been brought from Beaver Creek to work the lower portion of the claim, and it can be brought from a point in the same creek about one quarter mile above to work the entire claim. *If on surveyed lands and conforming to legal subdivisions no survey number is given and no survey is required. 586 APPLICATION FOE PATENT. g. The works or expenditures upon this claim, placed thereon by the claimant and his grantors, consist of an open cut 90 feet long, 20 feet wide and 10 feet deep, in earth and gravel to bed rock. Course, N. 50 E. The center of the westerly end bears N. 5 W. 500 feet from corner No. 5. A ditch 475 feet long, 2 feet wide and 18 inches deep, the head of which bears N. 71* E. 50 feet from corner No. 3; average course, N. 53 15' E. to the open cut described above. A shaft 3 by 6 feet, 10 feet deep in earth and gravel, bears from corner No. 4, N". 2 W. 200 feet. A shaft 3 by 7 feet, 15 feet deep in earth and gravel, bears from corner No. 3, N. 19 W. 90 feet. h. There are no salt-licks, salt-springs, mines other than the claimant 'a workings, nor mill sites upon this claim. i. This placer is surrounded by unsurveyed lode locations on the north, west and east boundaries as stated herein. Boundary lines 2-3, 3-4 and 4-5 have been located and surveyed in accordance with the configuration of the land, which as near as can be determined, defines the placer bed or deposit. FRANK A. MAXWELL, U. S. Mineral Surveyor. I, Frank A. 'Maxwell, United States Mineral Surveyor, do solemnly 0wear that in pursuance of an order received from the United States Surveyor General for Colorado, dated November 2, 1916, I have made, under the provisions of paragraph 60, General Mining Circular, approved August 6, 1915, a personal and thorough examination upon the premises of the placer mining claim of 8. G. Shaw, known as the Hyena placer, situate in Spanish Bar Mining District, Clear Creek County, Colorado, embracing a total area of 9.468 acres in unsubdimded Township No. 3 S., Eange No. 73 W. 6th P. M., and that my report of such examination, hereto attached, is specific and in detail, and is a full and true statement of the facts upon all the points specified in the paragraph referred to. FRANK A. MAXWELL. Subscribed and sworn to by the said FranTc A. Maxwell, U. S. Mineral Surveyor, before me, a notary public, this 10th day of November, 1916. My commission expires March 4, 1918. ALICE HATCH, (SEAL) Notary Public. This descriptive report must be corroborated by the affidavit of two disinterested witnesses as follows Rule 60 : DD. CORROBORATIVE REPORT. STATE OF COLORADO, ) gs County of Clear Creek. J William Cooper and James A. Noone, being first duly sworn, each severally deposes and says that he is personally and well acquainted with the placer mining claim of S. G. Shaw, known as the Hyena placer, situ- APPLICATION FOR PATENT. 587 ate in Spanish Bar mining district, Clear Creek County, Colorado, embrac- ing a total area of 9.468 acres, in unsubdivided Township No. 3 S., Range No. 73 W., and also with the character of all the land included in said claim, and has been so acquainted for two years last past ; that his knowl- edge of said claim and land is derived from personal observation, and is such as to enable him to testify understandingly with _ regard thereto; that he has carefully read the foregoing report of Frank A. Maxwell, U. S. Mineral Surveyor, and that to his own personal knowledge said report is in all respects true and accurate. WILLIAM COOPER. JAMES A. NOONE. Subscribed and sworn to by the above named persons before me, this 10th day of November, 1916. My commission expires May 16, 1920. [SEAL.] JOHN TOMAY, Notary Public. The descriptive report CC, with its corroborative report DD indorsed or attached, the Surveyor General approves in the following form : EE. APPROVAL OP DESCRIPTIVE REPORT. DEPARTMENT OF THE INTERIOR, Office of U. S. Surveyor General, Denver, Colorado, November 25, 1916. I, John B. McGauran, United States Surveyor General for Colorado, do hereby certify that the foregoing and annexed report of the examina- tion of the placer mining claim of S. G. Shaiv, known as the Hyena placer, made by United States Mineral Surveyor Frank A. Maxwell, under paragraph 60, General Mining Circular, approved August 6, 1915; and under my instructions dated November 2, 1916, has been carefully exam- ined and conforms in all respects to the requirements of said circular; and said report is hereby approved. JOHN B. MCGAURAN, U. S. Surveyor General for Colorado. After indorsement of such approval, the Surveyor General certifies a FF. TRANSCRIPT OF DESCRIPTIVE REPORT. Including its exhibits or indorsements DD and EE, as follows : 588 APPLICATION FOR PATENT. GO. CERTIFICATE TO DESCRIPTIVE REPORT. DEPARTMENT OF THK INTERIOR, Office of U. S. Surveyor General, Denver, Colorado, November 25, 1016. I, John "B. McGauran, U. S. Surveyor General for Colorado, do hereby certify that the annexed is a full, true and correct copy of the report made under paragraph 60, General Mining Circular, approved August 6, 1915, and of the affidavits and approval attached to said report on the placer mining claim of S. G. Shaw, known as the Hyena placer, situate in. Spanish Bar mining district, Clear Creek County, Colorado, in the Denver land district, as the same appear on file in this office. JOHN B. MCGAURAN, U. S. Surveyor General for Colorado. This transcript so certified, together with the field notes and plats, is sent to the claimant, who delivers all papers to his attorney to enable him to make out the notices "K" which he causes to be posted and published, and proceeds in all further respects the same as on application for lode patent. Application for Patent on Surveyed Lands. The language of the Congressional Act as to this class of claims is obscure, but it seems that where a placer deposit is found on surveyed lands, discovery, location and record must be made exactly as in the case of discovery on unsurveyed public domain, except that instead of a description by metes and bounds, the location certificate should describe it as the northeast quarter of section 8, township 10, etc., using one name for each twenty acres and not claiming more than 160 acres by one record. It is advisable to give it a name as in other cases. Although already surveyed it should be staked, marking the stakes with the name of the claim and number of the corner to indicate the appropriation, replacing the government stakes if not then found. See page 269. When the placer application is for an exact quarter section, or a series of forties or tens recorded and adopted as the claim, no order for survey, plat or field notes are required, their office having been fulfilled by the prior government survey already APPLICATION FOR PATENT. 589 made and platted with the Surveyor General, and the applica- tion may be made in the land office without any proceedings whatever in the Surveyor General's office. The proof of $500 expenditure in such case should be made by the affidavit of two or more disinterested witnesses ac- quainted with the claim. 25 L. D. 550 ; Rule 25. The descriptive report in such cases is not obligatory. 7 L. D. 390. And the Commissioner of the General Land Office, by letter of October 20, 1900, to the Surveyor General of Colo- rado, instructed that office that, where legal subdivisions are taken, a descriptive report, though approved by the Surveyor General, would not be official unless specially required by tlxe department. The circumstances in which such report would be required by the department are uncertain, but when required, would doubtless be ordered through the office of the Surveyor General. In lieu of the descriptive report certain additional data are required to be given in the application for patent "M." Rule 60. If any ground is excepted so that the claim is not an exact conformation to the subdivisions an official survey is required. 6 L. D. 580; in which case the report would doubtless be necessary; but no official survey is required if the excluded ground be patented. 31 L. D. 64. No survey is required where the entry is part of a lot and describes the claim so that it may be readily identified. 42 L. D. 413. For regulations governing placer applications see Rules 19-30 and 58-60. Where a Placer Contains Known Lodes Owned by the Appli- cant, they are applied for as parcels of the placer application and are especia^y designated on the survey by their names but without separate numbers and platted each with a width of 50 feet, or with the full width, if so located, and the claimant 590 APPLICATION FOR PATENT. elects to survey them for such full width, and to pay the lode price for such full width. If such lodes have never been previously located a formal discovery and record of the same should be made and abstract filed the same as for placer. In requesting order for survey name the lodes, i. e., insert in form "A" The Special Delivery Placer, including three known lodes, to wit: The Silence, The Security and The Celerity, etc., and send copies of location certificates of each lode. See page 540. Where the lode and placer do not touch they can not go in the same application. 5 L. 0. 162. Patenting Known Lode Within Placer Patent. Although known lodes are distinctly excepted from the placer patent and the department originally recognized this exception (7 L. O. .100) it was later ruled in the case of the Pike's Peak Lode, 10 L. D. 200, 14 Id. 47, that the land office would not issue patent to the owner of such excepted known lode unless the placer patent had been either judicially set aside to the extent of the ground covered by the surface of the known lode or the placer owner had quitclaimed such surface back to the United States so as to revest the title in the govern- ment. This untenable position of the department was persisted in until the South Star Lode case, 20 L. D. 204, was decided, where the whole subject was reviewed and the ruling made that patent may issue to the lode owner "when it had been ascertained by inquiry instituted by the department," that a lode was known to exist at the date of the application for the placer patent, as well as in cases where a judicial decree to the same effect had been rendered. The result of this ruling is that the lode owner may now apply for patent as in any ordi- nary case after first obtaining from the land office an order to ascertain whether the lode w r as known to exist before the placer entry. Butte Co., 21 L. D. 125. No rules have been since published directing how much inquiry should be made, APPLICATION FOE PATENT. 591 but doubtless it would be required to give notice to the holder of the placer patent, who would be allowed to appear and con- test the petition for the order. 27 L. D. 676. See page 280. If the application is allowed, the placer claimant, if he con- tests the fact that there was any valid known lode on the proper date, should file his adverse 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. 218, 135 U. S. 286, 10 Sup. Ct. Rep. 765, 34 L. Ed. 155. Instance where patentee of placer was not permitted to subsequently patent a lode within the patented placer. 27 L. D. 661. As to What Constitutes a Known Lode, the Rulings Are That there must be mineral worth working disclosed at the time of the placer entry. 10 L. D. 156, 13 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 agricul- tural, mill site, placer or other use, under which it was applied for and granted. 12 L. D. 612, 14 Id. 54. See page 281. 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 exception of his lode, or a patent under the same proceedings. See page 283. Group Claims "Location" and "Claim." In the case of the St. Louis Co. v. Kemp, a placer had been patented in excess of 160 acres. The Supreme Court sus- tained the patent, and in support of their decision asserted that a miner's claim might consist of several locations; that several contiguous locations being purchased by one man became his claim. They say: "Such is the general understanding of 692 APPLICATION FOR PATENT. 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 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 limited 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 interpretation was, nevertheless, strictly within the province and range of judicial construction. 104 U. S. 636, 26 L. Ed. 875, 11 M. R. 673, followed by Tucker v. Masser, 113 U. S. 203, 5 Sup. Ct. Rep. 420, 28 L. Ed. 979. 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. 33 L. D. 560, 35 L. D. 485. This manifestly wrong construction was adhered to until the publication of what is now Rule 48 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 Honorable Secretary considers the whole matter and comes to a correct definition of the term ' ' claim, ' ' as being the equivalent of the word ' ' location. ' ' 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, beginning with Cor. No. 1 in each case, which must be connected with a government corner or U. S. monument. Rules 135, 151. The survey and plat should show the bound- aries of each location. 5 L. D. 199, 6 Id. 808, 29 Id. 585. APPLICATION FOR PATENT. 593 A group composed of lodes and placers may be patented if contiguous. 29 L. D. 7. The rejection from entry of one claim of a group is a rejec- tion of the application to that extent only. 32 L. D. 220. When the value of the common improvement is sufficient for a given group, $500 in improvement must be added, after its location, for each new claim added to the group, and all the claims then share equally in the entire value of the improve- ment. 36 L. D. 551. The cost of a mining dredge allowed as a common improve- ment to a group of placers. 38 L. D. 28. The value of a common improvement, such as a shaft or tunnel, must be distributed equally to all the claims in the group. 35 L. D. 361, 36 L. D. 100, 551. Where one claim of a contiguous group is rejected because of insufficient improvements, the remainder of the claims, although not contiguous because of such rejection, may go to patent in the same entry. 40 L. D. 17. What Constitutes Improvements. Underground workings, cross-cuts or tunnels (on or off the ground, provided they are held by applicant for its benefit, and are bona fide intended to cut it), buildings, roads, flumes, fixed machinery, etc., or the result of any other bona fide expenditures, constitute improvements. Rule 157. Boarding house, office, bunk house, blacksmith shop and powder house, when shown to be essential to operations. 34 L. D. 556. Excepting labor which leaves no trace of itself, such as hoisting water, whatever counts for annual labor will generally count for the $500 improvements. See page 121. Expenditures for diamond drill holes made in prospecting the claim allowed. 40 L. D. 498, 43 L. D. 79. Roads and Trails. , . . The department ruled in 34 L. D. 556 and 37 L. D. 404 that no part of a wagon road was available, but in 43 L. D. 128 594 APPLICATION FOR PATENT. those decisions were modified and a road or trail allowed where it directly aided in the conduct of mining operations. Tunnel Improvements. Undivided interests in tunnels, etc., held in common with parties who are not applicants, are allowed to count as parcel of the necessary $500 improvements. 40 L. D. 17. Repairs to tunnel without extending it, do not apply to claims located subsequent to its completion. 42 L. D. 75. Old Improvements on the Ground May Be Purchased from the rightful owners, and so enure to the benefit of the appli- cant. The deed conveying them should be a quitclaim of all vendor's interest in the claim under the name by which patent is sought, and of all improvements thereon, etc., and where abandoned property is relocated or jumped, the old improve- ments do not count without such purchase. 30 L. D. 289, 322. The department in an early circular intimated that they could not even be purchased (Copp, M. L. 259), but it later ruled that the purchaser is entitled to the benefit of all expenditures made by his grantor. 21 L. D. 440. Work done on placer prior to location held to count. 20 Id. 455. To the contrary. 36 L. D. 9. Old abandoned improvements are not available to the relo- cator where there is no privity between- the relocator and the party who did the work. 43 L. D. 152. Expenditures made by one having no interest at the time will not be accepted. 40 L. D. 498. What Not Sufficient. Among improvements can not be counted dwelling houses or other structures, machinery or roadways not assQciated with mining. Rule 157. Successive development, as working up stream from lower placer, held insufficient for upper placer. 32 L. D. 402. No APPLICATION FOB PATENT. 595 part of improvements on a group will be credited on an adjoin- ing claim if any of the owners of such claim have no interest in the group. 32 L. D. 595. The department refused to accept a stamp mill, though upon a claim and used exclusively to work the ore it produced, on the technical ground that treatment of the ore is not a mining but a post-mining expenditure. 35 L. D. 493. And further holds that a lime kiln on a limestone placer for reducing the limestone to lime could not be counted as part of the $500 expenditure. 37 L. D. 371. "We can not see how these rulings can stand under the unqualified words of the statute: "Improvements made upon the claim." R. S. Sec. 2325. 37 L. D. 371. The land office has ruled that expenditures on a 20-acre placer will not avail for an amended location enlarging it to a 160-acre claim, the reason for which ruling is not at all obvious. 40 L. D. 135. Improvements on Other Claims. Where a deep quarry had been excavated upon one of a group of placer marble claims which would develop and benefit adjoining claims, such improvements were held to avail for improvements on the adjoining benefited claims. In re Ameri- can Onyx Co., 42 L. D. 417. Completed Pending Publication. It is not essential that the $500 worth of improvements should exist on the ground at the time of the survey. They may be completed at any time during the period of publica- tion. 29 L. D. 491. In such cases the Surveyor General indorses diagram "F" with a certificate not containing the latter part of "G." The surveyor in his field notes describes such improvements as may exist, and adds, in substance: ' ' These improvements are not worth $500. ' ' When completed the surveyor sends a special affidavit to the Surveyor General, who files- it and forwards his certificate to the applicant. An 596 APPLICATION FOR PATENT. extra deposit of $5 is required when this affidavit is made subsequent to the first filing of field notes. The department holds (overruling previous decisions), that the statutory requirements (R. S. Sec. 2325) as to the Surveyor General's certificate of improvements is directory only, and that it may be made after the expiration of the sixty days' publication. 25 L. D. 550, 26 Id. 122. Where the Applicant Dies Before Entry. On decease of applicant, where applicant died after entry, the patent issues in the name of the deceased. 2 L. D. 762, 39 L. D. 574. And the latest ruling of the department is to the same effect where the party died before the entry, overruling Tripp v. Dunphy, 28 L. D. 14; In re Graham, 40 L. D. 128. Application by Trustee. Any party applying to make entry as trustee must disclose fully the nature of the trust and the name of the cestui que trust; and such trustee, as well as the beneficiaries, must fur- nish satisfactory proof of citizenship ; and the names of bene- ficiaries, as well as that of the trustee, must be inserted in the final certificate of entry. Rule 54. A claim can not be pat- ented for the benefit of a foreign corporation. 10 L. D. 641, 20 Id. 379. Patent to Assigns. On bringing up abstract to date the land office has issued patents to purchasers from the entry-man. But as the deed carries the patented title this is not necessary ; nor is it regular. The land office can not be presumed to follow title after entry, and might by .such procedure issue it to a party not entitled in equity to take it. Under present practice the department disregards all trans- fer of interests in the claim and issues patent direct to the applicant. 33 L. D. 127, Rule 71. But the deed of the appli- cant carries the patented title when granted, to the buyer. Slothower v. Hunter, 15 Wyo. 189, 88 P. 36. APPLICATION FOR PATENT. 597 Application Without Record Title. Where the title is old and complicated a party may, without filing abstract supply the same by affidavits under R. S. Sec. 2332, as explained by Land Office Rules 74-77, that he has worked and possessed the claim for the limitation period of seven or other number of years fixed by the local statute. Application for Part of Claim. An owner applying for patent on part of his claim includ- ing the discovery shaft was held not to have abandoned the other end of his claim in Miller v. Hamley, 31 Colo. 495, 74 P. 980. But where the applying claim was divided into two parcels and under compulsion of a land office ruling the applicant elected to enter but one, it was held that such election was an abandonment of the other parcel. Gurney v. Brown, 32 Colo. 472, 77 P. 357. Entry may be made of part of a claim containing the dis- covery, although the applicant does not own the other portion. 39 L. D. 524. Conflicting Applications. Where an application is pending or entry has been made, a subsequent application for the same land should not be accepted. 26 L. D. 81, 29 Id. 29, 114, 226, 31 Id. 59, 32 Id. 220 ; and no adverse need be filed against a subsequent applica- tion erroneously accepted. 29 Id. 160; Steel v. Gold Co., 15 M. R. 292, 18 Nev. 80, 1 P. 448. An adverse suit by entry-man does not waive rights acquired under the entry. 29 L. D. 114. But the government will, in some instances, take notice of an adverse by prior applicant and stay proceedings. 22 Id. 629, 25 Id. 263. The Surveyor General gives to any applicant an approved survey showing the conflicts with prior surveys, but not exclud- ing them as against the survey asked for, and allowing the claimant to proceed as he may or can, to apply for patent for 598 APPLICATION FOB PATENT. the entire ground within his exterior lines, although wholly or partly covered by previous patents. It is left to the land office to bar the application so far as it pretends to include ground previously patented or applied for. See page 171. Variance Between the Locus and the Record of Claims. Where no conflict between official surveys is shown by the records but a conflict in fact exists; or, where a conflict is shown by the records when none in fact exists as the claims are staked on the ground, the department will order a hearing to determine the actual locus of the claims. 33 L. D. 91, 183. See page 62. The position of all conflicting claims "must be determined as the claims are defined and established upon the ground," and all errors in the records must give way to such facts. 39 L. D. 546. Allowing Application to Sleep. Failure to prosecute application to completion within a rea- sonable time after termination of proceedings constitutes waiver of rights secured under the application. 29 L. D. 62, 301, 308, 359, 401, 35 Id. 27, Rule 56. A delay beyond the end of the calendar year after publication held fatal, where a hos- tile relocation had been made. 31 L. D. 69, 32 Id. 200. An excusable delay must be one caused by adverse proceedings under the mining laws. 34 L. D. 56. Upon an unexcused delay of three years after publication the entry should be can- celed. 40 L. D. 542. Where the delay was held excusable by the local officers, the entry should not be canceled upon the protest of a relocator. 39 L. D. 574. Miscellaneous Rulings on Patent Application. Where application is begun in the wrong land district pro- ceedings must be de novo, after error discovered. 17 L. D. 282. ADVERSE CLAIM. 599 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 appli- cation in each district. When the land office is closed during a part of the period of sixty 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 can not be made the basis of a second applica- tion for more surface. 9 L. 0. 113. A co-owner omitted from application can not by subsequent forfeiture proceedings against the applicant, acquire right in himself to make entry. 32 L. D. 93. 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. ADVERSE CLAIM. Sixty Days to File. E. S. Sec. 2325. * If no adverse claim shall have been filed with the register and the receiver of the proper land office at the expira- tion of the sixty days of publication, it shall be assumed that the applicant is entitled to a patent, upon the payment to the proper officer of five dollars per acre, and that no adverse claim exists; and thereafter no objection from third parties to the issuance of a patent shall be heard, except it be shown that the applicant has failed to comply with the terms of this chapter. Eight months after publication allowed in Alaska. See Rule 84 (A), page 513. Extent Boundaries Stays Proceedings. E. S. Sec. 2326. Where an adverse claim is filed during the period of publication, it shall be upon oath of the person or persons making the Bame, and shall show the nature, boundaries, and extent of such adverse 600 ADVERSE CLAIM. 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 aftei filing his claim, to commence proceedings in a court of competent juris- diction, to determine the question of the right of possession, and prosecute the same with reasonable diligence to final judgment; and a failure so to do shall be a waiver of his adverse claim. An adverse claim must be made during the period of sixty days publication, which is construed to mean on or before the sixtieth day after the date of first newspaper publication, such date being excluded'in the calculation. 13 L. D. 286. See page 606. The proceedings are as follows: The adverse claimant sub- scribes and verifies his HH. ADVERSE CLAIM. United States Land Office at Denver, Colorado : In the matter of the application of Carroll Carter for a United States patent to the Busy Bee and Republican lode mining claims, situate in Wisconsin mining district, County of Gilpin, State of Colorado. To the Register and Receiver of the United States Land Office, and to the above named claimant: WHEREAS, Carroll Carter did, on the 17th day of April, A. D. 1916, file in the district land office of the United States, at Denver, Colorado, a certain plat of a survey of certain lodes together with his application for a United States patent for said lodes, naming and calling the said lodes in said plat and application the Busy Bee and Eepublican lodes, situate in Wisconsin mining district, County of Gilpin, State of Colorado; said survey and plat being designated as mineral survey No. 21000 A, and consisting of 1500 linear feet together with surface ground 150 feet in width, on each of said lodes, and the said Carroll Carter did, at the same time and place, give notice that he would apply for a United States patent for the above described lodes and premises in substance as follows : [Here attach copy of newspaper publication.'] AND, WHEREAS, The first publication of said notice of said application appeared in the Weekly "Register Call, a weekly newspaper published at Central City, in said County and State on the 15th day of April, A. D. 1916. ADVERSE CLAIM. 601 Now, THEREFORE, I, Charles W. Bishop, a citizen of the United States over the age of twenty-one years, residing in and my postoffice address being Denver, in the County of Denver, in said State, do, on this third day of June, A. D. 1916, enter this, my protest, and adverse claim against the issuing of a patent to the said Carroll Carter for his pretended claim upon the so-called Busy Bee lode, as set forth in his said plat and field notes as aforesaid, for the following 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 Carroll Carter, 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 laws of the State of Colorado, or the Statutes of the United States relating to mining claims. 2. Because a great portion of the premises described in said plat arid notice of said applicant, and claimed by him as the so-called Busy Bee lode, is claimed adversely, and is owned by this protestant, and is in fact a portion of 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 Carroll Carter in his plat and notice of the so-called Busy Bee lode, long prior to the pretended discovery and location of the so-called Bu.-y Bee lode; such occupation and possession of this protestant (and his grantors) having been under and by virtue of a full compliance with the local laws, rules and customs of said mining 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 Busy Bee 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, occu- pied and possessed the same long prior to the pretended discovery and location of the so-called Busy Bee 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 origmal dis- coverer and locator of said Elephant lode, by conveyances), as shown on said abstract. See Rule 81. 5. Because a valid discovery, location and record of said Elephant lode was made by this protestant (or his grantors), in strict compliance with said local laws, rules and customs, and the laws of the State of Colorado and of the United States, and while the same was vacant mineral land of the United States open to occupation long prior to any pretendc 1 discovery or location thereof by said Carrol Carter (or his grantors) and 602 ADVERSE CLAIM. said Elephant lode hath been occupied and possessed as aforesaid, ever since its discovery as aforesaid, by this protestant (and his grantors), under and by virtue of such discovery, location and record. 6. Because the discovery shaft of the so-called Susy Bee lode was not of the legal depth of ten feet from the lowest part of the rim at the sur- face, as required by law at the date of the pretended record of the same, and has never been since sunk to that depth. 7, etc., 8, etc. WHEREFORE, This protestant enters this his protest and adverse claim against the issuapce of a patent to the said Carroll Carter for his claim upon the so-called Susy Bee lode. CHARLES W. BISHOP. STATE OF COLORADO, I sg City and County of Denver. ) On this 3rd day of June, A. D. 1916, before me, the subscriber, a Notary Public in and for said county, personally appeared the above named Charles W. Bishop, who, being first duly sworn, saith that he is the adverse claimant named in the foregoing protest and adverse claim above subscribed by him. That he has read the same and knows the contents thereof; that the same is true in substance and in fact; and that the said adverse claim la made in good faith and to protect his better and prior title. CHARLES W. BISHOP. Swon* and subscribed before me, this 3rd day of June, A. D. 1916. My commission expires March 4, 1918. [SEAL.] ALICE HATCH, Notary 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 certified copy of the location cer- tificate. But failure to file the abstract within the period of publication (15 L. D. 45) as well as failure to furnish the certified copy, have been held not fatal. 14 L. 0. 237. ADVERSE CLAIM. 603 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 situation or position to the Busy See lode and the extent of the conflict claimed to exist between said Busy Bee lode and said Elephant lode as actually surveyed by me. THOMAS L. DAKBY, U. 8. Mineral Surveyor. When it is impossible to procure an actual survey, 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, 12 Mont. 489, 31 P. 92, 17 M. R. 503. The plat need not be made by a U. S. surveyor. 27 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 adversing claim is im- material, and though fprmerly 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 adversed 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 adverse claim. Where and By Whom Verified. An adverse claim is usually verified by the adverse claimant or one of the adverse claimants and within the land district. But by the Act of April 26, 1882 (post p. 647), 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, 604 ADVERSE CLAIM. who must swear to his agency and furnish proof thereof. Rules 78, 79. Such agent must make his verification in the land district. Rule 80 ; 34 L. D. 314. A corporation verifies either by its executive officer (president) or its agent thereto authorized. It may verify outside of the land district at its principal place of business. 42 L. D. 99. And if the adverse claimant is a non-resident or absent from the district and veri- fies 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 expedient to have the intending adverse claimant convey to a third party within the district, who then makes and verifies the adverse claim pre- cisely 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 district, or the filing by an agent, this course need seldom 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 personally cognizant of the facts herein stated, enters this his protest and adverse claim against the issuance of a patent to the said Carroll Carter for his claim upon the so-called Busy Bee lode. CHARLES W. BISHOP, By Charles T. Limberg, His agent and attorney in fact. STATE OF COLORADO, 1 City and County of Denver. J SS ' On this 3rd day of June, A. D. 1916, before me, the subscriber, a Notary Public in and for said City and County, personally appeared the above named Charles T. Limberg, who, being first duly sworn, saith that he is the duly authorized agent and attorney in fact of the above named Charles W. Bishop, adverse claimant named in the foregoing protest and adverse claim above subscribed by affiant as will further appear by his power of attorney hereto attached marked Exhibit C; that affiant has read the foregoing protest and adverse claim, and is cognizant of the facts therein stated, and that the same is true in substance and in ADVERSE CLAIM. 605 fact, and is made in good faith to protect the prior and better title of his said principal. CHARLES T. LIMBERO. Sworn and subscribed before me this 3rd day of June, A. D. 1916. My commission expires March 4, 1918. [SEAL.] ALICE HATCH, Notary Public. By Co- Owner. A single co-owner may make and verify the adverse claim "on behalf of himself and his co-owners," which phrase should, in the form "HH," follow the name of the protestant whenever it occurs or where the context requires it, when an adverse is so made. And it is held that one co-owner may adverse although another co-owner refuse to join him. And one co-owner can not withdraw his adverse so as to prejudice another who has joined with him. Against Co-Tenant. Where one or more co-tenants apply for patent, omitting the name of one or more of their associates, the title received enures to the benefit of all the co-owners. Turner v. Sawyer, 150 U. S. 578, 14 Sup. Ct. Hep. 192, 37 L. Ed. 1189, 17 M. R. 683 ; Brundy v. May field, 15 Mont. 201, 38 P. 1067 ; Malaty v. Rice, 21 M. R. 29, 15 Colo. App. 364, 62 P. 228. Nevertheless, the legal title passes by the patent, to the patentees and to them only, and while the ousted co-tenant will, in equity, upon proper proceedings be declared a beneficiary under the patent, yet if he is aware of the proceeding in time and has opportun- ity, undoubtedly the better course is to adverse. By Rule 53 the land office regards a co-tenant in such case as a protestant rather than an adverse claimant and does not require suit in support of the protest; but if he elects to bring suit the appli- cation will be stayed to await its determination. 25 L. D. 495, 26 Id. 220. On protest filed the department will give co-owners opportunity to litigate in Court the disputed title. 30 Id. 304. The distinction here attempted is refined. There is nothing in 606 ADVEKSE CLAIM. the Turner case construed in 25 L. D. 495 to intimate that a co-tenant may not, if he wish, file his adverse claim. The provisions of Sec. 2325 were intended only to apply to adverse claims arising out of conflicting locations, and not to controversies between co-owners. But if one co-tenant he ousted he has the common law right to sue, and it does not weaken his case that he has filed an adverse claim and brings suit in support of it. Davidson v. Fraser, 36 Colo. 1, 4 L. R. A. (N. S.) 1126, 84 P. 695; Allen v. Blanche M. Co., 46 Colo. 199, 102 P. 1072. The several remedies open to an ousted co-tenant in such case are considered in O'Hanlon v. Ruby Gulch Co., 48 Mont. 65, 135 P. 914, which also holds that such a tenant may lose his rights by laches. Time to Pile. The period is strictly limited to 60 days, excluding the first day. 13 L. D. 718, 28 Id. 224. To instance: Where first publication was on October 19 they excluded the first day and counted : October 12 days ; November 30 days ; December 18 days ; total 60 days, and made December 18th, the last day on which an adverse could be filed. 13 L. D. 286, 16 L. D. 101. Time Can Not Be Extended. No adverse claim can be received after the expiration of the statutory period, and the department is without authority to enlarge the time for filing. 29 L. D. 467. So also the 30 days' time allowed for commencing suit can not be extended ; the law limiting the period is mandatory ; if the papers intended to commence suit are delayed in the mail, or action is delayed through the agency of an attorney cor- rupted, the land office can afford no relief. 2 L. D. 707; ADVERSE CLAIM. 607 Sickel, 190, 320. But the department will not review a judicial determination that a suit was initiated within the statutory period. 23 L. D. 20, 37 L. D. 484. Republication. When for any cause a republication is required, the adverse claim must be re-filed during the second period of advertising ; but no additional filing fee is charged. Sickel, 313. Where there has been a material misdescription in the pub- lished notice a republication (and in this case a resurvey) will be ordered, although applicant has already made final entry. 17 L. D. 565. Sunday Holidays. It has been ruled that an adverse may be filed on Sunday, when the last day falls on Sunday ; and out of office hours on any day ; but that the receiving and filing out of office hours, or on Sunday, is not compulsory upon the officers. 6 L. 0. 73, 23 L. D. 546. But if the 60th day fall on Sunday the adverse is too late if filed on the succeeding Monday. 34 L. D. 568, overruling contrary holdings in 8 L. D. 430 and 13 L. D. 718 where the last day fell on a legal holiday. Amendment. An adverse claim can not be withdrawn for amendment ; but if a material defect should be discovered, there would be noth- ing to prevent the filing of a second adverse, complete in itself, provided the 60 days had not expired. Copp, 121, 155, 227 ; Sickel, 208. An Appeal Lies from the Rejection of an Adverse Claim. 13 L. D. 718. In an instance where an adverse had been filed which was dismissed as defective but the adverse claimant brought his suit and filed his certificate, the land office declined to allow further action on the application until the decision of the suit. 2 L. D. 706. 608 ADVERSE CLAKI. If the adverse claim is dismissed by the local land office the adverse claimant must nevertheless bring suit within the 30 days or his rights will be gone although he sustain his conten- tion on appeal to "Washington from the dismissal of his adverse. This manifestly wrong and unjust ruling was the final result of all possible holdings on the point, in the various branches of the Land Department, in the case of a lode called the "No Mistake." 22 L. D. 274. Similar ruling where the adverse was rejected. 35 L. D. 304. What Claims Should Adverse. Of course lode must adverse lode and mill site must adverse mill site and placer must adverse placer or all pretense of prior title will cease to be of avail. See pages 171 and 299. A placer must adverse a lode application ; otherwise the lode will take the full area. A lode claim need not necessarily adverse a placer because it may rely on the statutory exclusion of known lodes, but it is safer to file an adverse as the best means of protecting its title. 26 L. D. 627. San Francisco Co. v. Duffield was an adverse suit by lode against placer, and it was held properly brought. 201 F. 830, 120 C. C. A. 160. The department held in 1 L. D. 566 (Rev. Ed. 555) that a mill site must adverse a lode location, but to the contrary in 25 L. D. 7, 36 L. D. 144. And in still other cases (29 L. D. 522, 35 Id. 495) it holds that an adverse is not allowed in any instance between mineral and non-mineral claimants; that a suit supporting it will not stay proceedings on an application for a mineral patent ; that the question of known mineral value must be decided by the department and that a decision of that point by a Court does not conclude the department. Lindley, Sees. 717, 724, apparently takes the same position. But there have been frequent instances where such adverses have been filed and sustained. Shafer v. Const ans, 3 Mont. 369, 1 M. R. 147; Durgan v. Redding, 103 F. 914; deary v. Skiffich, 28 Colo. 362, 89 Am. St. Rep. 207, 65 P. 59, 21 M. R. ADVERSE CLAIM. 