MINING RIGHTS In the Western States and Territories LODE AND PLACER CLAIMS Possessory and Patented STATUTES, DECISIONS, FORMS AND LAND OFFICE PROCEDURE For Prospectors^ Attorneys^ Surveyors and Mining Companies Bjf R. S. MORRISON x rfrt^ EMILIO D. DE SOTO // Of the Colorado Bar ELEVENTH EDITION, REVISED AND ENLARGED DENVER, COLOR.* no COPYRIGHT, 1903. BY R. S. MORRISON AND EM1LIO D. DE SOTO Bancroft Library MINING RIGHTS. DISTEICT RULES. Origin of the Mining Districts and District Rules. In the earliest mining camps, before the admis- sion of California as a State, and before the organ- ization of any of the Western Territories, a system of miners' laws had been established, the outlines of which have been the basis of all subsequent legisla- tion. The country was divided into "Mining Districts," some less than a mile square and others quite ex- tensive, which have become permanent geographical divisions, and take the place of townships and sec- tions in describing the situation of real estate of all kinds in the mining counties. Each Adopted a Separate Code of Regulations, and elected a Recorder, who kept a record of claims and transfers; and usually a judge and other officers who carried out the mining rules and also enforced the decisions of the jury of, miners or the miners' meeting. CONTRACTIONS. R. 8. Revised Statutes .of the United States. A. C. Act of Congress. L. D. Land Decisions of the Interior Department. M. A. 8. Mills' Annotated Statutes of Colorado. Rule or L. O. Rey. Land Office Regulations. If. R. Morrison's Mining Reports (Vols. 1-16 printed. Vols. 17-20 in press). The original volume frotn which the reprint was made in the Mining Reports is given in the TABLE OF CASES CITED. 4 DISTRICT RUI.KS. The written regulations usually first defined the name and boundaries of the district; second, the number and kind of officers to be elected from time to time; and then proceeded to designate what number of feet should constitute a claim in that district, the amount of surface allowed, the amount of work re- quired to hold a claim, etc., and sometimes extended further, to the mode in which mining controversies and other difficulties should be settled. These district regulations have been with general uniformity recognized by the Territorial and subse- quent State Legislatures and are specifically men- tioned in and approved by the Mining Acts of Con- gress beginning with the first Act on the subject in 1866. When not in conflict with statutory law, espe- cially in cases arising out of the early discoveries, they may still be regarded as in force and occasion- ally important. They are supposed to be filed at present in the office of the County Recorder, and a search among them is sometimes necessary to the lawyer, and always refreshing to those who are curi- ous in regard to pioneer customs. In instances the district constituted a municipal subdivision so distinct that the custody of the rec- ords was never transferred to the County Recorder, and the laws as well as records of claims were kept in his office alone. Scope of Their Legislation. This system of the miners throughout the rest of the Pacific slope and in the mountain States gen- erally, was moulded upon customs already established in California, and many of the California mining rules were identical with provisions of the Mexican law. The subdivision of a vein or deposit into claims; the allowance of an "additional claim" to the discov- erer; the staking of claims; the requirement of a discovery shaft; forfeiture for neglect to work, and DISTRICT RULE'S. 5 various other prominent features are found to be set forth at large in the Spanish code. But, in almost every State their day, practically, has ended and given place to uniform legislation; and, notwithstanding their recognition in Acts of Congress, they seem to be always made subject to State or Territorial laws, and void when in opposi- tion thereto. From the defects of these original regulations, and the want of an exact and uniform mining code, sprang many points of litigation, for which the min- ers had only themselves to blame. In some districts lawyers were, by these laws, forbidden to reside or practice. Instances of Their Form and Contents. The rules of the various districts being more or less uniform in their mode of expression, and in the matters regulated by them, we give a citation of rules from sundry districts from which some idea of their scope and intention may be formed: Boundaries. This district shall be defined and bounded as follows : Commencing at the head of the canyon on the Las Animas River at the lower end of what is called and known as Baker's Park, and thence running east to the summit of the main dividing range, and then following said range around so as to include all the waters of said river, to the place of beginning. Art. 2, Las Animas District. Size of Claims. All claims made on lodes by discovery shall be 200 feet long and 50 feet wide ; all pre-emption claims 100 feet long and 50 feet wide ; all discovery claims on patch dig- gings shall be 100 feet square ; pre-emption claims 100 feet square ; all discovery claims on gulch diggings shall be 100 feet long and from bank to bank ; pre-emption claims shall be the same ; all water claims and steam-mill sites shall be 800 feet long up and down the stream, and 150 feet wide ; all claims shall be taken by numbers, commenc- ing at the discovery and running each way. Art. 8. Grand Island District. Value of Labor. There shall be allowed for a day's labor on all lodes, the following prices: For working in loose rock and earth, 6 DISTRICT RULES. twelve dollars per day ; for hard rock, such as will require powder and drills, sixteen dollars per day. Resolution 3, Las Animas District. Lode Notice. That all notices on lodes be written in plain English and posted in some conspicuous place on the lode. Resolu- tion 8, Las Animas District. Sheriff. It shall be the duty of the Sheriff to serve all papers issued by the President, and to be a General Peace Officer. Art. 6. Coral District. Water. In all gulches or ravines where water may be scarce, the oldest claimants shall have preference and priority of right to water. Art 5, Downieville District. Fictitious Locators. Be it further enacted, that no claims shall be re- garded as valid, pre-empted or recorded, in fictitious or false names, nor by persons not residents of the Territory, except the same are made in good faith. Sec. 13, Lincoln District. Forfeiture. Any person absenting himself from this mining region twelve months, shall forfeit his claims, except when they are represented by an agent. Sec. V t , Iowa District: Old Debts. No suits shall be brought in the miners' court for indebtedness contracted in any other State or Territory, except by consent of all the parties interested. Sec. 9 } Ban- ner District. Duties of Recorder. It shall be the duty of the Recorder safely to keep the records of the district, and to record all papers upon the payment of his fees. To act as secretary at all pub- lic meetings of the district, and by virtue of his office as Treasurer, to keep all moneys of the district paid to him, subject to the draft of the President ; also, to keep all vouchers, so that at any time he may be able, when called upon, to exhibit the financial condition of the dis- trict. Chap. 5, Sec. 1, Griffith District. Murder. Any person guilty of willful murder, upon convic- tion thereof, shall be hung by the neck until he is dead. < 1 1i a p. 16, Sec. 1, Id. DISTRICT RULE'S. 7 Larceny. If any person or persons shall be guilty of stealing any property whatever in this district, and he or they be found guilty by a majority of a jury of twelve, chosen to try his or their guilt or innocence, he or they shall be sen- tenced to immediately restore the property stolen, and pay to the party injured all damages sustained, directly or in- directly, in consequence of the theft ; and in case the guilty party shall not so restore and make good all the damages as aforesaid, the injured 'party may take sufficient property of the defendant found in this district, to satisfy all dam- age, and dispose of it in any way he may deem proper ; and the defendant shall also be banished forever from this dis- trict, and he failing to leave immediately on notice, shall receive not less than five nor more than twenty-nine lashes, and in case the value of the property stolen be over one hundred dollars, he shall be hanged by the neck until he is dead ; the injured party may proceed to retake his prop- erty and remunerate himself for damage sustained as above. Art. 9, Lower Union District. Attempt to