609 284. The mineral character of the land is by no means the only issue which may be involved in such suits, and the procedure to obtain a mill site patent being authorized in the same act which prescribes the procedure for patenting mining claims proper, we do not perceive strength in the contention that they can not adverse each other. Even lot owners have been allowed to adverse. Banner v. Meikle, 82 F. 697, 19 M. R. 83 ; Young v. Goldsteen, 97 F. 303. But the later case of Wright v. Hartville, 13 Wyo. 497, 81 P. 649, 82 P. 450, takes the same view as the land office on the whole question of adverses between mineral and non-mineral claimants. There is an evident distinction between the case of the lot owner and the mill site owner more favorable to the right of the mill site owner to adverse. Under this unsatisfactory status of the authorities it is advisable to file both adverse and protest, as there is no cer- tainty that the land office will maintain its present position as to the right of a mill site to adverse a mining application and vice versa. The holder of a right to purchase a mining claim need not adverse an application for patent ; because he is in privity with the title. Nowell v. McBride, 162 F. 432, 89 C. C. A. 318. Miscellaneous Eulings. An adverse claim substantiality defective may be rejected. 3 L. 0. 18, 9 L. 0. 5. But if it show the nature, boundaries and extent of the claim, the land office will accept it even though it do not meet all the requirements of the regulations. 27 L. D. 358. The land office is not bound to receive an adverse claim when the filing fee is not paid or tendered. 29 L. D. 413. Where there is no surface conflict an adverse filed to antici- pate conflict expected on the dip, will not be received. 6 L. D. 318, 29 Id. 662; Champion Co. v. Wyoming Co., 75 Gal. 78, 16 M. R. 145, 16 P. 513. 610 ADVERSE CLAIM. An adverse based on a claim located after the publication began not containing allegations denying 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 filed, the adverse claimant must bring suit for the premises in dispute within 30 days, under the terms of R. S. Sec. 2326. See page 599. If his suit is not brought within the 30 days the adverse claimant has no standing in the land office except as a mere protestant; and the applicant may proceed to enter, notwith- standing the adverse. 14 L. D. 180, 35 Id. 550. . It has been held that failure to bring suit within the 30-day period must be specially pleaded and can not be availed of for the first time on appeal. Providence Co. v. Marks, 1 Ariz. 74, 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 Sheriff's hands until some time thereafter. But the defendant entered a general appearance and filed a demurrer which was held a waiver of any right to object to the failure to issue summons. Harris v. Helena M. Co., 29 Nev. 506, 92 P. 1. 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 diverse citizenship are such that the U. S. District Court may have jurisdiction. It has been authoritatively held that an adverse claim suit presents no federal question and that the U. S. Courts have no jurisdiction on that ground. Blackburn v. Portland Co., 175 U. S. 571, 20 Sup. Ct. Rep. 222, 44 L. Ed. 276, 20 M. R. 358 ; Mt. View Co. v. McFadden, 180 U. S. 533, 21 Sup. Ct. Rep. 488, 45 L. Ed. 656. ADVERSE CLAIM. 611 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 be made and signed by the clerk of the Court and filed in the local land ofiice in substance as follows : JJ. CERTIFICATE OP SUIT. STATE OP COLORADO, County of Gilpin. I, Morris Haszard, Clerk of the District Court of said County, do hereby certify that Charles W. Bishop did on the 10th day of June, A. D. 1916, commence an action in said Court against Carroll Carter, to sustain an adverse claim against the Bvsy Bee lode, survey lot No. 21000 A, situate in Wisconsin mining district, Gilpin County, Sta,te of Colorado, and to recover possession of all that parcel of the 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 Central City this 10th day of June, A. D. 1916. [SEAL OF COURT.] MORRIS HAZZARD, 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. 437, 29 Id. 194. In such case the plain- tiff can not dismiss so as to leave the adverse without suit supporting it. Axiom Co. v. Little, 6 S. D. 438, 61 N. W. 441. If no adverse is filed, a pending suit will not stay patent pro- ceedings. 33 L. D. 187. 612 ADVERSE CLAIM. The Suit in Support of an Adverse Is Ordinarily at Law by ejectment and such suit is certainly contemplated in the statute (page 646) by the use of the clause "the jury shall so find." Such is undoubtedly 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. S. 165, 16 Sup. Ct. Rep. 971, 41 L. Ed. 113, 18 M. R. 364. There had been decisions holding in general terms that eject- ment was the proper remedy. Becker v. Pugli, 9 Colo. 589, 13 P. 906, 15 M. R. 304; Manning v. Strehlow, 11 Colo. 451, 18 P. 625; Burke v. McDonald, 2 Ida. 310 (339), 13 P. 351; Ware v. White, 81 Ark. 220, 108 S. W. 831 ; and others asserting it to be an, equitable action. Doe v. Waterloo Co., 43 F. 219 ; Sho- shone Co. v. Butter, 87 F. 801, 31 C. C. A. 223, 19 M. R. 356 ; Providence Co. v. Burke, 6 Ariz. 323, 57 P. 641, 19 M. R. 625 ; McFadden v. Mt. View Co., 97 F. 670, 38 C. C. A. 354; Butte Co. v. Barker, 35 Mont. 327, 89 P. 302, 90 P. 177; but the Perego case states the obvious test of possession as determining the form of action. Where the adverse claimant's title was purely legal his bill in equity was dismissed. Johnson v. Munday, 104 F. 594, 44 C. C. A. 64, 21 M. R. 96. If neither party is in actual exclusive possession or if the facts render the point doubtful the claimant can treat the application as an ouster and proceed at law. Becker v. Pugh, 15 M. R. 304, 9 Colo. 589, 13 P. 906. See page 437. In agreement with the Perego case and with these views are the cases of Durgan v. Redding, 103 F. 914 ; Young v. Gold* steen, 97 F. 303 ; Book v. Justice Co., 58 F. 827. The cases which hold that it is of itself and without regard to possession an equitable action lose sight of the fact that the adverse and the suit are independent proceedings. The adverse ADVERSE CLAIM. 013 being filed in the land office, the government, the trustee of the title directs the contestants to adjudicate their controvery in a "Court of competent jurisdiction." It then allows the winning party to report his obedience to the direction, his success in the suit and the patent application resumes its progress. There is no connection between the two procedures such as to bring the cause within any one of the limited sched- ule of the subjects of equitable jurisdiction. But if at the proper time for bringing suit the plaintiff be in possession he has the right to bring suit in equity to quiet title: the same suit which he could maintain if there were no controversy pending in the land office. Parties. The plaintiff is, of course, the adverse claimant and the defendant the applicant, but where the contestants after adverse filed conveyed 'to one of their number it has been held that the suit may be brought in his name alone. Willitt v. Baker, 133 F. 937. The applicant should be made a defendant, although he has sold his interest before suit brought. Blackburn v. Portland Co., 175 U. S. 571, 20 Sup. Ct. Rep. 222, 44 L. Ed. 276, 20 M. E. 358. The Court recognizes the relation of the suit to the land office proceedings and looks to an adjudication of title not to a technical question of proper parties. Wolverton v. Nichols, 119 U. S. 485, 7 Sup. Ct. Rep. 289, 30 L. Ed. 474, 15 M. R. 309. Complaint. The complaint should, of course, describe the area in con- flict following the lines of plat "B" in the adverse. If it declare for the whole claim it would necessitate a disclaimer as to parcel of the premises. But to the holding that the com- plaint is so intimately associated with the adverse claim that a failure to describe the exact area in conflict would render it fatally defective we can not assent, though such has been the ruling in two cases. Cronin v. Bear Creek Co., 3 Ida. 614, 32 P. 204, 17 M. R. 548 j Smith v. Imperial Co., 11 Ariz. 193, 89 P. 510. 614 ADVERSE CLAIM. KK. FORM OF COMPLAINT. STATE OF COLORADO, ) gg County of Gilpin. j In the District Court of said County. Charles W. Bishop, Plaintiff, v. Carroll Carter, Defendant. The plaintiff complains and alleges: 1. That on to-wit: The 1st day of January, A. D. 1897, and ever since hitherto he was, and is, the owner and in actual occupation of the Elephant lode mining claim, 1500 feet in length by 150 feet in width, situate in Wisconsin mining district, County and State aforesaid. 2. 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 de- clared his intention to become a citizen of the United States before a court of record, to-wit: The Court of Commtm Pleas of the County of Allegheny, Commonwealth 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 com- pliance with the local laws and rules of miners in said mining district, the laws of the United States, and of said State of Colorado, by pre- emption (and purchase) and by actual prior possession, as a lode mining claim, located on the public domain of the United States. See Code, Sec. 286. 4. That on, to-wit: The 3rd day of January, A. D. 1916, the defend- ant wrongfully entered upon parcel of said claim, to-wit : All that part of said claim which is intersected by the exterior lines of the Busy Bee lode mining claim, Survey Lot No. 21000 A, as shown by plat marked Exhibit B, filed on the 3rd day of June, A. D. 1916, in the land office of the United States, at Denver, in the said State, with the adverse claim of the plaintiff against the entry of said Busy Bee lode for patent, such ground so intersected being described as follows: (here interference should be described by metes and bounds) and that defendant hath every since hitherto wrongfully withheld the possession of said parcel of said Elephant lode mining claim from the plaintiff to his damage in the sum of one hundred dollars. 5. That said adverse claim was filed in said Land Office within the period of sixty days of publication of the notice of application for patent on said Busy Bee lode and this suit is brought before the expiration of the period of thirty days after the filing of said adverse claim. ADVERSE CLAIM. 615 6. That this suit is brought in support of said adverse claim, and that plaintiff necessarily disbursed, expended and paid out the sum of twenty-five dollars for plats, abstracts and copies of papers filed in said land office with his said adverse claim, and also a reasonable counsel fee, to-wit : Fifty dollars, for the expense of preparing his said adverse claim. Wherefore plaintiff prays judgment against the defendant: 1. For the recovery of possession of said parcel of said Elephant lode mining claim. 2. For the sum of one hundred dollars damages. 3. For the sum of seventy-five dollars expended in support of said adverse claim. 4. For costs of suit. A. R. MORBISON, Attorney for Plaintiff. Add verification if desired; but in actions of ejectment, trespass, etc., the practice of verifying the pleadings ought to be discouraged. The above form was expressly approved in Jackson v. McFall, 36 Colo. 119, 85 P. 638. Averment of Citizenship. It is the practice to aver the citizenship of the parties in their respective pleadings. The forms above given contain such allegation, and if issue is taken on it the fact must be proved. Strickley v. HUl, 22 Utah 257, 83 Am. St. Rep. 786, 20 M. R. 722, 62 P. 894. See Citations, p. 390. The citizenship of the parties is a material issue in an adverse claim suit. Matlock v. Stone, 77 Ark. 195, 91 S. W. 553. A failure to aver citizenship in the pleadings where it was in fact proved at the trial was held immaterial in Lozar v. Neill, 37 Mont. 287, 96 P. 343. As to complaints omitting the allegations of paragraph 5 in the form above, see p. 438. Costs. Paragraph 6 of the above form is based on R. S. Colo. 1061. The costs in such section strwtly construed, could not be made 616 ADVERSE CLAIM, to include more than the expense of abstract, plat and attor- ney's fee. It is customary between counsel to concede without proofs that $75 has been paid under this allegation. Land office costs are not taxable. Golden Co. v. National Co., 28 Ida. 290, 154 P. 207. Complaint Detailing History of Location. There is another style of complaint which sets forth chron- ologically the fact of discovery, of sinking the shaft, its depth, and what it disclosed; the placing of the location stake, the marking of the claim, and the record ; following the language of the statute concerning location, etc. But many claims are sufficiently valid to maintain ejectment without a strict loca- tion, or the defendant may be in position where he is estopped from attacking weak points in the plaintiff's case. In any event such recitals lead to cumbersome pleadings and to imma- terial issues, and are not the ultimate facts required to be stated in code pleading. General allegations of title are sufficient. Rough v. Sim- mons, 65 Cal. 227, 3 P. 804, 15 M. R. 298. But the complaint sustained in that case is the extreme of loose pleading. Relation of the Suit to the Application. It has, as we believe, been rightly held that an ordinary com- plaint in ejectment making no reference to the land office proceedings will support the adverse claim. Deeney v. Min- eral Creek Co., 11 N. M. 279, 67 P. 724, 22 M. R. 47; Altoona Co. v. Integral Co., 114 Cal. 100, 45 P. 1047; Upton v. Santa Rita Co., 14 N. M. 96, 89 P. 275. The suit being determined and certified copy of its judgment roll being filed in the land office showing that it was between the same parties, that it determined the right of possession to the same property and was brought at a date found to be within 30 days of the filing of the adverse what more is nec- essary to connect the two proceedings and to show that the suit was the same suit intended by the terms of R. S. Sec. 2326 ? ADVERSE CLAIM. 617 But departing from this obviously plain view of the proceed- ing the Courts of the various States have scattered widely on the point as to whether at all or to what extent the pleadings should recite their relation to and connection with the defend- ant 's application and the plaintiff's adverse. The various holdings are concisely digested in 2 Lindley, Sec. 754. The forms above given are a concession to the contention that the proceedings should be tied together by formal refer- ence to the land office filing and fully meet the requirements of those Courts which hold such averments essential. But while conceding as above to what is demanded by some of these decisions, and 'conceding as well that it is the better practice, we do not concede that a complaint ought to be held bad if they were all omitted. In Mattingly v. Lewisohn, 13 Mont. 508, 35 P. ill, 17 M. R. 693, Montana held that the averment of the filing of the adverse and bringing of the suit in due time were material averments. This ruling was reaffirmed in Thornton v. Kauf- man, 35 Mont. 181, 88 P. 796. But it may be inferred by implication from dates in the complaint. Helbert v. Tat em, 34 Mont. 3, 85 P. 733. In Cronin v. Bear Creek Co., 3 Ida. 614, 32 P. 204, 17 M. R. 548, Idaho held that although these dates were conceded by stipulation their absence from the complaint rendered it so defective that it would not support a judgment. Thus the patent justice of the case was sacrificed to support a techni- cality in code pleading. But these decisions are against the current of authority. Pennsylvania Co. v. Bales, 18 Colo. App. 108, 70 P. 444, 22 M. R. 436: Rawlings v. Casey, 19 Colo. App. 152, 73 P. 1090; Providence Co. v. Marks, 7 Ariz. 74, 60 P. 938; Quigley v. Gillett, 101 Cal. 462, 35 P. 1040, 18 M. R. 68. In Arizona it has been held that the suit is "Neither an action at law, nor, strictly speaking, one in equity"; that the plaintiff must allege and prove and practically duplicate all that is required in the land office; and a complaint was held defective beyond amendment because it did not aver "that 618 ADVERSE CLAIM. the ground in controversy was mineral land subject to loca tion. "Keppler v. Becker, 9 Ariz. 234, 80 P. 334. We can not see value received to any party to the contest nor any reason in practice or on principle to justify these refinements in pleading. A suit supporting an adverse claim is essentially a law action, but as the parties below treated it as an equity case the decree is not reversible on that ground. Ware v. White, 81 Ark. 220, 108 S. W. 831. The words "jury shall so find" in the act referring to adverse suits where neither party shows a valid location, seem to us a binding statutory construction to the point that it is or may be a case at law; for jury verdicts, except as advisory verdicts, are unknown to equity practice. Amendment of Complaint. Contrary to^the ruling on the same point in the Keppler case above cited, Deeney v. Mineral Greek Co., 11 N. M. 279, 67 P. 724, 22 M. R. 47, and Woody v. Hinds, 30 Mont. 189, 76 P. 1, both hold that the complaint may be amended after the 30-day period has expired. \ LL. ANSWER. STATE OP COLORADO, l gg ^ County of Gilpin. f In the District Court of said County. Charles W. Bishop, Plaintiff, v. Carroll Carter, Defendant. Defendant answering the complaint saygi For a first defense: 1. He denies that on the date charged in complaint or at any time the plaintiff was or is the owner or was in the occupation, actual or otherwise, of the Elephant lode mining claim described in said complaint. 2. He admits (or denies) that the plaintiff is a citizen of the United States. 3. Defendant denies that plaintiff has or claims the legal right to occupy and possess said premises or is entitled to the possession thereof, ADVERSE CLAIM. 619 and denies that he hath complied with the local laws or rules of miners in said Wisconsin mining district, the laws of the United States, or of said State of Colorado, in the pre-emption, discovery, or location of said so-called Elephant lode mining claim. 4. Defendant denies that at the time charged in paragraph four of complaint, or at any time, the defendant wrongfully entered upon the parcel of said claim described in said paragraph or any part thereof, or that he hath ever since, hitherto, or at any time, wrongfully withheld possession 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. 5. Defendant admits the allegations of paragraphs five and six of the complaint. For a second defense, defendant saya: 1. That he is a citizen of the United States, and that ever since, to-wit: The 23rd day of June, 1894, he was and is the owner and in actual occupation of the Busy Bee lode mining claim, 1500 feet in length by 150 feet in width, situate in said Wisconsin mining district, County and State aforesaid. 2. That he has and claims the legal right to occupy and possess said Busy Bee lode mining claim, and is entitled to the possession thereof by virtue of full compliance with the local laws and rules of miners in said mining district, the laws of the United States and of said State of Colo- rado, by pre-emption (and purchase) and by actual prior possession as a lode mining claim located on the public mineral domain of the United States. 3. And that the premises sued for in said complaint are parcel of said Busy Bee lode mining claim, the property of this defendant. DEWEY C. BAILEY, JB., Attorney for Defendant. A Replication Must Be Filed to Such Second Defense or the defendant will be entitled to judgment. Neivman v. Neivton, 14 F. 634, 4 McCrary 293. But if parties go to trial on the merits, defendant will be assumed to have waived this right. Quimby v. Boyd, 8 Colo. 194, 6 P. 462. And in "Wyoming, in Iba v. Central Ass'n, 5 "Wyo. 355, 40 P. 527, 42 P. 20, the Court took the very tenable position that the second defense was only in effect a traverse of the com- plaint and did not require any replication. 620 ADVERSE CLAIM. Plea of Abandonment and Relocation. In Bryan v. McCaig, 10 Colo. 309, 15 P. 413, the Supreme Court of Colorado held that an issue as to annual labor was made by general traverse of plaintiff's title in an adverse claim suit. Cited and followed in Duncan v. Eagle Rock Co., 48 Colo. 569, 587, 139 Am. St. Rep. 288, 111 P. 588. And to like effect, in Nevada, Steel v. Gold Co., 18 Nev. 80, 15 M. R. 292, 1 P. 448, holds that under the general allegation each party parades the validity of his own title on whatever grounds established. If when a claim is abandoned it- becomes, as it does, a part of the public domain (Migeon v. Montana Co., 11 F. 249, 23 C. C. A. 156, 18 M. R. 446) : Why is not an allegation, that the defendant at a date later than the abandonment entered on the public domain and discovered and located his claim, a sufficient averment of entry upon unoccupied -ground ? In Morenhaut v. Wilson, 52 Cal. 263, 1 M. R. 53, it was ruled that while abandonment could be proved under the general issue, forfeiture must be specially pleaded. The distinction seems of no particular value, for abandonment by one party unless followed by the entry of the other to advance the aban- donment to forfeiture can not amount to a material issue. Another line of reasoning is that forfeitures are odious ; the party alleging forfeiture must prove it strictly ; the presump- tions are all against it, and, being a special incident not neces- sarily associated with the party's title, it should be alleged in the complaint or answer; that is, should be specially pleaded. Wulf v. Manuel, 9 Mont. 276, 279, 286, 23 P. 723 : Mattingly v. Leu'isohn, 13 Mont. 508, 35 P. Ill, 17 M. R. 693. This conflict of authority is referred to in Johnson v. Young, 18 Colo. 625, 629, 34 P. 173. But the later case of Duncan v. Eagle Rock Co., 48 Colo. 569, 587, 139 Am. St. Rep. 288, 111 P. 588, expressly decides that forfeiture need not be specially pleaded in an adverse claim suit. Also, Merchants Bank v. McKeown, 60 Or. 325, 119 P. 334. ADVERSE CLAIM. 621 Abandonment is wholly immaterial if no issue (directly or indirectly) has been made upon it. Mattingly v. Lewisohn, supra; Coleman v. Davis, 13 Colo. 98, 21 P. 1018. And a party who makes a relocation of an abandoned claim as such can not attack defects in its original location notice. Tosemite Co. v. Emerson, 208 U. S. 25, 28 Sup. Ct. Rep. 196, 52 L. Ed. 374. In a plea of forfeiture "labor" and "improvements" are not synonymous terms and the non-doing of one and the non- performance of the other must be both averred. Power v. Sla., 24 Mont. 243, 61 P. 468, 20 M. R. 659. The Court will not allow an amendment to show that defendant failed to do his work for a certain year, the plain- tiff not having made any relocation after the failure. Nichols v. Williams, 38 Mont. 552, 100 P. 969. Adverse Against Void Claim, Relocation. The Quaking Asp being a prior subsisting claim, the Dog Nest was located over it, its discovery shaft being within the lines of the prior claim and the location therefore void. After- wards the prior claim (as was alleged) failed to do its annual labor and the Dog Nest filed a relocation certificate, applied for patent and was adversed by the Quaking Asp. Held, that the relocation statute was for the benefit of defective, not void, locations and that the relocation certificate was a nullity. Sullivan v. Sharp, 33 Colo. 346, 80 P. 1054. The opinion everywhere has always been that a relocation r perfected the original location if in any respect defective, or, if void, the incident which rendered it void being at the time of relocation gone, it operated as an original location. The case of Strepey v. Stark, 1 Colo. 620, 5 P. Ill, 17 M. R. 28, so decides in terms. The doctrine that a relocation could not cure a location originally void is absolutely novel and contrary to all the cases which have approached the point. Beals v. Cone, 27 Colo. 473, 83 Am. St. Rep. 473, 62 P. 948, 20 M. R. 591; Tonopah Co. v. Tonopah Co., 125 F. 389, 390. 622 ADVERSE CLAIM. The Verdict Should Show That the Winning Party Is entitled to possession by virtue of making a valid location of the claim. Burke v. McDonald, 2 Ida. 646, 679, 33 P. 49, 17 M. R. 325. . It should, of course, comply with all mandatory requirements of the code of the State where tried. But as it has been very rightfully held that neither party is required in the adverse suit to show that he has done everything entitling to patent (Doe v. Waterloo Co., 70 F. 456, 17 C. C. A. 190, 18 M. R. 265), and the National Supreme Court upholds a gen- eral verdict for either party (Bennett v. Harkrader, 158 U. S. 441, 15 Sup. Ct. Rep. 863, 39 L. Ed. 1046, 18 M. R. 224), it would seem that such strictness as was insisted on in M.cGinnis v. Egbert, 15 M. R. 329, 8 Colo. 41, 5 P. 652, and Manning v. Strehlow, 11 Colo. 451, 18 P. 625, ought not now to be required. A general verdict of guilty in ejectment is sufficient. Upton v. Santa Eita Co., 14 N. M. 96, 89 P. 275. MM. VERDICT FOE PLAINTIFF. We, the jury, find the issues in favor of the plaintiff, 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 complaint, to-wit: All that part of ihe Elephant lode mining claim covered ~by the survey of the Busy Bee lode mining claim, Survey Lot No. 21000 A; and that he, the plaintiff, is such owner and 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 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 claimed in his complaint. NN. VERDICT FOE DEFENDANT. We, the jury, find the issues in favor of the defendant, 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 Busy Bee lode mining claim, Survey Lot No. 21000 A, 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 Busy Bee lode mining claim. ADVERSE CLAIM. 623 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. Ruling's in Ejectment Supporting Adverse. Declarations of a locator may be given in evidence to dispute his title. Harrington v. Chambers, supra; Muldoon v. Brown, 21 Utah 121, 59 P. 720, 20 M. R. 269 ; Morgan v. Myers, 159 Cal. 187, 113 P. 153. But not admissions made after he has parted with his title. McGinnis v. Egbert, 15 M. R. 329, 8 Colo. 41, 5 P. 652. And in Willison v. Ringwood, 194 F. 550, 111 C. C. A. 401, they were excluded on the further ground that the witness was within the jurisdiction of the Court and should have been called as a witness. A post marked as a center post may be shown in adverse suit to have been intended for a corner post. Sharkey v. Candiani, 48 Or. 112, 7 L. R. A. (N. S.) 791, 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, 3 Utah 94, 1 P. 362. Affirmed, Chambers v. Harrington, 111 U. S. 350, 4 Sup. Ct. Rep. 428, 28 L. Ed. 452, but with only a general reference to this point in the last paragraph. To the contrary seems Strepey v. Stark, 1 Colo. 614, 5 P. Ill, 17 M. R. 28. See EJECTMENT, p. 436. Diligent Prosecution. The Land Office can not adjudicate npon the question whether the suit is being prosecuted with due diligence. 22 L. D. 16 ; Richmond Co. v. Rose, 114 U. S. 576, 5 Sup. Ct. Rep. 1055, 29 L. Ed. 273 ; Rose v. Richmond Co., 17 Nev. 25, 27 P. 1105. In Mars v. Oro Fino Co., 1 S. D. 606, 65 N. W. 19, the suit was dismissed for delay in securing service. Dismissal and Reinstatement. Jurisdiction once attached remains and where default was had, but the cause reinstated, the adverse holds, notwith- 624 ADVERSE CLAIM. standing the certificate of no suit pending had been filed dur- ing the interval. 1 L. D. 542; Rev. Ed. 539. Nor will a receiver's receipt obtained in such interval be allowed in evi- dence. McEvoy v. Hyman, 25 F. 539, 15 M. R. 300 j Deemy v. Mineral Co., 11 N. M. 279, 67 P. 724, 22 M. R. 47. Waiver Withdrawal or Failure to Support. An adverse claim may be withdrawn either before or after bringing the suit, thereby waiving all rights claimed. 4 L. D. 117 ; 29 L. D. 89. Or by voluntarily 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, 40 P. 569, and a second suit can not afterwards be brought. Steves v. Carson, 42 F. 821, 16 M. R. 12. 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, 19 Utah 334, 57 P. 11, 20 M. R. 55. Defects in the Adverse Claim Are Not Material to the Issue at law between the parties, and are for departmental con- sideration only. Rose v. Richmond Co., 17 Nev. 25, 27 P. 1105; Quigley v. Gillett, 101 Gal. 462, 35 P. 1040, 18 M. R. 68. The practice after suit commenced is under State law and the proceedings in the Land Office are immaterial to the trial. Bernard v. Parmelee, 6 Gal. App. 537, 92 P. 658. Title in Neither Party. That if, in any action brought pursuant to section twenty-three hun- dred and twenty-six of the Eevised Statutes, title to the ground in contro- versy shall not be established by either party, the jury shall so find, and judgment shall be entered according to the verdict. In such case costs shall not be allowed to either party, and the claimant shall not proceed in the land office or be entitled to a patent for the ground in controversy until he shall have perfected his title. A. C. March 3, 1881 ADVERSE CLAIM. 625 The rulings under the above Act are, that each party is prac- tically a plaintiff and must show his title. Slothower v. Hunter, 15 Wyo. 189, 88 P. 36 ; but that if neither shows 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, 3 Sup. Ct. Rep. 301, 27 L. Ed. 990; Rosenthal v. Ives, 15 M. R. 324, 2 Ida. 244, 265, 12 P. 904. See p. 622. The effect of the Act is to prevent a recovery upon possession alone in ejectment supporting adverse. Becker v. Pugh, 9 Colo. 589, 13 P. 906, 15 M. R. 304; Upton v. Santa Rita Co., 14 N. M. 96, 88 P. 275. In Ware v. White, the opinion, entirely overlooking the terms of the statute referring to cases where titles shall not be established by either party, says : ' ' The question of appel- lant's title is not for adjudication, but appellee's." 81 Ark. 220, 228, 108 S. W. 831. After judgment of title in neither party the Land Office will not allow the application to be perfected. Newman v. Barnes, 23 L. D. 257. Non-Suit Defendant's Proof of Title. It has been held that plaintiff may be non-suited as in an ordinary ejectment. Kir k v. Meldrum, 28 Colo. 453, 459, 65 P. 633, 21 M. R. 393; McWilliams v. Winslow, 34 Colo. 341, 82 P. 538. But if the defendant be content with such judgment and fail to prove his own title he runs the risk of rejection of his application in the Land Office. Kirk v. Meldrum, 28 Colo. 453, 459, 65 P. 633, 21 M. R. 393. Plaintiff at this point is out of court and can not demand a jury view or cross examine or otherwise attack the title of the defendant who is now proceeding ex parte to secure a judg- ment upon which to predicate his right to a patent. Moffat v. Blue River Co., 33 Colo. 142, 80 P. 139; Connolly v. Hughes, 18 Colo. App. 372, 71 P. 681; McMillen v. Ferrum Co., 32 626 ADVERSE CLAIM. Colo. 38, 105 Am. St. Rep. 64, 74 P. 462 ; Benton v. Hopkins, 31 Colo. 518, 74 P. 891 ; Lozar v. Neill, 37 Mont. 287, 96 P. 343. Entry of the Area Not in Dispute. The department has ruled that where the adverse 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, defend against the contest of the ad- verse claimant in the suit supporting adverse. 2 L. D. 744, 22 L. D. 343. 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 L. D. 321. Proceedings After Determination of Suit. The Land Office requirements in such case are stated 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 enter 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 whatever is required of an applicant, except, of course, the posting and publication. 39 L. D. 353. He must also furnish the Surveyor General's certificate of $500 improvements. 43 L. D. 499. 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 application and excluded defendant's prior survey, the judgment roll shows him entitled to and he is allowed to enter such ground, ADVERSE CLAIM. 627 although originally excluded. If he does not begin his applica- tion until after he has obtained judgment, his application will include the area formerly in conflict. 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. S. 683, 15 Sup. Ct. Eep. 733, 39 L. Ed. 859, 18 M. E. 205; Bunker Hill Co. v. Empire Co., 109 F. 538, 48 C. C. A. 665; Empire Co. v. Bunker Hill Co., 114 F. 420, 52 C. C. A. 222. But see U. 8. M. Co. v. Lawson, as cited ante, p. 176. Compromised Cases. 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 with- out further complications, and the defendant can convey after entry according to the terms of settlement. But in all this class of cases, and especially where there are two or more adverses, legal counsel should be taken. A set- tlement between the applicant and one adversor can not 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. Annual Labor Pending the Trial. In the matter of the Marburg Lode, 30 L. D. 202, the depart- ment 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 recog- nize as protestant a relocation made during such interval, based on non-performance of labor. If such be the correct ruling we can not see why it should not also apply to the adversing claim. Questions of procedure in the Land O.TLe 628 ADVERSE CLAIM. are for that office to decide. Construction of statutes defining conditions of the title are for the Courts. Poore v. Kaufman, 44 Mont. 248, 119 P. 785. 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 and 31 L. D. 69. In Willitt v. Baker, 133 F. 937, the peculiar ruling was made that both plaintiff and defendant must show that they had respectively performed their annual labor during the preced- ing year. Agreement to Not Adverse. When contesting claimants agree with the applicants to file no adverse in consideration of the applicants 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 agree- ment should be formally reduced to writing under signature and seal. Such a contract is not against public policy and will be enforced. St. Louis Co. v. Montana Co., 171 U. S. 650, 19 Sup. Ct. Eep. 61, 43 L. Ed. 320, 19 M. R. 575. In Dude v. Ford, 138 U. S. 587, 11 Sup. Ct. Rep. 417, 34 L. Ed. 1091, 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 writ- ten, and the plaintiff went without relief. This decision, how- ever, 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. See Ponda v. Eagle, as cited ante, p. 171. PEOTEST. 629 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 applicant 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 presumption 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 applicant. But if the protest be sustained and the applicant be compelled to begin de novo, as, for instance, where the irregularity pointed out to the de- partment is a short publication and he is required to go back to that point and republish upon the new proceedings or the republication the protestant has the opportunity to file his adverse claim. Any stranger to the original application would have the same right. 23 L. D. 395. 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. 22 L. D. 624; but it should be averred to give standing to the protestant. The department will entertain a protest as provided in R. S. Sec. 2325, showing that "the applicant has failed to comply with the terms of this chapter ' ' that is, has made a substan- tially irregular step in 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 claim. 2 L. D. 743, 17 Id. 112, 27 Id. 396, 38 Id. 387 ; or that the posting was defective, or that $500 improvements were not made. 16 L. D. 532, 27 Id. 396 ; or any other serious want of conformity to the law or to the land office regulations. 16 L. D. 532. 630 PEOTEST. But the fact that the discovery is not upon the public domain because upon location of the protestant'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 grounds of protest. 22 L. D. 624, 27 Id. 191, 26 Id. 580, 30 Id. 67. A protest by a mineral claimant against an agricultural claim should state the kind of mineral and the character and general situation of the formation. 37 L. D. 401. Upon protest the land office will cause an issue to be made upon the fact as to whether there was a valid discovery. 38 L. D. 387. Appeal by Protestant. A protestant claiming an interest is allowed the right of appeal. 8 L. D. 122, 16 Id. 532, 29 Id. 230. But if he has no such interest he is regarded as a mere amicus curiae and has no such right. 8 L. D. 439. A party having no surface con- flict 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. A relocation by a protestant after entry does not entitle the protestant to an appeal. 39 L. D. 574. The Test Between Adverse and Protest Is That Where a defect exists which is a matter of public 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 applicant and the protestant, or as between the applicant and a third party who is not complaining (21 L. D. 30, Mod. on Review, Id. 544), the protestant can not by his protest claim the right to litigate in this form what he should have contested by adverse. PKOTEST. 631 FORM OF PROTEST. In the matter of the Application of The Anaconda Mining Company for patent on the Martha Becker Mill Site, Survey Lot No. 930 B, Pueblo Land Office, Colorado. To the Register and Eeceiver of said United States Land Office: Your protestant, C. H. Aldrich, whose postoffice address is Chicago, Illinois, a citizen of the United States over the age of twenty-one years, hereby respectfully protests against the entry by, and issuance of patent to, The Anaconda Mining Company, on their so-called mill site styled the Martha Becker Mill Site, Survey Lot No. 930 B, situate in Cripple Creek mining district, County of Teller, State of Colorado. Because: 1. The said so-called mill site is not and never was used or occupied in connection with the said Martha Becker 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 improve- ments upon said mill site except the improvements made by you protestant. 4. " The said mill site is below the mill and below the tailrace of th& mill of the said applicant company, and has never been and is not now parcel of nor appurtenant to said mill, nor included within the mill site on which said mill stands. 5. Said so-called mill site or a great part thereof, the conflicting area being shown by the plat hereto attached duly certified (see p. 603), was in good faith located as the Lion Mill Site by your protestant in the year 1897, and long prior to the said application and is 'now being used for mining purposes in connection with the Lion lode, lying immediately above the said mill site, owned and being worked by your protestant. (6, etc.; 7, etc.) Add or substitute other reasons according to the facts, e. g. the publication was not posted on the Land Office Bulletin during the period of newspaper publication the location of said mill site is on mineral land and land more valuable for mineral than for mill site purposes etc. Wherefore for these causes as verified by the affidavit of your protestant attached hereto, and as well for the want of proper proof that In the General Land Office the address is "To The Honorable the Commissioner of the General Land Office. " In the Department ' ' To The Honorable the Secretary of the Interior." 632 PKOTEST. the said so-called Martha Becker Mill Site is being "used or occupied by the proprietor of the said Martha Becker lode for mining or milling purposes," as required by t^e terms of section 2337 of the Revised Statutes of the United States, and that the applicant has otherwise failed to comply with the terms of Chapter 6 of Title XXXII of said Revised Statutes, entitled "Mineral Lands and Mining Resources," your petitioner protests as aforesaid. C. H. ALDRICH. LAWRENCE LEWIS, Denver, Attorney for Protestant. STATE OF COLORADO, ) gg County of Teller. ) Before me, the subscriber, "E. H. Gruber, a Notary Public In and for said County, personally appeared C. H. Aldrich, who, being duly sworn, saith that he is the protestant named in the foregoing protest subscribed by him; that he has read the same and knows the contents thereof, and that the same and the matters and things therein stated are true. C. H. ALDRICH. Sworn and subscribed before me this 10th day of January, A. D. 1916. My commission expires Dec. 27, 1919. [SEAL] E. H. GRUBER. Notary Public. Land Office Jurisdiction. Until by entry title passes out of the United States, the land office has jurisdiction of or supervision over contests between claimants. Plested v, AUey, 228 U. S. 42, 33 Sup. Ct. Rep. 503, 57 L. Ed. 724. Courts are not bound by action of the General Land Office on eoi parte proofs. Milner v. U. S., 228 F. 431. The land office will take notice of a protest against an appli- cation for patent in considering a second application to the same ground. 44 L. D. 125. TIDE LANDS. 633 TIDE LANDS. Minerals lying between high and low tide, as well as under the sea, in a Territory, belong to the national government, but they are not considered part of the public domain open to the settler or occupant under any form of entry. Upon admission of the Territory this sovereignty passes to the State govern- ment 29 L. D. 396 ; Shively v. Bowlby, 152 U. S. 1, 14 Sup. Ct. Rep. 548, 38 L. Ed. 331. 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. G. R. Co., 144 Gal. 134, 103 Am. St. Rep. 72, 1 Ann. Gas. 182, 66 L. R. A. 242, 77 P. 823. By the Alaska Act the tide lands of Bering Sea are opened to exploration and mining to wit : 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 district on the beach should not extend to ground below the tide on all points not covered by the Secretary's rules. The act contemplates only the temporary working 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. Comp. Laws, 1913, Sec. 129. At other points, on shore of either State or Territory, mining by the first occupant is a trespass as against the government, but no third party has the right to complain. 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 sufferance. 634 ALASKA. ALASKA. 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 notice and record and forbade more than one location by the same person on the same lode. The uni- versal terms of Sec. 2324 of course applied. And all possessory claims prior to 1884 were validated by the act of that year. Bennett v. Harkrader, 158 U. S. 443, 15 Sup. Ct. Rep. 863, 39 L. Ed. 1046, 18 M. R. 224. From 1900 to 1912. By A. C. of June 6, 1900, 31 Stat. L. 321, three recording divisions were created, the act fixing their boundaries. These recording divisions were subdivided into recording districts. The act provided for record of mining claims and for the recognition of district rules allowing 90 days after discovery for record but not giving details of location. Special Legislation Placers Annual Labor Adverse Claims Mechanics' Liens. Alaska was created a Territory by A. C. approved August 24, 1912, 37 Stat. L. 512. Being the only continental Territory, it has been subjected to many acts not applicable elsewhere. By A. C. of March 2, 1907, 34 Stat. L. 1243, a special annual labor act was passed, the notable feature of which is that the labor is compulsory, with no right of resumption as allowed elsewhere. Thatcher v. Brown, 190 F. 708, 111 C. C. A. 436 ; Ebner Co. v. Alaska Co., 210 F. 599, 127 C. C. A. 235. Annual labor for 1913 on Seward Peninsula was condoned under certain conditions. 38 Stat. L. 235. On account of the immensity of its distances it has been most justly allowed a longer time to file adverse claims and to bring the supporting suit. This time is eight months to file ALASKA. 635 and 60 days after filing the adverse claim, is the period to bring the suit. 36 Stat. L. 459. It has a special mechanics' lien law. 36 Stat. L. 848. Indians. Right of Indians to occupy and alienate land. Worthen Co. v. Alaska Co., 229 P. 966. Tide lands are declared open to exploration for mining purposes with the right to dredge below low tide. Comp. Laws of 1913, Sec. 129. Mining Acts. In 1913 the Territorial Legislature passed a general mining act which was repealed in 1915 when the act now in force was adopted, the material requirements of which as to lode claims are found on page 69, and as to placers on page 272. The full text of the A. C. of August 1, 1912, 37 Stat. L. 242, especially relating to placer claims and agency locations, which was re-enacted as a Territorial law as Sees. 129a-129e of the Alaska Laws of 1915, reads as follows: 40-Acre Placer Limit Annual Labor. Sec. 129A. That ho association placer mining claim shall hereafter be located in Alaska in excess of forty acres, and on every placer mining claim hereafter located in Alaska, 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, including the year of location, for each and every twenty acres or excess fraction thereof. Agency Locations. Sec. 129B. That no person shall hereafter locate any placer mining claim in Alaska as attorney for another unless he is duly authorized thereto by a power of attorney in writing, duly acknowledged and recorded in any recorder's office in the judicial division where the loca- tion is made. Any person so authorized may locate placer mining claims for not more than two individuals or one association under such power of attorney, but no such agent or attorney shall be authorized or per- 636 ALASKA. mitted to locate more than two placer mining claims for any one prin- cipal or association during any calendar month, and no placer mining claim shall hereafter be located in Alaska except under the limitations of this Act. See Sutherland v. Purdy, 234 F. 600. Monthly Limitation. See. 129C. That no person shall hereafter locate, cause or procure to be located, for himself more than two placer mining claims in any calendar month; Provided, That one or both of such locations may be included in an association claim. Width of Claim. Sec. 129D. That no placer mining claim hereafter located in Alaska shall be patented which shall contain a greater area than is fixed by law, nor which is longer than three times its greatest width. Act Mandatory. Sec. 129E. That any placer mining claim attempted to be located in violation of this Act shall be null and void, and the whole area thereof may be located by any qualified locator as if no such prior attempt had been made. In conformity to the terms of the A. C. of March 2, 1907, 34 Stat. L. 1243, Comp. Laws of 1913, Sec. 162, the Territorial Legislature describes the details of affidavit of annual labor as follows: Affidavit of Annual Labor. In order to hold a claim or claims after the annual assessment work has been done thereon, the owner of such claim or claims, or some- other person having knowledge of the facts, shall make and file an affidavit of the performance of such assessment work with the recorder of the district in which such claim or claims is or are located, not later than ninety days after the close of the calendar year in which such work was done, or the improvements made, which affidavit shall set forth the following: (a) The name and number of the claim and where situated. (b) The number of the days' work and the character and value of the improvements made thereon. (c) The date of the performance of such labor and the making of such improvements. (d) The place where such work was done and improvements made with reference to the boundaries of such claim. ALASKA. 637 (e) At whose instance the work was done and improvements made- (f ) The actual amount paid for such work and improvements and by whom paid, when such work was not done or improvements made by the owner. The failure to file for record the proof of assessment work as herein provided shall be deemed an abandonment of the location and the claim shall be subject to relocation by any other person, provided, however, that a compliance with the provisions of this section before any relocation shall operate to save the rights of the original locator, and further pro- vided, that if said placer claim or claims have not been relocated by any other person or persons within one year after such forfeiture, the last locator, claimant or owner of such forfeited claim may return to said forfeited claim or claims and relocate the same as though the same had never been located. Act of 1915, See. 7. Decisions. The record of the power of attorney in Alaska is in time if made before adverse rights accrue. Cloninger v. Firilaison, 230 F. 98. A lease is a conveyance under the Alaska recording act. Waskey v. Chambers, 224 U. S. 564, Ann. Cas. 1913D, 998, 32 Sup. Ct. Rep. 597, 56 L. Ed. 885, reversing Eadie v. Cham- bers, 172 F. 73, 18 Ann. Cas. 1096, 24 L. R. A. (N. S.) 879, 96 C. C. A. 561. Coal Lands. The general coal lands sections were extended to Alaska by A. C. June 6, 1900, 31 Stat. L. 658. By A. C. April 28, 1904, 33 Stat. L. 525, this general law was specialized for Alaska, the act providing for limited entries and for publication and adverse claims in form somewhat similar to adverse claim pro- ceedings on a lode application. This was followed by Act of May 25, 1908, 35 Stat. L. 424, attempting to give to the United States a preferential right to purchase the coal. But the act approved October 20, 1914, 38 Stat. L. 741, revo- lutionizes the procedure to obtain title to coal lands in the Territory. 638 PHILIPPINE ISLANDS. Its first section provides for an official survey of the coal lands and its second section calls for extensive reservations for government use and for the navy. By sections 3-6 lands not reserved are to be divided into blocks for leasing, and further clauses provide for a schedule of regulations by the Secretary of the Interior. The act practically denies all rights to the prospector and even the privilege to lease becomes accessible only to those with unlimited means to retain counsel and obtain recognition by the department. Any further analysis of its provisions is entirely beyond the scope of this work. Discovery of an outcrop of coal in Alaska is not an improve- ment under the Act of 1904. 43 L. D. 305. And prospecting is not equivalent to discovery. 45 L. D. 56, 65. .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. Reavis v. Fianza is a decision under these acts protecting the native title to mines worked by them by long continued posses- sion alone. 215 U. S. 16, 30 Sup. Ct. Rep. 1, 54 L. Ed. 72. 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. 1. That the mineral lands of the public domain, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and occupation by all citizens of the United States, and those who have declared their intention to become citizens, subject to such regulations as TEXT OF U. S. STATUTES EEPEALED. 63i may be prescribed by law, and subject also to the local customs or rules of miners in the several mining districts, so far as the same may not be in conflict with the laws of the United States. 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, cinna- bar, or copper, having previously occupied and improved the same accord- ing to the local custom or rules of miners in the district where the same is situated, and having expended in actual labor and improvements thereon an amount of not less than one thousand dollars, and in regard to whose possession there is no controversy or opposing claim, it shall and may be lawful for said claimant or association of claimants to file in the local land office a diagram of the same, so extended laterally or otherwise as to conform to the local laws, customs and rules of miners, and to enter such tract and receive a patent therefor, granting such mine, together with the right to follow such vein or lode with its dips, angles, and variations, to any depth, although it may enter the land adjoining, which land adjoining shall be sold subject to this condition. Application for Patent. See. 3. That upon the filing of the diagram as provided 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 office shall publish a notice of the same in a news- paper published 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 premises and make a plat thereof, indorsed with his ap- proval, designating the number and description of the location, the value of the labor and improvements, and the character of the vein exposed ; and upon the payment to the proper officer of five dollars per acre, to- gether with the cost of such survey, plat, and notice, and giving satis- factory evidence that said diagram and notice have been posted on the claim during said period of ninety days, the register of the land office shall transmit to the general land office said plat, survey, and description ; and a patent shall issue for the same thereupon. But said plat, survey, or description shall in no case cover more than one vein or lode, and no patent shall issue for more than one vein or lode, which shall be expressed in the patent issued. 640 TEXT OF U. S. LAWS IN FORCE. Form of Survey Length of Claim. Sec. 4. That when such location and entry of a mine shall be upon unsurveyed lands, it shall and may be lawful, after the extension thereto of the public surveys, to adjust the surveys to the limits of the premises according to the location and possession and plat aforesaid, and the surveyor general may, in extending the surveys, vary the same from a rectangular form to suit the circumstances \ of the country and the local rules, laws, and customs of miners; Provided, That no location here- after made shall exceed two hundred feet in length along the vein for each locator, with an additional claim for discovery to the discoverer of the lode, with the right to follow such vein to any depth, with all its dips, variations, and angles, together with a reasonable quantity of sur- face for the convenient working of the same as fixed by local rules: And provided further, That no person may make more than one location on the same lode, and not more than three thousand feet shall be taken in any one claim by any association of persons. See page 12. Adverse Claims. See. 6. 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 settlement and adjudication in the courts of competent jurisdiction of the rights of possession to such claim, when a patent may issue as in other cases. 14 St. L. 251. *FULL TEXT OF UNITED STATES LAWS NOW IN FORCE. The text is taken from the Revised Statutes of the United States, the Compiled Laws, and the Statutes at Large to the first session of the Sixty-fourth Congress, 1916. 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. Approved July 26, 1866. An Act to amend an Act granting the right of way to ditch and canal owners over the public lands, and for other purposes. Approved July 9, 1870. An Act to promote the development of the mining resources of the United States. Approved May 10, 1872. * In 44 L. D., commencing at p. 247, is found a reprint of all the Mining Acts to August 6, 1915. TEXT OF U. S. LAWS IN FORCE. 641 Commonly called the "Mining Acts," with all their amend- ments, and miscellaneous sections from other acts. The sections of the Act of 1866, repealed by the Act of 1872, are printed, ante p. 638. TITLE XIII, CHAPTER SEVENTEEN. Possessory Actions. Sec. 910. No possessory action between persons, in any court of the United States, for the recovery of any mining title, or for damages to any such title, shall be affected by the fact that the paramount title to the land in which such mines lie is in the United States; but each case shall be adjudged by the law of possession. Sec. 9, Feb. 27, 1865. See p. 6. TITLE XXXII, CHAPTER SIX. ENTITLED "MINERAL LANDS AND MINING RESOURCES." 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. Sec. 5, July 4, 1866. General License. Sec. 2319. All valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the District United States and those who have declared their inten- Rules tion to become such, under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States. Sec. 1, May 10, 1872. See p. 6. Length of Claims. Sec. 2320. Mining claims upon veins or lodes of quartz or other rock in place bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposits, heretofore located, shall be governed as to length along the vein or lode by the customs, regulations, and laws in force at the date of tlioir location. A mining claim located after the tenth day of Discovery May, eighteen hundred and seventy-two, whether located Essential. by one or more persons, may equal, but shall not exceed, Width of one thousand five hundred feet in length along the vein Claims. or lode; but no location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located. No claim shall extend more than three hundred feet 642 TEXT OF U. S. LAWS IN FORCE. on each side of the middle of the vein at the surface, nor shall any claim be limited by any mining regulation to less than twenty-five feet on each side of the middle of the vein at the surface, except where adverse rights existing on the tenth day of May, eighteen hundred and seventy-two, render such limitation necessary. The end lines of each claim shall be parallel to each other. Sec. 2, May 10, 1872. See pp. 18, 22. Proof of Citizenship. Sec. 2321. Proof of citizenship, under this chapter, may consist, in the case of an individual, of his own affidavit thereof; in the case of an association of persons unincorporated, of the affidavit of Citizenship of their authorized agent, made on his own knowledge, or Corporations. upon information and belief; and in the case of a cor- poration organized under the laws of the United States, or of any State or Territory thereof, by the filing of a certified copy of their charter or certificate of incorporation. See. 7, May 10, 1872. See p. 564. Surface Dip and Side Veins. Sec. 2322. The locators of all mining locations heretofore made or which shall hereafter be made, on any mineral vein, lode, or ledge, situ- ated on the public domain, their heirs and assigns, where no adverse claim exists on the tenth day of May, eighteen hundred and seventy-two, so long as they comply with the laws of the United States, and with State, Territorial, and local regulations not in conflict with the laws of the United States governing their possessory title, shall have the exclusive right of possession and enjoyment of all the surface Top or Apex included within the lines of their locations, and of all Controls. veins, lodes, and ledges throughout their entire depth, the top 'or apex of which lies inside of such surface lines extended downward vertically, although such veins, lodes, or ledges may eo 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 con- fined to such portions thereof as lie between vertical planes drawn down- ward as above described, through the end lines of their Surface. locations, so continued in their own direction that such planes will intersect such exterior parts of such veins or ledges. And nothing in this section shall authorize the locator or possessor of a vein or lode which extends in its downward course beyond the vertical lines of his claim to enter upon the surface of a claim owned or possessed by another. Sec. 3, May 10, 1872. See pp. 191, 202. TEXT OF U. 8. LAWS IN FORCED 643 Tunnels. Sec. 2323. Where a tunnel is run for the development of a vein or lode, or for the discovery of mines, the owners of such tunnel shall have the right of possession of all veins or lodes within three thousand feet from the face of such tunnel on the line thereof, not previously known to exist, discovered in such tunnel, to the same extent as if discovered from the surface; and locations on the line of such tunnel of veins or lodes not appearing on the surface, made by other parties after the commence- ment of the tunnel, and while the same is being prosecuted with reasona- ble diligence shall be invalid; but failure to prosecute the work on the tunnel for six months shall be considered as an abandonment of the right to all undiscovered veins on the line of such tunnel. Sec. 4, May 10, 1872. See p. 311. 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 of recording, amount of work necessary to hold possession of a mining claim, subject to the following requirements: Location, The location must be distinctly marked on the ground Eecord. so that its boundaries can be readily traced. All records of mining claims hereafter made shall contain the name or names of the locators, the date of the location, and such a description of the claim or claims located by reference to some natural object or permanent monument as will identify the claim. On each claim located after the tenth day of May, eighteen hundred and Annual seventy-two, 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 im- provements 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 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 repre- sentatives, have not resumed work upon the claim after Forfeiture. failure and before such 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 the improvements may, at the expiration of the year. 644 TEXT OF U. S. LAWS IN FORCE. give such delinquent co-owner personal notice in writing or notice by publi- cation in the newspaper published nearest the claim, for at least once a week for ninety days, and if at the expiration of ninety days after such notice in writing or by publication such delinquent should fail or refuse to contribute his proportion of the expenditure required by this section, his interest in the claim shall become the property of his co-owners who have made the required expenditures. Sec. 5, May 10, 1872. See pp 84, 114, 142. Amendment of 1875 Labor by Tunnel. 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 develop- ing 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 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. See. 1, Feb. 11, 1875. Comp. Laws, p. 1427. See page 319. 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 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 seventy-two." See. 2, January 22, 1880. Comp L. p. 1427. See p. 114. Application for Patent. Sec. 2325. A patent for any land claimed and located for valuable deposits may be obtained in the following manner: Any person, associa- tion, 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 com- pliance, together with a plat and field notes of the claim or claims in common, made by or under the direction of the United States Surveyor General, showing accurately the boundaries of the claim or claims, which shall be distinctly marked by monuments on the ground, and shall post a copy of such plat, together with a notice of such application for a patent, TEXT OF U. S. LAWS IX FORCE. G4.5 in a conspicuous place on the land embraced in such plat previous to the filing of the application for a patent, and shall file an affidavit of at least two persons that such notice has been duly posted, and shall file a copy of the notice in such land office, and shall thereupon be entitled to a patent for the land, in the manner following : The register of the land office, upon the filing of such application, plat, field 60 Days' notes, notices, and affidavits, shall publish a notice that Publication, such application has been made, for the period of sixty days, in a newspaper to be by him designated as pub- lished nearest to such claim; and he shall also post such notice in his offica for the same period. The claimant at the time of filing this appli- cation, or at any time thereafter, within the sixty days of publication, shall file with the register a certificate of the United $500 Improve- States Surveyor General that five hundred dollars ' worth ' ments. of labor has been expended or improvements made upon the claim by himself or grantors ; that the plat is correct, with such further description by such reference to natural objects or permanent monuments as shall identify the claim, and furnish an accurate description, to be incorporated in the patent. At the expiration of the sixty days of publication the claimant shall file his affidavit, showing that the plat and notice have been posted in a conspicuous Adverse place on the claim during such period of publication. Claim. If no adverse claim shall have been filed with the register and the receiver of the proper land office at the expira- tion of the sixty days of publication, it shall be assumed that the applicant is entitled to a patent, upon the payment to 5 per the proper officer of five dollars per acre, and that no Acre. adverse claim exists; and thereafter no objection from third parties to the issuance of a patent shall be heard, except it be shown that the applicant has failed to comply with the terms of this chapter. Sec. 6, May 10, 1872. See APPUCATION FOB PATENT, p. 540. Application by Non-Residents. That section twenty-three hundred and twenty-five of the Revised Statutes of the United States be amended by adding thereto the following words: "Provided, That where the claimant for a patent is not a resi- dent 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 be made in this section by the claimant for such patent may be made by his, her, or its authorized agent, where said agent is conversant with the facts sought to be established by said affidavits; "And provided, That this section shall apply to all applications now pending for patents to mineral lands." Sec. 1, January 22, 1880. Comp. L. p. 1429. See page 578. 646 TEXT OF U. S. LAWS IN FORC^. Adverse Claims. Sec. 2326. Where an adverse claim is filed during the period of pub- lication, 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 con- Suit Support- troversy shall have been settled or decided by a Court ing in SO of competent jurisdiction, or the adverse claim waived. Days. It shall be the duty of the adverse claimant, within thirty days after filing his claim, to commence proceed- ings in a Court of competent jurisdiction, to determine the question of the right of possession, and prosecute the same with reasonable diligence to final judgment; and a failure so to do shall be a Proceedings waiver of his adverse claim. After such judgment shall After have been rendered, the party entitled to the possession Judgment. of the claim, or any portion thereof, may, without giving further notice, file a certified copy of the judgment-roll with the register of the land office, together with the certificate of the Surveyor General that the requisite amount of labor has been expended or improvements made thereon, and the description required in other cases, and shall pay to the receiver five dollars per acre for his claim, together with the proper fees, whereupon the whole proceedings and the judgment- roll shall be certified by the register to the Commissioner of the General Land Office, and a patent shall issue thereon for the claim, or such portion thereof as the applicant shall appear, from the decision of the Court, to rightly possess. If it appears from the decision of the Court that several parties are entitled to separate and different portions of the claim, each party may pay for his portion of the claim, with the proper fees, and file the certificate and description by the Surveyor General, whereupon the register shall certify the proceedings and judgment-roll to the Com- missioner of the General Land Office, as in the preceding case, and patents shall issue to the several parties according to their respective rights. Nothing herein contained shall be construed to prevent the alienation of the title conveyed by a patent for a mining claim to any person what- ever. Sec. 7, May 10, 1872. See p. 599. Title in Neither Party. That if, in any action brought pursuant to section twenty-three hun- dred and twenty-six of the Eevised Statutes, title to the ground in con- troversy shall not be established by either party, the jury shall so find, and judgment shall be entered according to the verdict. In such case costs shall not be allowed to either party, and the claimant shall not proceed in the land office, or be entitled to a patent for the ground in controversy until he shall have perfected his title. March 3, 1881. Comp. L. p. 1431. See p. 624. TEXT OF U. S. LAWS IN FORCE, 647 Adverse by Agent for Non-Residents. That the adverse claim required by section twenty-three hundred and twenty-six of the Eevised Statutes may be verified by the oath of any duly authorized agent or attorney-in-fact of the adverse claimant cog- nizant of the facts stated; and the adverse claimant, if residing or at the time being beyond the limits of the district wherein the claim is situated, may make oath to the adverse claim before the clerk of any Court of record of the United States or of the State or Territory where the adverse claimant may then be, or before any notary public of such State or Territory. Sec. 1, April 26, 1882. Comp. L. p. 1431. Affidavits Out of Land District. That applicants for mineral patents, if residing beyond the limits of the district wherein the claim is situated, may make any oath or affidavit required for proof of citizenship before the clerk of any Court of record or before any notary public of any State or Territory. Sec. 2, Id. Comp. L. p. 1425. Survey Amendment of 1904. *See. 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, but need not conform therewith; but where patents have been or shall be issued for claims upon unsurveyed lands, the Sur- veyors General, in extending the public survey, shall adjust the same to the boundaries of said patented claims so as in no case to interfere with or change the true location of such claims as they are officially established upon the ground. Where patents have issued for mineral lands, those lands only shall be segregated and shall be deemed to be patented which are bounded by the lines actually marked, denned, and established upon the ground by the monuments of the official survey upon which the patent grant is based, and Surveyors General in executing subsequent patent surveys, whether upon surveyed or unsurveyed lands, shall be governed accordingly. The said monuments shall at all times constitute the highest 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 need not conform therewith ; but where a patent shall be issued for claims upon unsurveyed lands, the Surveyor General, in extending the surveys, shall adjust the same to the boundaries of such patented claim, according to the plat or description thereof, but so as in no ease to interfere with or change the location of any such patented claim. Sec. 8, May 10, 1872. 648 TEXT OF U. S. LAWS IN FORCE,. authority as to what land is patented, and in case of any conflict between the said monuments of such patented claims and the descriptions of said claims in the patents issued therefor the monuments on the ground shall govern, and erroneous or inconsistent descriptions or calls in the patent descriptions shall give away thereto. April 28, 1904. 33 St. L. 545. Previous Applications. 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 Adverse of this chapter; and all patents for mining claims upon Bights veins or lodes heretofore issued shall convey all the rights Excepted. and privileges conferred by this chapter where no ad- verse rights existed on the tenth day of May, eighteen hundred and seventy-two. Sec. 9, May 10, 1872. See p. 190. Placers Open to Entry. Sec. 2329. Claims usually called "placers," including all forms of deposit, excepting veins of quartz, or other rock in place, shall be subject to entry and patent, 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 States, the entry in its exterior limits shall conform to the legal subdivisions of the public lands. Sec. 12, July 9, 1870. See p. 257. Oil Placer Act. That any person authorized to enter lands under the mining laws of the United States may enter and obtain patent to lands containing petroleum or other mineral oils, and chiefly valuable therefor, under the provisions of the laws relating to placer mineral claims; Provided, That lands con- 'taining such petroleum or other mineral oils which have heretofore been filed upon, claimed, or improved as mineral, but not yet patented, may be held and patented under the provisions of this act the same as if such filing, claim, or improvement were subsequent to the date of the passage hereof. Feb. 11, 1897. 29 St. L. 526. See p. 686. Annual Labor on Oil Claims. See p. 142. Saline Placer Act. That all unoccupied public lands of the United States containing salt springs, or deposits of salt in any form, and chiefly valuable therefor, are hereby declared to be subject to location and purchase under the provis- ions of the law relating to placer mining claims: Provided, That the TEXT OF U. S. LAWS IN FORCE. 649 same person shall not locate or enter more than one claim hereunder. Jan. 31, 1901. 31 St. L. 745. See p. 261. Legal Subdivision of Placers. Sec. 2330. Legal subdivisions of forty acres may be subdivided into ten-acre tracts; and two or more persons, or associations of persons, having contiguous claims of any size, although such claims may be less than ten acres each, may make joint entry thereof; but no location of a placer claim, made after the ninth day of July, eighteen 160 Acre hundred and seventy, shall exceed one hundred and .sixty Placers. acres for any one person or association of persons, which locatiou shall conform to the United States surveys; and nothing in this section contained shall defeat or impair any ~bona fide pre-emption or homestead claim upon agricultural lands, or authorize the sale of the improvements of any ~bona fide settler to any purchaser. Sec. 12, July 9, 1S70. See p. 257. Placers on Surveyed Lands. Sec. 2331. Where placer claims are upon surveyed lands, and con- form to legal subdivisions, no further survey or plat shall be required, and all placer mining claims located after the tenth day of May, eighteen hundred and seventy-two, shall conform as near as practicable with the United States system of public land surveys, and the rectangular sub- divisions of such surveys, and no such location shall include more than twenty acres for each individual claimant; but where placer claims can not be conformed to legal subdivisions, survey and plat shall be made as on unsnrveyed lands; and where by the segregation of mineral land in any legal subdivision a quantity of agricultural land less than forty acres remains, such fractional portion of agricultural land may be entered by any party qualified by law, for homestead or pre-emption purposes. Sec. 10, May 10, 1872. See p. 257. Limitations. Sec. 2332. Where such person or association, they and their grantors, have held and worked their claims for a period equal to the time pre- scribed by the statute of limitations for mining claims of the State or Territory where the same may be situated, evidence of Liens. such possession and working of the claims for such period shall be sufficient to establish a right to a patent thereto under this chapter, in the absence of any adverse claim; but nothing in this chapter shall be deemed to impair any lien which may have attached in any way whatever to any mining claim or property thereto attached prior to the issuance of a patent. Sec. 13, July 9, 1870. See pp. 323, 477. 650 TEXT OP U. S. LAWS I Placer Claim Containing Lode. Sec. 2333. Where the same person, association, or corporation is in possession of a placer claim, and also a vein or lode included within the boundaries thereof, application shall be made for a patent for the placer claim, with the statement that it includes such vein or lode, and in such case a patent shall issue for the placer claim, subject to the provisions of this chapter, including such vein or lode, upon the payment of five dollars per acre for such vein or lode claim, and twenty-five feet Placers $3.50 of surface on each side thereof. The remainder of the ptr Acre. placer claim or any placer claim not embracing any vein or lode claim, shall be paid for at the rate of two dollars and fifty cents per acre, together with all costs of proceedings ; and where a vein or lode, such as is described in section twenty-three hundred and twenty, is known to exist within the boundaries of a placer claim, an application for a patent for such placer claim which does not include an application for the vein or lode claim shall be construed as a conclusive declaration that the claimant of the placer claim has no right of possession of the vein or lode claim; but where the existence of a vein or lode in a placer claim is not known, a patent for the placer claim shall convey all valuable mineral and other deposits within the boundaries thereof. Sec. 11, May 10, 1872. See p. 280. Deputy Surveyor and Fees. Sec. 2334. The -Survey or General of the United States may appoint in each land district containing mineral lands as many competent surveyors as shall apply for appointment to survey mining claims. The expenses of the survey of vein or lode claims, and the survey and subdivision of placer claims into smaller quantities than one hundred and sixty acres, together with the cost of publication of notices, shall be paid by the appli- cants, and they shall be at liberty to obtain the same at the most reasonable rates, and they shall also be at liberty to employ any United States deputy surveyor to make the survey. The Com- CJiarges for missioner of the General Land Office shall also have Publication, power to establish the maximum charges for surveys and publication of notices under this chapter ; and, in case of excessive charges for publication, he may designate any newspaper pub- lished in a land district where mines art situated for the publication of mining notices in such district, and fix the rates to be charged by such paper; and, to the end that the Commissioner may be fully informed on the subject, each applicant shall file with the register a sworn statement of all charges and fees paid by such applicant for publication and surveys, together with all fees and money paid the register and receiver of the land office, which statement shall be transmitted, with the other papers in TEXT OF U. S. LAWS IN FORCE,. 651 Ilio case, to the Commissioner of the General Land Office. Sec. 12, May 10, 1872. See p. 514. Affidavits and Proofs. Sec. 2335. All affidavits required to be made under this chapter may be verified before any officer authorized to administer oaths within the land district where the claims may be situated, and all testimony and proofs may be taken before any such officer, and, when duly certified by the officer taking the same, shall have the same force and Agricultural effect as if taken before the register and receiver of the Contest. land office. In eases of contest as to the mineral or agricultural character ojf 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 publica- tion of at least once a week for thirty days in a newspaper, to be designated by the register of the land office as published nearest to the location of such land; and the register shall require proof that such notice has been given. See. 13, May 10, 1872. See p. 516. 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 contained 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 of the con- on the Dip. venient 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. 14, May 10, 1872. See pp. 185, 188. Mill Sites. Sec. 2337. Where non-mineral land not contiguous to the vein or lode is used or occupied by the proprietor of such vein or lode for mining or milling purposes, such non-adjacent surface ground may be embraced and included in an application for a patent for such vein or lode, and the same may be patented therewith, subject to the same preliminary require- ments as to survey and notice as are applicable to veins or lodes; but no location hereafter made of such non-adjacent land shall exceed five acres, and payment for the same must be made at the same rate as fixed by this chapter for the superficies of the lode. The owner of a quartz mill or reduction works, not owning a mine in connection therewith, may also receive a patent for his mill site, as provided in this section. Sec. 15, May 10, 1872. See p. 294. 652 TEXT OF U. S. LAWS IN FORCE. Easements. Sec. 2338. As a condition of sale, in the absence of necessary legisla- tion by Congress, the local Legislature of any State or Territory may provide rules for working mines, involving easements, drainage, and other necessary means to their complete development, and those conditions shall be fully expressed in the patent. See. 5, July 26, 1866. Sue p. 243. Water Rights Appropriation. Sec. 2339. Whenever, by priority of possession, rights to the use of water "for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of Courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the pur- poses herein specified is acknowledged and confirmed; but whenever any person, in the construction of any ditch or canal, injures or damages the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage. Sec. 9, July 26, 1866. See p. 233. 