Regulate Annual Labor. Such regulations as the foregoing Resolution 3, of Las Animas District, are manifestly void. The United States law requires a certain amount in value of labor or improvements, and this value can not be lessened by an arbitrary scale. They might with as much reason have fixed at once a single foot of sink- ing as the full equivalent of the $100 required by law. The Act fixes both the amount and the period for its performance. A district rule requiring labor every sixty days is void. Original Co. v. Winthrop Co. 60 Cal. 631. But a careful reading of R. S., Sec. 2324, would seem to allow a district rule to increase the amount, though it can not lessen it. Sisson v. Sommers, 55 Pac. 829; Northmore v. Simmons, 97 Fed. 386. New Districts. Even before the passage of the Mining Act of 1872 in many localities the district organizations had gone into disuse and the tendency since the Act has been towards their obliteration. Where new districts have been formed their action has usually been lim- ited to giving a name to and fixing the boundaries of DISTRICT RULKS. the camp or district, and any attempt to revive old or enact new district rules in any State or Territory which has any pretense of a mining code would only tend to confusion. Although the organization of the old districts has ceased to he maintained, their names and boundaries still exist to be used in location certificates and deeds as descriptive of the locality. Unorganized Districts. A mining title may be proved without either district organization or proof of district rules. Golden Fleece Co. v. Cable Go. 1 M. R. 120. Where land office or other forms contain a blank for the name of the mining district, and no district has ever been formed, it is usual to fill such blank with the word "Unorganized." And there is no doubt that a mining district may exist to the extent of giv- ing a name to a locality and to that extent only, and such name, when adopted by common consent, is as valid as if adopted at a district meeting. The term mining district has a well known mean- ing, while the term mineral district is only a vague and indefinite generalization. U. 8. v. Smith, 11 Fed. 487. New Districts in Alaska. The Alaska Act, 31 St. L. 328 (post ALASKA;, rec- ognizes old district organizations, provides for new ones and contemplates the passage of district rules. Upon the organization of a district the minutes of first meeting should show that it was called by public notice and attended by a majority of the miners either personally or by representation; should define boundaries; elect permanent Chairman and Recorder; restrict size of placer claims in crowded diggings, leave lode claims to the full size allowed by the Act of Congress, and make special provision for the keeping of permanent and acces- sible records. DISTRICT RULE'S. 9 Judicial Decisions as to District Rules. Where in ejectment for a mining claim the plain- tiff has described the same as located under district rules, he may recover without proof of the existence of such rules by evidence of his prior possession and the entry of defendant; but if his prima facie case on possession is negatived by any title proved by de- fendant he must then show the existence of the dis- trict rules and his compliance therewith before he can introduce his location or record made under such rules. Sears v. Taylor, 5 M. R. 318. Courts will not inquire into the regularity of the mode by which district rules have been enacted, ex- cept upon allegation of fraud, or other like cause. Gore v. McBrayer, 1 M. R. 645. Where the evidence renders it doubtful whether the written laws of a district are in force, both the written laws and parol proof of the mining customs may be offered in evidence. Golman v. Clements, 5 M. R, 247. District Records. A district record kept in a pocket diary is no record. Fuller v. Harris, 29 Fed. 814. A district recorder can not appoint a deputy. Van Buren v. McKinley, 66 Pac. 936. Once proved to exist are presumed to continue. Riborado v. Quang Pang M. Go. 6 Pac. 125. The land office, in patent applications, has the power to decide what rules are in force. Parley's Park Co. v. Kerr, 130 U. S. 256. A mining regulation can not restrict the number of claims which a party may hold by purchase. Prosser v. Parks, 4 M. R. 452. A district rule can not limit the size of a claim duly located before such rule was adopted. Table Mt. Co. v. Stranahan, 9 M. R. 465. A right to hold a claim may be forfeited by fail- ure to comply with the district rules. St. John v. Kidd, 4 M. R. 454- But not unless the rule itself so 10 U. S. LICENSE. expressly provides. Bell v. Red Rock Co. 1 M. R. 45; Emerson v. McWhirter, 65 Pac. 1036. A valid district rule may exist and be proved, although not found among the other written rules of the district. Harvey v. Ryan, 4 M. R. JflO. A custom, reasonable . in itself, and generally observed, will prevail against a written mining regu- lation which has fallen into disuse.- Id. The existence of a district mining law is a ques- tion of fact for the jury. Id. Effect of Mining Codes. Arizona, Colorado, Idaho, Montana, Nevada, New Mexico, North and South Dakota, Oregon, Washing- ton and Wyoming, have adopted more or less com- plete mining codes. In California, Utah and Alaska, much more is left to the control of the district or- ganizations, but the inclination in all is toward stat- utory regulations and on whatever point the statute is made to cover, the authority of the district rules ceases, except as to rights already vested. The ten- dency is thus to their ultimate extinction. See STAT- UTORY REQUIREMENTS and RECORD. CONGRESSIONAL RECOGNITION OF MINERS' RIGHTS. License to Appropriate the Public Domain. II. S. 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, A. C. Feb. Vt, 1865. License Under Congressional Act of 1866. Sec. 1. The mineral lands of the public domain, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and occupation by all citizens U. S. LICENSE. 11 of the United States, and those who have declared their Intention to become citizens, subject to such regulations as may be prescribed by law, and subject also to the local cus- toms or rules of miners in the several mining districts, so far as the same may not be in conflict with the laws of the United States. Sec. 1, A. C. July 26, 1866. Repealed May 10, 1872. License Under Present Congressional Law. It. S. Sec. 2319. All valuable mineral deposits In lands belonging to the United States, bath surveyed and un- surveyed, are hereby declared to be free and open to explor- ation and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States and those who have declared their intention to become such, under regulations prescribed by law, and according to the local customs or rules of miners in the several mining dis- tricts, so far as the same are applicable and not inconsist- ent with the laws of the United States. Sec. 1, A. C. May 10, 1872. Section 910 contains the first Congressional rec- ognition of the fact that the mineral lands of the United States were being appropriated by its citizens. From the time, however, of the discovery of gold in California, the government had tacitly recognized the occupation of its mining lands as such, and with- held them from survey and pre-emption. Judicial Recognition. The judiciary of California and all the States and Territories on the Pacific slope had recognized the "Miners' Title" as property entitled to protec- tion, and they were followed by the Supreme Court of the United States to the same effect. Sparrow v. Strong, 2 M. R. 320; Forbes v. Gracey, 14 M. R. 183. Consecutive Acts of '66, '70 and 72. In 1866 the first Act was passed looking to the absolute disposition of mineral veins. In 1870 a sup- plemental act was passed embracing placers. In 1872 these acts were revised and the Act of Congress of May 10 of that year, found in Chapter 6, Title 32 of the Revised Statutes of the United States, is, with slight change, the Congressional law now in force. 