1 f t O Patents Subject to Water Easements. Sec. 2340. All patents granted, or pre-emption or homesteads allowed, shall be subject to any vested and accrued water right, or rights to ditches and reservoirs used in connection with such water rights, as may have been acquired under or recognized by the preceding section. See. 17, July 9, 1870. See p. 234. Homesteads. Sec. 2341. Wherever, upon lands heretofore -designated as mineral lands, which have been excluded from survey 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, silver, cinnabar, or copper discov- ered, and which are properly agricultural lands, the settlers or owners of such homesteads shall have a right of pre-emption thereto, and shall be entitled to purchase the same at the price of one dollar and twenty-five cents per acre, and in quantity not to exceed one hundred and sixty acres; or they may avail themselves of the provisions of chapter five of this Title, relating to " HOMESTEADS. "Sec. 10, July 26, 1866. TEXT OF U. S. LAWS IN FOKCE, 653 Segregation of Agricultural Lands. Sec. 2342. Upon the survey of the lands described in the preceding section, the Secretary of the Interior may designate and set apart such portions of the same as are clearly agricultural lands, which lands shall thereafter be subject to pre-emption and sale as other public lands, and be subject to all the laws and regulations applicable to the same. Sec. 11, July 26, 1866. Land Districts. Sec. 2343. The President is authorized to establish additional land districts, and to appoint the necessary officers under existing laws, wherever he may deem the same necessary for the public convenience in executing the provisions of this chapter. Sec. 7, July 26, 1866. Building Stone Act. That any person authorized to enter lands under the mining laws of the United States may enter lands that are chiefly valuable for building stone under the provisions of the law in relation to placer mineral claims : Provided, That lands reserved for the benefit of the public schools or donated to any State shall not be subject to entry under this act. A. C. Aug. 4, 1892. 27 Stat. L. 348. Sec. 2344. Saving Clause as to Sutro Tunnel Act. Sec. 2345. Excepts Michigan, Wisconsin and Minnesota.* State and Railroad Grants. Sec. 2346. No act passed at the first session of the Thirty-eighth Con- gress, granting lands to States or corporations to aid in the construction of roads or for other purposes, or to extend the time of grants made prior to the thirtieth day of January, eighteen hundred and sixty-five, shall be so construed as to embrace mineral lands, which in all cases are reserved exclusively to the United States, unless otherwise specially provided in the act or acts making the grants. Res. No. 10, January 30, 1865. Rights of Canadians in Alaska. Sec. 13. That native-born citizens of the Dominion of Canada shall be accorded in said District of Alaska the same mining rights and privi- *By Act of May 5, 1876, Missouri and Kansas are excepted from the operation of the Mining Act. By Act of March 3, 1883, Alabama is excepted. 654 TEXT OF U. S. LAWS IN FORCE. leges accorded to citizens of the United States in British Columbia and the Northwest Territory by the laws of the Dominion of Canada or the local laws, rules, and regulations; but no greater rights shall be thus accorded than citizens of the United States or persons who have declared 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 enforce rules and regulations to carry this provision into effect. Approved May 14, 1898. 30 St. L. 415. See Eule 112, p. 523. Return of Excess Payments by Surveyor General. That the Secretary of the Treasury be, and he is hereby, authorized and directed to pay, out of the moneys heretofore or hereafter covered into the treasury from deposits made by individuals to cover cost of work performed and to be performed in the offices of the United States Sur- veyors General in connection with the survey of mineral lands, any excess in the amount deposited over and above the actual cost of the work performed, including all expenses incident thereto for which the deposits were severally made or the whole of any unused deposit; and such sums, as the several cases may be, shall be deemed to be- annually and perma- nently appropriated for that purpose. Such repayments shall be made to the person or persons who made the several deposits, or to his or their legal representatives, after the completion or abandonment of the work for which the deposits were made, and upon an account certified by the Surveyor General of the district in which the mineral land surveyed, or sought to be surveyed is situated and approved by the Commissioner of the General Land Office. Approved Feb. 24, 1909. 35 St. L. 645. When a military reservation is vacated the mineral lands become part of the public domain. A. C. July 5, 1884, 23 St. L. 103. COAL LANDS. 655 COAL LANDS. Legal Subdivisions. Sec. 2347. Every person above the age of twenty-one years, who is a citizen of the United States or who has declared his intention to become such, or any association of persons severally qualified as above, shall, upon application to the register of the proper land office, have the right to enter, by legal subdivisions, any quantity of vacant coal lands -of the United States not otherwise appropriated or reserved by 160 or SSO competent authority, not exceeding one hundred and Acres $10 to sixty acres to such individual person, or three hundred $SO per Acre, and twenty acres to such association, upon payment to the receiver of not less than ten dollars per acre for such land, where the same shall be situated more than fifteen miles from any completed railroad, and not less than twenty dollars per acre for such lands as shall be within fifteen miles of such road. Sec. 1, March 3, 1873. Settlers Preferred. Sec. 2348. Any person or association of persons severally qualified as above provided, who have opened and improved or shall hereafter open and improve, any coal mine or mines upon the public lands, and shall be in actual possession of the same, shall be entitled to a 640 Acre preference-right of entry, under the preceding section, Tracts. of the mines so opened and improved: Provided, That when any association of not less than four persons, severally qualified as above provided, shall have expended not less than five thousand dollars in working and improving any such mine or mines, such association may enter not exceeding six hundred and forty acres, including such mining improvements. See. 2, 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 if 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 improvenent, 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. Sec. 3, Id. 656 COAL LANDS. Entry Limited. Sec. 2350. The three preceding sections shall be held to authorize only one entry by the same person or association of persons; and no associa- tion of persons any member of which shall have taken the benefit of such sections, either as an individual or as a member of any other association, shall enter or hold any other lands under the provisions thereof; and no member of any association which shall have taken the benefit of such sections shall enter or hold any other lands under their provisions ; and all persons claiming under section twenty-three hundred and 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 required period, the same shall be subject to entry by any other qualified applicant. See. 4, Id. A corporation having purchased lands previously patented has not "taken the benefit" as those words are used in this section so as to prevent its stockholders entering other lands. Northern Colo. Co. v. U. 8., 234 P. 34. 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, priority of possession and improvement, fol- lowed by proper filing and continued good faith, shall determine the preference-right to purchase. And also where improvements have already been made prior to the third day of March, eighteen hundred and seventy- three, division of the land claimed may be made by legal subdivisions, to include, as near as may be, the valuable improvements of the respective parties. The Commissioner of the General Land Oflice is authorized to issue all needful rules and regulations for carrying into effect the pro- visions of this and the four preceding sections. Sec. 5, Id. Vested Rights Lodes and Placers Excepted. Sec. 2352. Nothing in the five preceding sections shall be construed to destroy or impair any rights which may have attached prior to the third day of March, eighteen hundred and seventy-three, or to authorize the sale of lands valuable for mines of gold, silver, or copper. Sec. 6, Id. The department holds that the sections above printed only fix the minimum per acre and that it may arbitrarily increase the price without limit. 40 L. D. 610. COAL LANDS. 657 Coal lands are classified as to prices by grade of the fuel and size of veins by 37 L. D. 653, 681, and 38 L. D. 181. A special survey of township containing coal lands is pro- vided for by 28 St. L. 423. Coal lands are mineral lands which it has been the policy of the government to reserve out of railroad grants. United States v. N. Pac. Ey., 170 F. 498. A party prospecting for coal on U. S. land has the right to mine and sell the coal and is not a trespasser. Ghost v. United States, 168 F. 841, 94 C. C. A. 253. Where coal is discovered on land after selection by an agri- cultural claimant but before his rights become vested he may go to patent for the surface, the government reserving the coal. 35 Stat. L. 844. For circulars to this act see 37 L. D. 528, 38 L. D. 183. Coal lands are mineral and title can not be acquired under the Homestead Act. Washington Co. v. United States, 194 F. 59, 114 C. C. A. 79, 234 U. S. 76, 34 Sup. Ct. Rep. 725, 50 L. Ed. 1220. But the homestead entry is valid where there was not full proof of coal value. Even outcrops are not abso- lute proof. United States v. Kostelak, 207 F. 447. But out- crops were considered, and even general reputation, in United States v. Diamond Co., 191 F. 786, 112 C. C. A. 272; Diamond Co. v. United States, 233 U. S. 236, 34 Sup. Ct. Rep. 507, 58 L. Ed. 936; Milner v. United States, 228 F. 431. The geological formation and surface indications and neigh- boring discoveries are all to be considered in determining the fact of coal value. 41 L. D. 639. Land office procedure in coal land entries considered with relation to valuation and failure to make prompt proof and payment. 41 L. D. 661. The latest land office regulations under the Coal Act are found in 35 L. D. 665, 684, 36 L. D. 192, 318, 368, 41 L. D. 416, 42 L. D. 170. Reaching coal by instroke from adjoining colliery is opening and improving within the meaning of the coal land law. 41 L. D. 21. d58 TIMBER AND STONE ACT. t A second coal filing by the same party may be made where the failure to perfect the first is sufficiently excused. 41 L. D. 337. Otherwise when no such excuse is proved. 41 L. D. 177. Severance of Surface and Coal Title. By A. C. of March 3, 1909, it was enacted that coal lands could be entered by an agricultural claimant, his entry to reserve the coal to the United States. 35 Stat. L. 844. This was supplemented by A. C. of June 22, 1910, 36 Stat. L. 583. The coal claimant can enter upon such land upon giving bond. approved by the Secretary of the Interior. Under these acts a severance of title takes place, one owning the surface and another the coal, and applications for each title may apparently proceed at the same time. In 36 L. D. 179 is found an attempt of the land office to formulate proce- dure under the acts. Patents for coal lands obtained by a fraudulent combination to obtain more land than the government allows to a single section, or where coal lands have been patented as a homestead will be set aside. And corporations composed largely of the guilty parties taking title are not innocent purchasers. United States v. Allen, 180 F. 855 ; Washington Co. v. United States, 194 F. 59, 114 C. C. A. 79 ; Wilson Co. v. United States, 188 F. 545, 110 C. C. A. 343. TIMBER AND STONE ACT. Lands Chiefly Valuable for Timber or Stone. That surveyed public lands of the United States within the "public land States, not included within military, Indian, or other reservations of the United States, valuable chiefly for timber, but unfit for cultivation, and which have not been offered at public sale according to law, may be sold to citizens of the United States, or persons who have declared their inten- tion to become such, in quantities not exceeding one hundred and sixty acres to any one person or association of persons, at the minimum price of two dollars and fifty cents per acre; and lands valuable chiefly for Btone may be sold on the same terms as timber lands. TIMBER AND STONE ACT. 659 Mining Claims Excepted. Provided, That nothing herein contained shall defeat or impair any bona fide claim under any law of the United States, or authorize the sale of any 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 purposes. (A further proviso follows saving ditch and water rights.) Sec. 1, Act of June 3, 1878, amended August 4, 1892. Comp. Laws p. 1545, 20 St. L. 89, 27 St. L. 348. Duplicate Statements Required. See. 2. That any person desiring to avail himself of the provisions of this act shall file with the register of the proper district a written state- ment in duplicate, one of which is to be transmitted to the General Land Office, designating by legal subdivisions the particular tract of land he desires to purchase, setting forth that the same is unfit for cultivation, and valuable chiefly for its timber or stone; that it is uninhabited; contains no mining or other improvements, except for ditch or canal purposes, where any such do exist, save such as were made by or belong to the applicant, nor, as deponent verily believes, any valuable deposit of gold, silver, cinnabar, copper, or coal; that deponent has made no other application under this act; that he does not apply to purchase the same on speculation, but in good faith to appropriate it to his own exclusive use and benefit; and that he has not, directly or indirectly, made any agreement or contract, in any way or manner, with any person or persons whatsoever, by which the title which he might acquire from the govern- ment 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. Sec. 2, Id. *An Act of 1904, 33 St. L. 59, makes special provision for verification of the forms under the act and making proofs outside the land district. 660 TIMBEB AND STONE ACT. Publication. Sec. 3. That upon the filing of said statement, as provided in the second section of this act, the register of the land office shall post a notice of such application, embracing 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 location of the premises, for a like period of time. Proofs. 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 required; secondly, that the land is of the character contemplated in this act, unoccupied and without improvements, other than those excepted, either mining or agricultural, and that it apparently contains no valuable deposits of gold, silver, cinnabar, copper, or coal; Right to Enter. And upon payment to the proper 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 be per- mitted to enter said tract, and, on the transmission to the General Land Office of the papers and testimony in the ease, a patent shall issue thereon. Protest and Appeal. Provided, That any person having a valid claim to any portion of the land may object, 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 be determined by the officers of the land office, subject to appeal, as in other land cases. Effect shall be given to the foregoing provisions of this act by regula- tions to be prescribed by the Commissioner of the General Land Office. Sec. 3, Id. The original act was confined to certain States, and the above act is the law as it now reads extended to all "public land" States. Unsurveyed lands can not be entered under this act. 36 L. D. 268. TIMBER AND STONE ACT. 661 The procedure is governed by regulations of the department, January 2, 1914, found in 43 L. D. 37. The regulations require the filing of duplicate statements, as prescribed in the second section of the act. The statement must also show the applicant's belief as to the value of the land and his estimate, and value of the timber. A fee of $10 must accompany the application. The land is then appraised by an employee of the government, and a notice of the appraised value is given to the applicant, who must within 30 days after notice pay to the register and receiver, such appraised value. Advertisement and posting for 60 days are done as required by the third sec- tion, and at the completion of the 60 days, proof of publication is filed, and the applicant makes final proof, by himself and two witnesses at the land office, or before the officer before whom it is to be offered, that the land is of the character in detail as described in the above first section, whereupon final entry is allowed and patent issues in due time. Provision- is also made that if the applicant is not satisfied with the appraisement, he may, at his own expense, have the land re-appraised by a government officer. If the land department fails to appraise the land within nine months from the date of application, the applicant may within thirty days deposit the amount named in his application as the value of the land and timber, and thereupon proceed with his application as though appraisement had been made. The same procedure applies to applications for land chiefly valuable for stone. Blanks and instructions for such entries are furnished on request by any local land office. The meaning of the phrase in section 2 "That he does not apply to purchase the same on speculation," is construed in United States v. Budd, 144 U. S. 154, 12 Sup. Ct. Rep. 575, 36 L. Ed. 384; United States v. Detroit L. Co., 200 U. S. 321, 26 Sup. Ct. Rep. 282, 50 L. Ed. 499; Hawley v. Dillcr, 178 U. S. 476, 20 Sup. Ct. Rep. 986, 44 L. Ed. 1157, 42 L. D. 440. An entry made in good faith, though with the expectation of profiting by a sale of the land, is not a "speculation." 32 L. D. 349. 662 TIMBER AND STONE ACT. Until final proof and payment are made the land may be withdrawn under the reclamation act. 36 L. D. 18. The Land Department has repeatedly held that the affidavit required must be based upon personal examination of the land. 32 L. D. 606, Id. 631, 40 L. D. 85, 42 L. D. 437, and in 37 L. D. 582 is printed the case In re Ness by the Court of Appeals of the District of Columbia to the same effect, but the case of Robnett v. United States, 169 F. 778, 95 C. C. A. 244, holds distinctly to the contrary. The purchase money may be borrowed and secured by mort- gage on the land. 34 L. D. 133. But no mortgage or convey- ance should be made before entry and payment as the department may require a non-alienation affidavit at any time before receiver's receipt issues. In a contest between a timber entry and an agricultural claim the former must show that the land, as a whole, is sub- stantially unfit for cultivation. 35 L. D. 498. The fact that the land will be fit for cultivation after the timber is removed does not exclude it from entry under the timber act. United States v. Budd, 144 U. S. 154, 12 Sup. Ct. Rep. 575, 36 L. Ed. 384; Thayer v. Spratt, 189 U. S. 346, 23 Sup. Ct. Rep. 576, 47 L. Ed. 845. Abandoned improvements will not exclude land from entry under the Timber and Stone Act. 38 L. D. 335. A legal subdivision found to be not within the Timber and Stone Act may be cut out even after entry. 39 L. D. 359. Land covered with timber suitable for mining uses is within the act. 39 L. D. 577. Otherwise as to scrub timber. 44 L. D. 129. Scope of evidence admissible in trial of conspiracy case for taking up land under the Timber and Stone Act. Van Gesner v. United States, 153 F. 46, 82 C. C. A. 180. The act is further construed in United States v. Biggs, 211 U. S. 507, 29 Sup. Ct. Rep. 181, 53 L. Ed. 305; United States v. Sullenberger, 211 U. S. 522, 29 Sup. Ct. Rep. 186, 53 L. Ed. 311 ; United States v. Freeman, 211 U. S. 525, 29 Sup. Ct. Rep. 185, 53 L. Ed. 311. TIMBER ACT. 663 The decision of the Land Department that lands are subject to entry under the Timber and Stone Act is final. United States v. Primrose Co., 216 U. S. 553. Where coal is found to underlie a timber and stone entry, the applicant must accept a surface patent. 44 L. D. 48. Timber entries are not within the operation of section 7 of the Act of March 3, 1891, providing that after two years from date of entry, patent shall issue where there is no pending contest ; and the Secretary of the Interior can not be compelled by mandamus to issue a timber and stone patent. 37 L. D. 564. The filing of one application exhausts applicant's rights. 37 L. D. 145. But otherwise when there was good excuse for not perfecting the first application. 44 L. D. 539. If he die before final proof his heirs can not perfect the application. 37 L. D. 161. If the applicant die after proof, patent issues to his heirs generally. 36 L. D. 248. See Building Stone Act, p. 653. TIMBER ON MINERAL LANDS. Timber Free to Miners. That all citizens of the United States and other persons, "bona fide residents of the State of Colorado, or Nevada, or either of the Territories of New Mexico, Arizona, Utah, Wyoming, Dakota, Idaho, or Montana, and all other mineral districts of the United States, shall be, and are hereby, authorized and permitted to fell and remove, for building, agri- cultural, mining, or other domestic purposes, any timber or other trees growing or being on the public lands, said lands being mineral, and not subject to entry under existing laws of the United States, except for mineral entry, in either of said States, Territories, or districts of which such citizens or persons may be at the time bona 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: Provided, The provisions of this act shall not extend to railroad corporations. June 3, 1878. 20 St. I,. 8S. The above printed act and Act of 1881, 26 Stat. L. 1093, allows the department to restrict the right by regulations. 42 L. D. 30, Id. 22, Id. 163. 664 TIMBER ACT. The right to cut timber under the Act of June 3, 1878, 20 Stat. L. 88, is confined to lands valuable for minerals, strictly construed, and does not apply to adjoining lands. United States v. Plowman, 216 U. S. 372, 30 Sup. Ct. Rep. 299, 54 L. Ed. 523. Overruling the prior case of United States v. Basic Co., 121 F. 504, 57 C. C. A. 624, to the contrary. A foreign corporation is not a "resident" authorized to cut timber. 39 L. D. 80. The above is the act now in force. The Acts of 1891 and 1893, 26 St. L. 1093, 27 Id. 244, are a repetition of its pro- visions as to certain States and Territories. The acts are construed by circulars found in 29 L. D. 571, 572, 36 L. D. 73, and 37 L. D. 492, superseding all prior regulations. The Act of 1878 is reprinted in 44 L. D. 257. These circulars contain the "regulations" mentioned in the act which are material, because the burden of proof is on the timber cutter to show compliance with them. United States v. Basic Co., 121 F. 504, 57 C. C. A. 624. 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. United States v. Rossi, 133 F. 380, 66 C. C. A. 442; United States v. United Verde Co., 196 U. S. 207, 25 Sup. Ct. Rep. 222, 49 L. Ed. 449. Using timber for smelting purposes is within the terms of the Act of 1891. 34 L. D. 78. Also for" constructing electric light plants, bridges and flumes by city or county. Id. 112. Proof of panning colors is not enough to prove that the land is mineral so as'to justify timber cutting. Anderson v. United States, 152 F. 87, 81 C. C. A. 311. A purchaser of timber cut by trespass can not defend on his good faith. He can not have a better title than his vendor. Id. The department formerly held that the above act applied to all "mineral districts. "29 L. D. 349. But in view of the decisions in United States v. Smith, 11 F. 487, 8 Sawy. 100; United States v. Benjamin, 21 F. 285; United States v. Eng- OIL AND GAS. CG5 lish, 107 F. 867, and United States v. Price Co., 109 F. 239, 48 C. C. A. 331, which hold to the contrary, it now rules that the act does not apply to any State or Territory not specifically mentioned. 38 L. D. 75. The timber on government mineral land is free to all citizens for any proper purpose and the mineral character may be established without the existence of a paying mine. And even if such character is not proved, a party cutting timber in good faith is liable only for stumpage value. Morgan v. United States, 169 F. 242, 94 C. C. A. 518. Messinger made a homestead entry on which he cut mining timber. After he had sold the stulls, he abandoned the entry, which defendant alleged had been made on mineral land. Defendant was held for full value of the stulls. This seems a hard case, both as to the measure of damages and as to the original alleged trespass. Bunker Hill Co. v. United States, 226 U. S. 548, 33 Sup. Ct. Rep. 138, 57 L. Ed. 345. In 40 L. D. 518 and 43 L. D. 106 a more moderate rule was applied. Alaska. Section 11, Act of 1898, 30 St. L. 414, allows free use of timber to miners in Alaska. OIL AND GAS. The peculiar physical properties of these substances have led to decisions concerning their relations to asserted ownership and possession which form a department of law unique in character, interesting to the student, and important to the proprietor. There is no ancient law on the subject. They were unknown in the United States except as natural curiosities until the first oil well was sunk at Titusville, Pennsylvania, in 1859. Natural gas began to be used in place of artificial coal gas in 1872 at 666 OIL AND GAS. Fairview, Pennsylvania. The first pipe line was built in 1886 to Pittsburg. Since these first commercial beginnings both substances have been found in immense quantities over wide areas extending from New York to California, and from the Dominion to Mexico. There are breaks in the continuity of the districts and they are broadly distributed into "fields," some of them of very large area, with considerable dissimilarity in their geolog- ical deposition. Petroleum is the only mineral which is essentially a liquid, and not a solid. Quicksilver, it is true, at ordinary tempera- tures is a liquid, but it is not found in nature in that form. Mineral water is a liquid, but such water if a mineral at all is probably only to be so classed under peculiar circumstances, as where parties dealing with it have treated it as such. Natural gas, as its name necessitates, is matter in form neither liquid nor solid, and is doubtless only petroleum advanced to an aerified form, though the relation between the liquid and the gas is a matter upon which scientific men are not wholly agreed. Certainly they are so closely associated that some family relationship between them can not be denied. An analogous instance, but not a perfect analogy, is the min- eral "salt," where the owner on sinking might strike a layer of rock-salt, or he might find a stratum impregnated with water, which he would have only to bring to surface to get the same value by evaporation. Are Land and Minerals. That both gas and oil are minerals has been almost uni- formly decided by all Courts where the question has arisen, usually in the instance of the construction of a deed reserving "all minerals. "Murray v. Allred, 100 Tenn. 100, 66 Am. St. Rep. 740, 39 L. R. A. 249, 43 S. W. 355, 19 M. R. 169 ; Poe v. Ulrey, 233 111. 56, 84 N. E. 46; In re Buffalo N. O. Co., 73 F. 191. But there are rulings to the contrary in Ohio and Kentucky, and especially in Pennsylvania. Dctlor v. Holland, 57 Ohio OIL AND GAS. G67 St. 492, 40 L. R. A. 266, 49 N. E. 690 ; McKinney Heirs v. Cen- tral Ky. Co., 134 Ky. 239, 20 Ann. Gas. 934, 120 S. W. 314; Dnnliam v. Kirkpatrick, 101 Pa. 36, 47 Am. Rep. 696; Preston v. South Penn. Co., 238 Pa. 301, 86 Atl. 203. Petroleum and natural gas are "land." Haskell v. Button, 53 W. Va. 206, 44 S. E. 533. Petroleum is a mineral and as such oil lands do not pass in a railroad grant. Burke v. Southern Pac. R. R. Co., 234 U. S. 669, 34 Sup. Ct. Rep. 907, 58 L. Ed. 1527. The fact that these minerals are liquid or gaseous, that is : Will flow like water to fill a vacuum or find a level, the oil sinking and the gas rising, has suggested the comparison of such substances to game or animals ferae naturae, which today are found on my land, and tomorrow may have crossed the line to the land of my neighbor. If the owner finds the game on his land and kills it, then and only then, it becomes his absolute property. Following up the analogy came its application to the case of these fugitive minerals, and it now seems to be the settled law. Beginning possibly with the case of Westmore- land Co. v. De Witt, 130 Pa. 235, 18 Atl. 724, 5 L. R. A. 731, it has been followed in an unlimited number of decisions, so that it is not now in a position to be questioned. Deducing propositions of law from fanciful comparisons and analogies is always dangerous, and while we must accept the conclusions now reached, it seems certain that the Courts, which first started upon this departure, never foresaw the startling consequences which have been found to follow upon the application of the doctrine to the many varied instances where it has been applied. The alleged reason for this : the fugitive nature of liquid and gaseous minerals assumes a peculiar phase in the attempt to carry it further by legislation forbidding the pumping of mineral waters. Hathorn v. Natural C. G. Co., 128 App. Div. 33, 112 N. Y. Supp. 374, 60 Misc. Rep. 341, 113 N. Y. Supp. 458, 194 N. Y. 326, 128 Am. St. Rep. 555, 16 Ann. Gas. 989, 23 L. R. A. (N. S.) 436, 87 N. E. 504; Lindsley v. Natural C. G. 668 OIL AND GAS. Co., 162 F. 954, 170 F. 1023, 220 U. S. 61, 31 Sup. Ct. Rep. 337, 55 L. Ed. 369. We will endeavor to consider some of these applications under the subdivisions which naturally suggest themselves. No Estate in the Oil or Gas Until Found. The first proposition to which this line of reasoning led was that neither the owner of the surface nor his lessee has any title to the oil or gas under the land until it is found, or found and brought to surface. So far as the idle owner is concerned this is of no practical importance, and when he sells the land his grantee succeeds to his rights, including his right to find and sever the oil and gas. But to the lessee or operating owner it is of great materiality, for he is now searching for the oil, but has no ownership in it until he taps or finds it. Adjoining lessees are in the same position, and whoever is first to find it gets the benefit not only of what was originally under his ground, but all that flows in to fill the vacuum made by his extraction of it. The lessee has no estate in the oil or gas until actually dis- covered in his well. McNvsh v. Stone, 17 M. R. 22, 152 Pa. 457, note ; Venture Co. v. Fretts, 152 Pa. 451, 25 Atl. 732, 17 M. R. 543 ; Florence Co. v. Orman, 19 Colo. App. 79, 73 P. 628 ; Steelsmith v. Gartlan, 45 W. Va. 27, 44 L. R. A. 107, 19 M. R. 315, 29 S. E. W8;Kolaclimj v. Gallreath, 26 Okla. 772. 110 P. 902, 38 L. R. A. (N. S.) 451 ; Rawlings v. Armel, 70 Kan. 778, 79 P. 683. No present interest passes under an oil and gas lease until mineral is found. Eeardsley v. Kan. N. G. Co., 78 Kan. 571, 96 P. 859. As a necessary sequence to this ruling it is held that an oil lessee can not maintain ejectment upon his papers giving apparently the same right which a farm tenant would have to bring such action, barring the case where he lias been placed in actual possession of the surface and been ousted therefrom. Kelly v. Keys, 213 Pa. 295, 62 Atl. 911, 110 Am. St. Rep. 547 ; Kolacliny v. Galbreatli, supra. OIL AND GAS. 669 Lessee who has never been in possession can not maintain ejectment. No title vests until oil or gas is found. Priddy v. Thomas, 204 F. 955, 123 C. C. A. 277. But a lease may be in such form that it is a lease "of the land itself," being more than an ordinary "oil lease," and discovery of oil in such case is not essential. Kline v. Guar- anty 0. Co., 167 Gal. 476, 140 P. 1. Right to Pump or Force. If the owner of land has the right to place bait to lure the game to cross the line onto his land (if this plan of reasoning by analogy is to be followed), then the owner of oil land has the right to use artificial means to induce the oil to flow on his land. Except in the case of gushing wells, pumping is the only means by which the lessee or proprietor could possibly get, even the oil which is already under his land, to the surface. This to us, apparently, self-evident right, came before the Pennsylvania Supreme Court in Westmoreland Gas Co. v. DeWitt, 130 Pa. 235, 249, 5 L. R. A. 731, 18 Atl. 724, which case was approved and followed in Jones v. Forest Oil Co., 194 Pa. 379, 48 L. R. A. 748, 44 Atl. 1074. But to the contrary is Manufacturers Co. v. Indiana Co., 155 Ind. 461, 50 L. R. A. 768, 57 N. E. 912, 20 M. R. 672, sustain- ing a statute which forbade the owners of a gas well to reduce the pressure. Exploding the Well. This device, used constantly in certain fields, and which in an almost unaccountable manner so often increases the flow of oil, if there is any to flow, is only a subdivision of the previous head. It is an artificial means of increasing the flow of oil through the operator's well to the surface, whether it comes from his own land or from his neighbor's, and if he has the right to pump -at all, it follows as a corollary that he has the right to explode his well, and this has not been successfully denied. Peoples Gas Co. v. Tyner, 131 Ind. 277, 31 Am. St. Rep. 433, 16 L. R. A. 443, 17 M. R. 481, 31 N. E. 59. 670 OIL AND GAS. Wasting the Oil or Gas Plugging Wells. This subhead depends upon an entirely different principle. Where one proprietor seeks to obtain what some contend is his unequal share of the values, if it is a loss to others it is at least a gain to himself. But where he allows the product to go to waste it is a useless destruction of the common property, and laws forbidding it have been uniformly sustained. Ohio Oil Co. v. Indiana Co., 177 U. S. 190, 20 Sup. Ct. Rep. 576, 44 L. Ed. 729, 20 M. R. 466 ; State v. Ohio Oil Co., 150 Ind. 21, 49 N. E. 809, 47 L. R. A. 627. The lessor has a right of action against his lessee for allowing natural gas to go to waste. Talbott v. Southern 0. Co., 60 W. Va. 423, 55 S. E. 1009; Louisville G. Co. v. Kentucky H. Co., 132 Ky. 435, 111 S. W. 374. An action will lie by a party interested in the common field for illegitimate waste of the gas. Color 0. & G. Co. v. Fran- zell, 128 Ky. 715, 36 L. R. A. (N. S.) 456, 109 S. W. 328. And punitive damages may be awarded for malicious waste. Louisville G. Co. v. Kentucky H. Co., 132 Ky. 435, 111 S. W. 374. Consideration of the rights of different sets of lessees to protection against waste of the common stock by each other, under the Kentucky statute. Louisville G. Co. v. Kentucky H. Co., 117 Ky. 71, 111 Am. St. Rep. 225, 4 Ann. Cas. 355, 70 L. R. A. 558, 77 S. W. 368. A defendant will be enjoined from pumping mineral water and letting it run to waste to the injury of an adjoining land owner, who was using and bottling the water on his own ground. Gagnon v. French Lick Co., 163 Ind. 687, 68 L. R. A. 175, 72 N. E. 849. A statute to compel the plugging of natural gas wells not in use, will be enforced. Commonwealth v. Trent, 117 Ky. 34, 4 Ann. Cas. 209, 77 S. W. 390. A gas well will not be enjoined where the defendant offers security and there is danger that the gas might be drained by other wells. Henry Gas Co. v. United States, 191 F. 132, 111 C. C. A. 612. OIL AND GAS. 671 Judicial notice will be taken that natural gas unlike oil can not be stored to await a market. Eastern Oil Co. v. Couie- han, 65 W. Va. 531, 64 S. E. 836. Oil and Gas Leases. By far the greater part of the oil and gas produced is by the operation of leases. In every lease there are two sorts of covenants the express and the implied. The express covenants where clearly stated, interpret themselves. The implied covenants do not appear on the face of the paper, and are often not anticipated until some question arises and their sometimes serious consequences appear. The respective rights and duties of both parties to an oil lease are fully and justly stated in the case of Indiana Co. v. McCrory, 42 Okl. 136, 140 P. 610. The Express Covenants of a Lease of These Minerals Are usually : To sink ; which may be limited as to the depth or to the amount to be expended or until some certain stratum is reached without pay, and in further detail it may give the size of the bore and kind of casing. To pay rental : This is usually not large, but frequently is scattered over limited periods in the nature of payments for delay. To pay royalty : How this is reserved depends upon whether there is a convenient pipe line or whether it is a mere prospect- ing adventure, and in general by the fact as to whether it is on ground reasonably certain to be productive or on ground which has made no promises to its explorers. To so operate as not to prevent use of surface by the owner. Reserve the use of gas to the lessor if his dwelling is near the premises, and like use of oil or gas to the tenant for fuel at the well without royalty. The other express covenants may vary indefinitely and the lease should not be drawn except by an attorney of experience in this line of drafting. 672 OIL AND GAS. The Implied Covenants. The covenants implied when not expressed are : To start to sink promptly, and to work with diligence, and the most subtle of such implied covenants is the doctrine of Protection. Diligence. "What amounts to due diligence is a question of fact for the trial Court. Day v. Kansas City P. L., 87 Kan. 617, 125 P. 43. Protection. Protection is of two sorts: First To prevent the lessor from sinking on other land not covered by the lease so as to save the lessee from being drained in case he makes a profitable strike. This protection must be provided for in the lease, because it is not an implied covenant, as is the protection which the landlord claims. Second To protect the demised land where strangers have struck oil in the neighborhood and threaten to drain the demised ground. This sort of protection has been forced by judicial construction into the lease for the alleged safeguard- ing of the lessor and in instances it has been carried to extreme lengths. Protection to Lessee. In Allison's Appeal, 11 Pa. 221, 11 M. R. 142, lessee had been granted a protection of ten rods on the east, and eight rods on the north side. The lot demised was a parallelogram, and the Court held that the protection included the square in the northeast corner made by protracting the north and east lines of the conceded protection. Protection to the Lessor. In Colgan v. Forest Oil Co., 194 Pa. 234, 75 Am. St. Rep. 695, 20 M. R. 338, 45 Atl. 119, lessor attempted to prove that lessee was not sufficiently protecting the property. Tie was bound by covenant to sink one well and had in fact put down OIL AND GAS. 673 five. The Court held that he had the right to use his own judg- ment, and that it was only in cases where he-was clearly favor- ing one lessor to the loss of another that he would be compelled to sink new wells, the justice of which ruling seems unques- tionable. Testator owning three farms gave an oil lease on all of them. On his decease the three farms came by devise to his three chil- dren severally ; the only oil produced was on one of the three farms. The Court decreed that the royalties should be divided equally among the three children. Wettengel v. Gormley, 160 Pa. 559, 47 Am. St. Rep. 733, 18 M. R. 93, 28 Atl. 934. In Kleppner v. Lemon, the doctrine of protection was car- ried far. The lessee was only bound in terms to sink one well, which he had done, but there being wells on two sides of the demised tract, which were producing, the Court compelled the lessee to bind himself either to sink another well or forfeit the entire tract except the first well with a limited protection. 176 Pa. 502, 18 M. R. 404, 35 Atl. 109. MITCHELL, J., dis- sented. He elected not to sink the second well, and the litigation being carried on, he was decreed to pay full royalty on all of the oil taken from one of the adjoining tracts on which he held a lease, on the rule of damages in cases of confusion of goods (197 Pa. 430), which is the rule applied against wilful trespassers, and amounted to judicial confiscation. But on rehearing '(198 Pa. 581, 48 Atl. 483, 21 M. R. 275) this was modified to one-eighth of such royalty. This one-eighth was reached by comparison of acreages. In Northicestern Ohio N. G. Co. v. Ullery, 68 Ohio St. 259, 22 M. R. 647, 67 N. E. 494, and Rymer v. 8. Penn Oil Co., 54 W. Ya. 530, 46 S. E. 559, the doctrine of Wettengel v. Gormley is expressly disapproved. The lessee is under implied covenant to sink as many offset wells as due diligence and care would suggest to protect the leased land. Guffey Pet. Co. v. Jeff Chaison Townsite Co., 48 Tex. Civ. 555, 107 S. "W. 60; Highfield Co. v. Kirk, 248 Pa. 19, 93 Atl. 815. 74 OIL AND GAS. In Harris v. Ohio Oil Co., the Supreme Court of Ohio recog- nized the rule of the implied covenant to protect lessor, but refused to forfeit the lease for failure to sink, holding that there can be no forfeiture for breach of an implied covenant. 57 Ohio St. 118, 48 N. E. 502, 19 M. R. 157 ; Doddridge 0. & G. Co. v. Smith, 154 F. 970. The only remedy the owner of land adjoining has against drainage of the oil under the property is to drill a well on his own land; but a lessee of two adjoining tracts can not drain the oil from one to the detriment of the other. Barnard v. Monongahela N. 0. 'Co., 216 Pa. 362, 65 Atl. 801. And in Cul- bertson v. lola Co. the lessee was held for drawing the gas by wells on other ground. 