12 POSSESSORY TITLE. LEGAL STATUS OF POSSESSOEY CLAIMS. The National Government the Source of Title. By proper expressions in the Organic Act of each Territory or the Enabling Act of each State, the own- ership of the United States in the public domain is declared as fundamental law. The attempt once made in California to assert a State ownership in mines, Hicks v. Bell, 3 Cal. 219, has been long ago abandoned. Moore v. Smaw, 12 M. R. 429. The title to all lands in the French and Mexican cessions, is in the first instance, in the United States of America, excepting grants made by the old government prior to the treaties. These cessions include all land west of the Mississippi River except the old Territory of Oregon. The fee simple thus remaining in the govern- ment, all citizens, or persons who have declared their intention to become citizens, are allowed to enter upon the unappropriated public domain and acquire title to mineral lands by complying with certain regu- lations intended to preserve the peace and protect the first occupant. Before the passage of Acts of Congress to this effect, the assertion of claims to mines by discoverers had been recognized by district rules, local statutes and decisions of courts. But ever since 1866 the mat- ter has been regulated by specific Acts of Congress, supplemented by district rules and local legislation concerning the details of occupation and the manner of disclosing and perfecting title. Whether a Vested Estate. It would not seem under previous decisions (Yo- semite Case, 15 Wall. 77), that an unpatented mining claim was a vested estate. And the clause in the Act POSSESSORY TITLE. 13 of 1872 requiring annual labor on claims taken up under .the Act of 1866 was a statutory declaration that it did not constitute a vested estate. But later rulings, made since such Mining Titles have been fre- quently before the National Supreme Court and the number and importance of such inchoate estates have been recognized, treat them technically as well as in conscience, as estates vested in the occupant. Such may now be accepted as the necessary conclusion from the decisions to be cited; and the Yosemite case is relegated to that class of precedents which are silently departed from without being in terms over- ruled. Gwillim v. Donnellan, 15 M. R. 482; Mc- Feters v. Pier son, 15 Colo. 204. The Miner Holds a Qualified Title dependent upon possession and maintained by compliance with local directions. He is not compelled to advance to patent nor to pay for the use of the land, but his holding is of the same legal class as a homestead or pre-emption and is in anticipation of an ultimate entry and patent. His title is not absolute in a tech- nical sense, nor secure in a practical sense, until he gets the fee simple title by such proceedings. Abandonment. Such an estate, dependent upon possession, is conversely one which may be lost by abandonment. Merritt v. Judd, 6 M. R. 62; Mallett v. Uncle Sam Co. 1 M. R. 18. Is a Freehold. That is to say, an estate which passes to "the heir. Harris v. Equator Co. 12 M. R. 178; Merritt v. Judd, 6 M. R. 62; McFeters v. Pier son, 15 Colo. 201; Keeler v. Trueman, Id. 143. Is Real Estate. The miner's claim or title is real estate as dis- tinguished from chattel or personal property and Is conveyed, sued for, descends, is devisable and is treated in other respects as the real property of the 14 POSSESSORY TITLE. occupant, subject only to the paramount title of the United States. Roseville Co. v. Iowa Gulch Co. 16 M. R. 93; Butte Co. v. Frank, 65 Pac. 1. But in Oregon and Washington they have been held to be personal property. Herron v. Eagle Co. 61 Pac. 417 ; Phoenix Co. v. Scott, 54 Pac. 777. The Distinctions Between Mining Claims and Other Classes of Realty are substantially those arising out of the following incidents: 1. The title being first acquired by possession, it may be lost by acts amounting to a discontinuance of possession; that is by abandonment. 2. The title is conditional upon a compliance with district rules, if any exist. 3. The formula of notice and recording, and the method of initiating title are subject to regulation by the State or Territory, in details not covered by the Acts of Congress. 4. Annual labor upon each claim is required by Act of Congress as a condition upon the nonper- formance of which the same consequences result as in the case of a technical abandonment; that is, the claim becomes open to the entry of the next occupant. 5. Special modes of assessment and collection of taxes are or have been attempted; but distinctions of this sort have generally been found impractical. 6. There are statutes to prevent forcible dispos- session of claimants, to allow of underground sur- veys and inspection and to regulate drainage. 7. The mode of perfecting patent in the U. S. Land Office is wholly different from that regulating pre-emption or homestead entries upon agricultural lands. SCHOOL CLAIMS' SOLDIERS' CLAIMS. 15 SCHOOL CLAIMS. Fully one-half of all the sections of the old Colo- rado Statutes on the subject of mines, was taken up by a persistent attempt to force a "School Claim" on each location. The whole effort was in violation of the Organic Act, and has been held absolutely null and void as well by the courts as by the land office, and repudiated by the miners as an attempt to put the whole cost of schools on a class of men who, as a rule, were not persons with families. By Act of 1862, claim No. 3, east or west, was to be set apart for schools; by Act of 1866, one side claim on each end of the discovery claim of 1,400 feet was to be recorded 100 feet for schools and 100 feet for disabled miners. SOLDIERS' CLAIMS. By Territorial Acts passed in instances during the civil war, claims belonging to soldiers were pro- tected from forfeiture during enlistment and for a reasonable time thereafter; they were also allowed to locate and record claims by proxy; and their titles were protected from sale on execution during their absence. During the Spanish war Congress passed the fol- lowing Act relieving volunteers from performing assessment work during their term of service. It did not relieve their co-owners from doing their proper proportion of work on the same claim. 16 SOLDIERS' CLAIMS. An Act to relieve owners of mining claims who enlist in the military or naval service of the United States for duty in the war with Spain from performing assessment work during such term of service : No Annual Labor Required. That the provisions of section twenty-three hundred and twenty-four of the Revised Statutes of the United States, which require that on each claim located after the tenth day of May, eighteen hundred and seventy-two, and until pat- ent has been issued therefor, not less than one hundred dol- lars' worth of labor shall be performed or improvements made during each year, shall not apply to claims or parts of- claims owned by persons who may enlist in the volun- teer army or navy of the United States for service in a war between this country and Spain, so that no mining claim or any part thereof owned by such person which has been regularly located and recorded shall be subject to forfeiture for nonperformance of the annual assessments until six months after such owner is mustered out of the service, or, if he should not survive the war, then six months af- ter his death in the service. Certificate to Be Filed. Sec. 2. That those desiring to take advantage of this Act shall file, or cause to be filed, a notice in the clerk's office where the location certificate of said mine is recorded before the expiration of the assessment year, giving notice of his enlistment and of his desire to hold said claim under this ,Act. Co-Owners. Sec. 3. That if any such enlisted soldier or sailor has a coowner or coowners in any mining claim, and who are not in the Army or Navy, and such coowner or coowners fail to do such a proportion of one hundred dollars' worth of work per annum as the interest of such nonenlisted person or persons bears to the whole claim, then such interest shall be open to relocation by any other qualified person or persons by their doing the necessary work thereon and filing an affidavit of labor showing the forfeiture and that the re- locators had done the annual work required of such non- enlisted persons and succeeded them in right under this Act, which work may be done at any time after the expiration of the assessment year and before the former owners resume work thereon. The work and affidavit aforesaid shall op- erate as a transfer of said forfeited interest from the for- mer owners to said relocators. Approved July 2 } 1898, SO St. L. 651. LENGTH OF OLD LODE CLAIMS'. 17 LENGTH OF LODE CLAIM LOCATED BEFOEE MAY 10, 1872. 3000 Foot Act of Congress of 1866. Sec. 4 * * * No location hereafter made shall exceed two hundred feet in length along the vein for each locator, with an additional claim for discovery to the dis- coverer of the lode, with the right to follow such vein to any depth, with all its dips, variations, and angles, together with a reasonable quantity of surface for the convenient working of the same as fixed by local rules. And provided further, That no person may make more than one location on the same lode, and not more than three thousand feet shall be taken in any one claim by anj association of per- sons. A. C. July 26; 1866. Repealed Hay 10, 1872. Before the Act of Congress of 1866 the length of lode claims was regulated either by district rules or by State or Territorial legislation. It was by no means uniform. Short lengths of 100 or 200 feet, sometimes as low as fifty feet or less, were the limi- tations under the older district rules. In later years the tendency was to allow longer claims. In Colo- rado the statute fixed the length of a claim in 1861 at 100 feet. In 1866 at 1,400 feet. The Act of Con- gress of 1866 allowed 400 feet to the discoverer and a claim of 200 feet to each associate locator, not ex- ceeding 3,000 feet on the lode under one location. Associates and Side Claims. It is impossible to understand the limitations on the size of claims without considering a certain cus- tom which originated in the earliest mining camps of California and became a general practice over the western slope. With slight local modifications this custom was for the discoverer to record a notice that he claimed 50, 100 or 200 feet, as the case might be, on a certain lode. On the same paper, or by a sepa- rate paper signed later, other parties, real or nominal 18 LENGTH OF OLD LODE CLAIMS. associates of the discoverer, would give notice of claim to No. 1 East, No. 1 West, etc., on the same lode. Not only would the associates of the discoverer make such records, but often third parties, without even going on the ground, would file on these side claims in instances to the extent of several thousand feet on each side from the discovery claim. Joint Records. In other districts the discoverer and his asso- ciates would file on the discovery claim, No. 1 East, No. 1 West, No. 2 West, etc., indefinitely by a joint location certificate, not attempting to segregate the feet claimed by one from the feet claimed by the other. Record Without Location Work. These side claims, whether taken separately or as one joint location, were supposed to be at least staked off on the ground, but no discovery hole was required, and, in fact, in most cases, only the paper record was made and the claims seldom pursued fur- ther, unless developments on the discovery claim seemed to indicate that the side claims might be of value. Such was not the original intention of the miners, but the custom degenerated to this, and the records of hundreds of such claims remain, whose owners never did any work upon, nor ever knew the exact situation of their claims. Nominal Associates Conveying to Discoverer. This privilege to locate side claims was soon taken advantage of by the discoverer, who procured nominal parties to record, and immediately after recording to convey their claims to him, and as soon as the Act of Congress, 1866, was passed, such be- came the universal practice, the custom as it already existed being altered only in this: That the claims were no longer numbered, but were taken together as a joint location by a supposed association of four- teen persons, taking fifteen claims of 200 feet each, LENGTH OF OLD LODE CLAIMS. 19 or 3,000 feet in all the discoverer being allowed one additional claim. Further, after the passage of such Act, the staking of the lode into its several claims was abandoned altogether. Before the Act each lo- cator usually recorded one specific claim, in which the other locators had no interest, nor he in theirs, but after the Act, the record almost always showed a joint location of undivided claims. Validity of Such Nominal Records. It is more than doubtful whether at any time, as against an adverse ~bona fide claim, such nominal side claims were by the record alone, of any validity, unless actually possessed and defined upon the ground in some manner; Cons. Rep. Co. v. Lebanon Co. /-"> M. R. J f 90 ; Becker v. Pugli, Id. 30 Ji; Hess v. Winder, 12 M. K. 211'; but the practice of the Land Office is to patent such claims without inquiry, if sufficient de- velopment for patent has been done on any one of them, or on the discovery. Length of Lode Claim at Various Dates in Colorado. 1. Prior to Nov. 7, 1861, the length of a lode claim was fixed by district rules. 2. From Nov. 7, 1861, to March 11, 1864, the length of a claim was 100 feet, but an indefinite number of claims could be based on a single dis- covery. 3. From March 11, 1864, to Feb. 9, 1866, 100 feet was the length of a claim, and sixteen claims of that length could be based on a single discovery. 4. From Feb. 9, 1866, to July 26, 1866, 1,400 feet was the length of a claim and the limit of a location. 5. From July 26, 1866, to Feb. 11, 1870, 200 feet was the length of a claim and 1,400 feet could be taken under one location. 6. From Feb. 11, 1870, to May 10, 1872, 200 feet was the length of a claim and 3,000 feet could be taken under one location. 7. Since May 10, 1872, 1,500 feet is the length of a claim. 20 PRESENT LENGTH OF LODE CLAIMS. LENGTH OF LODE CLAIM SINCE MAY 10, 1872. Not to Exceed 1,500 Feet. R. S. Sec. 2320. Mining-claims upon veins or lodes of 'quartz or other rock in place bearing gold, silver, cinna- bar, 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 their location. A mining-claim located after the tenth day of May, eighteen hundred and seventy-two, whether located by one or more persons, may equal, but shall not exceed, one thousand five hundred feet in length along the vein or lode ; 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. * * * Sec. 2, A. C May 10 } 1872. Colorado State Law to Conform to Above. . M. A. S. Sec. 3148. The length of any lode claim hereafter located may be equal but not exceed fifteen hun- dred feet along the vein. Pel). 13, 187J,. Since May 10, 1872, 1,500 Feet has been the well- known limit of a lode. This number of feet consti- tutes one undivided claim, or one lode as the word is commonly used that is, so much of a vein as is covered by one location based upon a single dis- covery and in practice so much of one vein as is known by a single name and covered by a single record. The length of 1,500 feet 'is the uniform length wherever the mining acts are in force. It is doubtful whether a State Legislature could shorten this length, it being a Congressional limi- tation. It is the length almost invariably expressed in the location certificate and is rarely shortened except where only a fraction of clear ground re- mains to be taken up. Length How Distributed. This length, by common usage, is taken 750 feet on each side of center of discovery; but it may be WIDTH OF OI.D LODE CLAIMS. 21 taken all on one side except enough to include the discovery shaft itself, or it may be distributed in any desired proportion from the center of the discovery shaft. Location of Excessive Length. The import of the decisions on this point seems to be that an inadvertent over-stepping of the legal length will not avoid the claim; Richmond Co. v. Rose, 114 U. 8. 516; Burke v. McDonald, 33 Pac. 4re than three hundred feet on each side of the middle of the vein at the surface, nor shall any claim be limited by any mining regulation to less than twenty-five feet on each side of the middle of the vein at the surface, except where ad- verse 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. 8ec. 2. A. C. May 10. 1872. PRESENT WIDTH OP LODE CLAIMS. 23 Present Width Fixed by Colorado Statute. M. A. S. Sec. 3149. The width of lode claims here- after located in Gilpin, Clear Creek, Boulder and Summit counties, shall be seventy-five feet on each side of the center of the vein or crevice ; and in all other counties the width of the same shall be one hundred and fifty feet on each side of the center of the vein or crevice : Provided, That hereafter any county may, at any general election, determine upon a greater width not exceeding three hundred feet on each side of tl\& center of the vein or lode, by a majority of the legal votes cast at said election, and any county by such vote at such election may determine upon a less width than above specified. Feb. 13, 187.' f . In force June 15, 187.',. Between May, 1872, and June, 1874. Between May 10, 1872, when the Congressional section in regard to width was passed, and June 15, 1874, when the Colorado Act took effect, the width of all lode claims remained fixed at fifty feet under the Territorial Act of 1866, printed on page 21. Colorado, 300 Feet Except in Certain Counties. The A. C. of 1872, having allowed to the locator all the veins within the side lines of his claim, gave at once to the question of width an importance before unknown. The Legislature having in their power to choose between the extreme width