87 Kan. 529, Ann. Gas. 1914A, 610, 125 P. 81. The lessee will not be allowed, arbitrarily, to choose locations for drilling wells in disregard of the rights of the land owner where equally good locations are available. Gillespie v. Ameri- can Zinc Co., 247 Pa. 222, 93 Atl. 272. Where a lessee had drilled one well and evinced no intention to protect his lessor by sinking other wells, he was decreed to have abandoned all interest in the lease, except the one well and sufficient curtilage to protect it. Highfield Co. v. Kirk, 248 Pa. 19, 93 Atl. 815. Form of Lease. THIS INDENTURE, made this -first day of May, in the year of our Lord one thousand nine hundred and sixteen, between Ealph Benedict, of Denver, State of Colorado, lessor, and G. L. Warson, of the same place, lessee or tenant: Witnesseth, that the said lessor, for and in considera- tion of the royalties hereinafter reserved and the covenants and agree- ments hereinafter expressed, and by the said lessee to be kept and performed, hath granted, demised and let and by these presents doth grant, demise and let unto the said lessee all the following described real estate situate in the County of Fremont, State of Colorado, to-wit : The northeast quarter of Section 1, Township 70 South, Range 19 West of the 6th P. M., containing 160 acres. Always saving, reserving and excepting to the lessor the surface and the use of the surface for agricultural and residence purposes. OIL AND GAS. 675 To HAVE AND 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. And in consideration of such demise the said lessee doth covenant and agree: 1. To sink at least one well on the demised ground to the distance of at least one thousand feet unless oil or gas is found within a shorter distance. 2. And to complete such sinking within six months from the date of this lease. 3. In default of the completion of the well to the depth aforesaid or until oil or gas is found as aforesaid this lease shall at the option of the lessor become null and void and the demised premises shall become forfeit to the lessor: Provided ahvays, That the payment of $100 rent before the expiration of said six months shall allow another period of six months for such sinking. 4. To deliver as royalty to said lessor one-eighth part of all oil found in and saved from said land. 5. In case gas is found in quantities sufficient to pipe or market, the lessee shall pay to the lessor $50 per quarter from date when such gas is struck in the well, payable on the last day of each quarter. 6. If either oil or gas is found in paying quantities the lessee will forthwith, at his own expense, procure and place on the premises tanks, pipes and other necessary fixtures to economically save the product of such well and deliver its product to the buyer or carrier of the same. 7. In case oil is found in paying quantities the lessee will keep correct books of account showing the production of each well and the disposition of the proceeds thereof, which books shall be open to the inspection of the lessor or his agent during business hours at all reasonable times. 8. To deliver upon request to the lessor all the gas he may require for use at his buildings, or outbuildings on the premises, service pipes and fixtures to utilize the same being furnished by the lessor and kept in repair at his own expense. 9. To not sink any well within one hundred feet of any building now erected upon the premises, and to occupy with any well including its fixtures (except pipes) not more than one square acre. 10. To bury upon request of the lessor all oil or gas pipes used to conduct oil or gas from the premises, and to pay all damages done to timber and crops by reason of the burying, repairing, or removing of pipe lines over said premises except on the square acre allowed to each well. 11. The lessee may sink as many wells as he sees fit, paying the same royalty, and shall have the right to subdivide the ground into lots or tracts and to sub-lease the whole or any part of the demised premises; 676 OIL AND GAS. and all fixtures are the property of the lessee or his sub-lossocs with the right to remove during the term or within a reasonable time thereafter. 12. Delivery to any pipe line or responsible 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 full compliance with the above covenant to pay royalty. 13. The said lessee shall have the right to use free of charge, all oil and gas he may need as fuel, and shall have the right to dig a surface well for water for his engine. 14. In case oil or gas is struck on and marketed from any adjoining land within one hundred yards of the exterior boundary of the demised tract the lessee will sink a well or wells on the demised tract within fifty feet from the exterior line of such tract, upon written request and designation by the lessor of the point or points at which any such well is to be sunk, unless a well has been already started by the lessee within two hundred yards of such foreign well. 15. The lessor, upon his part, doth covenant and agree that he will not sink any well or lease any ground that he may own or purchase or control within two hundred yards of the exterior lines of the demised tract. Each and every clause and covenant of this Indenture 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. EALPH BENEDICT, [SEAL.] G. L. WARSON. [SEAL.] The next form is one in common use in Oklahoma and Wyoming oil fields. OIL AND GAS LEASE. AGREEMENT, Made and entered into the fifth day of September, 1916, by and between of party of the first part, hereinafter called lessor (whether one or more) and The Producers Oil Company, party of the second part, lessee. WITNESSETH, That the said lessor, for and in consideration of eight hundred dollars, cash in hand paid, receipt of which is hereby acknowl- edged and of the covenants and agreements hereinafter contained on the part of the lessee to be paid, kept and performed, has granted, demised, leased and let and by these presents does grant, demise, lease and let unto the said lessee, for the sole and only purpose of mining and operating for oil and gas, and laying pipe lines, and building tanks, powers, stations and structures thereon to produce, save and take care of said products, all that certain tract of land situate in the County of OIL AND GAS. G77 Ol-mulgee, State of Oklahoma, described as follows, to-wit: The northeast quarter of Section 33, Township 14 North, Range 14 East, and containing 160 acres, more or less. It is agreed that this lease shall remain in force for a term of five years from this date, and as long thereafter as oil or gas, or either of them, is produced from said land by the lessee. In consideration of the premises the said lessee covenants and agrees: First To deliver to the credit of lessor, free of cost, in the pipe line to which he may connect his wells, the equal one-eighth part of all oil produced and saved from the leased premises. Second To pay the lessor one hundred dollars each year in advance, for the gas from, each well where gas only is found, while the same is being used off the premises, and lessor to have gas free of cost from any such well for all stoves and all inside lights in the principal dwelling house on said land during the same time by making his own connections with the wells at his own risk and expense. Third To pay lessor for gas produced from any oil well and used off the premises at the rate of twenty dollars per year, for the time during which such gas shall be used, said payments to be made each three months in advance. If no well be commenced on said land on or before the fifth day of September, 1917, this lease shall terminate as to both parties, unless the lessee on or before that date shall pay or tender to the lessor, or to the lessor's credit in the Exchange National Bank at Tulsa, Oklahoma, or its successors, which shall continue as the depository regardless of changes in the ownership of said land, the sum of one hundred and sixty dollars, which shall operate as a rental and cover the privilege of deferring the commencement of a well for twelve months from said date. In like manner and upon like payments or tenders the commencement of a \vHl may be further deferred for like period of the same number of months successively. And it is understood and agreed that the consideration first recited herein, the down payment, covers not only the privileges granted to the date when said first rental is payable as aforesaid, but also the lessee's option of extending that period as aforesaid, and any and all other rights conferred. Should the first well drilled on the above described land'be a dry hole, then, and in that event, if a second well is not commenced on said land within twelve months from the expiration of the last rental period which rental has been paid, this lease shall terminate as to both parties, unless the lessee on or before the expiration of said twelve months shall resume the payment of rentals in the same amount and in the same manner as hereinbefore provided. And it is agreed that upon the resumption of the payment of rentals, as above provided, that the last preceding paragraph 678 OIL AND GAS. hereof, governing the payment of rentals and the effect thereof, shall continue in force just as though there had been no interruption in the rental payments. If said lessor owns a less interest in the above described land than the entire and undivided fee simple estate therein, then the royalties and rentals herein provided shall be paid the lessor only in the proportion which his interest bears to the whole and undivided fee. Lessee shall have the right to use, free of cost, gas, oil, and water produced on said land for its operations thereon, except water from wells of lessor. When requested by lessor, lessee shall bury its pipe lines below plow depth. No well shall be drilled nearer than 200 feet to the house or barn now on said premises, without the written consent of the lessor. Lessee shall pay for damages caused by its operations to growing crops on said land. Lessee shall have the right at any time to remove all machinery and fixtures placed on said premises, including the right to draw and remove casing. If the estate of either party hereto is assigned, and the privilege of assigning in whole or in part is expressly allowed the covenants hereof shall extend to their heirs, executors, administrators, successors or assigns, but no change in the ownership of the land or assignment of rentals or royalties shall be binding on the lessee until after the lessee has been furnished with a written transfer or assignment or a true copy thereof; and it is hereby agreed in the event this lease shall be assigned as to a part or as to parts of the above described lands and the assignee or assignees of such part or parts shall fail or make default in the payment of the proportionate part of the rents due from him or them, such default shall not operate to defeat or affect this lease in so far as it covers a part or parts of said lands upon which the said lessee or any assignee thereof shall make due payment of said rental. Lessor hereby warrants and agrees to defend the title to the lands herein described, and agrees that the lessee shall have the right at any time to redeem for lessor, by payment, any mortgages, taxes or other liens on the above described lands, in the event of default of payment by lessor, and be 'subrogated to the rights of the holder thereof. ' In witness whereof, the said parties have hereunto set their hands and seals. THE PRODUCERS OIL COMPANY. [SEAL.] By , President. [SEAL.] Eroivn v. Wilson, (Okla.) 163 P. 94, contains an exhaustive review of the varied forms of oil and gas leases. OIL AND GAS. 679 For forms of oil and gas leases which have been adjudicated, see Rose v. Lanyon Zinc Co., 68 Kan. 126, 74 P. 625, and Pitts- burg Co. v. Bailey, 76 Kan. 42, 12 L. E. A. (N. S.) 745, 90 P. 803. Ren1^-Roy alty Consideration. The reports are replete with cases where attempts have been made to attack the consideration for the lease and to hold it void where the original consideration can be shown to be not more than nominal, but the general result of such cases is that if there is no covenant, to sink or no time fixed for completing a well, the lease is not void for want of any binding covenant against the lessee, but the Court will read into the contract an implied covenant to sink and allow for such sinking a reason- able time, and that payments for delay, if accepted, are a good consideration, but the cases are not wholly consistent nor reconcilable on these points. There is an implied covenant in every oil and gas lease for diligent sinking and working. Parish Fork Co. v. Bridge- water Co., 51 W. Va. 583, 42 S. E. 655, 59 L. R. A. 566, 22 M. R. 145; Aye v. Philadelphia Co., 193 Pa. 451, 74 Am. St. Rep. 696, 20 M. R. 177, 44 Atl. 555. And the reservation of a small rental for delay will not pre- vent its cancellation where the lease continues indefinitely idle. Peoples Gas. Co. v. Dean, 193 F. 938, 113 C. C. A. 566. "Where the space before the word "years" in the clause of an oil and gas lease limiting the time to complete the well was left blank, the lessee was entitled to a reasonable time. Erie Oil Co. v. Meeks, 40 Ind. App. 156, 81 N. E. 518. The Court will not allow it to be proved that the nominal consideration of one dollar receipted for was not paid, for the purpose of invalidating the lease. Poe v. Ulrey, 233 111. 56, 84 N. E. 46. Where there is no express limitation of the time to sink the well the law allows a reasonable time. New American Oil Co. v. Wolff, 166 Ind. 704, 76 N. E. 255 ; New American Oil Co. v. Troyer, 166 Ind. 402, 76 N. E. 253, 77 N. E. 739. 680 OIL AND GAS. 4 The consideration of one dollar with an acreage rental for delay is valid, and the contract is not void for want of mutual- ity. Pittsburg Co. v. Bcviley, 76 Kan. 42, 12 L. K. A. (N. S.) 745, 90 P. 803. The reservation of rent as compensation for delay to sink makes a valid consideration. Indianapolis G. Co. v. Pierce, 36 Ind. App. 573, 76 N. E. 173. ' A written oil and gas lease is to be construed like any other written contract, and parol evidence will not be allowed adding new covenants to be followed by proof of breach of such alleged covenants and consequent forfeiture. And the Court will not import into a lease contrary to its express terms a covenant for immediate sinking. Rose v. Lanyon Zinc Co., 74 P. 625, 68 Kan. 126. Peculiarities of oil and gas leases stated ; a clause allowing the lessee to reconvey is not to be construed to allow the lessor to declare the lease void. New American Co. v. Troyer, 166 Ind. 402, 76 N. E. 253, 77 N. E. 739. A reserve in a lease of a right to cancel if it should be "detrimental to a sale of the place" means, if it should be detrimental to a sale of the premises as then used for surface purposes and w r as not intended to allow the lessor to cancel so as to get a better price for the oil values. Duntley v. Ander- son, 169 F. 391, 94 C. C. A. 647. A lease for a nominal consideration, giving to lessee the right to sink within 60 days or the right to extend the time by pay- ment of an annual rent, which he is not obligated to pay, may be canceled by lessor at any time after the 60 days, no well being bored, and the renewal rent not being paid. Dill v. Fraze, 169 Ind. 53, 79 N. E. 971. Lessee was to pay $50 per annum rent until gas was found and put to manufacturing purposes, in which event the rent was to be $100 for a term of ten years, ' ' and as much longer as gas or oil is found in paying quantities," or the rental paid as herein provided for. Gas was found in quantity enough to OIL AJSD GAS. 681 have been put to manufacturing purposes, but the lessee anchored the well, and paid only the smaller rent. Held, That he was not entitled to hold beyond the ten years. American Co. v. Williams, 3 Ind. App. 685, 66 N. E. 912. Where the demised tract later comes to belong to different owners, each owner is entitled to the royalties from wells on his own ground. Osborn v. Arkansas 0. & G. Go., 103 Ark. 175, 146 S. W. 122. The privilege to lessee to be allowed an extension of time to sink by paying rental is not a covenant to pay such rental, but only an option. United States v. Comet Oil Co., 187 F. 674. The granting of exclusive right to bore for a given time for oil and gas, with an acreage rental, in case no well is drilled within six months, but with no covenant to sink or pay the rent, is a naked option revocable at will of the lessor. O'Neill v. Bisinger, 11 Kan. 63, 93 P. 340. There is an implied covenant for good title in an oil and gas lease not only of the grant of the right to search, but of the ownership of the product when found. Kilcoyne v. Southern 0. Co., 61 W. Va. 538, 56 S. E. 888; Headley v. Hoopengarner, 60 W. Ya. 626, 55 S. E. 744. An oil lessee holding by condition that he put down a well or pay so much per month, but without covenanting to do either, may insist on forfeiting his rights. Glasgow v. Char- tiers Co., 152 Pa. 48, 25 Atl. 232, 17 M. R. 523. Nor does such right to pay for extended time make him personally liable for the money. Hays v. Forest Oil Co., 213 Pa. 556, 62 Atl. 1072. Consideration of extent of right to use surface where the lease is of the oil and gas rights only. Fowler v. Delaplaih, 79 Ohio St. 279, 21 L. R. A. (N. S.) 100, 87 N. E. 260; Barns- doll Co. v. Leahy, 195 F. 731, 115 C. C. A. 521. Forfeiture. Equity will not forfeit an oil lease for failure, chargeable to the lessor's bad faith. Doddridge Co. v. Smith, 154 F. 970. 682 OIL AND GAS. Where there was no pipe line or other market for the gas the Court will not forfeit a lease for breach of covenant to sink, but leave the lessor to his action for damages. Poe v. Ulrey, 233 111. 56, 84 N. E. 46. A lessor can not accept the rent and afterwards enforce a supposed right to forfeit for non-development. Monarch 0. Co. v. Richardson, 124 Ky. 602, 99 S. W. 668 ; Dill v. Froze, 169 Ind. 53, 79 N. E. 971 ; New American 0. Co. v. Wolff, 166 Ind. 704, 76 N. E. 255 ; New American Co. v. Troyer, 166 Ind. 402, 76 N. E. 253, 77 N. E. 739 ; Smith v. Steele, 96 Kan. 106, 150 P. 519. Where the lessee has been boring with diligence the Court may extend the time to prevent a forfeiture. Eastern Co. v. Coulehan, 65 W. Va. 531, 64 S. E. 836. This is a well consid- ered case as to when an estate in the leased oil vests and how it may be lost, and of the right of protection to a lessee against harsh covenants. Where the lessor allows the tenant to continue at work on the well under difficulties after notice to quit, he is estopped to enforce a forfeiture under the notice. Campbell v. Rock Oil Co., 151 F. 191, 80 C. C. A. 467. The activity of oil operations in the locality will be consid- ered on the question of diligent development. Buffalo 0. & G. Co. v. Jones, 75 Kan. 18, 88 P. 537. After lapse of a reasonable time to sink, lessor is entitled to a cancellation of the lease. Kimball 0. Co. v. Keeton, 31 Ey. L. 146, 101 S. W. 881',J)avis v. Riddle, 25 Colo. App. 162, 136 P. 551. Long delay to pump after striking oil held ground for can- cellation, although it was not shown that the wells could have been worked to a profit, but the lessees were allowed to remove the casings. Collins v. Mt. Pleasant Co., 85 Kan. 483, 38 L. R. A. (N. S.) 134, 118 P. 54. OIL AND GAS. 683 Eainages for Failure to Sink. Bradford Oil Co. v. Blair is one of the earliest cases where damages were given for breach of covenant to operate an oil well with diligence, the particular language there used being "without interruption for the common benefit of the parties," and the measure of damages was ruled to be the value of the oil royalty, which diligence would have produced in excess of what was produced less cost of production, adding interest. 113 Pa. 83, 57 Am. Rep. 442, 4 Atl. 218. A "forfeit" of $500 for failure to sink three wells will be construed as liquidated damages, and not as a penalty. Davidson v. Hughes, 76 Kan. 247, 91 P. 913. The question of damages for failure to sink under two con- tracts more or less connected was considered in Gayton v. Day, 178 F. 249, 101 C. C. A. 609. Oil in Paying Quantities. It is for the operator, the lessee, to say whether oil is being obtained in paying quantities. Lowther O. Co. v. Miller- Sibley OH Co., 53 W. Va. 501, 97 Am. St. Rep. 1027, 44 S. E. 433, 22 M. R. 656. It is paying where receipts exceed expenses, although it may never repay the original cost. Id. In a gas lease giving a rental in case gas is produced in sufficient quantities to make it profitable, the cost of sinking the well is not to be considered, but only the operating expense. Indiana N. G. Co. v. Wilhelm, 44 Ind. App. 100, 86 N. E. 86. Construction of Terms of Lease. From the many incidents peculiar to oil and gas, the rule of construction of oil and gas leases is more strict in favor of the lessor than in other mining leases. Frank Co. v. Belleview Co., 29 Okla. 719, 43 L. R. A. (N. S.) 487, 119 P. 260. Where a lease is ambiguous on its face the Court will adopt that construction which the parties themselves have put upon 684 OIL AND GAS. itPittsburg Co. v. Bailey, 76 Kan. 42, 12 L. R. A. (N. S.) 745, 90 P. 803. Natural gas lease construed to cease by its terms when nat- ural gas ceased to be used generally for manufacturing pur- poses. Diamond Co. v. Knote, 38 Ind. App. 20, 77 N. E. 954. The Court may take judicial notice that the pressure of gas in a well will decline, but where parties have accepted a test pressure, the same condition of things will be assumed to con- tinue until proof of different conditions. Moore v. Ohio Val. Gas Co., 63 W. Va. 455, 60 S. E. 401. In Burton v. Forest Oil Co. the Court refused to allow proof of a trade distinction between gas from a gas well (proper) and gas from an oil well. 204 Pa. 349, 22 M. R. 507, 54 Atl. 266. The casing of an oil well is a fixture removable by the lessee. Perry v. Acme Oil Co., 44 Ind. App. 207, 80 N. E. 174, 88 N. E. 859; Churchill v. More, 4 Cal. App. 219, 88 P. 290. The assignment of a lease does not carry the pumped oil on hand. Dresser v. Transportation Co., 8 W. Va. 553; McGuire v. Wright, 18 W. Va. 507. Oil Sinking Contracts. Measure of damages where defendant agreed to sink oil well 2,000 feet, and quit at 1,500 feet. Corbin Co. v. Mull, 123 Ky. 763, 97 S. W. 385. Judgment sustained on contract to pay $1,500 as liquidated damages for failure to sink oil well by lessee. Blodget v. Columbia Co., 164 F. 305, 90 C. C. A. 237. Plaintiff contracted to drill six gas wells at 80 cents per foot. After drilling three the owner ordered the work stopped. Held, That plaintiff could recover for the profits he might reason- ably have expected to make by showing the cost of sinking in similar strata, the oil field being well developed and essential facts being readily provable. Fredonia Gas Co. v. Bailey, 77 Kan. 296, 94 P. 258. OIL AND GAS. 685 A covenant to provide proper tubing and casing is no guar- anty that such appliances will keep the water out of the well. Vail v. Freeman, 144 Cal. 356, 77 P. 974. Damages in Oil Trespass Cases. The measure of damages for wrongful taking of oil is the" same in principle as that in ore trespass cases (p. 446) , depend- ing on the degree of w r rong of which the trespasser is guilty. In some instances the value of the coal or ore in place is made the true measure, but that can not be applied in an oil or gas case. It seems that the measure is confined (1) to the value of the product when severed or (2) to the value of such prod- uct less the cost of production or (3) to customary royalty. Trespassers who drilled for oil, believing they had a lawful right, are liable only for royalty as the measure of damages. Turner v. Seep, 167 F. 647. A pipe line company wrongfully took the gas from the well belonging to plaintiff, so that it became one of 60 wells feeding the pipe line. Defendant was decreed to pay for one-sixtieth part of the total supply as the fairest approximation to the proper measure of damages. Great Southern Gas Co. v. Logan Gas Co., 155 F. 114, 83 C. C. A. 574. Holders of a junior oil lease allowed deductions for expenses prior to their knowledge of the older lease: after notice, required to account in full. Guffey v. Smith, 237 U. S. 101, 35 Sup. Ct. Rep. 526, 59 L. Ed. 856. Miscellaneous Rulings. A State can not forbid the exportation of natural gas. Such substance is the property of the individual who lawfully re- duces it to possession. Kansas N. G. Co. v. Haskell, 172 F. 545. A gas company can not charge rent for its meter. The cus- tomer can not be compelled to pay for the measurement of the gas he uses. Louisville G. Co. v. Dulaney, 100 Ky. 405, 36 L. R. A. 125, 38 S. W. 703. 686 OIL CLAIMS. The natural gas supply began to fail and the fuel was sup- plied at greatly increased cost to the gas company. All its other subscribers consented to increased rates. Held, No case for equity to compel delivery by preliminary injunction. Brown v. Equitable G. Co., 155 Pa. 359, 26 Atl. 433. A manufacturing company contracting for natural gas for fuel only but using it for illuminating purposes also, is liable upon a quantum valebat for such extra use. Philadelphia Co. v. Park, 138 Pa. 346, 22 Atl. 86. Construction of contract for daily delivery of oil by the month, holding that excess delivery one month does not count to excuse non-delivery another month, and that breach by one party does not render the contract "void," but excuses per- formance by the other. Central Oil Co. v. Southern Ref. Co., 154 Cal. 165, 97 P. 177. The Court will take judicial notice that gas, unlike oil, can not be stored. Eastern Co. v. Coulehan, 65 W. Va. 531, 64 S. E. 836. An oil lease is a chattel real, and personal property. Duff v. Keaton, 33 Okla. 92, 42 L. R. A. (N. S.) 472, 124 P. 291. OIL CLAIMS ON THE PUBLIC DOMAIN. Oil Lands. Ever since the passage of the placer mining act, lands val- uable for deposits of petroleum were considered as open to location and patent as placer 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. 117. And such action of the land office was followed by the Courts in dealing with oil located or patented as placer ground without question of its regularity. Gird v. California Oil Co., 60 F. 532, 18 M. R. 45; Van Horn v. State, 5 Wyo. 501, 40 P. 964. OIL CLAIMS. 687 After this unbroken procedure of more than 20 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 placers. 29 St. L. 526. The ruling itself which induced the confusion was later reversed by the Secretary of the Interior. 25 L. D. 351. The A. C., above referred to, allowing their entry, is printed on p. 648, and the special A. C. for annual labor on oil claims on p. 142. They are located and held like any other class of placers. De Wolf skill v. Smith, 5 Cal. App. 175, 89 P. 1001. Discovery. The only obvious distinction is, that from the nature of things there can be no such thing as an open surface discovery. The New Mexico Statute recognized this fact by making special provision, allowing time to sink the well (p. 276), and the Courts liberally protect the operator while sinking. As to this class of claims it has been held that oil seepage or surface indications or knowledge of its existence upon adjoining lands is not enough to count as a discovery. Nevada Oil Co. v. Miller, 97 F. 681, 688; Nevada Co. v. Home Co., 98 F. 673, 20 M. R. 283; Olive Co. v. Olmstead, 103 F. 568, 20 M. R, 700; Weed v. Snook, 144 Cal. 439, 77 P. 1023. The locators of an oil placer are entitled to hold possession and to be protected against invasion while sinking, although they have not yet a discovery. .A neighbor, although he has a prior actual discovery by striking oil, will not be allowed to survey in such claim. Phillips v. Brill, 17 Wyo. 26, 95 P. 856 ; but a party will not be so protected, when he merely stakes and guards the claim Whiting v. Straup, 95 P. 849, 17 Wyo. 1, 129 Am. St. Rep. 1093 ; New England Co. v. Congdon, 152 Cal. 211, 92 P. 180; Smith v. Union Co., 166 Cal. 217, 135 P. 966. An idle derrick will not defeat a homestead entry. Mc- Lcmore v. Express Co., 158 Cal. 559, 139 Am. St. Rep. 147, 112 P. 59. 688 OIL CLAIMS. An oil well was sunk on the boundary line between two claims in which well oil was discovered. Held, That it \v;is good to hold one of the claims at least, whichever the party chose to apply it to. Phillips v. Brill, 17 Wyo. 26, 95 P. 85G. A party located a placer oil claim on which he had no dis- covery and sold a part of it to plaintiffs. He then was employed by defendants to locate placer oil claims for them. He located the same land which he had sold to plaintiffs. Held, That defendants were not estopped by their agent's deed to claim the benefits of his discovery and location. Whiting v. Straup, 17 Wyo. 1, 129 Am. St. Rep. 1093, 95 P. 850. Boring into "shale grease" is not a discovery of oil. Dean v. Omaha Co., 21 Wyo. 133, 128 P. 881, 129 P. 1023. Oil seepage and slight flow of gas no discovery. 40 L. D. 602. The same as to oil shale. 39 L. D. 335. An oil placer claim was staked and recorded and a derrick erected, but the boring was not prosecuted with any diligence and no oil had been discovered. At this juncture a party entered upon the land to homestead it, and the Court held that he had the better right. McLemore v. Express Oil Co., 158 Cal. 559, 139 Am. St. Rep. 147, 112 P. 59. Failure to. follow up a strike of oil by pumping does not invalidate the discovery. Borgwardt v. McKittrick Co., 164 Cal. 650, 130 P. 417. The decision in lode and placer cases that the discovery must be within the lines of the claim, that the order of the several items of location is immaterial when once fully complete (no third parties intervening), and the right to file amended rec- ords and notices, apply to oil claims. Dean v. Omaha Co., 21 Wyo. 133, 128 P. 881, 129 P. 1023. In Hidlinger v. Big Sespe Oil Co. the Court said that title by location and possession without discovery was good against every person except the United States. 28 Cal. App. 69, 151 P. 369. But in this case both parties were in privity with the same title, and rights of a second locator \vere not in contest. MEXICAN MINING LAW. 689 The Five Claims Act. The "annual assessment labor" mentioned in the section printed on page 142, means the annual labor and not location work, and a discovery on one of a group of oil claims is not good to hold another claim in the group. Smith v. Union Co., 166 Cal. 217, 135 P. 966. Withdrawal of Oil Lands. Oil lands can not be withdrawn from entry after rights vested by discovery. United States v. McCutchen, 217 F. 650. But see this case as later reported, under THE WITHDRAWAL ACTS, p. 422. Relocator Out of Possession. Both plaintiff and defendant had locations imperfect for want of staking and insufficient record. Plaintiff's title began in 1899, defendant's in 1900. Defendant kept possession and did his annual labor, which plaintiff did not. Plaintiff filed a relocation after adverse suit begun, and was allowed to bring it into the record. Held, That defendant's possession was good against the attempted relocation by a party out of possession, and in default on his annual labor. Ware v. White, 81 Ark. 220, 108 S. W. 831. MEXICAN MINING LAW * Not only the mining laws of the Republic of Mexico, but also those of the United States, are very largely the outgrowth of the civil rather than the common law, notwithstanding the fact that the law of the United States has, in most instances, be*n an offspring of the common law of England. For the text of this Chapter we are under obligations to Messrs. Richardson & Doan, Douglas, Ariz., authors of "Digest of the Mexican Mining Law," and "The Corporation Laws of Mexico." C90 MEXICAN MINING LAW. The civil law concerning mines, which was in force in Spain at the time of the settlement of Mexico by the Spaniards, was based upon the assumption that mines should not become prop- erty in the same sense as the soil, but should be held and worked for the public good. This law regarded gold, silver and precious stones as belonging to the state, absolutely, while some of the baser metals belonged to the owner of the soil, subject to control by certain of the departments of state. The resem- blance to the common law of England exists in the case of "royal mines" which, when proved to exist within private ground, are still considered the property of the crown. The present mining law of Mexico is of recent enactment. The old Spanish mining laws in force at the time Mexico secured her independence (1822) were retained for many years, with such changes only as were necessitated by the change in the form of government ; and until the adoption of the recent laws, the Spanish ordinance of May 23, 1783, was largely determinative of all rights in mining properties. Under the present law the title to all mines, with the excep- tions hereinafter noted, is in the Republic of Mexico, and when it passes title it is in the form of a lease, perpetual so long as the federal tax is paid. This tax is substituted for the old royalty, which was a part of the metal extracted. There is no work now required of the possessor of mining rights, his title depending upon the payment of the tax imposed. Although the theory of ownership is quite different from that in the United States, the manner of disposing of mineral rights in Mexico is quite similar to that of our own country. The Minister de Fomento is a cabinet officer whose duties relative to the disposition of the Mexican public domain are almost identical with those of the Secretary of the Interior. The Mineral Agents, who are appointed for the respective dis- tricts throughout the Republic, perform the duties which, in the United States, devolve upon the Register and Receiver of the local land offices, while in addition they attend to the recording of locations or "denouncements" of claims and the MEXICAN MINING LAW. 691 survey for patenting; in this respect taking the place of the County Recorder and Surveyor General. The term "claim," as used in the mining laws of the United States, has no exact equivalent in the Mexican law; the word pertenencia (meaning portion) is the unit of measurement of the surface of mining rights as in the old Spanish law. A pertenencia, under the present law, consists of a piece of ground the surface of which is 100 metres square (about 328 feet), and in size can be departed from only in case former locations have segregated the ground in such shape that the form and size must, of necessity, be varied. Under the present law any proper person may locate a piece of mineral ground containing as many pertenencias as he desires, although he may not locate less than one pertenencia, except in those cases where former locations have left an iso- lated piece of ground, the area of which is less than a perte- nencia. Originally the manner of initiating a right to mineral ground bore considerable resemblance to the procedure of miners under the, local district rules in the United States dur- ing the great mining activity following the discovery of gold in California; while the present law still contains many fea- tures in common with our law. The person locating or "denouncing" a piece of mineral ground must be a citizen of Mexico, or a domestic corporation if the ground is within the prohibited zone of eighty kilometers along the border of an adjoining country, but both foreigners and foreign companies can freely locate and acquire title to mines not falling within this zone. The many controversies arising in the United States over the mineral or non-mineral character of the ground are agree- ably absent in Mexico. The Department de Fomento seeks to encourage and assist the legitimate miner attempting to develop property, having a fair prospective value as mining ground. The suspension of patent proceedings at the instiga- tion of disinterested parties seldom occurs. 692 THE 640 ACRE HOMESTEAD ACT. Under the Mexican law there is absolutely, no extralateral right of any character. The one owning a mining "title" can work all mineral within his property, but can not extend his working beyond his side or end lines in any event. Moreover, the mining title does not carry any surface right as understood in the United States. If the mine is located within land belong- ing to some other person the surface rights must be acquired by purchase or condemnation, while if on government ground, the right to the surface only exists, in so far as it is necessary for the working of the mine and may not cover the entire surface of the claim. What changes have been made in Mexico in mining law since the above was written in 1910 can not be stated in print until a stable form of government for that country is worked out, nor until the United States return to its ancient policy of protect- ing its citizens and their property rights in foreign countries. The 640 Acre Homestead Law was approved December 29, 1916, after the body of this book was in press. Its section 9 contains a reservation of all min- erals to the United States leaving the land, even after patent issues, open to prospecting and entry as mineral land either for its coal or its lode values, and even doubtless, to a certain extent, as a placer claim, under regulations to be issued by the Interior Department, which should appear in Vol. 45 or 46 of the Land Decisions. GLOSSARY OF MINING TERMS ABANDONMENT. Quitting a claim with no intention to further assert title. The relinquishment of a right. 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. ALLOY. A compound of two or more metals fused together. ALLUVIUM. The sediment of streams and floods. Latin. AMALGAM. The mechanical combination of quicksilver with gold or silver. ANDESITE. A dark porphyritic lava, composed of black crystals im- bedded in a mass of light colored feldspar. ANDESITE BRECCIA. Frag- mental andesite united into a compact rock by silica and other natural cementing materials. The main eruptive rock of the Cripple Creek dis- trict. ANDESITE TUFF. Andesite in minute fragments, finer than breccia. John Wellington Finch. ANTICLINE. The bend of a stratum with the convex side up. Opposed to synclinal. ANTIMONY. A silver white, hard, crystalline, metallic element, found in non-commercial quantities in many ores. Used in alloys and in medicine. APEX. The top of a lode. Latin. ARASTRA. A circular mill for grinding quartz by trituration between stoues attached loosely to cross arms. Spanish, ARCH. A part of the gangue left standing for support. ARGENTIFEROUS. Silver bearing. Latin. ARSENIC. A volatile metallic element, notoriously poisonous in its fumes or in any other form. Used as a drug in a form of arsenious oxide or white arsenic. It forms many oxides and sulphides. Extensive deposits in Canada. ASBESTOS. A mineral product of a silky texture when pure. Inert, non-combustible, non-conductor of heat and electricity. Fire-proof inatq- rial par excellence. Occurs in two varieties, the fibrous and non-fibrous. The former only has much commercial value. Victor Blanc, Assayer. ASCENSION THEORY. That referring the filling of fissures to matter from below. Von Cotta, 71. ASPHALT. A solid form of native bitumen, which occurs more or less pure, or mixed with inorganic or other adventitious non-bituminous mat- ter. The name is also applied, commercially and in engineering parlance, to materials in general containing this form of native bitumen or any form resembling it. See BITUMEN. C. 0. Batter. (693) 694 GLOSSARY OF MINING TERMS. ASSAY. A test of the mineral contained in a larger mass by extract- ing and weighing the product of a sample. See p. 482. ASSESSMENT WORK. The annual labor ($100) required to hold a claim. See p. 114. 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 handles 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. BASALT. A lava rock having a tendency to form jointed columns. It may hold iron enough to deflect the needle, but is not known to carry constituents of value. BASE BULLION. Pig lead containing its gold and silver unseparated. BASE METALS. All metals except gold, silver, mercury and the platinum group, which are termed noble metals. BAUXITE. An earthy or clay ore, red to white in color. A ferric hy- droxide." The principal source of aluminum. BED. A horizontal seam or deposit of ore. BED ROCK. The solid rock outcropping at surface or underlying the gravel, slide or other loose earth. BISMUTH. A brittle crystalline grayish white metal very easily fusible. Found as an oxide or sulphide in ores of gold, silver, copper and other metals. Not usually distinguishable except by assay. As distributed with such ores, has no commercial value unless of high percentage. Frank M. Taylor. BITUMEN consists of a mixture of native hydrocarbons and their derivatives, which may be gaseous, liquid, a viscous liquid or a solid, but, if a solid, melting more or less readily on the application of heat, and soluble in turpentine, chloroform, bisulphide of carbon, similar solv- ents and in the malthas or heavy asphaltic oils. Natural gas, petroleum, maltha, asphalt, grahamite, gilsonite, ozokerite, etc., are bitumens. See ASPHALT. C. 0. Baxter. BLACK JACK. A dark variety of zinc blende. BLENDE. A sulphide of zinc. BLOSSOM. Decomposed out-crop of a vein. Gossan. Iron hat. BLOW-OUT. A spreading out-crop. BONANZA. Fair weather at sea; a large body of paying ore. Became a familiar term upon the opening of the immense ore bodies in the Com- tock. Sp. BOOM DITCH. The ditch from the dam used in booming. (2) A slight GLOSSARY OF MINING TERMS. 