of 600 feet and the minimum width of fifty feet, a great difference of opinion resulted in that State, citizens of the older mining counties generally contending for a narrow width, while in the new districts a much greater width was desired; after great debate it was fixed at 150 feet for Gilpin, Clear Creek, Boulder and Summit counties, and at 300 feet in all other counties. No instance is known to the author of any at- tempt in any county, to change the width by an elec- tion held under the proviso of M. A. S. Sec. 3149; and the constitutionality of any such proceeding, if at- tempted, would admit of very great doubt. All the Other States and Territories allow the full limit of 600 feet width, except where the district rules fix a narrower limit, which they rarely now 24 PRESENT WIDTH OF LODE CLAIMS. purport to do; and except also North and South Dakota, which fix the width at 300 feet, allowing counties to increase or decrease it within the Con- gressional limit. Center of Vein, Center of Claim. It will be observed that the center of the lode is made the center of this width. If, therefore, a party attempt to locate more than half the extreme width on either side of his vein, the location of such excess is without the authority of law, although the entire width be within the statutory limit. Taylor v. Par- enteau, 23 Colo. 368. By Statute, in Wyoming, the discovery shaft must be equi-distant from the side lines of the claim. Location of Excessive Width. The Surveyor-General will not issue an order for survey for patent upon a location certificate which claims, in terms, on its face, more than the total width allowed or with an excess of more than one- half of the legal width on either side of the center of the discovery vein, and 'it is doubtful whether any court would receive such certificate in evidence. Such mistakes are the work of surveyors who undertake to put their field notes into the form of a location certificate in total ignorance of what constitutes a valid location certificate. This document should be drawn by a competent attorney. But there is nothing to prevent a location of one- half the statutory width on one side the center of the vein and less than one-half on the other side of such center line. Excess by Vein Approaching Side Line. It is true that it may not be known when the stakes are set what the course of the lode may be, and honest errors in this respect may readily be com- mitted; but the vein being the basis of location, and it having been decided that when a vein leaves the side lines of its location, the claim both as to veins DISCOVERY AND LOCATION OLD LODE'S. 25 and surface beyond that point is void, it necessarily follows, where either side line is found at any point to be more than the legal distance from the center of the vein, that the location of such excess in width has not been based upon a vein lying within the stat- utory limits, and comes within the same reasoning which renders all that part of the location void in which no vein is found. Patterson v. Hitchcock, 5 M. R. 542. But no such fact would vitiate any part of the claim after patent issued. Peabody Co. v. Gold Hill Co. 97 Fed. 657. The above diagram illustrates the preceding para- graph. The shaded ground shows an excess of 300 feet from the center of the vein. A valid hostile dis- covery could be made upon such ground or a loca- tion made taking it in. The plat shows a claim of 600 feet width. Where the full width is 300 feet, the excess would begin, of course, at 150 feet "from the center of the vein." DISCOVERY AND LOCATION OF LODES FORE THE ACTS NOW IN FORCE. BE- Shaft and Stake Tinder Colorado Act of 1866. Sec. 2. All lodes or veins of gold, silver, or other valuable minerals, which may hereafter be discovered, shall be marked at the point of discovery by a substantial stake, Iost or stone monument, having inscribed thereon the name 26 DISCOVERY AND LOCATION OLD LODES. of the discoverer or discoverers, and the name of the lode or vein, with date of discovery ; and the discoverer or dis- coverers shall, before recording, excavate thereon a shaft at least ten feet deep, or deeper, if necessary, to find a well- defined crevice, or forfeit all right and title he or they may have acquired by virtue of such discovery. Feb. 9, 1S6G. Mode of Location Not Strict. Prior to 1866 there was no United States law reg- ulating lode locations. Nor did that law state any definite formula further than to limit the extreme width and length. Nor were the requirements of the State or Territorial Legislatures usually specific. Either by statute or by district rule a discovery was always required and a notice at the point of discovery, and in many districts such a staking as would indi- cate the extreme points to which the claim extended. In 1866 by statute in Colorado a location stake and a ten foot discovery shaft were required. In other States and Territories even these initial and essen- tial points were left entirely to district regulations. In all cases the actual disclosure of the vein, and not merely the float or indication of the vein, was re- quired, at least with regard to the discovery claim; and the stake was required to give the name of the lode and its locator, with usually the date of dis- covery and the number of feet in each direction. Sometimes each separate claim was measured and staked off. That some act of location was required, has never been disputed. But in the absence of district rules, what would amount to a sufficient location can only be defined as such acts of appropriation as would amount to a declaration that the locator had appro- priated the ground, and be sufficient notice to other prospectors that he had so appropriated it. Hess v. Winder, 12 M. R. 217; English v. Johnson, Id. 203; Attwood v. Fricot, 2 M. R. 305; Gleeson v. Martin White Co. 9 M. R. 429; Gonu v. Russell, 12 M. R. 630. In the case of Cons. Rep. Co. v. Lebanon Co. lo M. R. .'fiO, it was ruled that the posting of the notice DISCOVERY AND LOCATION. 27 and the recording of certificate not followed by de- velopment or representation, would not hold the claim against a subsequent location. See also Becker v. Pugh, 15 M. R. 304. DISCOVERY AND LOCATION UNDER LAWS NOW IN FORCE. Discovery Required. R. S. Sec. 2320. * * * No location of a mining- claim shall be made until the discovery of the vein or lode within the limits of the claim located. * * Sec. 2, A. C. May 10, 1872. Staking and Record. R. S. 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 re- quirements : The location must be distinctly marked on the ground so that its boundaries can be readily traced. * * * Sec. 5, A. C. May 10, 1872. Discovery Shaft, Notice and Stakes in Colorado. M. A. S. Sec. 3152. Before filing such location certifi- cate the discoverer shall locate his claim by : First Sinking a discovery shaft upon the lode to the depth of at least ten feet from the lowest part of the rim of such shaft at the surface, or deeper, if necessary to show a well defined crevice. Second By posting at the point of discovery on the surface a plain sign or notice, containing the name of the lode, the name of the locator, and the date of discovery. Third By marking the surface boundaries of the claim. Feb. 13, 187J t . Corner Posts, Center Posts. M. A. S. Sec. 3153. Such surface boundaries shall be marked by six substantial posts hewed or marked on the side or sides which are in toward the claim, and sunk in the ground, to-wit : one at each corner and one at the cen- ter of each side line. Where it is practically impossible on account of bed rock to sink such posts, they may be 28 DISCOVERY AND LOCATION. placed in a pile of stones, and where in marking the sur- face boundaries of a claim any one or more of such posts shall fall by right upon precipitous ground, where the proper placing of it is impracticable or dangerous to life or limb, it shall be legal and valid to place any such post at the nearest practicable point, suitably marked to designate the proper place. Feb. 2, 1876. Open Cuts and Tunnel Discoveries. M. A. S. Sec. 3154. Any open cut, cross-cut or tunnel which shall cut a lode at the depth of ten feet below the surface, shall hold such lode, the same as if a discovery shaft were sunk thereon, or an adit of at least ten feet in along the lode from the point where the lode may be in any manner discovered, shall be equivalent to a discovery shaft. Feb. 13, 187$. Time to Sink Discovery. M. A. S. Sec. 8155. The discoverer shall have sixty days from the time of uncovering or disclosing a lode to sink a discovery shaft thereon. 7r7. The Doctrine of Appropriation would have no ap- plication to mining and water claims on the Pacific Slope if the lands, before the discovery of minerals, had passed into the hands of private owners; nor to the government itself, if the government had chosen either to treat the miners as trespassers or to arbitrarily dispose of the lands at public sale. Instead of adopting any such policy, the United States for many years tacitly, and since 1866 by pos- itive enactment, opened the lands to the explorer and occupant; in other words, the mineral lands were offered to the first appropriator. The Acts of Appropriation, as to mineral lands, are equivalent to such acts as would amount to occupation in other cases; there must be an in- tent to possess the claim, such acts of appropria- tion as are sufficient to carry out this intention, and finally such acts must have such publicity by record as to operate as notice to all that the lands have been actually appropriated. The appropriation of a mine, the appropriation of water for mining or irrigating purposes, and the occu- pation of homestead land are therefore in substance DISCOVERY AND LOCATION. 29 the same, and differ only so far as the various subject matters differ, the criterion in each case being the intent of the occupant to segregate a certain portion of the public domain to his several use, followed by acts manifesting such intention with such publicity as is due to the rights of third parties. Sparrow v. Strong, 2 M. R. 320; Gore v. McBrayer, 1 M. R. 6J,5. The Eight of Appropriation is now regulated by statute to a greater or less extent in the various States and Territories, so that the appropriator must not only occupy the ground, but must segre- gate his claim and otherwise comply with the law, which attempts to reduce to detail the above gen- eral principles. These statutes fix a time for the process of loca- tion and record and require certain acts to be done to constitute a valid location. In all the Western min- ing States and Territories, except California, Utah and Alaska, the regulations are quite specific. They have copied the earlier Colorado Statute more or less closely. In the excepted States much more is left to district custom. It is intended that a location made as in this chapter advised would be valid in any State or Territory, except where some specific statute calls for additional requirements: The details of location in each State and Territory are tabulated on page .5.9. The formal acts of appropriation are: (1) Dis- covery. (2) Location. (3) Record. Discovery the Inception of Title. The discovery of a lode of itself gives title to the vein for such length of time as is allowed by law for the completion of the location and record (Hur- ley v. Ennis, 12 M. R. 360; Erhardt v. Boaro, 4 M. R. 432; 113 U. 8. 527); and when the location and record are made, if made in due time, the inception of title relates back to the date of discovery. (Burke v. Mc- Donald, 29 Pac. 98.) From this fact a later record may show an older and better title than a record made several months earlier; Patterson v. Hitchcock, 30 DISCOVERY AND LOCATION. .) M. R. .')',>. For this reason it is advisable for the location certificate to recite the date of discovery as well as the date of location. If the statute or district rule does not fix a spe- cific time for the discoverer to follow up his discovery the common law allows him a reasonable time to do each act required. The fact of discovery must be proved by the party alleging it as the inception of his possessory right. Sands v. Cruikshank, 87 N. W. 589. Where a location is made without discovery the land remains public domain until there be a discovery. Tuolumne Co. v. Maier, 66 Pac. 863. The Vein Must Be Reached. The discovery is not complete until the vein it- self is disclosed. The finding of float or loose quartz is not sufficient. There is a custom generally re- spected among miners, when any person has discov- ered indications of a lode and is diligently following up these indications, to allow thirty days in which to uncover the deposit; but, if another, by a shorter cut, should first actually reach the vein, it would seem that the first prospector, except as qualified by the Boaro case cited in the next paragraph, could as- sert no priority; and such has been the tenor of the decisions. Upton v. Larkin, 6 Pac. 66; North N. Co. v. Orient Co. 9 M. R. 529; Overman Co. v. Corcoran, 1 M. R. 691. In Walsh v. Mueller, J/0 Pac. 292, the facts which constituted the discovery are stated and held such clear proof as warranted the reversal of a finding that there was no discovery. Prospector's Rights Before Discovery. If, however, a prospector has discovered float or other indications of the immediate presence of the vein and keeps diligently at work, such inchoate dis- covery has practically been held by the National Su- preme Court in Erhardt v. Boaro, 15 M. R. 447, equiv- alent to the discovery of the vein in place. If it does not go so far as to decide that the prospector could DISCOVERY AND LOCATION. 31 at once locate upon such indications, it does decide that he has not only the right to be protected in his possession while following up such indications, but that he will be protected to the extent of a full claim when his location is complete. Excluding the fact of the intimidation which was in proof in that case, it is difficult to reconcile the opinion with the Colorado Statute, which requires a well denned crevice to be disclosed, and with the lan- guage of the R. S. Sec. 2320, which prohibits any location until the discovery of the vein. Whatever the effect of the decision in giving precedence to the prospector upon the floe as against the actual discoverer of the vein itself, it ought at least to be certain that no such disclosure of indications short of uncovering the vein in place, would hold as a dis- covery sufficient to stake and record upon and leave to the protection of the law, as the miner may do when his discovery, location and record upon the lode in lace are once absolute and complete; but when accompanied by his actual presence on the ground with notice posted, the question of prior discovery in fact in such case remains a question for the jury. The Discoverer in Law is not necessarily the orig- inal finder, but any one who, knowing of the exist- ence of the mineral, takes some step toward an appropriation of the land which contains it. Ne- vada Go. v. Home Co. 98 Fed. 673; Jupiter Co. v. Bodie Co. 4 M. R. 411. It is assumed, of course, in such case that the original actual discoverer failed to perfect his initiatory first right by loca- tion. The vein may be disclosed in a pit sunk on it before by a stranger. Hayes v. Lavagnino. 53 Pac. 1029. A Location on Float Ore, the discovery opening not showing the lode in place, has been expressly held to be invalid. Several tons of such ore had been extracted, but the vein itself from which it 32 DISCOVERY AND LOCATION. came had not been defined. Waterloo Co. v. Doe, 56 Fed. 685. On the other hand an Idaho decision allowed a location to stand good made upon "indications of mineral," the report, however, leaving it very indef- inite as to what these indications were. Burke v. McDonald, 29 Pac. 98. Discovery After Location. If a location be made before discovery, but is followed by a discovery in the discovery shaft, be- fore any adverse rights intervene, such subsequent discovery cures the original defect and the claim is valid. McGinnis v. Egbert, 15 M. R. 329; Golden Terra Co. v. Mahler, 4 M. R. 390; Jupiter Co. v. Bodie Co. 4 M. R. 411; Zollars v. Evans, 4 M. R. 407; North Noonday Co. v. Orient Co. 9 M. R. 529; Erwin v. Perego, 93 Fed. 608; Nevada Co. v. Home Co. 98 Fed. 673; Brewster v. Shoemaker, 63 Pac. 309; and the Land Department has followed these rulings. 8 L. D. 526. But where a location and record were made with no discovery, a subsequent discovery will not relate back and cut out an intervening location. Beals v. Cone, 62 Pac. 948. Discovery and Discovery Shaft Distinguished. The fact of discovery is a fact of itself, to be totally disconnected from the idea of discovery shaft. The discovery shaft is a part of the process of loca- tion, subsequent to discovery. If a lode, for instance, be discovered in a cross-cut run to operate some other known vein, or if a prospect hole be dug on the out- crop of a lode, and no steps are taken to stake and record such lode, it becomes no more the property of the owner of the cross-cut, or of the party who dug the hole, than if he had never happened to strike it, and although he could have followed up the discovery by perfecting title, his neglect so to do is equivalent DISCOVERY AND LOCATION. 