695 channel cut down a declivity into which is let a sudden head of water intended to cut to bed-rock and prospect for the apex of any underlying lode. BOOMING. A kind of placer mining where the water is accumulated in a dam and let out at intervals, so as to utilize its cutting power in the form of a torrent. BORRASCA. The reverse of Bonanza. Out of pay. BOULDER. A large, loose, rounded stone. BRATTICE. A bulkhead. BREAST. The heading of a drift, tunnel, or other horizontal working. BRECCIA. A conglomerate of angular fragments. BRITTLE SILVER. Stephanite. A sulphide of antimony and silver con- taining 68.5 per cent silver with the antimony variably. Sometimes contains iron, copper and arsenic; variable in color, hardness and specific gravity. B. B. Lawrence. BROACHING. Trimming or straightening a working. BRONZE. An alloy of copper and tin. Brass is an alloy of copper and zinc. PUDDLING. Separating ores by washing. BULLION. Uncoined gold or silver. CACHE. A place where a prospector's provisions or outfit are buried or hidden. French. CALAMINE. An ore of zinc. Lapis Calaminaris. CALAVERITE. A telluride of gold, containing 55.5 per cent tellurium and 44.5 per cent gold ; allied to and commonly misdescribed as sylvanite ; sometimes distinguishable from the latter by a yellow color and lack of crystallization. J. W. Finch. CANON. A narrow valley. Termed Box Canon when the sides are perpendicular. Spanish. CAP. Space where the walls contract so as to leave only a trace of the vein. A pinch. (2) A space in the vein where the gangue becomes barren. CARBONATES. The combination of carbonic acid with bases. Soft carbonates have lead for a base. Hard carbonates have iron for a base. An ore of lead and silver. CARNOTITE. An ore carrying vanadium and uranium in the form of a vanadate of uranium and potassium; generally occurs as an impregna- tion in sedimentary sandstone beds. Largest known deposits, in San Miguel and Montrose counties, Colorado. A. B. Frenecl. CEMENT. Gold-bearing gravel united and hardened into a compact CERUSITE. A valuable lead carbonate ore, easily convertible into white lead. Noted for its cabinet specimens of crystals. Supposed to be galena with its sulphur displaced. 696 GLOSSARY OF MINING TERMS. CHALCOPYRITE. (CuFeSo) Cu-34.C per cent. S-34.9 per cent. Fe-30.5 per cent. The most abundant ore of copper and considered by some authorities to be the original from which all other copper bearing ores have been derived by processes of alteration. Cranston Howe Carpenter. CHIMNEY. A pocket or ore body when found pipe shape, with general perpendicular position. CHLORIDES. Compounds of chlorine with other elements. CHUTE (or SHOOT). A flume for sliding ore. (2) A chimney of ore. French. CINNABAR. Sulphide of mercury. CLAIM. A location. The amount of ground which may be located by a single person or association. See p. 591. CLEAN-UP. The operation of collecting the gold which has settled in the flume of a placer or in an arastra. CLEAVAGE. The property of splitting more or less readily in certain definite directions. COASTER. One who picks dump, or gleans in abandoned mines for ore in sight. COBALT. A hard, gray ductile metal. Its ores are usually combined with nickel, arsenic or sulphur. Used in pottery glazing and glass stain- ing. See NICKEL. COBBING. Ore sorting. COLLAR. The top of a shaft or winze. (2) The timbering of a shaft when carried above the surrounding surface. COLOR. A particle of gold in the pan. CONCENTRATION. The removal by mechanical means of ore from the gangue or slime. CONTACT. The plane of meeting of two formations. CONTACT VEIN. A vein along the plane of contact of two dissimilar formations, consequently separating the two formations. Von Cotta, 28. COPPER. A metallic element. Eed, hard, sonorous, ductile, malleable, non-magnetic, notable as best available conductor of electric current. Name derived from island of Cyprus. COST-BOOK COMPANY. A system of mining partnership local to Corn- wall and Devon. COUNTRY ROCK> The rock beyond the walls of a lode. The strata between or across which the lode is found. COURSE OF VEIN. Its strike. The horizontal line on which it cuts the country rock. COYOTING. Spasmodic, irregular, surface mining. CRADLE. A rocker. A short trough for washing gold. CRIBBING. The timber lining of a drift, shaft, winze or mill-hole. Tho term also is applied to rough or light timbering as distinguished from sol ; (l set work. CROSS COURSE. An intersecting vein. GLOSSARY OF MINING TERMS. 697 CROSS CUT. A level driven across the course of a vein. A short tunnel. CUBIC EQUIVALENTS. The following table gives the equivalent in cubic feet of a ton of the ordinary ores and their gangues to be used to calculate ore in sight, displacements, etc.: Cubic Feet. One ton of water (the unit) equals 32.03 Galena 4.39 Iron Pyrite 6.6S Copper Pyrites (yellow) 7.67 Lead Carbonate (cerusite) 4.96 Zinc Blende 8.02 Silicious Gangue 11 to 16 Silica (White Quartz) 11 to 13 Granite or Gneiss, about 12 The above figures are for rock and ore in place. When broken they occupy about one-fourth greater space. When the specific gravity is known divide 32.03 by the figure denoting the specific gravity, and the result is the cubic contents of a ton of the material. The specific gravity of sulphur is 2.05. (32.03-^2.05=15.62 cubic feet.) Arthur Howe Carpenter. CUT. To intersect a vein. CYANIDE. A compound of cyanogen with a metal. The Cyanide Process of gold extraction is performed by passing an auriferous solu- tion of potassium cyanide over zinc shavings, by which the values are precipitated. Henry Lewis on Gold Mining. Thomas E. Beaumont. DEAD WORK. The developing of a mine preparatory to stoping. See p. 358. DEBRIS. The loose fragments detached from the bed rock and washed down, to which the term slide is more appropriate; waste rock of any kind. French. DEEP. The lower portion of a vein. DENOUNCEMENT. The Mexican or Spanish equivalent to "location and record" of a claim. DESCENSION THEORY. The theory that veins were filled from above. DIGGINGS. Placers. Amer. DIKE. A fissure made and filled by plutonie action. Its rock is most commonly porphyry. It is often barren, but in some cases mineralized ; or may carry a mineralized selvage and so appear as the wall of a lode. DILUVIUM. A deposit of loose boulders, earth, etc., attributed geo- logically to deposition from water. DIP. The line of d.-vlination of strata. Bainbridge. Yale. The angle which a lode makes with the plane of the horizon. Von Cotta, 26. The departure of a v.'in from the jicrpcn-liculjir or from the horizontal. DITCH. An artificial wpfett BOOI7, flume or canal. 698 GLOSSARY OF MINING TERMS. DIVINING ROD. A stick of witch hazel or other like device used in prospecting for lodes. Law v. Grant, 7 M. R. 57, 37 Wis. 548. * DOLLAR. From the German Thaler. One hundred cents. GOLD 23.22 grains; alloy 2.58 grains; weight 25.8 grains. Coined 1849-1889. SILVER 37114 grains; alloy 41^4 grains; weight 412 1 / 4 grains. Coined 1794-1803, 1836-1838, 1840-1873, 1878-1904. Legal tender unlimited. The Mexican dollar contains 377.17 grains silver and 40.62 grains alloy. Spanish dollar the same. D. F. Harris, Numismatist, Adams, N. . DOWNCAST. A ventilating shaft with descending current of air. DRIFT. An underground passage driven horizontally on or with the vein. DUMMY ASSAY. A dummy or blank assay is the search for any inter- fering element such as impurities contained in the chemicals used in making the determination that might alter the true returns of an ore. It may also be defined as the addition, to the regular work, of a chemical determination of a known quantity of the pure element sought for, to ascertain if the method used is applicable to the mineral on hand in case of doubt. Victor Blanc, Analytical Chemist, Denver. DUMP. A deposit, or place of deposit, of waste rock or tailings. ELVAN COURSE. A plutonic dike. Lyell. Argall. Corn. EXPLOITATION. The active working of a mine as distinguished from prospecting. FACE. Synonymous with breast. FATHOM. A space 6 feet forward and 6 feet vertical with the width of the vein. FAULT. A dislocation of strata. Bainbridge. Tale. The dislocation of a vein from its original position; a heave; a throw. Von Cotta, 29. FEEDER. A small vein starting from some distant point and running into a main lode. It is practically synonymous with spur. See Bain- bridge, 2. FELDSPAR. A vitreous crystalline constituent of granite, gneiss, por- phyry and many other rocks. FISSURE VEIN. A fissure or crack in the earth across its strata, filled with mineralized matter. FLOAT or FLOE. Loose quartz or ore detached from the vein and found below it. FLOOR. The rock underlying a horizontal vein or deposit. FLUME. A ditch carried in frame work on or above the surface. * The die for the dollar of 1804 was made but not used in that year. Many years later twenty pieces were surreptitiously struck by an em- ployee in the mint. Of these, twelve were sold as cabinet specimens and the other eight were surrendered to the superintendent of the mint on discovery of the fact. One of these was placed in the U. S. coin collec- tion at Philadelphia, and the other seven destroyed. GLOSSARY OF MINING TERMS. 699 FOOT WALL. The under wall of the vein. FORFEITURE. The loss of possessory title as the result of abandonment or failure to comply with the conditions under which the title was held. GAD.' A small pointed wedge. GALENA. A sulphide of lead; when not amorphous is crystallized on the cubic system; when pure contains 86.6 per cent lead, 13.4 per cent sulphur. Carries silver in greatly varying quantities. GALLERY. A level or drift; applied chiefly to collieries. GANGUE. Crevice material; vein matter; the base material forming the matrix of the ore. GASH VEIN. A vein which continues for practical purposes only a short distance below the sod, generally narrowing as it descends. GEODE. A rounded nodule of stone containing a cavity studded with crystals or mineral matter; the cavity in such nodule. GLORY HOLE A large funnel-shaped excavation from the surface used as a method for extraction of ore without going under cover. Fred H. Nye, Denver. GNEISS. A rock composed of the same constituents as granite, but foliated or stratified. GOB FIRE. Fire in collieries produced by spontaneous combustion. GOLD. A metallic element; bright yellow. Almost invariably found native associated with a variable percentage of silver. One ounce pure gold coined in U. S. dollars is worth $20.67. GOSSAN. See IRON HAT. GOUGE. A soft selvage; a clay streak found following a wall, or a slip or an ore measure. GRANITE. A plutonie crystalline rock composed of feldspar, quartz and mica. GRASS. The surface over a mine. Corn. GRASS ROOTS. A term used where a working is started from, or worked up to, the surface. GRAY COPPER. Tetrahedrite. An ore containing copper 15 to 42 per cent, combined with iron, zinc, silver, mercury, arsenic and antimony. It varies in color, hardness and specific gravity. GRIZZLY. A grating to catch and throw out the larger boulders from the sluice. GRUB STAKE. Provisioning a prospector on a bargain to share hia discoveries. HADE. The dip of the vein or the incline of a fault. Corn. HANGING WALL. The upper wall of a vein. HEADING. The breast or face of a working. HEADINGS. The mass of gravel and pay dirt above the head of a sluice. HEAVE. The horizontal dislocation of one lode by another. HIGH EXPLOSIVES. Those of greater detonating force than black powder. 700 GLOSSARY OF MINING TERMS. HORSE. A mass of country rock between the enclosing walls of a vein. To constitute a Horse, "It is necessary that the walls should converge about the mass below and at both ends, but the greatest known horses do not converge over head. The two walls coming to the surface are in some instances 1,000 feet apart." Testimony of Clarence King in the Dives Case. HUDGE. An iron bucket for hoisting. HUNGRY. Barren. HYDRAULICS. That method of placer mining where the gravel is washed by a stream operating under hydraulic pressure. I. D. B. Illicit Diamond Buyer. Africa. IMPREGNATION. A metallic deposit having undetermined limits in no way sharply denned. Yon Cotta, 87. INCLINE DRIFT. A drift run at an incline to subserve the drainage. (2) A misnomer applied to a slope sunk upon a deposit having slight departure from the horizontal. INFILTRATION THEORY. That which refers the origin of the ore to the deposit of mineral from water holding it in solution. INJECTION THEORY. That which refers the origin of the ore to the introduction of igneous fluid. IN PLACE. In Situ. Words used in Section 2329 of the IT. S. Revised Statutes, qualifying the words "quartz or other rock," and to distinguish lode from placer claims. See p. 27. IN STROKE. The right to work one mine through another mine. See p. 366. IRON. A metallic element, silvery white in color when pure. Hard, tenacious, malleable and ductile. Hematite is its most usual ore and it is familiar as a constituent of white pyrites. The most valuable of all metals in its uses, but its ore is of commercial value only when contain- ing a heavy percentage. Under fire and other treatment it becomes cast iron, wrought iron or steel. It is plastic to the presence of almost any foreign substance, phosphorus and sulphur tending to weaken, while alloys of vanadium, nickel, manganese and tungsten in slight percentages add almost incredible increase of strength and tenacity. IRON HAT. (E-isen Hut.) The outcrop of a lode, it being usually col- ored by the decomposition of the iron. Von Cotta, 38. JIG. A machine for concentrating ore by means of sieves. Corn. JUMP. To take forcible possession of a claim. (2) To relocate aban- doned property. KIBBLE. A kind of hoisting bucket. Corn. LAGGING. Poles or small timbers used for spanning from one stull- piece to another, for cribbing mill-holes and for lining behind the timbers of a shaft. LEAD. An objectionable form of the word lode. GLOSSARY OP MINING TERMS. 701 LEAD. A metallic element, bluish white. Galena and carbonates are its most common ores. LEDGE. A term in use on the Pacific Slope synonymous with lode. See p. 196. LENGTH. A certain portion of a vein when taken on a horizontal line on its course. LEVEL. A drift along the vein; the word generally used where there are a series of drifts, as first level, second level, etc. See Cambers v. Lowry, 54 P. 816, 19 M. R. 539. LIFT. The space between two levels. LITTLE GIANT. A jointed iron pipe and nozzle decreasing in diameter with the increase of the hydraulic pressure; used in placer mining. LOCATION. The successive acts by which a claim is appropriated. (2) The claim itself. LODE. An aggregation of mineral matter containing ores in fissures. Von Cotta, 26. A vein of metallic ore. A ledge. Corn. See p. 196. (A fault in the country which has become mineralized. A. H. Green.) MANGANESE. A hard, brittle metallic element; a common but (unless carrying 20 per cent or more) valueless constituent of many ores. Found as an oxide. Used in glass making, paints and chemicals. MAN HOLE. An opening just large enough to permit access between two workings. MATRIX. (Of the lode.) The country rock in which the vein Is found. (Of the ore.) The rock or earthy material inclosing the ore; the vein- stone. Latin. MATTE. One of the products of matte or pyritic smelting. It consists either of ferrous mono-sulphide (FeS), or of cuprous sulphide (CuoS), with ferrous mono-sulphide in varying proportion. Franklin E. Carpenter, Ph.D. See SMELTING. MERCURY. Quicksilver. A shining silver- white metal, liquid at tem- perature above 40 deg. Fahr. Boils at 669 deg. Fahr. METAL. An arbitrary designation of certain elements and alloys, usually hard, heavy, bright and sonorous, hence the phrase "metallic ring." No one distinction can exactly deliminate the metallic and non-metallic minerals. Gold, silver, copper, iron, tin, lead and mercury were the only metals certainly known to the ancients, all others, being more than three-fourths the total number of the elements, are medieval or modern discoveries. Two certain metals, although having no chemical affinity, are almost invariably found together. Native gold has always a percentage of silver; uranium with vanadium, cobalt with nickel, lead with zinc, are familiar instances. No theory has ever satisfactorily accounted for this association. METALLURGY. The art of working metals, including smelting, refining, and parting them from the ores. 702 GLOSSARY OF MINING TERMS. MICA. One of the constituents of granite. "When separately crys- tallized is found in clear laminated plates. MILL-HOLE. A passage left in the stope for throwing down rock or ore. MILL-RUN. The returns of a lot of ore; the assay of ore in quantity as distinguished from a specimen assay. MINE. Any excavation made for mineral. (2) An opened, as dis- tinguished from an untouched deposit. (3) Underground as distinguished from superficial workings or quarries. MINERAL. One of the three grand divisions of the natural world animal, vegetable, mineral f. e., any non-organic substance. (2) In a legal sense, any inorganic product of the earth of greater commercial value than the soil itself. See p. 256. MINER 's INCH. There is an attempted statutory definition in Colorado R. S. See. 7026 which is obscure and inexact. Orifices constructed as this statute directs will deliver through each square inch of opening a quantity which varies from 1.516 to 1.632 cubic feet of water per minute. The custom among engineers is to take 1.560 cubic feet of water per minute as the equivalent of an inch. Using this value for an inch, 38.4 inches is equal to a flow of one cubic foot per second. By section 3330 the State Engineer is required to use in all his records the cubic foot per second as "the unit of measurement of flowing water," and the cubic foot as the unit of measurement of volume. Charles W. Comstock, State Engineer. MiNERjs RIGHT. The license to locate, used in Australia. MISPICKEL. A white pyritic ore of arsenic and iron. MOLYBDENITE. A sulphide of the metal Molybdenum; found in scales with metallic lustre closely resembling tin foil or gray copper; also in a granular form, showing steel blue flake crystals. Valuable and marketable when concentrated, as an alloy for high grade steel. A. B. Fremel. MONAZITE. A valuable sand obtained by sluicing, carrying thorium oxide used in manufacture of incandescent gas mantles. MOYLE. A drill or short bar sharpened to a point, used in cutting hitches and in broaching. MUCKER. The man who fills the bucket or tram. MUNDIC. Copper or iron pyrites. White Mundie is mispickel or arsenical pyrites. NICKEL. A hard, malleable, ductile, white, magnetic metal. Used in coinage as an alloy with copper, for ornamental plating and to harden armor plate. Mined at Sudbury, Ontario, and in New Caledonia. Gener- ally associated with cobalt, and both names are those of the guardian demons of superstitious miners. NODULE. A small, rounded, stony concretion. OCHRE. Any soft, earthy, metallic oxide. A decomposition formed into a clay-like substance which may, or may not, contain mineral value. OPEN CUT. A longitudinal surface working not entering cover. OPERATOR. One who works a mine either as owner or lessee. GLOSSAEY OF MINING TERMS. 703 ORE. The mechanical or chemical compounds of the metals with baser substances. The conventional divisions in the ore market are : DBY ORE : An ore which does not contain any lead, or less than 5 per cent. MILLING ORE: A dry ore that can be amalgamated or treated by leaching and other processes ; usually these ores are low grades, free, or nearly so, from base metals. SHIPPING ORE: Such as is better adapted to smelting than any local treatment. Any ore of greater value when broken than the cost of freight and treatment. REFRACTORY ORE: An ore containing in quantities, arsenic, antimony or other base metals, which prevent economical treatment by usual and available processes. W. J. Chamberlain. ORE IN SIGHT. Ore disclosed between drifts and shafts (or winzes) so that it can be measured, on the assumption that if exposed on four sides or three sides it presumably exists in the body of the stope the same as in the exposures. If exposed on two sides, it is counted as in sight to the extent of one-half the contents of the stope. Ore between drift, shaft and surface is ore in sight after allowance for depth of slide. Ore exposed on only one side is not ore in sight. Kirby Thomas. ORE RESERVES. The ore body where exposed ready for stoping. OUTCROP. That portion of a vein appearing at the surface. OUTPUT. The gross product of a mine. PAN. An iron basin used in gold prospecting. PATCH. A small placer claim outside of the main gulch. PATIO. A yard or court. The space where ore is mixed and amal- gamated by tread of horses. Sp. PATIO PROCESS. The Mexican method of amalgamation of silver ores. PAY ROCK. The lode material in which the mineral or pay is found. See QUARTZ. PAY STREAK. The ore body proper, or the seam of decomposed material which takes its place and preserves the continuity of the ore body. PEGMATITE. A special form of granite. "Pegmatites are essentially coarse grained silicious dikes, not involving great amounts of mineralizers at the outset, but along their sides have afterwards circulated vapors which have contributed to the production of coarse crystallization. Finally highly heated silicious waters have brought in quartz and at a last stage various rare elements have been introduced." J. B. Hastings, Mining Indmtry, 1908, p. 876. PENT HOUSE. A shed or horizontal barricade across one end of a shaft, made of strong timbers loaded with rock to protect against any accidental fall from above. Corn. PERTENENCIA. The Mexican equivalent of a location or clajm. Size, 100 metres square, about 328 feet. PETROLEUM. Bock oil, medicinally used at an early date under the name of Seneca oil. In commercial usage of today the word "oil" has generally superseded "petroleum." In color, some shade of brown or green. Its chemical elements: Hydrogen and carbon. By geologists 704 GLOSSARY OF MINING TERMS. considered a decomposition of organic matter, but this theory not abso- lutely proven. Its main sources: United States, Canada, Mexico, Baku (Russia), Bukowina (Hungary), Burmah. Its products: Gasoline, naphtha, lubricating oil, paraffin, and innumerable by-products. Found by drilling at depths as great as 5000 feet. The oil industry has intro- duced many new terms or given a new and technical meaning to words in common use, to-wit: PARAFFIN: A wax by-product of crude oil. It is the base of all high grade oil that is capable of being refined. ASPHALTUM BASE: Oil having an asphalt base, of low gravity and not capable of being refined. Used chiefly for fuel oil. ROTARY DRILLING: A form of drilling required in certain ground where the hole will not "stand up," and necessitates forcing a pipe downward with a circular motion. CABLE DRILLING : The customary method used in drilling in shale and rock soils in which the tools are suspended with a wire or Manila cable and alter- nately rise and fall. CREW: Consists of a driller and a tool dresser. TOWER: A day's work of a drilling crew. A tower runs from 12 noon until 12 midnight; and from midnight until noon. SPUDDING IN: The actual commencement of drilling after the rig is completed. The first abrasion of the soil made by the drill. This is considered the actual commencement of drilling operations. ROYALTY INTEREST: A percentage of the gross output of oil paid to the owner of the land free of cost. Any other form of interest requires participation in expenses. OFF-SET WELL: Where a well has been drilled on an adjoining property close to the line, it is generally required, either by law or by the contract, to drill a well within what are called the protecting lines, thus off-setting the producing well. FLOWING WELL: A well which flows naturally. PUMPING WELL: A well which accumulates a certain amount of oil per day, which it is necessary to bring to the surface by pumping. VACUUM PUMP: A form of pumping that produces a vacuum in the well, thus sucking in oil from adjoining territory. This form of pumping is forbidden in some fields. SHOOTING A WELL: Filling the hole through the oil sand with a high explosive (generally nitro-glycerin) which when exploded increases the collection area. NATURAL PRODUCTION: The pro- duction from a well which has not been shot. FLUSH PRODUCTION: The first production of oil per day from a well. (This may be either with or without shooting.) SETTLED PRODUCTION: The amount of production of oil per day after the first agitation has ceased and the well has reached an ordinary average producing basis. OIL SAND: A porous rock forma- tion in which oil accumulates. GAS CLAUSE: A provision for an annual rental to be paid to the lessor for the sale of gas from a well. CASING : An outer pipe inserted in oil wells to prevent the caving of the sides and to shut out water. This remains the property of the lessee and is removed upon the abandonment of the well. CLEANING OUT: A process required to remove cavings, -floating sand and all accumulations in order to increase the production. CASING HEAD GAS: Gas from a producing oil GLOSSARY OF MINING TERMS. 705 well which is collected at the casing head and saved separately from the oil, and usually carries a large percentage of gasoline, which may be saved by compression. PLUGGING: The insertion of a heavy plug in and above the oil sand and filling in, to prevent water from flooding the oil sand. Often required by law in wells that are failures. G. L. Warson, Denver. PHONOLITE. A volcanic rock of porphyritic texture; the crystals in some cases so minute as to be imperceptible unless magnified; thin slabs ring when struck, whence the name, literally, sounding stone. PINCH. A narrow space where the walls come close together. PIT. A shallow shaft. In Cornwall the working shaft or the whole mine is called the PIT. PITCH. The dip of a lode. PLACER. A deposit of gold not in place. Applied to all classes of gold deposit including cement and channel claims, except lodes in place. For special meaning under Sec. 2329 U. S. Rev. St. see p. 258. Gold, platinum, tin, gems and monazite are the minerals won by placer washing. PLAT. A small chamber on the side or sole of a level where it intersects a shaft, made to facilitate dumping. Where it is cut in the sole it is called a trip-plat. Corn. PLATINUM. A rare metal of steel gray color, very infusible, used in the arts. More valuable than gold. Always associated with iridium and osmium. Mined in the Ural Mountains. To be looked for in the black sand of placers. POCKET. A detached ore body; a nest of ore. POCKETY. A term applied to the mine where the pay ore occurs in small detached bodies with intervals of poor ore or barren material. The word implies a slur on the mine. Paull v. Halferty, 9 M. R. 149; 63 Pa. 46. PORPHYRITIC GRANITE. A base of granite containing prominent crystals of feldspar. PORPHYRY. A general term including such plutonic rocks as exhibit well formed crystals, usually of feldspar, in a finely granular or compact base of the same. Gr. PROSPECTING. A search for deposits; applied both to the seeking for undiscovered veins and to the investigation of the value of known veins by exploration. PYRITES. (White.) A bi-sulphide of iron. (Yellow.) A sulphide of copper. Bright crystallized metallic looking and very common gold bearing ores usually low grade and spoken of in common parlance as the "iron." Gr. PYRRHOTITE. The mono-sulphide (Fe 7 S 8 ) of iron. Almost always nickel bearing. The principal ore at Sudbury. Dr. Carpenter. QUARRY. Any open work in rock on a plan of excavating the entire 706 GLOSSAEY OF MINING TERMS. mass, as distinguished from working a seam or vein by shafts 01 approaches under cover. QUARTZ. Silica. A constituent of granite. The free gold of Cali- fornia being found in quartz, the word was applied to the gangue of such lodes and so to other forms of vein matter; until it is now used vaguely to mean the ore, the float, the gangue, or that part of the gangue which indicates the pay streak. In the Acts of Congress it is used with the word rock (quartz or other rock) in the sense of pay rock. QUARTZITE. A metamorphosed sandstone; a rock containing usually about 98 per cent silica with a small percentage of foreign materials, principally iron,. QUICKSILVER. See MERCURY. RADIUM. A metallic element discovered in 1898 by elimination from ores of uranium. It seems to possess the photographic powers of the X-Eay, has a unique spectrum, is a powerful but dangerous therapeutic, burns paper, decomposes water and has a dynamic force beyond any other known element. The world's production amounts to but a few ounces and its money value is greater than the price of diamonds. RAISE. 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. ' ' RHYOLITE. A name common to igneous rocks of a wavy texture indica- tive 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 considerations. 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. BUSTY. 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 metamorphie 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 impregnations by their definite limits. Von Cotta 81. SELVAGE. 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 perpen- dicular sunk on, or sunk to reach, the vein. GLOSSARY OF MINING TERMS. 707 SHIFT. (1) A miner 'a turn or spell of work. Webster. Two shifts is the equivalent of 16 to 20 hours work, three shifts, 24 hours work, of one man. (2) All the miners who go on and off at the same hours are known as one shift. In large mines there are usually three, styled the day, night and graveyard shifts. Benj. C. Catren, Jr. SILICA. In chemistry it means Silicon dioxide. Formula, SiOg. It is ordinary quartz. Between ore buyers and sellers everything not soluble in nitric and hydrochloric acids is counted as "silica" a determinatiow often manifestly unjust to the seller. Franklin E. Carpenter, Pk. D. SILVER. A metallic element; the whitest of the metals. One oz. pun silver coined in U. S. dollars is worth $1.2929 gold. SILVER GLANCE. An ore; when pure contains 87 per cent silver and 13 per cent sulphur. SKIP. A square hoisting bucket running on guides, or in grooves. SLATE. A sedimentary clay, hardened into rock, which splits readily into plates. Where lamination is not clear it is termed shale. Slate of commercial value is rare and is quarried principally in Wales, Vermont and Pennsylvania. SLICKENSIDES. Smooth, polished portions of the wall or of some vertical plane in the lode, caused by friction. It may occur on the ore itself. German. SLIDE. (1) One kind of fault the vertical dislocation of a lode. (2) The mass of loose rock overlying either lode or country. SLOPE. An opening driven upon the inclination of the vein. SLUICE. A series of boxes set in line and floored with riffle blocks to catch the gold in a placer mine. SMELTING. The reduction of metals from their ores in furnaces. It is a form of the word melt. In smelting the ore is melted. In other processes it is roasted. MATTE SMELTING. A process of smelting where the values in the ores are collected in an iron and copper sulphide (regulus) technically called ' ' matte. ' ' When iron and copper pyrites are added to the charge for their fuel value as well as their matte-forming properties, the process is called "pyritie smelting." Franklin B. Car- penter, Ph. D. SOLE. The floor of a horizontal working. SOLLAR. Any platform or wooden floor or covering in a working. Corn. SOUGH. A drain. Eng. SPAR. A general term applied to rock with distinct cleavage and lustre. Iceland spar, a definite mineral having double refraction, has become rare, and is used for optical purposes. SPELTER. Commercial zinc. SPILING. Timbering used in quicksand or loose ground where laths are driven behind timbers and kept flush with the heading. SPRAG. A temporary timber used to hold ground until permanent supports can be placed to hold working platform. A light stull. 708 GLOSSARY OF MINING TERMS. SPUE. A branch or off-shoot from a larger vein. STAMPS. Machine for crushing ores by vertical stroke. STANNARY. A tin mine. From the Latin, Stannum. STOPS. The working above or below a level where the mass of the ore body is broken. Corn. STOPING. The act of breaking the ore above or below a level; when done from the back of the drift it is called overhand or back stoping; when from the sole it is underhand stoping. STRATUM. A bed of rock or earth of any kind. Dana. The plural is strata. STRIKE. The extension of a lode or deposit on a horizontal line. Von Cotta 19. Synonymous with TREND and COURSE. STULLS. Cross timbers at the foot of a stope. Any extra heavy timbers. SUBLIMATION THEORY. That which refers the filling of fissures to material deposited from ascending steam, or by condensation from a gaseous condition,. SULPHATE. The combination of a metal with both sulphur and oxygen. SULPHIDE. The chemical union of sulphur with a metal. SULPHUR. A non-metallic element. Yellow, fusible, brittle, insoluble ; except Oxygen, the most common base combining element in metallic ores, such as Pyrites. As a commercial product most commonly mined from old volcanic craters. Greatest production, Sicily. Largest deposits in United States, Louisiana; Black Rock, Utah; Sun Light Basin, Big Horn County, Wyo. T. S. Todd, Importer, 25 Broad Street, N. Y. SULPHURET. A sulphide. Sulphide is the more recent and approved term. SUMP. The extension of a shaft, forming a pit for the collection of water. Corn. SYLVANITE. A gold-silver-tellurium combination. Pure steel gray to silver white, inclining to pale yellow. Gold 24.5; silver 13.4; tellurium 62.1. Usually in fine grains or crystals. A. B. Frenzel. SYNDICATE. An association or council of persons; in use since the Civil War to designate any combination formed to 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, combining with many metals to form tellurides in the same manner as sulphur forms sulphides. TIN. A soft, malleable, white metal. Mined in Cornwall since pre- historic times. Used commercially as a coating to thin sheets of iron, and as a factor in many alloys. TRAM. The carriage of ores on rails or guides. The word is derived ULOSSAKV OF MIXING TERMS. 7l9 from the name of James Outram, who first laid iron rails in a colliery in 1776. TREND. The longitudinal course or strike of a lode. TRIBUTERS. Miners who work a set, or piece of ground, taking the proceeds as wages, after royalty deducted, but who work under direction of the owners and hold no possession or title as lessees. TROUBLE. A fault. TUNDRA. The moss, or scrub-covered, regions of the Arctic. TUNGSTEN. (WolA-am.) A hard, heavy, grayish white metal, that fuses with great difficulty. A steel hardening alloy. Its ores are Scheelite, Huebnerite and Wolframite, all of heavy specific gravity. Wolframite is similar to iron in appearance, but when scratched shows reddish brown. Huebnerite shows reddish brown, straight and fan-shaped crystals. Matrix of both, usually white quartz or buff-colored quartzite. A. B. Frenzel. TUNNEL. A horizontal excavation starting at the surface and driven across the country for discovery or working purposes. TUT WORK. Work paid for by the foot as distinguished from tribute work. UPCAST. A ventilating shaft where the air ascends. URANIUM. This metal occurs in the mineral uraninite or pitch blende as an oxide; also, associated with vanadium in the mineral carnotite. The color of pitch blende varies from gray to black; that of the carnotite is lemon yellow. Eadium occurs in these ores and may be prepared from them. Wm. P. Headden. VANADIUM. This metal occurs widely distributed, but is rarely met with in large quantities. The largest known deposit occurs near Placer- ville on the San Miguel River in Colorado, in a sandstone to which it gives a green color. Vanadium alloys with iron, forming ferro-vanadium, used in making certain high grade steels. It is best known in commerce as vanadie acid. V 2 O 5 . A. B. Frenzel, Denver. VEINS. Aggregations of mineral matter in fissures of rocks. Von Cotta 26; Bairibridge 8. The word vein has a broader scope than lode, including non-metallic beds. See p. 196. It is also applied in working, to smaller seams threading the greater deposit. See VENA and VET A. VENA. A small vein or the branches of the Veta, or main vein. Span. VETA. A main vein. VETA MADRE. The mother vein. -Span. Vuo. A cavity in the ore or rock. WALL. The plane of the country where it touches the side of the vein, when used in reference to lodes. The side of a level or drift, when used with reference to the workings. See page 226. WHEAL. A pit or hole in the ground. A mine. The names of most mines in Cornwall are preceded by the word Wlical. Old form Huel. Corn. 710 GLOSSARY OF MINING TERMS. WHIM. A machine for raising the bucket by means of a revolving drum. WHIP. An apparatus for raising the bucket with rope and pulleys, by horse power on a straight drive. WINZE. A shaft sunk from a level; not necessarily connecting two levels. ZINK. A metallic element; bluish white; generally found as a sulphide (blende) or as a carbonate (calamine). TABLE OF SYMBOLS, ETC. 711 E.B . 3 o 5' os w to oo I-" *. co to co o> o to o w o o v\ ocn o en h-> oo 4^ oo po to b *< o to oo co -4 O) OO 00 CO Ipk O I yl m 2 Ci M )-> tO |_| M i-''-"' ^ en oo jo ri CT j- o> to to p p ; j- oo po w < w to "oo b> bi en co oo to ?o w 9 90 I* CM I r i COCOC7I COW '?3 *-iJ* ! -3 TABLE OF CASES CITED PAGE Abbott v. Smith 378 Adams Co. v. Senter 408 Ah He v. Crippen 392 Ah Kle v. McLean 391 Ahren v. Dubuque Co 232 Ajax Co. v. Hilkey 215 v. Triumph Co 469 Alaska Ex. Co. v. North 'n Co. 340 Alaska Placer 599 Alberson v. Elk Creek Co.... 369 Alder Gulch Co. v. Hayes 241 A. Leschen Co. v. Allen 405 Alexander v. Sherman 158 Alice Co. v. Street 284 Allen v. Bell 456 v. Blanche M. Co. . . .347, 606 v. Dunlap 462 Allison's Appeal 672 Alta Co. v. Benson Co 118 Altoona Co. v. Integral Co. ... 122, 123, 390, 438, 477, 616 Amador Co. v. DeWitt. . .248, 317 v. South Spring Co 213 Ambergris M. Co. v. Day 28, 107, 203, 475 American Bauxite Co. v. Board of Equalization 323 American Co. v. Lindsley 405 v. Williams 681 American Onyx Co., In re. ... 595 Ames v. Goldfield Co 412 Amy-Silversmith Case 211 Anaconda Co. v. Butte Co. 417, 463 Anaconda Co. v. Pilot Butte Co 189, 215 Anchor v. Howe 60S Anderson v. Caughey. . .51, 67, 121 PAGE Anderson v. Hapler 432 v. Robinson 121, 132, 140 v. U. S 664 Andrews v. Ladd 329 Anthony v. Jillison 269 Anvil Co. v. Code 124, 141 v. Humble 427, 428 Ardesco Co. v. Gilson 454, 457 Argentine Co. v. Benedict 410 v. Terrible Co 32, 210, 218, 226 Argonaut Co. v. Kennedy Co. . 209 v. Turner 176, 195 Arizona Cop. Co. v. Gillespie . . 466 Arkansas Val. Co. v. Belden Co. 427 Arkoosh v. Sorrenson 382 Armstrong v. Lower 39, 150, 183, 195, 230 Armstrong v. Maryland Co ... 354 Arnett v. Linhart 239 Arnold v. Baker 435 Arnold v. Goldfield Co 10, 369 Asbestos Co. v. Durand 455 Ashland Co. v. Wallace 454 Ashman v. Wigton 300 Aspen Co. v. Eucker 472 Astiazaran v. Santa Kita Co . . 392 Atchison v. Peterson. .234, 288, 280 Atkins v. Hendree 120, 188 Atkinson v. Crowe M. Co 444 Atlantic Co. v. Ropos Co 3? t Attersoll v. Stevens 44 *) Attwood v. Fricott 21, 440 Aurora Hill Co. v. 85 Co. .118, 18il Austin v. Berlin 402 Axiom Co. v. Little 611 v. White... . 137 Aye v. Philadelphia Co v. Daly Co 45o 109, 364, 679 (713) 714 TABLE OF CASES CITED. PAGE 7. Thornton 445 Badger Co. v. Stockton Co. 148, 442 Baer B. Co. v. Wilson 236 Bagley v. Republic Co 367 Bailey v. Bond 381 v. Fredonia Co 382 Baillie v. Larson 317 Baker v. Pittsburg C. Co 300 Bakersfield Co., In re 165 Ballard v. Golob 147 Barandum v. Barandura M. Co. 346 Barker v. Dale 112 v. Montana Co 410 Barnard v. Monongahela Co . . 674 v. McKenzie 329 v. Roane Co 408 v. Sherley 290 Barnsdoll Co. v. Leahy 681 Barrett v. Indiana N. 452 Bassick Co. v. Schoolfield 329 Batterton v. Douglas M. Co.. 118, 570 Baxter Co. v. Patterson 58 Bay v. Oklahoma Co 252 Bay State Co. v. Brown 437 Beals v. Cone 30, 32, 43, 45, 61, 67, 128, 137, 166, 621 Bean v. Pioneer Co 455 Beardsley v. Kansas N. G. Co. 668 Beaver Co. v. St. Vrain Co 111 Beck v. O'Connor 325 Becker v. Pugh 14, 22, 148, 161, 437, 439, 443, 612, 625 Behrens v. Cloudy 371 Belcher Co. v. Deferrari 131 Belk v. Meagher 41, 100, 120, 134, 135, 439 Bell v. Adams 429 v. Bed Eock Co 4, 113 v. Denson 479 v. Skillicorn 222 Bellevue Co. v. Mooney 455 Bellsea v. Tindall 366 PAGE Bennett v. Harkraden . . 92, 622, 634 v. Red Cloud Co 395 Bennie v. Becker Co 346 Bennitt v. Whitehouse 474 Benson Co. v. Alta Co 116, 118, 385, 447 Bentley v. Brossard 368 Benton v. Hopkins 468, 626 Berea Co. v. Kraft 457 Berg v. Koegel . ... 97 Berkey v. Berwind-White Co. . 463 Bernard v. Parmelee 624 Berry v. Frisbie 380 Bertha Co. v. Martin 457 Bettman v. Harness 463 Bevis v. Markland 286 Bicknell v. Austin Co 369, 373 Big Hatchet Co. v. Colvin 209 Biglow v. Conradt 264 Billings v. Aspen Co 388, 389 Bingham Co. v. Ute Co. 42, 56, 110 Bird v. Utica M. Co 458 Bishop v. Baisley 113, 123 Bismarck Co. v. Sunbeam Co. 38, 93, 443, 478 Bissell v. Foss 418 Bjorklund v. Gray 456 Black v. Elkhorn Co 176, 341 v. Giarth 329 Blackburn v. Portland Co. .610, 613 Blackmarr v. Williamson 370 Blackmer v. Summit Co 408 Blackmore v. Reilly 307 Blair v. Spokane 453, 457 Blake v. Butte Co 191 v. Thome 96, 158 Blanek v. Pioneer Co 429 Blen v. Bear River Co 346 Bliss v. Anaconda Co 466 v. Kingdom 316 Block v. Murray 331 Blodget v. Columbia Co 684 Bluebird Co. v. Largey. . .201, 229 v. Murray 222, 474 TAP.LE OF CA::o CITED. 71. PAGE Boehme v. Fitzgerald 368 Bogart v. Amanda Co 338 Boggs v. Merced Co 177, 180 Boileau v. Heath 251 Bonanza Co. v. Golden Head Co. 93 Bonner v. Meikle 609 v. Eio Grande Co 244 Bonson v. Jones 300 Book v. Justice Co 31, 59, 61, 63, 126, 138, 187, 192, 199, 201, 229, 612 Borgwardt v. McKittriek Oil Co 119, 688 Boston Co. v. Montana Co. ... 226, 337, 465, 469 Bowling Co. v. Euffner 290 Bradbury v. Davis 384 Bradford v. Morrison. . .9, 10, 324 Bradford Oil Co. v. Blair 683 Bradley v. Harkness 239 v. Heyward 354 v. People 435 Brady v. Husby 37, 442 Bramlett v. Flick 92, 104, 437 Branagan v. Dulaney 187 Brash v. White 159 Breed v. Bank 408 Brewster v. Shoemaker 30, 49, 225, 316 Brockbank v. Albion Co 151 Brooks v. Cook 366 v. Gaffin 365 Brookshire Oil Co. v. Casmalia 465 Brown v. Caldwell 432 v. Equitable G. Co 686 v. 49 Co 309 v. Gordon Tiger Co 348 v. Gurney 118, 133 v. Levan 58, 92 v. Oregon Co 106, 135, 153, 151, 165 v. Wilson 679 Brownfield v. Bier 281 Browning v. Boswell 358 PAGE Brundy v. Mayfield 147, 605 Bryan v. McCaig 45, 620 Buchner v. Malloy 9 Buck v. Jones 394 Buckeye Co. v. Carlson 336, 381 Buckley v. Fox 390 v. Port Henry Co 453 Buena Vista Co. v. Honolulu Co 306 Buffalo Co., In re 666 v. Crump 107 v. Jones 682 Bullion Co. v. Croesus Co.197, 229 v. Eureka Co. . .196, 469, 480 Bullis v. Noyes 373 v. Presidio M. Co 373 Bullock v. Lewis 356 Bunker Hill Co. v. Empire St. Co... 51, 165, 202, 218, 219, 627 v. U. S 665 Burdick v. Dillon 413 Burke v. McDonald 16, 25, 29, 198, 437, 612, 622 v. So. Pac. Ey. Co 151, 180, 667 Burkhard v. Mitchell 373 Burnham v. Freeman 239 Burton v. Forest Oil Co 684 Busby v. Century Co 428 Bush v. Pioneer Co 461 v. Sullivan 375 Buskirk v. King 464 Butler v. Eockwell 355 Butte Co. v. Barker 48, 164, 165, 167, 612 v. Frank 10, 324 v. Morriman 281 v. Montana Co 245, 291, 418, 470 v. Eadmilovich 33, 37, 60, 85 v. Sloan 281, 282, 284 v. Societe 199, 222 v. Vaughn 236 716 TABLE OF CASKS CITED. PAGE Butte Co., In re ............. 590 Butterfield v. Nogales Co ..... 467 Byard v. Holmes ............ 355 Byrne v. Crafts ............. 241 Byrnes v. Douglass .......... 248 c PACE Cassidy v. Silver King Co 148 Cates v. Producers Co 180 Catron v. Laughlin 392 v. Old 211 Catterlin v. Voney 451 Caviness v. La Grande Co. ... 234 Cecil v. Clark 417 Cache Cr'k Co. v. Brahenberg 113 Central Co. v. E. Central Co. . 209 C'ahoon v. Bayard 380 v. Penny 448, 478 Caldwcll v. Fulton 300 v. Southern Ref. Co 686 Caledonian Co. v. Rocky Cliff v. Williams 452 Co 450 Chadbourne v. Davis 112 Caley v. Portland. 365, 429 Chamberlain v. Collinson 451 Calhoun Co. v. Ajax Co Chambers v. Brown 451 176,177,187,317 v. Chester 455 Callahan v. James 308 v. Harrington Calor O. & G. Co. v. Franzell 670 32, 123, 124, 623 Calumet Co. v. Phillips 411 v. Jones 177 Cambers V. Lowry 701 Champion Co. v. Champion Cameron v. Burnham 379 Mines 345, 348 'V. Seaman 567 v. Con. Wyoming Co. 189, 609 v. Weedin 254 Chandler v. Hart 358, 371 Campbell v. Ellet 50, 312, 315 Chapman v. Toy Long 140 v. Golden Cycle Co 223 Chappius v. Blankman 329 v. Rankin 104 Charlton v. Kelly 263 v. Rock Oil Co 682 Charter Oak Co. v. Stephens v. Silver Bow Co 251 '. . . . 324, 481 Capner v. Flemington Co 460 Chatham Co. v. Moffatt 356 Cardelli v. Comstock Co. . .241, 461 Cheesman v. Hale 288 Cardoner v. Stanley Co 16, 95 v. Hart 184, 214, 443 Carlin v. Freeman 96, 162 v. Shreve 38, 45, Carney v. Arizona Co 141 151, 164, 200, 202, 222, 443, 447 Carr, In re 474 Chenoweth v. Butterfield 344 Carson v. Hayes 289 Cherokee Co. v. Britton ...... 453 Carson City Co. v. North Star Cherry Val. Co. v. Florence Co. 427 Co 66, Chicago Co. v. Fidelity Co. . . 457 177, 178, 198, 209, 211, 214, 229 Chicago Ry. v. Ferrell 465 Carter v. Bacigalupi 97 Childers v. Lahan 443 v. Bell 484 v. Neely 325 v. Cairo Co 452 Chisholm v. Eagle Co 427, 483 Cascaden v. Bortolis 31, 264 Christy v. Campbell 356 v. Dunbar 370,378, 379 Cholokovitch v. Porcupine Co. 382 v. Wimbish 330 Chung Kee v. Davidson 324 Casey v. Thieviege 282 Churchill v. More 684 TABLE OF CASES CIT^D. 717 PAGE Cisna v. Mallory 379 Clark v. American Co 348 v. Barnard 478 v. Buffalo Hump Co 411 v. Erwin 260 v. Fitzgerald 211 v. Mitchell... 51, 94, 157, 159, 378 v. Nash 248 v. Wall 375 Clark Co. v. Ferguson 283 Clark Montana Co. v. Butte Co 11,. 85, 98, 175, 187, 204, 215, 337, 457, 464, 477 Clarno v. Grayson 352 Clary v. Hazlitt 179, 280 Clason v. Matko 152 Clavering v. Clavering 460 Clear Water Co. v. San Garde 94 Cleary v. Skiffich 252, 296, 478, 479 608 Cleopatra v. Dickinson. . .382, 451 Cleveland Cliffs Co. v. East Itasca Co 380 Clifton Co. v. Dye 288 Clipper Co. v. Eli Co 286 Cloninger v. Finlaison 59, 637 Coal Creek Co. v. Moses 447 Coalinga Co. v. Associated Co. 372 Cochrane v. Justice Co 373 Coffee v. Emigh 188, 386 Cole v. Cady 471 v. Elwood Co 249 Cole Co. v. Virginia Co 472 Coleman v. Curtis 127, 138 v. Davis 621 Colgan v. Forest Oil Co 672 Collier v. Monger 381 Collins v. Bailey 222 v. McKay 339 v. Mt. Pleasant Co 682 v. Smith 374 Column v. Clements 4, 113 PAGE Colorado Co. v. Stearns Roger Co 331 Colorado Cent. AI. Co. v. Turck 212, 213 Colo. Coal Co. v. U. S 180, 253 Colo. F. Co. v. Pryor 365, 451 Colo I. Wks. v. Taylor 330 Colo. Midland Ey. Co. v. O'Brien 457 Columbia Co. v. Duchess Co.. 29, 38, 53, 67 Columbus Co. v. Tucker 288 Com. v. Trent 670 Cone v. Roxana Co 317 Conkling Co. v. Silver King Co 63, 219 Conn v. Oberto Ill Connolly v. Bouck 325, 368 v. Hughes 440, 625 Conrad v. Saginaw Co 369 Cons. Channel Co. v. C. P. R. Co 248 Cons. Coal Co. v. Baker 322 v. Peers 374 Cons. Gregory Co. v. Raber. . 408 Cons. K. C. Co. v. Gonzales. . . 432 Cons. Rep. Co. v. Lebanon Co. 14, 22 Cons. Wyoming Co. v. Cham- pion Co 189, 198, 210, 222 Consumers Co. v. American Co. 461 Contreras v. Merck 113 Conway v. Hart 27, 151 Cook v. Klonos..40, 153, 267, 439 Cooper v. Roberts 305 Co-operative Co. v. Law.. 110, 159 Coosaw Co. v. Carolina Co... 470 v. Farmers Co 471 Copper Globe Co. v. Allmann 45,67, 94,100, 104, 440 Copper Mt. Co. v. Butte Co. 124, 125 Copper Queen Co. v. Stratton 152, 1G3 718 TABLE OP CASES CITED. PAGE Corbin Co. v. Mull 684 Corder v. O 'Neill 347 Core v. New York 371 Corning T. Co. v. Pell 311 Cortelyou v. Barnsdall 343 Cosmopolitan Co. v. Foote. ... 215 Cosmos Co. v. Gray Eagle Co. 254, 420, 441 Costello v. Cunningham 417 v. Muheim 442 v. Scott 378 Courchaine v. Bullion Co 105 Cox v. Clough 478 v. National Co 409, 410 v. Prentice 483 Cragie v. Eoberts 254 Craig v. Thompson 58, 99, 113, 164 Crane v. Salmon 384 Crane's Gulch Co. v. Scherrer 280 Crary v. Dye 125, 442 Crawford v. Bellevue Co 373 Credo Co. v. Highland Co 92 Creede Co. v. Uinta Co 315, 318, 319 Crescent Co. v. Silver King Co. 464 Crocker v. Barteau 429 Croesus Co. v. Colorado Co... 61 Cronin v. Bear Creek Co. .613, 617 Crowe Co. v. Atkinson 301 Crowley v. Genesee Co 408 Crown Point Co. v. Buck.. 51, 209 v. Crismon 52, 128, 137 Culbertson y. Tola Co. ... .475, 674 Cullacott v. Cash Co 61 Cunningham v. Pettigrew. . . . 356 v. Pirrung 152 Currie v. Jones 465 Cushman v. Cloverland C. Co. 407, 458 Daggett v. Yreka Co 209, 223 Dahl v. Eaunkeim...283, 284, 285 PAGE Dahlman v. Thomas 331 Dailey v. Fitzgerald 368 Dalliba v. Riggs 412 Daniels v. Portland M. Co 434 Darger v. La Sieur 92 Dark v. Johnston 376 Davidson v. Fraser 606 v. Hughes 683 Davis v. Brown C 'y Co 382 v. Dennis 441 v. Graham 458 . v. Eiddle 682 v. Shepherd 51, 479 v. Weibbold 179, 307 Day v. Kansas City P. L 672 v. Louisville C. Co 290 Dayton Co. v. Sea well 248 Dean v. Omaha Co 390, 688 Debris Cases 292 Deeney v. Mineral Cr. Co. .34, 50, 120, 151, 165, 616, 618, 624 Deffeback v. Hawke 179, 307 Degnan v. Nowlin 382 De Graffenreid v. Savage 375 Delaware Co. v. Sanderson... 358 Delmoe v. Long 147, 157 Del Monte Co. v. Last Chance Co 51, 66, 184, 210 v. New York Co 214 De Noon v. Morrison 123 Depuy v. Williams 109 Derry v. Eoss 109 Detlor v. Holland 666 Dettering v. Nordstrom 417 DeWolf skill v. Smith 112, 241, 356, 687 Diamond Co. v. Cuthbertson . . 445 v. Knote 684 v. U. S 657 Dibble v, Castle Chief Co 137 Dickens Co. v. Crescent Co... 138 Dill v. Fraze 680, 682 Dillard v. Ollalla M. Co 34S Dillon v. Bayliss 96 TABLE OF CASES CITED. 719 PAGE PAGE Doctor Co. v. Marsh 460 Dunham v. Selberling 460 Doctor- Jack Pot Case 215 Dunlap v. Montana Co 409 Doddridge Co. v. Smith v. Pattison 63 412, 674, 681 Duntley v. Anderson 680 Dodge v. Marden 240 DuPont v. Tilden 394, 410 Doe v. Sanger 208, 209, 214 Du Prat v. James 99, 123, 135 v. Tyley 97 Durant Case 227 v> Waterloo Co Durant v. Comegys 345 ...34, 51, 53, 65, 167, 192, v. Corbin 265 201, 213, 222, 336, 390, 612, 622 Durant Co. v. Percy Co 447 v Wood.., .. 375 Durgan v. Bedding 608, 612 Doherty v. Morris! ! '.109,' 'l21, 156 Dui 7 ea v ' Boucher 59 Dolan v. Passmore 93 - v. Burt - 325 Dolese Co. v. Kahl 452 ***, Dyke v. Caldwell 236 Donahue v. Johnson 470,471 y Nat Tr QQ 44? Donnelly v. Booth Co 453 y ' ^ _ ^ ' ' ^ Donovan v. Hanauer 344 Dooley v. Burlington Co 357 E Dorr v. Hammond 112 Eadie v. Chambers 637 Doster v. Friedensville Co. ... 251 Eaman v. Bashford 330 Dougherty v. Chesnutt 447 Earhart v. Powers 322 v. Creary 370 Early v. Friend 416 Dower v. Eichards 307, 316 East Central Co. v. Central Co. 209 Downman v. Texas 323 Eastern Co. v. Willow Eiver Co. 255 Doyle v. Burns 378 Eastern Oil Co. v. Coulehan. .. Drake v. Lady Ensley Co 288 671, 682, 686 Dreeland v. Pascoe 356 Eastwood v. Standard Co 331 Dresser v. Transportation Co. 684 Eaton v. Norris 106 Driscoll v. Dunwoody 459 Eberle v. Carmichael 126 Drummond v. Long 58 Eberville v. Leadville Co 478 Ducie v. Ford 628 Ebner Co. v. Alaska Co.. 476, 634 Duff v. Keaton 686 Eckley v. Daniel 354 v. U. S. Gypsum Co. 232, 481 Eclipse Co. v. Spring 191 Duffield v. Eozensweig 449 Edelman v. Latshaw 381 v. San Francisco Co Edsall v. Merrill 417 .;x-j .'. 254, 259, 436 Edwards v. Allouez M. Co 289 Dugdale v. Robertson 474 Ege v. Kille 446, 447 Duggan v. Davey. . .206, 213, 222 Eilers v. Boatman 99 Duncan v. American Co 245 Eisleben v. Brooke 451 v. Eagle Eock Co Elder v. Horseshoe Co 144, 147 .48, 62, 113, 320, 389, 566, 620 v. Wood \\^1 . v . Fulton 162, 163 El Dora Oil Co. v. U. S.. . 445, 462 Dundas v. Muhlenberg 449 Electro-Magnetic Co. v. Van Dunham v. Kirkpatrick 667 Auken 47 720 TABLE OF CASES CITED. PAGE Ellet v. Campbell 49, 312, 315 El Paso Co. v. McKnight. .40, 578 Emerson v. Akin 36, 40 v. Kennedy M. Co 307 v. McWhirter 4, 136 Emma Mine Case 460 Empire Co. v. Bonanza Co 446 v. Bunker Hill Co 174, 176, 177, 184, 196, 223, 627 v. Tombstone Co 219 English v. Johnson 21, 105 Ennor v. Barwell 474 Enterprise Co. v. Kieo-Aspen Co 311, 312, 316, 318, 319 Equator Co. v. Guanella 373 v. Marshall Co 249 Erhardt v. Boaro.25, 27, 38, 52, 104, 136, 312, 439, 445, 463, 469 Erie Oil Co. v. Meeks 679 Ernest v. MeCauley 357 v. Vivian 463 Erwin v. Perego 30, 162 Erwin 'a Appeal 251, 290 Esselstyn v. U. S. Corp 189, 444, 476 Eureka Co. v. Bass 456 v. Richmond Co 174, 197, 199, 208 v. Tom Moore Co 35 Evaliha Co. v. Tosemite Co.. 125, 149 Fair Play Co. v. Weston 241 Farmington v. Ehymney Co . . 92 Farrell v. Lockhart 133, 135 Faxon v. Barnard 99, 103, 439 Fayter v. North 239 Fee v. Durham 154 Felton v. West Co 409 Ferris v. Coover 108 v. MeNally 100, 104, 440 Fidelity Co. v. Bank 357 Field v. Beaumont. . . , 460 PACK Field v. Grey 430 v. Tanner 12, 128, 1 53 Findlay v. Smith 298 Finerty v. Fritz 343, 408 Firestone Co. v. McKissick... 395 First Nat. M. Co. v. Altvater 136 Fisk M. Co. v. Reed 233 Fissure Co. v. Old Susan Co. 93, 95, 126, 318 Fitzgerald v. Clark 199 Fitzpatrick v. Montgomery... 287 Flagstaff Co. v. Tarbet 193, 210, 218, 226 Flavin v. Mattingly 95 Fleming v. Daly 46 Flick v. Hahn's Peak Co 243 Florence Co. v. Orman 668 Florence Rae Co. v. Kimbel.. 110, 121 Flynn Co. v. Murphy. . .16, 40, 93 Foley v. Pioneer Co 458 Foote v. National Co 45 Forbes v. Gracey 7, 322 Ford v. Campbell 86 Forderer v. Schmidt 148 Forty Fort Co. v. Kirkendall 323 Foster v. Hart M. Co 3, 322 v. Lumbermen's Co 251 v. Weaver 447 420 Mining Co. v. Bullion Co. 477, 479 Fowler v. Delaplain 681 Fox v. Hale Co 427, 483 v. Mackay 428 v.Myers 26, 31 Frank Co. v. Belleview Co 683 Franklin v. Havalina Co 369 Fredonia Co. v. Bailey. . .382, 684 Fredricks v. Klauser 121, 122, 123, 124 Freezer v. Sweeney 279 Fremont v. Seals 392 v. U. S 392 French v. Lancaster 418 TABLE OF CASES CITED. 721 PAGE Friel v. Kimberly Co 454 Frisholm v. Fitzgerald- 165 Fuhr v. Dean 375 Fuller v. Harris 4, 159 v. Swan River Co 236, 288, 466 Fulmer's Appeal 416 Fulton v. Wilmington Co 457 G Gagnon v. French Lick Co .... 670 Gaines v. Chew 346, 347 Galbraith v. Shasta Co 61, 179, 341 Galbreath v. Simas 388 Gale v. Best ." 25.2, 304 Galloway v. Blue Spgs. Co... 324 Gamble v. Hanchett 346 Gamer v. Glenn 91, 96 Garein v. Penn Co 348 Garfield Co. v. Hammer 99 Garibaldi v. Grillo 264 Garrard v. S. P. Mines 178 Garthe v. Hart 149 Garvey v. Elder 128 v. La Shells 348 Gaylord v. Place 279 Gayton v. Day 683 Gear v. Ford 122, 137 Gelcich v. Moriarty 50 Gelwicks v. Todd 239 Gemmel v. Swain 28, 35 Genett v. Delaware Co 251 Genter v. Conglomerate Co... 408 Georgia v. Tennessee Cop. Co. 293 Ghost v. Shuman 450 v. U. S 657 Giberson v. Tuolumne Co.. 93, 165 Gibson v. Anderson 418 v. Chouteau 164 Giffin v. Pipe Lines 432 Gildersleeve v. New Mex. Co. . 392 Gillespie v. American Zinc Co. 674 Gillis v. Downey 117 PAGE Gilpin v. Sierra Nevada Co.. 206 Gilpin M. Co. v. Drake. .50, 58, 451 Ginocchio v. Amador Co 239 Girard v. Carson 40, 41 Gird v. California Co 36, 87, 95, 123, 265, 686 Girton v. Daniels 366 Glacier M. Co. v. Willis.. 336, 477 Glade v. Eastern HI. Co 348 Glasgow v. Chartiers Co 112, 367, 681 Glass v. Basin Co 59 Gleeson v. Martin White Co. . 21, 50, 99, 195 Globe Co. v. Tennessee Co 428 Glover v. Manila Co 411 Gobert v. Butterfield. . .16, 63, 166 Goddard v. Winchell 257 Godfrey v. Faust 121 Gohres v. Illinois Co... 16, 50, 267 Goldberg v. Bruschi 136 Golden v. Murphy ....150, 201, 208, 223, 476, 481 Golden Co. v. National Co 616 Golden Cycle Co. v. Christmas Co 444 Golden Fleece Co. v. Cable Co. 3, 193, 437 R. Co. v. Buxton Co 448 Terra Co. v. Mahler. . .29, 39 Goldfield Co. v. Old Co... 248, 290 v. Richardson 434 Gold Hill Co. v. Ish 304 Gold Hunter Co. v. Johnson 453, 458 Gold Ridge Co. v. Tallmadge. . 243 Gonu v. Russell ..22, 50, 131 Goodwin v. Colorado Co 414 Gordon v. Darnell 343 v. Park 479 Gordon Tiger Co. v. Brown. .. 355 Gore v. McBrayer 4, 24, 64 Gorman Co. v. Alexander 388 Gouverneur Co., In re 409 722 TABLE OF CASES CITED. PAGE Graham, In re 596 Grand Cent. Co. v. Mammoth Co...... 177, 181, 199, 201, 222 Grants Pass Co. v. Enterprise Co 450, 685 Gray v. Truby 47 Gray Copper Lode 166 Gray Lumber Co. v. Gaskin . . . 464 Great Gas Co. v. Logan Co. . . 685 Great Southern Co. v. Logan Co 450, 685 Great West Co. v. Woodmas Co. 346 Great Western Co. v. Cham- bers 356, 411 v.Hawkins 249 Green v. Gavin 37, 94, 270 Greenlee v. Steelsmith 325 Greer v. Heiser 235 Gregoric v. Percy La Salle Co. 456 Gregory v. Pershbaker 100, 259, 440 Grey v. Northumberland 462 Gribben v. Atkinson 372 Griffin v. Fairmount C. Co. ... 302 Gruwell v. Rocco 390 Guffey v. Smith 685 Guffey Petroleum Co. v. Mur- rel 256 v. Townsite Co 673 Guild Co. v. Mason 428 Gumaer v. Cripple Creek Co.. 409 Gurney v. Brown 597 Gwillim v. Donnellan 41, 42, 166, 321 G.B.V.Co.v. Bank.. 325, 395, 407 H Habeler v. Rogers 428 Hadley Co. v. Cummings 331 Hahn v. James 85 Hain v. Mattes 320, 438 Hall v. Abraham 375, 447 v. Arnott 165 v. Duke -of Norfolk 480 PAGE Hall v. Hale 119 v. Kearny 124, 135 v. MeKinnon 265 v. Nash 347 Halla v. Cowden 341 v. Rogers 140, 471 Hallack v. Traber 159 Hamburg Co. v. Stephenson 296, 298 Hamby v. City of Dawson Springs 310 Hamilton v. Ely 461 v. Nevada Co 480 Hammer v. Garfield Co. 91, 113, 390 Hammon v. Nix 323 Hancock v. Keene 457 Hand v. Cook 65 Handy Ditch Co. v. Louden Co. 236 Hannan v. Seidentopf 334 Hansen v. Craig 105, 264 v. Fletcher 16, 60, 92 Hardenbergh v. Bacon 408 Hardin Lode Case. (See Pollard v. Shively.) Harkness v. Burton Ill Harlan v. Harlan 432 Harley v. Montana Co 464 Harper v. Hill 20, 31, 113 Harrington v. Chambers 32, 33, 199, 623 v. Union Co 412 Harris v. Balfour Co 456 v. Equator Co 9, 440, 443, 478 v. Helena Co 610 v. Kellogg 137, 138, 390 v. Ohio Oil Co 674 Hartford Co. v. Cambria Co.. 449 Hartman v. Smith 296, 297 Harvey v. Ryan 5 v. Sides Co 250 Haskell v. Cowham 248 v. Sutton 667 Hathorn v. Natural Co C,:\7 TABLE OF CASES CITED. 723 PAGE Hauswirth v. Butcher 16, 50 Hawgood v. Emery 126 Hawkins v. Spokane Co 416 Hawley v. Diller 661 Haws v. Victoria Co.. 86, 104, 437 Hawtayne v. Bourne 408 Hawxhurst v. Lander 104 Hayden v. Brown 93 Hayes v. Lavagnino . . 29, 201, 203 Haynes. v. Briseoe 144 Hays v. Forest Oil Co 681 Head v. Hale 236, 241 Headley v. Hoopengarner. . . . 681 Healey v. Rnpp 30, 31, 53, 484 Heaney v. Butte Co 465 Hecla Co. v. O'Neill 409 Hector Co. v. Valley View Co. 113 Hedlun v. Holy Terror Co 455 Heinze v. Boston Co 222 v. Butte Co 441 Helbert v. Tatem 617 Helena Co. v. Baggaley 93, 102 v. Spratt 242, 248 Helstrom v. Eodes 182 Hendricks v. Morgen 66 Hendrickson v. U. S. Gypsum Co 455 Hendrie & B. Co. v. Parry. .411, 412 Henry Gas Co. v. U. S 670 Hermocilla v. Hubbell 305 Herriman Co. v. Butterfield Co. 478 Hersey v. Tulley 409 Hess v. Winder. . .14, 21, 440, 462 Hesser v. Chicago Co 428 Hext v. Gill 256 Hexter v. Pearce 354 Heydenfeldt v. Daney Co. 175, 305 Heyward v. Bradley 354 Hickey v. Anaconda Co '-"..... 25, 97, 119, 173 v. U. S 442 Hicks v. American Co 464 v. Bell 7 Hipgins v. California Co 411 PAGE Highfield Co. v. Kirk 673, 674 Highland Boy Co. v. Pouch . . . 458 v. Strickley 244, 248 Hill v. King 288 v. Standard M. Co 289 Himrod v. Ft. Pitt Co 251 Hinchman v. Cons. Arizona Co. 429 Hindson v. Markle 288 Hines v. Miller 330 Hirschler v. McKendricks. . 123, 132 Hitchman Co. v. Mitchell 361 Hjelm v. Western Gr. Co 455 Hoban v. Boyer 51 Hobart v. Ford 244 Hobbs v. Davis 354, 475 v. Tom Eeed Co 394 Hoffman v. Beecher 603 Holbrooke v. Harrington 143 Holdt v. Hazard.... 105, 388, 441 Honaker v. Martin.. 122, 131, 153 Honolulu Co., In re 424 Hood v. Hampton Co 408 Hoogendom v. Daniel 353 Hoosac Co. v. Donat 369, 449 Homer v. Watson 300 Horsky v. Helena Co 472 v. Moran 307 Horswell v. Ruiz 99, 208 Hosford v. Metcalf 109, 375 Hosmer v. Wyoming Co 346 Howard v. Luce 367 Howes Co. v. Howes Ass 'n . . . 474 Howeth v. Sullenger 56, 166 Hoy v. Altoona Co 462 Hugunin v. McCunniff 450 Hukill v. Myers 371 Hullinger v. Big Sespe Co... 688 Hulst v. Doerstler 158 Humbird v. Davis 355 Humphreys v. Mooney 415 Hunt v. Eureka Gulch Co 438 v. M 'Narnee 457 v. Patchin 1 r, \ v. Stecse... ,. 2^3 724 TABLE OF CASES CITED. PAGE Huteninson v. Kline 300 Hyman v. Wheeler 201, 202 Iba v. Cent. Assn 619 Idaho Co. v. Winchell 331 Illinois Co. v. Raff 223, 445 Indiana v. McCrory 671 Indiana Co. v. Gold Hills Co... 42, 86 Indiana N. G. Co. v. Wilhelm 683 Indianapolis G. Co. v. Pierce 680 Ingemarson v. Coffey 35, 44 Ingram v. Golden Co 371 Integral Co.v. Altoona Co. 112, 445 International Tr. Co. v. Decker 325, 412 Iron Silver Co. v. Campbell.. 175, 207, 222, 223, 284, 285, 591 v. Cheesman 202, 225 v. Elgin Co 52, 66, 208, 226, 229, 230 v. Mike and Starr Co. . . 201, 207, 282, 283 Irwin v. Davidson 460, 4"61 v. Strait 240 Isabella M. Co. v. Glenn 449 Isom v. Bex Co 358 Ivanhoe Co. v. Keystone Co ... 305 Jack Harvard Co. v. Continen- tal Co 460 Jack Pot Lode Case 230 Jackson v. Dines 390 v. McPall 615 v. Prior Hill Co 150 v. Eoby.,122, 140, 437, 625 v. Yak M. Co 454 Jacob v. Day 245 v. Lorenz 235, 240 James v. Emmet Co 453 Jamestown Co. v. Egbert 380 Jantzon v. Arizona Co 390 PAGE Jefferson Co. v. Anchoria Co. . 215 Jeffords v. Hine 182 Jennings v. Beale 4(57 v. Dav ; s 454 v. R'ckard 379 Jer.nings Oil Synd. v. Hous- siere Co 3-18 Jennison v. Kirk 234, 235, 242 Jewell v. Trilby Mines 346 Jim Butler Co. v. West End Co 206, 209 Job v. Potton 376, 417 Jobe v. Spokane Co 45G Johanson v. White 264 Johnson v. Buell 193 v. Munday 612 v. Sage 407 v. Withers 357 v. Young. .113, 140, 155, 620 Johnstone v. Crompton 256 v. Robinson. 376 Johnstown Co. v. Butte Co... 467 v. Cambria Co 375 Jones v. Forest Oil Co 669 v. Jackson 290 v. Pearl M. Co 394 v. Prospect Co.. 46, 198, 212 v. Scott 371 v. Wild Goose Co 267 Jordan v. Duke 105, 132, 441 v. Schuerman 165 Joseph v. Davenport 369 Jos. Taylor Co. v. Dawse 454 Junction Co. v. Springfield Co. 365 Jupiter Co. v. Bodie Co 28, 30, 58, 123, 225 Jurgenson v. Diller 331 Justice Co. v. Barclay 130 v. Lee 387 K Kahn v. Old Telegraph M. Co. 178 Kannaugh v. Quartette Co... 171 Kansas N. G. Co. v. Haskell. . 685 TABLE OF CASES CITED. 725 PAGE Kansas N. G. Co. v. Harris.. Ill Keeler v. Green 375 v. Trueman 9 Keely v. Ophir Hill Co... 222, 223 Kelley v. McXamee 368 Kelly v. Butte 232, 445 v. Fourth Co 394 v. Keys 668 Kendall v. San Juan Co. .418, 419 Kendrick v. Colyar 356, 442 Keppler v. Becker 618 Kern Co. v. Crawford 270 Kevern v. Prov. Co 457 Kift v. Mason 281 Kileoyne v. Southern Oil Co.. 681 Ivimball O. Co. v. Keeton 682 Kimberly v. Howland 455 Kinard v. Jordan 429 v. "Ward 475 King v. Amy Silver Smith Co. 210 v. Edwards 131 v. Mullins 463 v. New York Co 301 v. Thomas 307, 478 v. Lamborn 355, 357 King Solomon Co. v. Mary Verna Co 40, 163, 445 Kingston v. Lehigh Valley Co. 447 Kinney v. Cons. Va. Co 2 v. Fleming 59, 112 v. Lundy 152 Kinsel v. North Butte Co 453 Kinsley v. New V. Co 122 Kipp v. Davis Daly Co 248 Kirk v. Meldrum 105,265, 269, 271, 625 Klein v. Davis 460,463 Kleppner v. Lemon 673 Kline v. Guaranty O. Co 669 Klopenstine v. Hays 123, 130 Knickerbocker v. Halla 137, 144, 148 PAGE Knippenberg v. Greenwood M. Co 407 Knox v. Higby 322 Kolachny v. Galbreath 668 Koons v. Bryson 440 Kramer v. Settle 123, 136 Kreps v. Brady 256 Kuhn v. Fairmont C. Co 302 Kuzek v. Magaha 373 Lacey v. Woodward 128 Lacustrine Co. v. Lake Guano Co 251 Lacy v. Gunn 395 Laesch v. Morton 245, 418 La Follette Co. v. Minton 453 Lagarde v. Anniston Co 411 La Grande Co. v. Shaw 336 La Harpe, City of, v. Elm Co. 249 Lakin v. Dolly 178 v. Eoberts 178 v. Sierra Buttes Co 128 Lalande v. McDonald 99 Lamb v. Goldfield Co 330 Lament v. Keynolds 367 Lamprnan v. Milks 240 Lancaster v. Coale 137, 148 Lane Co. v. Bauserman 456 Lange v. Robinson 263, 441 Largey v. Bartlett. . . T 355 Larkin v. Upton 196 Lamed v. Jenkins 194, 307 Last Chance Co. v. Bunker Hill Co 236 v. Tyler Co ....170, 190, 210, 214, 218, 627 Las Vegas Co. v. Summerfield 164, 336 Lauman v. Hoofer. , 155 Lavagnino v. Uhlig...65, 133, 478 L.-IW v. Grant 697 Lawrence v. Gaj etty 357 TABLE OF CASES CITED. PAGE Lawrence v. Robinson 378 Lawson v. Black Diamond Co. 348 v. U. S. M. Co 196 Leadville v. Bohn M. Co 309 Leadville Co. v. Fitzgerald... 198, 202, 213, 222 Lebanon Co. v. Cons. Republi- can Co 339 v. Eogers 194, 479 Le Glair v. Hawley 419 Ledoux v. Forester 16 Lee v. Stahl 187, 189 Le Fevre v. Amonson..lOO, 182, 254 Leggat v. Carroll 239 Leggatt v. Stewart 16 Lehigh Co. v. Bamford 355 v. New Jersey Co 432 v. Trotter 427, 472, 483 Lendberg v. Brotherton Co... 457 Lesamis v. Greenberg 429 Leveridge v. Hennessey 93 Lewey v. Frick Co 480 Lewis v. Garloek 421 v. Herrera 342 v. Mammoth Co 454 v. Marsh 474 v. Virginia Co 447 Liberty Bell Co. v. Moorhead Co 446 v. Smuggler Union Co ... 222, 445, 443 Lichtenberger v. Newhouse... 418 Light v. U. S 420 Lightner Co. v. Lane. . 448, 450, 480 Lime Lode Case 227 Lincoln v. Rodgers 287, 291 Lindemann v. Belden Co 330 Lindsley v. Natural Co 667 v. Union Co 467 Little Dorrit Co. v. Arapahoe Co 125 Little Gunnell Co. v. Kimber 48, 123, 128, 131, 150 PAGE Little Josephine Co. v. Fuller- * ton 189 Little Pittsburg Co. v. Amie Co 39, 42 v. Little Chief Co 447 Little Schuylkill Co. v. Rich- ards 250 Little Sespe Co. v. Bacigalupi 269 Lloyd v. Catlin Co 463 Lockhart v. Johnson 100, 104, 392, 440 v. Leeds 469 v. Rollins. .122, 127, 149, 159 v. Washington M. Co ... 106 v. Wills 66, 103, 392 Lockwood v. Lunsford. . 461, 463 Locust Co. v. Gorrell 232 Lohman v. Helmer 389 Londonderry Co. v. United Co. 58, 96 Loney v. Seott 260, 308, 421 Lonsdale v. Curwen 474 Lord v. Carbon Co 232 v. Pueblo Co 458 Lorimer v. Lewis 169 Loud v. Gold Ray Co 329 Louden v. Cincinnati 455 Louisville G. Co. v. Dulaney.. 685 v. Kentucky H. Co 670 Low Moor Co. v. La Bianca. . 454 Lowry v. Silver City Co 159, 162, 373 Lowther Co. v. Miller-Sibley Co 683 Loy v. Alston 368 Lozar v. Neill 150, 615, 626 Luengene v. Consumers Co... 455 Lytle v. James 460 M Mack v. Mack 378, 380 Macon v. Trowbridge.324, 365, 451 Madar v. Norman 367 Madeira v. Sonoma Co... l(j TABLE OF CASES CITED. 727 PAGE Madison v. Ducktown S. Co. . 289, 293 v. Octave Oil Co 128, 253 Maeris v. Bicknell 235, 240 Magnet Co. v. Page Co 463 Maher v. Shull 331 Majestic Co. v. McCoy 458 Malaby v. Eice 605 Malcomson v. Wappoo Mills. . 310 Malececk v. Tinsley 35 Mallett v. Uncle Sam Co 9, 108, 111 Malone v. Big Flat Co 329 Maloney v. King 222, 450, 462, 464, 469 v. Love 370 Mammoth Co.'s Appeal 460 Mammoth M. Co. v. Gr. Cent. M. Co 199, 213 v. Thomas 453 Manning v. Kansas Co 418 v. Strehlow 612, 622 Manross v. Uncle Sam Co 409 Manson v. Dayton 250, 349 Manuel v. Wulff 388 Manufacturers Co. v. Indiana Co 669 Manville v. Parks. .- 367 Marburg Lode Case 627 Mares v. Dillon 98 Marks v. Gates 380 Mars v. Oro Fino Co 623 Marshall v. Harney Peak Co. . -*JJ 34, 104, 109 Marshall Co. v. Kirtley 438 Martin v. Danziger 464 v. Walsenburg Co 366 Martinez v. Earnshaw 427 Marvin v. Brewster Co 300 Maryland Clay Co. v. Simpers. 354 Mascot Co. v. Garrett 458 Mason v. Sieglitz 346 v. Washington Co 26, 282, 284 PAGE Massot v. Moses 225, 375 Mather v. Rillston 455 v. Trinity Church 432 Mathews Co. v. New Empire Co 352, 371 Mathews Slate Co., In re 413 Matko v. Daley 152 Matlock v. Stone 615 Mattingly v. Lewisohn 127, 617, 620, 621 Matulys v. Philadelphia Co. . . 302 Meagher v. Reed 367 Meehan v. Nelson 381 Mellors v. Shaw 454 Merced Co. v. Patterson 263 Merchants Bank v. McKeown. 122, 124, 620 Mercur Co. v. Spry 322 Merk v. Bowery Co 345 Merritt v. Judd 9 Metcalf v. Prescott 95, 97 Meyer Co. v. Steinfield 63 Meylette v. Brennan 378 Michael v. Mills 42 Mickle v. Douglass 302, 369 Midland Oil Co. v. Turner 412 Migeon v. Montana Ry...282, 620 Mike & Starr Case., (See Iron S. Co. v. M. & S. Co.) Miles v. Butte Co 240 v. New York Co 302 v. Pa. C. Co 302 Miller v. Butterfield 379 v. Chester Co 371 v. Chrisman 105, 151, 167, 267, 336 v. Girard 41 v. Hamley 597 Mills v. Fletcher 120, 128 v. Hart 157 v. Hartz 372 Milner v. U. S 632, 657 Milwaukee v. Tomkins C'risty Co ..331 TABLE OF CASES CITED. PAGE Minah Co. v. Briscoe 158 Mineral Farm Co. v. Barrick. . 573 Minnesota Co. v. Brasier 480 Miocene D. Co. v. Jacobsen. . . 240, 243, 465 v. Lyng 249 Miserv. O'Shea 291 Mitchell v. Big Six Co 469 v. Cline 265 v. Gray 343 v. Hutchinson 268 Mitchell M. Co. v. Hammons. . 357 Moffatt v. Blue River Co 106, 151, 625 Molina v. Luce 441 Mollie Gibson Co. v. Thatcher. 339 Monarch Oil Co. v. Richardson 682 Monroe v. N. Pac. Co 451 Montagne v. Labay 134 Montana Co. v. Boston Co ...176, 184, 222, 223, 338, 464 v. Clark 66, 208, 213, 465 v. Gehring 291 v. Livingston 322 v. St. Louis Co 51, 338, 441, 448, 466, 474, 475 Ry. v. Migeon 281 Montgomery v. Gilbert 471 Montrozona Co/v. Thatcher. . 371, 448 Moody v. McDonald 451 Mooney v. York Co 381, 452 Moore v. Fe'rrell 461 . v. Griffin 340 v. Hamerstag 63 v. Indian Camp Co 301 v. Ohio Valley Co 684 v. Robbins 181 v. Smaw 7, 303, 391 Moorhead v. Erie Co.. 98, 133, 135 Moragne v. Doe 417, 447 More v. Massini 463 Morenhaut v. Wilson 620 Morgan v. Myers 124, 623 PAGE Morgan v. Tillotson 141, 153 v. U. S 665 Morgenson v. Middlesex Co. . . 187 Moritz v. Lavelle 378 Morris v. Bean 235 v. DeWitt 459 Morrison v. New Haven Co. . . 329 v. Regan 58, 64, 93, 165 Morrow v. Matthew 380 Morton v. Solambo Co 64 Mosher v. Sinnott 393 Mound City Co. v. Goodspeed Co 323 Mountain Copper Co. v. U. S. . 292 v. Van Buren 453 Mt. Diablo Co. v. Callison .113, 121, 123, 201 Mt. Rosa Co. v. Palmer 286 Mt. View Co. v. McFadden. . . 610 Mt. Wilson Co. v. Burbridge . . 408 Moyle v. Bullene..39, 41, 165, 306 Moynahan v. Prentiss 452 Mudsill Co. v. Watrous. . .355, 483 Muldoon v. Brown 96, 623 Muldrick v. Brown 31, 4." Mullan v. U. S 180 Multnomah Co. v. U. S 26U Murley v. Ennis. 25, 63, 112, 376, 378, 379 Murphy v. Cobb 435 Murray v. Allred 666 v. Haverty 417 v. Osborne 48 v. Polglase 118 v. White 252, 263 Murray Hill Co. v. Havener. . 138, 442 Muskett v. Hill 376 Musser v. Fitting 121 Mutchmor v. McCarty 41, 92, 283, 443 Myers v. Hudson Co 453, 454 v. Spooner 103 McCahan v. Wharton 367 TABLE OF CASES CITED. PAGE McCann v. McMillan .. 94, 107, 109 McCarthy v. Bunker Hill Co. . 289, 466, 470 v. Speed.... 96, 156, 285, 309 McCleary v. Broaddus. .37, 39, 67 McCleery v. Highland Boy Co. 293 McClung v. Paradise Co 330 McClurg v. Crawford 354 McCombs v. Stephenson 256 McConaghy v. Doyle 281 McConnell v. Pierce 300 McCord v. Oakland Q. Co. 143, 417 McCormick v. Baldwin 131 v. Parriott 127, 476 v. Varnes 226 McCowan v. Maclay 97, 478 McCullagh v. Rains 375 McDaniel v. Moore 143 McDermot Co. v. McDermot.. 158 McDonald v. McDonald. . .153, 154 v. Montana Co 265 McDougall v. McConnell 339 McElligott v. Krogh 16, 20, 52, 184, 209 MeEvoy v. Hyman 63, 164, 624 McFadden v. Mt. View Co. 419, 612 McFeters v. Pierson 9 McGahey v. Oregon King Co. . 379 McGarrity v. Byington 122 McGinnis v. Egbert 29, 42, 45, 52, 103, 111, 119, 138, 139, 164, 437, 622, 623 McGoon v. Ankeny 112 McGowan v. Bailey 416 McGuire v. Boyd C. Co 462 v< Wright 684 Mclntosh v. Price 19, 96 v. Kobb 365 Mclntyre v. Ajax Co 428 . v . Mclntyre Co 364 McKayv.McDougaU.110, 119, 131 v. Neussler 127, 147 McKee v. Brooks 375 McKeever v. Westmoreland Co. 374 PAGE McKenzie v. Poor Man Mines. 407 McKinley v. Mineral Hill Co. 407 v. Wheeler 64 McKinley Co. v. Alaska Co. . . 271, 388 MeKinney v. Central Ky. Co. . 667 McKinstry v. Clark 46, 99 McKnight v. El Paso Co 132, 139, 181, 182, 355 McLaren v. Byrnes 329 McLaughlin v. Del Re 251, 292 v. Thompson 112, 379 McLemore v. Express Co. .687, 688 McLure v. Luke 347 v. Sherman 465 McMillen v. Ferrum Co 32, 163, 625 McNeil v. Pace 154 MeXish v. Stone 668 McPhe'rson v. Julius 16, 35, 133, 184 McShane v. Kenkle 30 McVeigh v. Veig 121 Me Williams v. Winslow 40, 625 N Nash v. McNamara 102, 134 National Mines Co. v. District Court 47 ") National M. Co. v. Piccolo. 110, 436 National T. Co. v. Weston 432 Neilson v. Champaigne Co. ... 118 Nelson v. Brownell 279 v. Chittenden 103 Nephi Co. v. Juab County. ... -~~> Ness, In re 662 Neuebaumer v. Woodman.... 105 Neuman v. Dreifurst 143 Nevada Co. v. Home Co 28, 30, 105, 139, 687 v. Miller 687 v. Spriggs 125, 254, 305 New Am. Oil Co. v. Trover. . . 679, 680, 682 730 TABLE OF CASES CITED. PAGE New Am. Oil Co. v. Wolff. 679, 682 Newark Co. v. Upson 470 New Dunderberg Co. v. Old.. 447 New England Co. v. Congdon. 687 Newman v. Barnes 625 v. Newton 619 New Mercer Co. v. Armstrong. 240 New Eiver Co. v. Seeley. . . . . . 470 New York Co. v. Rogers 453 Nicholls v. Lewis Co. .' 16 Nichols v. Mclntosh 112, 113 v. Williams 40, 621 Nielson v. Gross 367 Niles v. Kennan 1.10, 443 Noble v. Gustafson 329 Nome Co. v. Snyder 265 No Mistake Lode Case 608 Nonamaker v. Amos 372 Noonan v. Caledonia Co 418 v. Pardee : . 480 North Am. Co. v. Adams Ill, 112, 239 Northmore v. Simmons. . .108, 119 N. Bloomfield Co. v. U. S 292 Northern Colo. Co. v. U. S. . . . 656 Northern Light Co. v. Blue Goose Co 365, 367 North Noonday Co. v. Orient Co.. 27, 30, 32, 99, 198, 388, 440 North Star Case (See Carson City Co. v. North Star Co.) N. W. Ohio Co. v. Ulery 673 Norton v. Colusa Co 290 Noteware v. Stearns 242 Nowell v. McBride 609 v. Int. Trust Co 325 Noyes v. Black 99 v. Clifford 280 v. Mantle 282, 283, 286 No. 5 Co. v. Brace 381 Oberto v. Smith Ill Occidental M. Co. v. Comstock - Co... ..452 PAGE O'Connell v. Pinnacle Co 8 O'Donnell v. Glenn 32, 45, 95 O 'Hanlon v. Ruby Gulch Co . . 147, 158, 606 Ohio Oil Co. v. Indiana Co 670 Ohio Ore Co. v. Westfall 290 O'Keefe v. Cannon.. .280, 281, 282 O'Keiffe v. Cunningham. .291, 292 Oklahoma v. Kansas Co 248 O'Laine v. McGraw 310 Old Colony Co. v. Carrick 346 Old Dominion Co. v. Haverly. . 254 Old Tel. M. Co. v. Central Co. 462 Olive Co. v. Olmstead 252, 687 Omaha Co. v. Tabor.. 376, 432, 448 Omar v. Soper 101, 167, 187 O 'Neill v. Risinger 681 Oolagah Co. v. McCaleb 419 Ophir Co. v. Carpenter 240 Oppenlander v. Left Hand Co. 236 Oreamuno v. Uncle Sam Co. . . 108 Oregon Co. v. Trull enger 240 Oregon Iron Co. v. Hughes. . . 257 O'Reilly v. Campbell 136, 390 Original Co. v. Abbott 441 v. Winthrop Co 108 Ormund v. Granite Mt. Co. 476, 483 Ormsby v. Budd 355 Osborn v. Arkansas O. & G. Co. 681 Oscamp v. Crystal R. Co 133 Osgood v. Bauder 452 Osterman v. Baldwin 389 Otaheite Co. v. Dean 291, 466 Overman Co. v. Corcoran 27 Oviatt v. Big Four Co 240 Pacific Co. v. Pioneer Co 479 Pacific Coast Co. v. Spargo. .. 213 Pacific Midway Oil Co., In re. 424 Pack v. Thompson 147 Packer v. Heaton 123 Page v. Fowler 432 v. Summers 379 TABLE OF CASES CITED. 731 PAGE Palmer v. Tineas Co 329 Pantzar v. Tilly Co 453 Paragon Co. v. Stevens Co 152 Pardee v. Murray 187, 191 Parish Fork Co. v. Bridge- water Co 110, 679 Park v. Northport Sm. Co 451 Park County v. Comstock Co. . 251 Parker v. Furlong 461 Parley's Park Co. v. Kerr. . .4, 17 Parrot S. Co. v. Heinze 3.: 210, 213, 461, 463 Parrott v. Palmer 460 Patchen v. Keeley 450 Paterson v. Ogden 304 Patrick v. Colorado Co 427 Patterson v. Hewitt 461 v. Hitchcock 20, 26, 34, 100, 173, 193, 195, 383 v. Tarbell 61 Paul v. Cragnaz 368 Paull v. Half erty 705 Paxson v. Cresson M. Co 322 Peabody Co. v. Gold Hill Co. . 20,179,181, 477 Peachy v. Frisco M. Co. ..109, 110 v. Gaddis 128, 168 Pearce v. Aldrich M. Co 432 Pelican Co. v. Snodgrass. .131, 150 Penn v. Oldhauber 127 Pennsylvania Co. v. Bales. 438, 617 v. Lehigh Val. Co 301 v. Smith 343 v. Thomas 350 Penny v. Central C. Co 474 People v. De France 476 v. District Court 248, 418 v. Page 433 v. Sloper 433 v. Whalen 256, 484 v. Williams 434 People's Gas Co. v. Dean 679 v. Tyner 669 Peoria Co. v. Turner 40, 573 PAGE Perego v. Dodge 612 Perelli v. Candiani 156 Perry v. Acme Oil Co 369, 684 Peters v. George 456 Peterson v. Beggs 367 v. Bullion Co 460 Petroleum Co. v. Coal Co 380 Peyton v. Desmond 451 Pfeiffer v. University 245 Pharis v. Muldoon 130 Pheasant v. Hanna 372 Philadelphia Co. v. Park 686 v. Taylor 232 Phillips v. Brill 687, 688 v. Hamilton Ill v. Salmon R. Co 336 Philpotts v. Blasdel 339 Phipps v. Hully 483 Phoenix v. Bijelich 348 Phoenix Co. v. Lawrence 99 Pierce v. Barney 480 Pike v. Empfield 330 Pikes Peak Lode Case 309, 590 Pinney v. King 455 Pioneer Co. v. De La Motte. . . 329 v. Mitchell 447 V. Shamblin 245 Pitts v. Wells 455 Pittsburg Co. v. Bailey 344, 679, 680, 684 v. Glick 483 v. Greenlee 370 v. Spooner 410 Plested v. Abbey 632 Plummer v. Hillside Co.. . .300, 371 Plymouth Co. v. Com 452 Pocahontas Co. v. Williams . . . 454 Poe v. Ulrey 666, 679, 682 Pollard v. Shively 57, 60, 62 Poncia v. Eagle 171, 628 Poole v. Union Co 256 Poore v. Kaufman 117, 628 Porter v. Mack Co 301 v. Noyes 112 732 TABLE OF CASES CITED. PAGE Porter v. Tonopah Co 149 Portland Co. v. Flaherty 453 Possell v. Smith 409 Poujade v. Ryan 37, 88 Power v. Klein 465 v. Sla 621 Prairie Oil Co. v. U. S 248 Presidio Co. v. Bullis 345, 346. Prestos v. Hunter 94, 103 v. South Penn. Co 667 Price v. Black 371 Priddy v. Thomas 669 Prince v. Lamb 380 Pritchard v. MeLeod 344, 429 Prosser v. Parks 4 Protective Co. v. Forest City Co 105, 127, 436, 440, 480 Protector Lode Case 309 Providence Co. v. Burke 94, 150, 388, 390, 612 v. Marks 438, 610, 617 v. Nicholson 449 Provolt v. Bailey 287 Puget Co., In re 483 Purdum v. Laddin 85, 94 Pursel v. Eeading Co 374 Puzzle M. Co. v. Morse Bros. Co 369 Pyle v. Henderson 371 Q Quigley v. Gillett 136, 617, 624 Quimby v. Boyd...57, 97, 127, 619 Quincy Q. Co., In re 413 Quincy Co. v. Hood 452, 454 Quinlan v. Noble 235 Quinn v. Baldwin Co 471 v. Silka 471 Quirk v.Falk 239 B Rader v. Allen 181 Rail & River Co. v. Yaple 435 Rains v. Schermerhorn 354 PAGE Raisbeck v. Anthony 197, 200 Rankin 's Appeal 465 Rara Avis Co. v. Bouscher 329 Rathbun v. Snow 407 Raunheim v. Dahl 171, 285 Rawlings v. Armel 663 v.Casey 617 Raymond v. Johnson 378 Real del Monte Co. v. Pond Co. 46' > Reavis v. Fianza .' . 638 Rebecca Co. v. Bryant 573 Red Mtn. Co. v. Esler 417 Red Wing Co. v. Clays 222 Reed v. Golden 381 v. Hickey 344 Reese v. Bald Mt. Co 331 v. Morgan Co 453 Regan v. Whittaker 307 Reiner v. Schroder 43 Remmington v. Bandit 122 Renshaw v. Switzer 113 Resurrection Co. v. Fortune Co. 448 Reynolds v. Iron S. Co 283, 443 v.Norman 330 v. Pascoe 40, 4o Riborado v. Qtiang Pang M. Co 4 Rice v. Ege 34o v. Rigley 380 Rich v. Teasley 357 v. Victoria Co 418 Richards v. Dower 316 v. Wolfling 41 Richardson v. El Paso M. Co. . 45<> v. Heney 41S v. Lowe 34(5 v. National Red. Co 484 Richen v. Davis 135 Richmond Co. v. Eureka Co. . . 226 v. Rose 16, 623 Riddle v. Mellon 373 Riley v. North Star Co 33^ Rillston v. Mather 4"> Ripley v. Park Center Co 24 1 TABLE OP CASES CITED. 733 PAGE R ; sch v. Wiseman 104, 480 Riste v. Morton 59, 147 Ritter v. Lynch 291 Riverside Co. v. Hardwick 106, 151, 265, 267 Roaring Creek Co. v. Anthra- cite Co 289 Robinson v. Imperial Co 295 Robinson Co. v. Johnson 407 Robnett v. U. S 662 Rockwell v. Graham 245 Rogers v. Cooney 1 .251, 292 Rooney v. Barnette 26, 64, 135, 141, 266, 440 Rorer Co. v. Trout 357, 364 Rose v. Lanyon Z. Co. 371, 679, 680 v. Richmond Co 178, 437, 623, 624 Rosenthal v. Ives 437, 625 Roseville Co. v. Iowa Gulch Co. 10 Ross v. Savage 366 v. Sheldon 373 Ross Oil Co. v. Eastham 407 Rough v. Simmons 616 Rough Rider Case 200 Round Mtn. Co. v. Round Mtn. Co 215 Roxanna Co. v. Cone. 189, 205, 213 Royal K. Placer Case 262 Royal M. Co. v. Royal Mines Co 395 Royston v. Miller 123, 139, 157 Rubie Co. v. Princess Co 395 Ruby Co. v. Prentice 409 Rush v. French 63, 99 Russell v. Brosseau 131 v. Chumasero 95 v. Lambert 347 Rymer v. S. Penn. Oil Co 673 S Safford v. Flemming 467 St. Anthony Co. v. Shaffra. . . 197, 264 PAGE St. Clair v. Cash Co 447 St. John v. Kidd 4 St. Louis Co. v. Kemp 121, 123, 178, 190, 259, 591 v. Montana Co. .196, 215, 317, 338,. 462, 463, 464, 474, 628 St. Louis Union T. Co. v. Gal- loway Co 372 Salmon v. Symonds 304 Salt Lake Co. v. Chainman Co. 328 Sampson Co. v. Schaad 453 Sanders v. Noble 39 Sand Point Co. v. Pan Handle Co 240 Sands v. Cruikshank 26 Sandy R. Co. v. Whitehouse. . . 447 San Francisco Co. v. Duffield. . 203, 437, 608 San Francisco Union v. R. G. R. Co 633 San Miguel Co. v. Bonner 222 Sargent Land Co. v. Von Baumbach 323 Saunders v. La Purisima Co. . . 305 v. Mackey 156 Savage v. Nixon 250 Saxton v. Perry 270 Scheel v. Alhambra Co 251 Schobert v. Pittsburg Coal Co. 366 Schultz v. Keeler 63 Schwab v. Beam 235 Score v. Griffin 33 Seagar v. McCabe. 256 Searle Placer Case 262, 286 Sears v. Taylor 4, 105, 437 Seaver v. Snider 356 Seidler v. Lafave 59 v. Maxfield 95 Settle v. Winters 315 Severson v. Bimetallic Co 409 Sexton v. Washington Co 1-1 Seymour v. Deiehor 323 v. Fisher.. 162, 167, 171, ;^2 Shackelford v. Sluss Co 4_S 734 TABLE OF CASES CITED. PAGE Shaf er v. Constant! 608 Shanks v. Holmes 110, 118 Sharkey v. Candiani.. . .30, 92, 623 Sharum v. Whitehead 367, 466 Shattuck v. Costello 59, 150 Shaw v. Caldwell ." 376 v. Homer 368 v. Kellogg 392 Shea v. Nilima 378, 389 Sheaffer 's Appeal 469 Shepard v. Murphy 88 Sherlock v. Leighton . 124, 137, 390 Shively v. Bowlby 633 Shoshone Co. v. Butter. ...... 168, 199, 201, 339, 612 Shreve v. Copper Bell Co 31, 198, 339 Sieber v. Frink 112 Sierra Co. v. Sears 461 Sierra Blanca M. Co. v. Win- chell 101 Silent Friend Co. v. Abbott. . . 