33 to abandonment of the inchoate right given by dis- covery. Willeford v. Bell, 49 Pac. 6. The Discovery Need Not Show Pay Ore. It is sufficient that it disclose such a crevice as a miner would be willing to further open and fol- low. McShane v. Kenkle, 44 Pac. 919; Shreve v. Cop- per Bell Co. 28 Pac. 31 5; Muldrick v. Brown, 61 Pac. 428. Comparative Size or Value. If there is once found a lode such as is conceded to be one upon which a prospector may lawfully lo- cate, and he has made such a discovery as justifies a location upon it, it makes no difference what its size or value as compared to the size or value of other veins asserting hostile title against such location. Book v. Justice Co. 58 Fed. 125. Proof of Mineral Contents. The discovery must be of a mineral bearing vein or deposit. The proof of mineral value does not re- quire an assay, although an assay if taken is of mate- rial value as evidence. Healey v. Rupp, 63 Pac. 319. What is quartz or mineral bearing rock is de- terminable by the eye in most cases and such ores as galena, zink-blende, copper pyrites and -many others necessarily indicate mineral contents. There are, however, varieties of ochre and other discolored earth and rock which may or may not carry any kind of valuable mineral, in which instances an assay or^ other test in common reason should be required. Lode Found Outside of Discovery Shaft. It has been decided in some of the States that although no lode was found in the discovery shaft, its disclosure elsewhere within the claim before any adverse rights had accrued would validate the claim. Harrington v. Chambers, 1 Pac. 362; affirmed 111 U. S. 350; North Noonday Co. v. Orient Co. 9 M. R. 529. But to the contrary, in Colorado under its stat- ute is the case of Van Zandt v. Argentine Co. 4 M. R. 2 34 DISCOVERY AND LOCATION. 441; Terrible Co. v. Argentine Co. 89 Fed. 583; af- firmed 122 U. 8. 478. And if it be true that the sink- ing of the discovery within patented lines or the pat- enting of the discovery shaft by a hostile claim in- validates the entire claim; and if the discovery shaft be, as it is, the point from which both length and width of the claim are determined, the point at which the notice is to be posted, and where it is required in terms by the language of the statute to show a well defined crevice, and the lode in place it seems in- consistent to hold that discovery elsewhere would be of any avail when there was none in the discovery shaft. The question has been before the Supreme Court of Colorado in two cases which refer to the point without any satisfactory or consistent ruling upon it Beats v. Cone, 62 Pac. 948; Healey v. Hupp, 63 Pac. 319. In a Montana holding, based strictly on the con- struction of the statute in that State, it was ruled that the discovery shaft need not necessarily show the vein, provided it was disclosed elsewhere on the claim. O'Donnell v. G-lenn, 19 Pac. 302. By Relocation Upon the Shaft showing the min- eral afterwards discovered, this danger can. be avoided where no hostile discovery has intervened. A new record based on a new discovery is an abandonment of the original location. Seals v. Cone, 62 Pac. 956. The Point at Which a Lode is Discovered is not material. It may be discovered at the surface where it outcrops above all surrounding country rock; or under the slide near the surface at its true apex, by shaft, open cut or boom ditch; or at a greater depth by a tunnel cutting the vein horizon- tally across its dip, or by a shaft striking it perpen- dicularly upon the incline. The Discovery Shaft need not be sunk at the point where the lode was first actually discovered. The DISCOVERY AND LOCATION. 35 prospector has the right to choose a more conven- ient spot from which to base and outline his claim. Harrington v. Chambers, 1 Pac. 375. All Methods of Discovery, whether by shaft, cut, tunnel, boom-ditch or otherwise, are recognized by the statutes or district regulations everywhere, the only distinction being, where a discovery of a cer- tain 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 denned 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 hor- izontal or vertical drilling would doubtless fulfill all the conditions of a legal discovery, and would operate to give the party the legal 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 im- possibility for such drill-hole to show a well defined crevice, and a drill-hole is neither a shaft, cut or other opening such as are enumerated among those things which may constitute a discovery shaft or cut. The discovery of a lode is a matter of interest to the prospector only; but if he intend to appropriate the same it must be by such physical workings as shall amount to a notice to third parties. A drill-hole is not a notorious, physical land mark, and could not be construed as such notice. Discovery Holds How Long? A discovery in Colorado, Wyoming, North or South Dakota, Montana and Oregon holds the claim for the sixty days allotted to sink the discovery shaft. Marshall v. Barney Peak Co. 47 N. W. Rep. 290. Arizona, Nevada, New Mexico and Washington allow ninety days. Idaho allows sixty days, but claim must 36 DISCOVERY AND LOCATION. be staked within ten days after discovery. In Alaska the discoverer has ninety days to record, but district rules may prescribe shorter periods for shaft or other location work. In those States which prescribe no specific time, what is denominated a reasonable time is allowed in which to complete the location. What is a reasonable time depends upon circumstances, but it is not to be stretched indefinitely. In Patterson v. Hitchcock, 5 M. R. 542, it was ruled that ninety days to sink a shaft was more than a reasonable time. In Doe v. Waterloo Co. 55 Fed. 12, a prospector completed his staking in twenty days, and he was held to be in good time. As soon as a vein is found by the prospector it is the custom to place at the point of discovery a notice about as follows: CONTENTION LODE. The undersigned claims sixty days to sink discovery shaft and three months to record on this vein. January 4, 1903. JOHN S. YOUNG,, Discoverer. But if it is bona fide the intention of the discov- erer to complete his location, the absence of such notice would not be fatal. This is not the notice re- quired when the location is made (page 38). It is a mere warning to other prospectors that some one has acquired a prior right to locate -on that crevice. Erhardt v. Boaro, 15 M. R. 472. In a New Mexico case this peculiar language is used: "The locator is entitled to no appreciable time after discovery to determine whether he desires to locate and claim the benefit of his discovery. Discov- ery and posting notice of claim, therefore, must be practically cotemporaneous." Deeney v. Mineral Co. 67 Pac. 725. If by discovery is meant mere ocular perception of an outcrop visible to all it may be true, but every- where, where the discovery is the result of the labor of the prospector he has without doing any further act DISCOVERY AND LOCATION. 37 a reasonable, or the statutory time, to perfect the location. 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 pe- riod, or the reasonable time) begin to run from the date of discovery, and no self-serving act of the pros- pector can enlarge the time. Location. The location of a lode consists in defining its position and boundaries, and in doing such acts as indicate and publish the intention to occupy and hold 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. Location Stake. Although a very old custom, the requirement of the Colorado Act of 1866, repeated in the present Act of 1874 as to a location stake, was not always con- sidered imperative, but there are decisions under the present statute which enumerate it as one of the con- stituent parts of a complete location. Strepey v. Stark, 7 Colo. 618; Cheesman v. Shreeve, 40 Fed. 787; 17 M. R. In fact this location notice was in early locations the principal and often the only specific act of loca- tion. It was a universal custom before any statutes existed purporting to regulate location. The words of the Act require "a plain sign or notice," but there never has been any uniformity among prospectors in the details of the notice, or in the mode of posting it. It may be substantially com- plied with by writing on a blazed tree or on a board nailed at discovery, or by legible carving, or by any 38 DISCOVERY AND LOCATION. 