428 Silver Co. v. N. C. Sm. Co. 484 Silver Bow Co. v. Clark 171, 175, 178, 179 Silver City Co. v. Lowry 162, 373, 624 Silver Cord Co. v. McDonald. . 453 Silver King Co. v. Silver King Co 417 Silver Peak Mines v. Hanchett. 139 Sisson v. Sommers 43, 440 Slavonian Co. v. Perasieh 128 Sloss Co. v. Sampson 233 Slothower v. Hunter 93, 150, 596, 625 Smallhouse v. Kentucky Co. . . 329 Smart v. Jones 250 Smelting Co. v. Kemp. (See St. Louis Co. v. Kemp.) Smith v. Belshaw 456 v. Bolles 355, 451 v. Cascaden 96 v. Hill... .. 307 PAGE Smith r. Idaho Q. Co 432 v. Imperial Co 013 v. Jameson 462 v. Mt. Gulch Co. 136 v. Newell 56, 59, 63, 94 v. O 'Kara 239 v. Oxford Co 45.1 v. Eeynolds 343 v.Russell 353 v. Sherman Co 336 v. Steele 682 v. Union Co 25, 142, 263, 687, 689 Smokehouse Lode Case 175, 307 Smuggler Union Co. v. Kent . . 449, 475 Snider v. Yarbrough 345 Snowflake Fraction Placer Case 492 Snyder v. Colorado Co 234, 235 Socorro Co. v. Preston 395 Souter v. Maguire 88 South End Co. v. Tinney 117, 155, 442, 478 Southern Coal Co. v. Swinney. 454 Southern Cross Co v. Europa Co 85 v. Sexton 118 South Nevada Co. v. Holmes. . 210 South Star Lode 284, 309, 590 South West Co. v. Smith 453 South Yuba Co. v. Rosa 235 Soyer v. Gt. Falls Co 454 Spadra C. Co. v. Eureka C. Co. 232 Sparrow v. Strong 7, 24 Spedden v. Sykes 348, 372 Spelman v. Gold Co 408 Spokane Co. v. Larsen 112 Sprague v. Locke 471 Springhetti v. Hahnewald 356 Stahl v. Van Vleck 471 Stamey v. Hemple 140, 347 Standley v. Roberts 373 Stanford v. Felt 241 Stanley v. Mineral Union 310 TABLE OF CASES CITED. 735 PAGE Stanton v. Baltic M. Co 323 Stark v. Perm Co 447 State v. Berryman 434 v. Burt 434 v. District Court 213, 475, 476 ' v. Manhattan Co 410 v. Ohio Oil Co 670 Stearns-Koger Co. v. Aztec Co. 328 v. Brown 470 Steel v. Gold Co 597, 620 Steele v. Tanana Mines... 253, 263 Steelsmith v. Gartlan 668 Steinbeck v. Bon Homme Co. . 346, 411 Steinfeldt v. Omega Co 250 Stem Winder Co. v. Emma Co . 16 Stenfield v. Espe 271 Stephenson v. Wilson 479 Sterrett v. Northport Co.. .293, 480 Stevens v. Gill 199 v. Gr. Central Co 157 v. Williams 197, 202, 462 Steves v. Carson 438, 624 Stewart v. Douglas 380 v. Gold Co 388 Stewart Co. v. Bourne 176, 177 v. Ontario Co ....176, 200, 206, 215, 461, 469 Stilley v. Pittsburg Co 302 Stinchfield v. Gillis 188, 198, 226, 337, 338 Stinson v. Hardy 374 Stockbridge Co. v. Cone Works 449, 474 Stolp v. Treasury M. Co 127 Stone v. Marshall Co 450 Stone Lode Case. (See Iron Silver Co. v. Elgin Co.) Stoner v. Zucker 242 Stonewall Co. v. Peyton 61 Stono Mines v. Southern Co. . . 483 Stoughton v. Leigh 341 Strahlendorf v. Eosenthal . 452, 454 PAGE Straight v. Hover 290 Strasburger v. Beecher 137 Stratton v. Gold Sov. Co 316 Stratton 's Independence v. Dines 355, 452 v. Howbert 323 Street v. Delta M. Co 11, 52, 59, 67, 109, 135 Strepey v. Stark 38, 164, 442, 443, 621, 623 Strickland v. Commercial Co.. 271 Strickler v. Colo. Springs 235 Strickley v. Hill 390, 615 Strobel v. Kerr Salt Co 290, 293, 461 Stuart v. Adams 408 v. Com 322 Sturtevant v. Vogel 38, 87 Suessenbach v. Bank 157 Suffolk Co. v. San Miguel Co. . 291 Sullivan v. Iron Silver Co 285 v. Sharp 621 Summerlin v. Fronteriza Co. . . 410 Sun Dance Co. v. Frost 355 Sunnyside Co. v. Eeitz 447 Sutherland v. Purdy 636 Sutter County v. Nicols 248, 289, 290, 292 Swanson v. Kettler 135 v. Koeninger 16,62, 95 v. Sears 134 Sweeney v. Hanley 416 Sweet v. Webber.. 50, 99, 141, 439 v. U. S ~ 305 Swigart v. Walker 118 Symmes v. Sierra Nevada Co. 475 Table Mountain Co. v. Strana- han 4 Tabor v. Dexter 197 Talbott v. King 175, 179 v. Southern Oil Co 670 Tallon v. Vindicator Co 322 TABLE OF CASES CITED. PAGE Talmadge v. St. John 97, 106 Tanner v. Treasury Co 317 Tartar v. Spring Creek Co 298 Taylor v. Middleton 95, 108 v. Parenteau 18, 61 ' v. Thomas 370 Telluride v. Davis 235 Tennessee Co. v. Ayers 413 v. Burgess 457 v. Hamilton 288 Terrible Co. v. Argentine Co. . 32 Territory v. McKey. . ; 434 Texas Co. v. Central Fuel Oil Co 354 Thallman v. Thomas 101, 106, 159, 180 Thatcher v. Brown 132, 634 Thayer v. Spratt 662 Thistle v. Frostburg Co 441 Thomas v. Chisholm 64 v. Oakley 4G2 v. South Butte Co 443 Thompson v. Jacobs 115 v. Pack 147 v. Spray 64, 65, 161, 167 v. Wise Boy Co 328 Thornburgh v. Savage Co 474 Thorndyke v. Alaska M. Co ... 241 Thornton v. Kaufman 153, 617 Tiberg v. Warren 433 Tiggeman v. Mrzlak 40, 43, 62, 85 Tinker v. Kier 410 Tipping v. Bobbins 376 Tischler v. Penn. C. Co 480 Titcomb v. Kirk 242, 244 Tombstone Co. v. Way Up Co. 202, 229 Tombstone T. S. Cases 307 Tonopah Co. v. Tonopah Co ... 32, 161, 162, 167, 621 Toothman v. Courtney 358 Tornanses v. Melsing 388, 412 Townsend v. Peasley 232 PAGE Traaphagen v. Kirk 252 Trade Dollar Co. v. Fraser 465 Travis Co. v. Mills 289 Treadwell v. Marrs 61 Treasury Co. v. Boss 163 Tredinnick v. Red Cloud Co. . . 328 Trevaskis v. Peard. . .111, 113, 128 Trihay v. Brooklyn Co 453, 457 Trinity Co. v. Beaudry 10 Tripp v. Dunphy 122, 596 Trotter v. Hecksher 427, 483 Troxell v. Anderson Co 366 Trustees v. Lehigh Valley Co.. 360 Tucker v. Masser 592 Tuolumne Co. v. Maier.26, 39, 244 Turk v. Rudman 347 Turner v. Sawyer 143, 147, 157, 503, 605 v. Seep 447, 685 Tyee M. Co. v. Langstedt 480 Tyler Co. v. Last Chance Co . . 163, 218, 475 Tynon v. Despain 235, 242 u Uinta Co. v. Ajax Co 25, 178 v. Creede Co 177, 190 Ulmer v. Farnsworth 232 Ulrich v. Pateros Co 242 Uncle Sam Co. v. Richards 416 Union Co. v. Bank 395 v. Dangberg 243 v. Leitch 37, 67 Union Oil Co., In re 265, 687 U. P. Ry. Co. v. Jarvi 453 United Merthyr Co., In re 446 U. S. v. Alien 658 v. Basic M. Co 664 v. Benjamin 664 v. Biggs -662 v. Blackburn 253 v. Budd 661, 662 v. Carpenter 419 v. Clark ISO TABLE OF CASES CITED. 737 PAGE U. S. v. Comet Oil Co 681 v. Detroit L. Co 661 v. Diamond Co 657 v. English 664 v. Exploration Co 477 v. Fickett 9 v. Freeman 662 v. Grimaud 421 v. Iron S..Co fU 121, 179, 180, 259, 286 v. King 180, 555 v. Kostelak 657 v. Lavenson 421 v. Marshall Co 179 v. Midway Oil Co 263 v. Midway N. Oil Co 423 v. Midwest Oil Co 423 v. McCutchen. . .164, 424, 689 v. North Bloomfield Co. . . 289, 292 v. N. Pac. Ey 254, 657 v. Parrott 462 v. Plowman 664 v. Price Co 665 v. Primrose Co 663 v. Eeed 304 v. Ringeling 97 v. Eizzinelli 420 v. Bossi 199, 252, 664 v. San Pedro Co 392 v. Smith 3, 664 v. Sullenberger 662 v. Trinidad Co 393 v. United Verde Co 664 v. Utah Co 233 v. Winona Co 180 U. S. Graphite Co. v. Pacific Co 427 U. S. M. Co. v. Lawson 176, 196, 202, 445, 627 Upton v. Larkin 27, 39, 40, 60, 62, 95, 196 v. Santa Eita Co. .37,38, 51, 60, 117, 126, 137, 616, 622, 625 PAGE Upton v. Weisling 356 Uren v. Golden T. Co 457 Utah Co. v. Dickert Co 127, 159 Vail v. Freeman 683 Valcalda v. Silver Peak Mines. 298 Van Buren v. McKinley 4, 97 Van Sise v. Ibex Co 142, 148 Vanesse v. Catsburg Co 454 Van Gesner v. U. S 662 Van Horn v. State 686 Van Ness v. Eooney 308 Van Wagenen v. Carpenter.. .. 417 Van Zandt v. Argentine Co. . . 32, 46, 211, 470 Venture Co. v. Fretts 668 Vervalen v. Older 324 Vietti v. Nesbitt 427, 483 Virginia Co. v. Kelly 300 Vogel v. Warsing 58, 443, 461 Von Baumbach v. Sargent Land Co 323 w Wadleigh v. Phelps 325 Wailes v, Davies 86, 124, 148 Wakefield v. Sunday Lake Co. 371 Wakeman v. Norton 183, 222 Walker v. Bruce 367, 368 v. Pennington 85 Wall v. U. S. M. Co. 200, 202, 476 Wallace v. Dorris 358 v. Hudson 10 Walrath v. Champion Co 66, 191, 208, 215, 225 Walsh v. Henry 106 v.Mueller 27, 66 Walton v. Wild Goose Co 278 Ward v. Carp Eiver Co 3-4 Wardell v. Watson 301 Ware v. White 127, 165, 271, 612, 618, 625, 689 Warner v. Benjamin 4.31 738 TABLE OP CASES CITED. PAGE PAGE Warnock v. De Witt.. . .56, 67, 154 White v. Lansing 250, 4G5 Warren v. Parkhurst 290 v. Lee 270 Washburn v. Alden 409 White River Co. v. Langston. . 137 v. Inter-Mountain Co 329 White Star Co. v. Hultberg 9 Washington Co. v. U. S. .657, 658 Whiting v. Straup 30, Waskey v. Chambers 340, 637 63, 64, 106, 263, 265, 687, 688 v. Hammer.. 65, 263, 264, 267 Whitmer v. Schenk 353 Waterloo Co. v. Doe .... 29, 46, 177 Whitney v. Haskell 26 Waterman v. Banks 345 Whittaker v. Lindley 341 Waters v. Stevenson.. 447 Wight v. Dubois 171 Watervale Co. v. Leach. . . . 187, 195 Wilhelm v. Sylvester 187 Watson v. Colusa-Parrot Co ... 290 Wilhite v. Skelton 354 v. Mayberry 39 Willeford v. Bell 30 Watson Co. v. James 355 Williams v. Gibson 301 Webb v. Am. Asphaltum Co ... 259 v. Hawley 329,. 331 v. Carlson 96 v. Long 465 Weed v. Snook 28, 30, 336, 687 v. McKinley 410 Weese v. Barker 88, 99, 445 v. Morrison 375 Wegerer v. Jordan 357 v. Pomeroy Co 480 Weibold v. Davis 478 Williamson v. Jones 417 Weill v. Lucerne Co 339 Willison v. Ringwood 135, 623 Welch v. Garrett 112, 240 Willitt v. Baker 132, 613, 628 Wells v. Davis 93 Wills v. Blain 14S v. Leek 380 v. Nehalem Co 410 Welsh v. Lehigh Co 457 Willson v. Cleaveland 113 Wesling v. Kroll 373 Wilson v. Alpine Co 453 West v. Timber Co 254 v. Big Joe Co 366 Westerlund v. Black Bear Co . . 395 v. Gerhardt 370 Western Co. v. Berberich 455 v. Harnette 199, 476 West Granite Co. v. Granite Co. 96 v. Henry 479 Westmoreland Co. v. De Witt. v. Smith 298 3W, 667, 669 ^ v. Triumph Co 105, 123 West Point Co. v. Eeymert 462 Wilson Co. v. U. S 658 West Pratt C. Co. v. Dorman.. 481 Wiltsee v. King Co 39, 60 Wettengel v. Gormley 673 Winchester v. Davis Co 427 Wetzstein v. Largey 334 Winter v. Bostwick 357 Wheeler v. Smith 261 Winters v. Hub Co 409 v. Walton Co 427 Wiser v. Lawler 409 v. West 374 Woleott v. Johns 352 Wheeling Co. v. Elder 346, 354 Wolfe v. Childs 416 Whistler v. MacDonald 368 Wolfley v. Lebanon M. Co. 171, 193 White v. Barling 476 Wolfskill v. Smith. (See De v. Century Co 428 Wolf skill v. Smith. ) TABLE OF CASES CITED. 739 PAGE Wolverton v. Nichols 613 Womble v. Womble 382 Wood v. Aspen Co 390 v. Etiwanda Co 112 v. Saginaw Co 407 Woodruff v. Gunton 372 v. N. Bloomfield Co 292 Woods v. Montevallo Co 479 Woodside v. Ciceroni 375, 380 Woodward v. Mitchell :. . 365 Woodworth v. McLean 381 Woody v. Barnard 127 v. Hinds 618 Work M. Co. v. Doctor Jack Pot Co 177 World's Fair Co. v. Powers. . . 353 Worthen v. Sidway 270 Worthen Mills v. Alaska Co. . 296, 635 Worthington v. Gwin 428 Wright v. Ascheim 470 v. Hartville 254, 609 v. Killian 127 v. Lyons 67, 97 Wulf v.Manuel , ..620 PAGE Yarwood v. Cedar Canyon Co. . 471 v. Johnson 156, 157 York v. Davidson 289 Yosemite Co. v. Emerson 4, 38, 151, 621 Youghiogheny Co. v. Hopkins. 302 Young v. Bankier Dist 293 v. Goldsteen 609, 612 v. Northern Co 324 Young's M. Co. v. Courtney. . . 371 Yreka Co. v. Knight 123, 443 Yuba County v. Kate Hayes Co 289 Yunker v. Nichols... ,. 242 Zeiger v. Dowdy 150, 182 Zelleken v. Lynch 354, 365 Zerres v. Vanina...29, 85, 86, 150 Zimmerman v. Funchion 267 Zobel v. Fannie Rawlings Co. . 449 Zollars v. Evans 30 INDEX PAGE ABANDONMENT 108 Of Possessory Claim 9, 10, 108 Of Ditch 112, 240 Conditional Ill Eelocation after 149 Of Undivided Interest 157 Of Tunnel 318 Pleading 113, 136, 620 Distinguished from Forfeiture 110 ABSTRACT OF TITLE In Examining Title ' 383 On Application for Patent. 562 On Adverse Claim 602 ACCIDENTS ; 452 ACKNOWLEDGMENT 341 By Individual 332 By Wife 341, 384 By Corporation ". 342, 414 By Attorney in Fact 342 To Contracts 353 To Articles of Incorporation 397 Notary Public 's Commission 333 ACREAGE Of Lode Claim 577 Of Placer 279 Government Price 577 ADMISSIONS By Relocation '. 149 ADVERSE CLAIM (see FORMS ; EJECTMENT) 599 By Known Lode 283 By Mill Site 299 By Tunnel Site 319 Connection between Suit and Application 616 Ejectment Supporting 437 Special Act, Alaska 634 By Whom Verified 603 By Co-Owner 605 Amendment of 607 (741) 742 INDEX. PAGE What Should Adverse 608 Proceedings After Determination 626 Annual Labor Pending 627 Statute Concerning, 2326 646 Land Office Eules 511 Form of 600 Complaint Supporting 614 Answer in 618 Certificate of Suit 611 Effect of Failure to Assert 171 Waiver of 624, 628 ADVERSE POSSESSION 479 / AFFIDAVIT Of Annual Labor 139 - Of Citizenship 564 In Land District 565, 577 By Agent 578, 604 AGENT Location by *. 63 Lease by 369 Powers of Corporation Agent 407 Agency Locations in Alaska 635 Adverse by 604 Process Agent 414 To Procure Patent 578 Commissions to 347, 409 AGRICULTURAL LANDS 304 ALASKA 634 New Mining Districts in 3 District Rules 3 Location of Lode Chiim in 69 Location of Placer in 272, 635 Tide Lands in 635 Timber in 665 Land Office Rules Concerning. 494, 497, 499, 500, 506, 513, 515, 523 No Resumption of Labor in 132 Miners' Lien Act 329 Old Titles in 634 Special Legislation 634 Rights of Canadians in 653 Coal Land in 637 Adverse Claims in 599 INDEX. 743 PAGE ALIENS 387 AMENDMENT Of Location or Record 160, 165, 214 Of Adverse Claim 607, 618 ANGLES 54, 229 When Necessary 230 ANNUAL LABOR 114 What Counts for 121 What Will Not Count 122 Outside the Claim 123 On Group Claims 123, 126 Burden of Proof 124, 136 Proof of , 137 Benefit to the Claim 124 By Tunnel 126, 319 On Old Lodes 115 Equity of the Law Requiring 136 On Placers 140 On Oil Claims 142 Pending Patent 117, 627 After Year Expired 128 After Entry 118 Certificate in Lieu of 139 Time to Perform 119 Who May Perform 121 District Rules 115, 127 Pending Adverse 627 On Ground in Litigation 139 Unwatering the Mine 125 Pleading 113 Contract to Perform 140, 339 Roads and Trails as 245 In Alaska 634, 636 On Overlap 132 Affidavit of 137 Resumption of 128, 132, 153 APEX 203 Stakes Must Cover 54 Survey Presumed to Include 183 No Apex, No Dip Rights 225 Statute, 2322 642 744 INDEX. PAGE Of Side Veins 190 Crossing Side Line 210 Covered by Several Patents 214 APPLICATION FOE PATENT. See FORMS 540 Land Office Rules 493 Survey for 526 Circular to Applicants 535 Adjoining Claims 558 By Agent. 578 By Corporation 580 On Surveyed Lands 588 For Mill Site 580 Cancellation of Entry 573 By Trustee 596 "Without Record Title , 597 Conflicting 175, 597 Statute, 2325 644 Relation of Suit to the 616 APPROPRIATION 23 Of Water 233 APPURTENANCES 239, 251 AREA. ^ See ACREAGE. ARIZONA Location of Lode Claim in 70 Location of Placer in 274 ASPHALT 255, 261, 426 ASSAY 482 As Evidence of Discovery 484 Dummy. See GLOSSARY. ASSESSMENTS 405 ASSOCIATION OF PERSONS 12, -or, Nominal 13, 265 ATOMIC WEIGHTS, TABLE OF 711 ATTORNEY IN FACT Acknowledgment by 342 Power to Apply for Patent 579 BLANKET VEINS 206 BLASTING .. .. 40.3 INDEX. 745 BOUNDARIES PAGR Staking 59 Monuments Control 61 Immaterial Calls 94 97 Variance, Lost Corner 62 BUILDING STOXE 260, 261, 653, 658 BUREAU OF MINES 481 BY-LAWS 398 CALIFORNIA Location of Lode in 71 Mining Act of 1909 5 Supplemental Record in 443 Location of Placer in 274 CANADIANS Rights of, in Alaska 653 CHILDREN Employment of 436 CHINESE 391 CITIZENSHIP Land Office Rules 509 Form of Proof 564 Statute, 2321 642 Of Corporation 509, 565 Pleading and Proof of 390 Proof by Witnesses 565 CLAIM. See POSSESSORY CLAIM; LODE; PLACER. Acreage of Lode 577 Acreage of Placer 279 Length 12-1G Width 17 Side Claims 12 Divided into Lodes and Placers 259 Possessory 6-l( Right to Swing 3J Overlapping 51, 18J Fractions 51, 270 COAL LANDS 655 In Alaska 637 Are Mineral Lands 254' Separate Patent for Surface 658 746 INDEX. COAL MINES PAGE Drainage 232 Penal Regulations of 435 COLORADO Location of Lode in 68 Location of Placer in 258 COMMISSION 347, 409 COMMISSIONER OF MINES 481 CONDEMNATION 242, 248 CONTIGUITY OF CLAIMS 123, 285 CONTRACT Mining Sale 343 Prospecting 376 Contracts for Work 381 To Pay Out of Mine 428 CONVEYANCE 331 Before Record 166 Of Water Rights 239 Agreements for 343 In Examining Title 384 Of Cross Lode 188 Form of Warranty 332 Form of Quit Claim 333 Subdividing Lode 336 Acknowledgment .332, 341 Escrow 352 Mining Deed 334 Witnesses 340 Short Form Deed 335 Wife's Signature 341, 384 By Corporation 341, 395 CORPORATIONS 393 Location by 64 Foreign 413 Citizenship of ' 509, 565 Corporation Deed 341, 395 Mortgage by 395 Filing Fees 404 Form of Articles 396 Amendment of Articles 412 First Meeting 398 INDEX. 747 PAGE By Laws 308 Seal 395 Annual Eeport 402 Smelting and Sampling Companies 403 Ditch Company 402 License Tax 404 Assessments 397, 405 Powers of Officers 407 Powers of Manager 407 Acknowledgments by 342, 414 Application for Patent by 580 Promoters, Prospectus ^ 409 Eeorganization, Succession 411 Dissolution 413 COSTS In Adverse Suit 615 CEEVICE 45 CEIMES 432 CKOSS CUT. See TUNNEL; TUNNEL SITE. CKOSS LODES 185 In Conveyance 188, 338 CUSTOM. See DISTRICT EULES. DAMAGES In Trespass 446 For Negligence 452 Measure of 446 Tor Dumping 288 On Condemning Ditch 242 In Oil Trespass 423, 685 DEAD WOEK 358 DEED. See CONVEYANCE. DEPAETUEE FE"OM SIDE LINES 192, 210 DEPOSITS In Place 197, 202 Eichness of 198 DEPUTY SUEVEYOE. See MINERAL SURVEYOR. DESCEIPTION 87, 90 Defective 59, 91 In Conveyance 335, 384 748 INDEX. PAGE ID Lease 362 Wrong in Patent 181 DESCRIPTIVE REPORT 585 DIAGRAM OF LODE 53, 56, 89 Showing Excess Width 20 Showing Apex 211, 217, 221 Of Official Survey 544 Of Angled Lode 231 DIP 223 Of Deposits or Contacts 205 Veins Uniting on 188 Right to Follow 203 Plats Showing 211, 217 Table of Degrees - 224 Discovery on 211 DISCOVERER 28 DISCOVERY On Old Lodes 21 Under Present Law 22 After Location 29 Point of, Where Made 33 On the Dip 211 Methods of 33 In Open Cut 33, 47 In Tunnel 47, 49 Gives Title 25 First, Holds 173 When Complete 27 By Drill Hole 33 Time It Holds Claim 34 On a Spur 228 ' Location Without 438 Essentiality of, How Proved 26 Outside of Discovery Shaft .' 31 Secret Underground 48 Knowledge of Value 262 On Placers 262 On Oil Claims 687 DISCOVERY SHAFT And Discovery Distinguished 30 Statute Requiring 22, 23 Must Be Ten Feet Deep 22, 43 1ADEX. 749 PAGE Subsequent Deepening 44 Depth, How Measured 43 Must Show Crevice 27, 45 Need Not Show Pay. 30, 45 Must Be on Public Domain 39 On Town Site or Placer 41 Patent Over 41 Claim Must Include 42 Sale of 42 Time to Sink .23, 34 Where Sunk 33 In Slide or Country 46 In Broken Ground 46 Walls in 45 For Each Claim 46 Relocation on New 162 DISTRICT RULES .' 1 Affecting Labor 115, 127 DITCH COMPANY 402 DITCHES 233, 243 Abandonment of 112 Location Notice 236 Location Certificate or Statement 237 As Appurtenances 239 Parol License to Construct 241 Condemnation Proceedings 242 Surplus or Waste Water 241 DOWER 341 DRAINAGE 231 DUMMIES 265 DUMP 249 Location of 290 For Tailings 291 For Tunnel 314 EASEMENTS 233, 243 EIGHT-HOUR LAW 436 EJECTMENT 436 Supporting Adverse 437, 623 Proper Court 610 Certificate of Suit 611 1 750 INDEX. ^ PAGE Form of Complaint 614 Form of Answer 618 To Recover Ditch 445 Nonsuit 625 Verdict in 622 ELECTRIC POWER LINES 246 EMINENT DOMAIN 242, 248 Colorado Tunnel Act 317 END LINES On Prior Claims 51 Reforming 163 Parallel 204, 207 Converging 209 Plats Showing 217, 221 Relatipn to the Strike 216 One Set for All Veins 215 Following Lode Beyond 218 ENTRY Annual Labor After 118 Death of Applicant 596 Of Area Not in Dispute 626 Cancellation of 573 ESCROW 352 ESTOPPEL 143 EXAMINATION OF TITLE 382 EXCLUDED AREAS 176, 548, 572 EXHAUSTED MINE 366 EXTENSIONS ., 107 FAULT 200, 366 FEDERAL DECISIONS 10 FEEDERS 228 FEES Of Surveyor General 538 In Land Office 571 Of Secretary of State 404 FIDUCIARY RELATIONS .65, 156, 158 FIXTURES .. ..369 INDEX. 751 FLOAT ORE PAGE Location on 29 FLOODING 231 FORCIBLE DISPOSSESSION 435, 471 FORCIBLE ENTRY 446 FOREIGN CORPORATIONS 413 FOREST RESERVE (see NATIONAL FORESTS). FORFEITURE (see ABANDONMENT) 142 Two Parties Essential to 128 Relocation, before Complete 130, 135 To Co-Owner 142 To Co-Lessee 368 Notice 145 Of Lease 371 Of Oil and Gas Lease 681 Relief Against 372 Form of Proof 145 Of Placers 141 Pleadings 113, 136, 620 FORMS Acknowledgment By Individual 332 By Corporation 342, 414 By Attorney in Fact 342 To Articles of Incorporation 397 Agreement to Sell 344, 348-351 Amended Location Certificate 160 Annual Labor Affidavit 139 Articles of Incorporation 396, 402, 403 Assessment 406 By-Laws 398 Certificate of Stock Paid 401 Contract to Sell and to Buy .'.... 350 Designation of Agency 414 Ditch Incorporation 402 Ditch Statement 237 Ditch Notice 236 Dump Location Notice 314 Ejectment, Complaint and Answer 614, 618 Escrow 352 Forfeiture Notices 145, 146 Grub Stake Contract 376, 377 752 INDEX. P.'.GF. Injunction Notice 4G7, 4~<:l Lease on Lode 359 Lease on Placer 302 Lease, Gas and Oil 674, 676 Lease and Option 351 Lode Notice 37, 38 Lode Location Certificate 90 Milling Company Articles 403 Mill Returns 363 Mill Site Location Notice 295 Mill Site Location Certificate 295 Miner's Lien 327 Mining Company Articles 396 Notice to Ore Buyers 431 Oil and Gas Lease -. 674, 676 Option 351 Organization Meeting 398 Placer Notice 268 Placer Location Certificate 271 Placer Lease 362 Prospector 's Notice 37 Prospecting Contract 376, 377 Protest 631 Quit Claim Deed 333 Relocation Certificate 160 Resolution to Assess 406 Reservation 340 Sale Subject to Examination 349 State Land, Location on 310 Title Bond 344 Tunnel Location Notice 314 Tunnel Location Certificate 312 Warranty Deed 332 Working Contract Sale 348 FORMS IN APPLICATION FOR PATENT A. Request for Official Survey 540 S. Order for Survey 541 C. Preliminary Plat 545 D. Field Notes 545 E. Approval of Survey 553 F. The Final Plat 554 G. Surveyor General's Approval of Survey and Certificate of Improvements 554 E. Approved Field Notes 555 INDEX. 753 I'AGE I. Surveyor General 's Certificate to Transcript 555 K. Notice of Application 557 L. Proof of Posting 559 M. Application 560 N. Abstract of Title 562 O. Proof of Citizenship 564 P. Publisher 's Contract 566 Q. Publication Notice 567 S. Proof of Notice Remaining Posted 570 S. Proof of Publication 571 T. Proof of Sums Paid 571 17. Application to Purchase 572 F. Register's Certificate of Posting 574 W. Register >a Final Certificate of Entry 574 X. Affidavit of Lost Receiver 's Receipt 575 r. Power of Attorney 579 Mill-Site Z. Non-Mineral Affidavit 581 AA. Affidavit of Use for Mining Purposes 581 Placer BB. Proof of No Veins 584 CC. Descriptive Report 585 DD-GG. Exhibits of Descriptive Report 586-588 FORMS IN ADVERSE CLAIM EH. The Adverse 600 JJ. Certificate of Suit 611 KK. Complaint Supporting 614 LL. Answer 618 MM-NN. Verdicts 622 FRACTIONAL CLAIMS 51, 270 Apex Rights of 337 FRAUD 355 Patent Obtained by 178 Sale Induced by 355 Between Fiduciaries 158 Location Initiated by 105 Location Prevented by 65 Fraudulent Corporate Organization 410 GLOSSARY OF MINING TERMS 693 GROUP CLAIMS Apex Rights of 214 Annual Labor on 123 754 INDEX. PAGE Miner's Lien on 328 Patenting 591 $500 Improvements 592 Survey of. L. O. Eeg. 130 526 GRUB STAKE CONTRACT 376, 377 HIGH GRADING 434 HIGHWAYS 244, 309 HOLIDAYS 607 HOMESTEAD 279 640 Acre Act 692 IDAHO Location of Lode in 71 Location of Placer in 275 IMPROVEMENTS. See LAND OFFICE REGULATIONS. $500 Worth 117, 593 What Counts as... 121, 593 By Tunnel 320 On Mill Site 582 Completed Pending Publication 595 On Adverse 603 Mining Under 301 INDIAN RESERVATION 418 INJUNCTION : 459 Against Tailings 288, 466 Notice to Ore Buyers 431 INSPECTION AND SURVEY On Examination of Title 383 In Aid of Suit 473 By Court or Jury 476 INSPECTOR OF MINES. 481 INSTROKE 366 INTERFERENCE OF CLAIMS 182 INTERSTATE COMMERCE 248 IRON 583 IRRIGATION 243 JUDGMENT Lien of 323 JUMPING ACT 435, 471 INDEX. 755 JURY TRIAL PAGE Right of 444 KNOWN LODES Excluded from Placer 280 What Are 281 Not Recorded 282 Adverse by 283, 591 Proof of 285 Width of , 286 Patenting 590 LACHES 346, 460 LAND OFFICE REGULATIONS 485 Abstract of Title [Reg. or Rule 42] Adjoining Claims, Call for [10] Adverse Claim [78-88] Affidavit, Who May Take [69] Affidavit, Out of District [69] Agent, Verification by [79, 80] Agricultural and Mineral Contests [99-111] Alaska [34, 39, 41, 42, 60, 84, 89, 112, 113] Annual Labor [12-15, 55] Application for Patent [34-57] Area and Conflicts [38, 44, 149, 152, 153] Diagram of Claim [161] Entry [52] Proof of $500 Improvements [25, 48-50] Lost Records [43] Newspaper [45-47, 89] Newspaper Charges [89] Joint Survey [162-166] Notice of [39, 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 [89-94, 115-121, 128] Descriptive Report on Placer [1(57] 756 INDEX. PAGE Errors in Surveys [Keg. or Rule 102-166] 48j Fees and Charges [89, 91, 94, 95, 120, 122] Forest Reserves [114] Forfeiture [15] Group Surveys [130] Hearing to Determine Character of Laud [OP-lll] Improvements [150-160] Location [4-11] Lode Claims, Length [4] Width [5] Size [6] In Placer [26, 151] Mill Sites [61-65, 150] Mineral Surveyors [89-94, 115-121, 128] Mining Claims, of Two Kinds [1] Monuments : [9, 36, 135-142, 147, 158] National Forests [114] Oil Claims [21] Old Lodes, Status of [2] < Placer Claims, Location and Patenting of [19-30, 58-60] Possessory Right by Limitation [74-77] Protest [53] Railroad Selections [44, 101] Record [11, 18] Salines [31-33] School Lands [20] Segregation of Mineral Land [108] Side Veins [2, 3] Stakes and Corners [10, 143-146] Surveyor's Report to Land Office [37] Ties [9, 36, 135-142, 147, 158] Timber [114] Trustee, Application by [54] Tunnels ". [16-18] LARCENY 433 LEASE 357 On Lode 359 On Placer 362 On Oil and Gas 674, 676 By Agent 369 By Co-Tenant 370 And Option 351 Assignment of 370 Non- Assessable Interest in 370 INDEX. 75- PAGE Right to Quit 367 Forfeiture 371 LEDGE 196 LENGTH OF LODE CLAIM Before May 10, 1872 12 At Various Dates 14 Since May 10, 1872 15 How Distributed 15 Excessive 16 LICENSE 374 Of the United States 6 To Construct Ditch 241 By Co-Tenant 376 LIENS 323 How Affected by Patent 323 Miner's 326 Covenant Against in Lease 361 Surveyor 's 330 In Examination of Title 386 Of Partner , 325 LIMITATIONS, STATUTE OF 477 LOCATION 22-68 Definition of 35 How Proved 95 Length of 15 Width of 17 Location Year 119 Three Successive Locations 133 Date of 25, 119 Statutory Requirements in Each State as to Lodes 68 Formal Parts of 25, 35 Time to Complete 52 When Complete 25, 35, 119 Of Old Lodes 21 Of New Lodes 22 Of Placers 257 Of Tailings Claim 290 Diagram of 53, 56, 89 Staking Boundaries 50 Not Covering Vein 54 Before Discovery 29, 438 Must Be Good When Made 41 758 INDEX. PAGE Excessive 16, 20, 267 Possession Without 104, 106, 438 One or Both Parties in Default 100, 103 Initiated by Trespass 105, 269 Prevented by Collusion 65 Fraudulent 68 Presumption of 443 Land Office Rules 485 Without Surveyor 54 Of Tunnel Site 312 Of Lode as Placer 107 Of Dump 314 Of Lode Cut in Tunnel 315 Across the Strike 66 Conflicting 182, 339 Right to Swing 39 LOCATION CERTIFICATE 84-107 Statutory Requirements 68 Must Tie the Claim 57, 94 Description of Claim 58, 90 Defects in 91, 94 Rule of Construction 93 Form of Lode 90 As Proof of Location 443 Contradicting 96 Test of Sufficiency 96 Signatures 63 Amended 160 Where Voidable Only . 165 Form of Ditch 237 Form of Placer 271 Form of Mill Site 295 Form of Tunnel 312 In Examining Title 384 Verification of 75, 97 LOCATION MONUMENT 94, 527 LOCATION NOTICE Statutes Requiring 22, 68 On Lode 37, 38 On Ditch 236 On Placer 268 How Posted 36 INDEX. 759 PAGE Place of Posting 37 Materiality of 38 Changing Names on 166 Eenewing 35 LOCATION STAKE 35 Notice on 37 Removal of 434 LODE Defined 196 Length of Old Claims 12 Present Length 15 Width 17 Discovery and Location 22-83 Size and Value 31 Uniting on Dip 182, 188 Wider Than Claim 195 Proof of Continuity 199-202 Side Veins 190, 191 ' In Place " 197, 202 Test of Value .' 198 Record 84 Diagram 53, 56, 89 Interference 182 Within Placer 280 Cross 185 Location Over Placer 283, 309 Cut in Tunnel 315 Cubic Incidents of 225 Other Incidents of 182 And Placer Distinguished 583 Group of, in Patent 591 Blanket Veins 206 Change of Name 167 Presumption That Survey Covers 183 Leaving Side Line 192 LODES, VEINS AND LEDGES 196 MALICIOUS MISCHIEF 435 MAPS 44 5 MARRIED WOMAN 341, 384 MEASURE OF DAMAGES (see DAMAGES) 446 METEORITE 257 760 INDEX. PAGE MEXICAN GRANT ........................................... 391 MEXICAN MINING LAW ..................................... 689 MILITARY RESERVATION ................................... 654 MILL RETURNS ............................................. 363 MILL SITE. . ................................................ 294 Application for Patent on .................................. 580 Adverse and Protest ....................................... 299 Separate Application ....................................... 299 Must Be Non-Mineral ...................................... 297 Location Certificate ........................................ 295 Patented ................................................. 303 Land Office Rules .......................................... 508 Non-Mineral Affidavit ...................................... 581 MINERALS ..... .................... . ........................ 256 In River Bed .............................................. 310 MINERAL LAND ............................................. 252 Comparative Value ..................................... 199, 252 MINERAL SURVEYOR ....................................... 515 Can Not Locate. .- ....... ...................... ............ 65 MINERAL VALUE ........................................ 198, 262 MINERAL WATER ........................................... 310 MINER'S LIEN .............................................. 326 MINER'S RIGHTS ........................................... 9 MINER'S TITLE Recognition of ............................................ 6 Nature of Estate ......................................... .168 MINES At Common Law ................................. .......... 255 Open or Unopened ......................................... 256 MINING CLAIM. See CLAIM ; POSSESSORY CLAIM ; LODE ; PLACER. MINING DISTRICTS ......................................... 1 Unorganized ............................................. 8 Records of In Alaska MINING LEASE. See LEASE. MINORS .................................................. 65, 147 MODELS .................................................... 415 INDEX. 701 MONTANA PAGE Location of Lode in 73 Location of Placer in 275 MONUMENTS (see LAND OFFICE REGULATIONS) 57, 61, 90 MORTGAGE, LIEN OF 324 By Corporation 395 NATIONAL FORESTS 419, 523 Rights of Way in 246 NATURAL GAS. See OIL AND GAS. NATURALIZATION 387 NEGLIGENCE 452 NET PROFITS 429 NEVADA Location of Lode in 75 Location of Placer in 276 NEW MEXICO Location of Lode in 78 Location of Placer in. . . . . 276 NEWSPAPER In Application for Patent 567 In Forfeiture , 144 NITRATE 261 NORTH DAKOTA Location of Lode in 78 Location of Placer in 278 NOTICE Lode Location 37, 38 Placer Location 2G8 Renewing 3o Changing Names on 168 On Underground Discoveries. 49 Injunction 467, 473 Of Forfeiture 145, 146 To Ore Buyer 431 Of Assessment 406 NUISANCE 293, 466 OIL AND GAS 665 Lease 674, 676 Are Minerals 666 762 INDEX. PAGE No Estate in, Until Found 668 Eight to Pump 669 Exploding Well 669 Wasting, Plugging 670 Protection 672 Paying Quantities 683 Oil Sinking Contracts 684 On Public Domain 686 OIL LAND- AS Placer .""". 686 Annual Labor on 142, 689 Discovery on 687 Eeserve Title in U. S 255 The Withdrawal Acts 261, 422 OIL WELLS 436 Lien on 326 OPEN CUT Discovery in 23, 47 OPTION 351 ORE BUYERS 430 ORE CONTRACTS 427 ORE SALTING 433 ORE STEALING 433 OREGON Location of Lode in 79 Location of Placer in 278 OVERLAPPING CLAIMS 155, 176, 182, 185 Annual Labor on .*. 132 PARTNERSHIP 325, 367 PATENT 168 Application for 540 Land Office Rules 493 Not Divest Easements 244 Not Divest Liens 386 Lodes Dipping Under 304 In Examination of Title 385 To Assignee 596 Suit to Cancel 179, 477 Its Common Law Grant 212, 217 Conclusiveness of 177 INDEX. 763 PAY ORE P AGE In Discovery 30 PEXAL PROVISIONS 432 PHILIPPINE ISLANDS 638 PHOSPHATE 254, 255, 261, 422, 426 PIPE LINES 246, 248 PLACER 257 Distinguished from Lode 259 Patented as a Lode Claim 179 Appropriation of Water 235 Gulch Claims 258 What Is Classed as 259 Location Certificate '. 271 Location Notice 268 Size of 266 Location on Surveyed Land 269 Lease of 362 Association to Locate 265 Statutes of U. S. and Colorado 257 Statutes of Other States 272-278 Lodes Within 280, 584 Annual Labor on 140 Application for Patent 280, 583 Width of Lode in 286 Forfeiture of 141 What Patent Covers 303 Application for Group 591 Land Office Rules 490, 504, 533 Oil Claims 686 PLEADING Abandonment and Forfeiture 113, 136, 620 POSSESSION Without Record 98 During Location Period 104 After Location Period 104 Defective Record Aided by 106 As Notice 386 Without Location 438 How Proved 440 Mining Is 479 In Ejectment 438 764 INDEX. PACK POSSESSORY CLAIM ....................................... 6, 7 Abandonment ........................................... 9, 108 Vested Estate and Freehold ............................... 8, 9 POTASH ................................................ 255, 261 POWER LINES ............................................... 246 POWER OF ATTORNEY ...................................... 579 PROMOTERS ................................................ 409 PROOF Of Citizenship ............................................. 564 Of Labor ................................................. 137 Of Forfeiture ............................................. 145 Of No Known Lodes ....................................... 584 PROSPECT Transfer of ...... ......................................... 336 Abandonment of ........................................... 112 PROSPECTING CONTRACT ................................... 376 PROSPECTOR- .. . 27 PROSPECTUS 409 PROTEST .... 6 OC 503 <>47 .. 630 PUBLICATION To Enforce Forfeiture ..................................... 14G In Patent Application ..................................... . 566 Proof of .................................................. 571 Period of ................................................. 567 PUBLIC DOMAIN Occupation of ............................................ ; 'Hfil Paramount Title in ........................................ 7 Segregation of Claims ...................... . ............... 171 Discovery Must Be on ........................... - ........... 39 Choice of Land Systems .................................... 170 QUARRY- AS Placer ................... At Common Law QUARTZ In Discovery .............................................. 31 INDEX. 765 PAGE QUIT CLAIM DEED .......................................... 333 RAILROAD GRANTS ............................... . ......... 308 REAL ESTATE ............................................... 9 Dump Is .................................................. 250 RECEIVER .................................................. 411 RECEIVER'S RECEIPT Cancellation of ........................................ 181, 573 Affidavit of Lost ........................................... 575 RECORD .................................................... 84 Necessity for .............................................. 85 Time of Record ........................................... .' 87 Of Location Notice as Certificate ............................ 87 Definition of .............................................. 88 Description in ............................................. 90 Possession Without Record .................................. 98 Without Location Work .................................... 13 Statute Requiring ................... .a .................... 84 Priority .................................................. 98 Of Placer Claim ................... . ....................... 271 Double .Record on Same Ground ............................. 168 RELATION Doctrine of ................................... 129, 164, 172, 190 Water Rights .............................................. 240 RELOCATION Upon New Discovery Shaft ................................. 32 Before Year Expires ....................................... 149 By Party Not in Possession ................................. 689 Of Abandoned Claims ...................................... 149 Instead of Annual Labor ................................... 154 Relocator No Trespasser .................................... 135 After Patent Applied for .................................. 155 Of Void Claim ............................................ 621 Pleading ......................................... 113, 136, 620 By the Owners ............................................ 160 By Single Co-Owner ........................................ 150 Form of Certificate ........................................ 160 After Loss of Discovery Shaft .............................. 162 REPLEVIN RESCISSION 766 INDEX. RESERVATION. See SEVERANCE. PAGE In Town Site Patents / 306 In Patents Generally 247, 255, 302, 303, 308 Indian ". 418 Military 654 Of Minerals by Deed 340 RESERVOIRS 245 RESUMPTION. See ANNUAL LABOR. RIGHT OF WAY 243 To Cross Lodes 187 To Oil Pipe Lines 246 ROADS 244, 593 ROCK IN PLACE 197, 202 ROYALTY 359-364, 372 SALES AND OPTIONS 343 SALINES 261 SAMPLING AND SMELTING COMPANIES 403, 430 Notice to 431 SCALES, FALSE ; 432 SCHOOL CLAIMS 11 SCHOOL LANDS 305 Location of Claim on . 310 SCHOOL OF MINES 4S4 SEAL 395 SEEPAGE Show of Mineral by 200 SEVERANCE 255, 300, 340, 425 Of Surface and Coal 658 SIDE LINES Departure of Vein from 192, 210, 211 Relation of Apex to 204 SIDE VEINS 190, 191 End Lines Control 207 Dip Rights of 215 SMELTER FUMES 292, 466 SOLDIERS' CLAIMS... , 11 INDEX. 767 SOUTH DAKOTA PAGE Locatiomof Lode in 80 Location of Placer in 278 SPECIFIC GRAVITY, TABLE 711 6PECIFIC PERFORMANCE ; 353 SPRINGS 233 SPURS 228 SQUATTERS, RIGHTS OF 182 STAKES Statute Requiring 22, 23, 68 Center and Corner Posts 23, 57 On Prior Claim 51, 96 Time to Set. 52 On Cross Cut Discoveries 49 Must Cover Apex 54 Marks and Numbers 56 Extra Angles 54 On Precipitous Ground 61 Maintaining 63 Overlapping 96 On Placer 269 Removal of 434 Size of 60 Trees, Stumps and Stones 60 STATE LANDS Location of Claim on 310 Lieu Lands 306 STATUTES Repealed Act of Congress '. 638 Text of Acts of Congress 640 Timber Act 663 Timber and Stone Act 658 Coal Lands. 653 Placer A. C 257, 280 1,500-Foot Act 15 Of Limitations , 47 / STOCK. See CORPORATIONS. Paid in Lands 334 Certificate of Paid Up 401 Assessment of 397, 405 STOCKHOLDERS 393, 394 768 INDEX. STONE PAGE Building 260, 261, 653, 658 SUNDAY 67, 607 SURFACE Acreage of 279, 577 Mining Under Improvements 301 Severance 300 Separate Ownership of, and Minerals 300 Eight to Tunnel Under 316 SUEFACE SUPPOET 302, 480 SUEVEY For Patent 540 For Adverse 603 For Location , 54 With Inspection 473 On Examination of Title 383 Presumed to Cover Vein 183 Overlapping 155, 184 Land Office Eegulations 526 Apex Leaving 210 Irregular 229 Angles to Allow for Slope 230 SUisVEYOE GENEEAL Oscular of 535 Feos of 515, 538 Eetxttn of Excess Payments 654 SUEVETOE'S LIEN 330 TABLE OF SYMBOLS, ATOMIC WEIGHTS, SPECIFIC GEA^V ITY AND FUSING POINTS 711 TAILINGS 287 Abandonment of j 112 The Deb ris Cases 292 TAXES , 321 TELEGEAPH AND TELEPHONE LINES. 246 TENANT FOR LIFE 256 TENANTS IN COMMON 415 Forfeiture Between 142 Non-Joinder of 445 Collusion with Third Parties 65 Eelocation by 156 Eights of, in Patent Io3. 38o INDEX. 769 PAGE Lease by 367 License from 376 Adverse by 605 TEXAS 8 TIDE LANDS.-. 633, 635 TIES (see LAND OFFICE REGULATIONS) 57, 90 To Discovery Shaft 90 On Placer 269 TIMBER 261, 435, 663 TIMBER AND STONE 261, 658 TIME- TO Perfect Location 52 To Adverse 599 To Adverse in Alaska 599 To Record 84, 87 Essence of Contract 345 TITLE Abstract of, in Examining Title 383 Abstract of, in Land Office 562, 602 After Acquired 384 Possessory 6, 7 Patented 168, 174 After Entry 169 Color of 194 In Third Party 442 In Neither Party 624 TITLE BOND 344 TOWN SITES 306 TRAILS 244, 593 TRAMWAYS 245 TRESPASS 446 Rights Initiated by 101, 105, 269 Reloeator, no Trespasser 135, 151 By Surface Owner 301 Not Larceny 434 Measure of Damages 446 Adverse Possession in 480 Ore Mined Under Claim of Right 432 Taking Oil or Gas 685 770 INDEX. TRUSTEE PAGE Patent to 596 TUNNEL; TUNNEL SITE 311 Diverse Ownership in 126 Discovery in Tunnel 23, 49 Eecord of 311 Location Certificate 312 Location Notice 314 Claiming Over 3000 Feet 320 Colorado Tunnel Act 317 Abandonment of 318 Annual Labor in 319 Land Office Rules 488 UNITED STATES Paramount Title in 7 Decisions of U. S. Courts 10 U. S. Patent 168 UTAH Location of Lode in _ 81 Location of Placer in 276 VARIANCE Between Record and Stakes 95, 598 VARIATIONS 61, 62, 229 VEIN. See LODE. VENTILATION 436 VENUE In Injunction Case 467 In Trespass 451 VERDICT In Adverse Suit 622 VERIFICATION Of Location Certificate 75, 97 Of Injunction Bill 470 Of Adverse 603, 604 VERTICAL PLANES Right to Vein Within 212, 217 VIEW By Court or Jury 476 Working Under 469 INDEX. 771 PAGE WALLS 226 In Discovery 45 WARRANTY DEED ; . . 332 Conveys After Acquired Title 384 WASHINGTON Location of Lode in 8.1 Location of Placer in 277 WATCHMAN 122 WATER. See APPROPRIATION; DITCHES; DRAINAGE; IRRIGATION. WIDTH OF LODE CLAIMS 17-21 WITHDRAWAL ACTS 261, 422, 689 WITNESSES To Deeds 340 WORKING CONTRACTS : 381 WYOMING Location of Lode in : 82 Location of Placer in 278 Position of Discovery Shaft 19 ZONE Mineral Bearing 201 LAW LIBRARY ^ UNIVERSITY OF CALIF. ItNU LOS ANGELES JC SOUTHERN REGIONAL LIBRARY FACILITY 000744352 6