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 Fed. 531; 17 M. R. ..., the notice was placed in a tin can on a mound of stones and it was upheld. The following FOKM OF NOTICE ON STAKE. THE FAMINE LODE,, discovered by Charles J. Allen, Feb- ruary 17, 1903. Claim 750 feet easterly and 750 feet westerly from discovery. CHARLES J. ALLEN. fully complies with the law and custom, and would still be sufficient without signing at the foot and with- out stating the number or direction of feet claimed. This notice need not call for monuments or ties that is required of the record only. Poujade v. Ryan, 33 Pac. 660; Brady v. Husby, 33 Pac.. 801. Such notice holds the claim for a reasonable time before setting the boundary stakes or other work. Union Co. v. Leitch, 64 Pac. 829. Right to Swing Claim. In Sanders v. Noble, 55 Pac. 1037, the Never Sweat discoverers had posted their notice claiming 500 feet Southerly and 1,000 feet Northerly. During the ninety days allowed for filing location certificate other parties discovered the Yukon. They had read the Never Sweat notice and purposely kept clear of its ground. The Court held that the law gave the lo- cators full ninety days to choose where they would ultimately fix their corners; that the Never Sweat locators were not estopped by their notice and could swing their location nearly at right angles and take in the Yukon ground. The opinion is very thorough and contains a full review of previous cases, but does not meet the proposition: that while the prospector may have such full time for such purposes he loses it the moment he by a positive act limits the general area which his monuments when set will include. DISCOVERY AND LOCATION. 39 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 no- tice. But such an instance is scarcely distinguish- able from the decision quoted. See Wiltsee v. King Co. 60 Pac. 896. Easterly, Westerly. In the latter case the location notice claimed so many feet easterly and westerly. It was held that in such preliminary paper the words were not to be construed as due east and west, but that he could locate on any course within 45 degrees of east and west. Discovery Shaft Must be on Public Domain. The discovery 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, 6 Pac. 66; Little PgTi. Go. v. Amie Co. 17 Fed. 57; Armstrong v. Lower, 15 M. R. 631; Golden T. Co. v. Mahler, 4 M. R. 390; Moyle v. Bullene, 44 Pac. 69; Watson v. May~berry, 49 Pac. 479; Tuo- lumne Co. v. Maier, 66 Pac. 863; Reynolds v. Pascoe, Id. 1064. In the Larkin-Upton case, the discovery shaft was partly on patented ground but a part of it showing the vein or a portion of the vein was on clear ground and its validity was upheld. 7 Mont. 449; 144 U. 8. 19. Exceptional Case Town Site. Assuming that all known lodes have been ex- cepted from a Town Site Patent, a discovery shaft may be sunk upon and within the area of its patent. Moyle v. Bullene, 44 P^c. 69. Patent Over Discovery Shaft. And 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." G-wil- 40 DISCOVERY AND LOCATION. Urn v. Donnellan, 15 M. R. 482; Milter v. Girard, 33 Pac. 69; Girard v. Carson, 44 Pac. 508. Where a senior claimant allows a location to be made over his discovery shaft and to go to patent, his claim becomes a void location not only as to such patent, but as to all persons and claims. In an instance with special equities where an ag- ricultural patent was issued covering that end of a lode claim on which all, or nearly all, the work had been done and where the clear end of the claim could be practically reached only by work commenced on the patented end, the court distinguished the case and held that Gwillim v. Donnellan did not apply. Richard v. Wolfling, 32 Pac. 971; Post, p. 120. Sale of Discovery Shaft. But the sale of that part of the claim containing the discovery shaft does not invalidate the title of that part which the locator retains. Little Pgh. Co. v. Amie Co. 11 Fed. 57; and in this case the grantees had afterwards gone to patent on the ground contain- ing 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 convey 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 boun- daries they were made so as to exclude the discovery shaft is admissible to defeat such location. McGin- nis v. Egbert, 8 Colo. o4; 15 M. R. 329. 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. Michael v. Mills, 45 Pac. 429. DISCOVERY AND LOCATION. 41 Depth of Discovery Shaft. In the Colorado case of the Maine and Phoenix lodes, located under the act of 1866, Hon. Judge Belford decided that when a discovery shaft was sunk upon sloping ground the average might be taken to determine whether the shaft was of legal depth; but since June 15, 1874, it must be at least ten feet from the lowest part of the surrounding sur- face. After a shaft has been sunk ten feet, the ground at the collar may cave, or the shaft may become so filled with debris, or the making of a platform or raised collar may make it difficult to ascertain the exact line of the original rim of the shaft, or to ascer- tain its original bottom. In view of these facts and of the essential importance of the shaft being full ten feet deep, it is always advisable to sink it two or three feet deeper and remove all ground for cavil or contention. The Shaft Must be Ten Feet Deep, by statute in all the mining States except Alaska? California, North Dakota and Utah. Idaho requires also cer- tain dimensions, i. e., not less than sixteen square feet area. In Washington ho shaft is required west of the summit of the Cascade mountains. In those States whose statutes do not mention any specific depth the discovery point must show the lode by a hole or cut sunk or driven to or on the vein. But in those States if the discovery notice is posted on a naked outcrop no hole or cut is neces- sary unless required by district rule, or by statute as in North Dakota, which requires a shaft, but does not fix the depth. The State Statute requiring a specific depth of ten feet is a valid exercise of the right of regulation allowed to the legislature, under the Congressional Act. Sisson v. Sommers, 55 Pac. 829. 42 DISCOVERY AND LOCATION. Subsequent Deepening of Shaft. Where the discovery shaft has not reached the legal depth at time of record, but has been completed to that depth afterwards and before any adverse rights have intervened, such discovery shaft is valid. This is a matter of course on the general ruling as to performance of the various acts of location being suf- ficient in all instances where complete before third parties assert rights, though not within the statutory period. McGinnis v. Egbert, 15 M. R. 329, and cases there cited. Discovery Must Show Well Denned Crevice. Besides reaching a certain depth, a well defined crevice must be found in the shaft. Cheesman v. Shreeve, 40 Fed. 787; 11 M. R. . "Crevice" means a "mineral bearing vein." Seals v. Cone, 62 Pac. 958. If a crevice does not show in ten feet, the shaft must go deeper; if it appear sooner, the ten feet must still be completed. The crevice shows the lode dis- covered, the depth shows the lode appropriated; even before the passage of any ten-foot shaft law, such a crevice was required to be shown, as decided by Hon. Judge Belford upon the location of the Bowman lode; but in the Eagle-Badger injunction case, decided at Denver, Hon. Judge Wells, while holding the neces- sity of a discovery shaft of the depth fixed by statute, also ruled that the term "crevice" must be taken in connection with the nature of the deposit,' and that if, as was suggested, the Mt. Lincoln discoveries were not true veins or fissures, the shaft might pass en- tirely through the deposit and still remain a valid monument of occupation. It Need Not Contain Ore or Mineral, but it must show mineral bearing rock that is the gangue or crevice nJRrial of the vein Copper Globe Co. v. All- mann, If Pac. 1020 and it is error to omit this, as one of the essential elements of a discovery DISCOVERY AND LOCATION 43 shaft in an instruction purporting to define such ele- ments. Bryan v. McCaig, 10 Colo. 309. It need not show pay ore. Muldrick v. Brown, 61 Pac. 428. Discovery Shaft Need Not Show Wall. It has been decided in Montana (Foote v. Na- tional Co. 9 M. R. 605) that at least one wall of the lode must be disclosed before the vein can be consid- ered as discovered. But this decision makes the dis- covery dependent upon a single incident, which is not by any means the only proof of the existence of a vein. This case, as well as O'Donnell v. Glenn, 19 Pac. 302, are based on a requirement^ of the Montana Statute to such effect (since repealed), and not upon reason or the nature of the subject-matter, and have therefore no pertinency to discoveries made under the regulations of an entirely different Statute, or in ter- ritory where there is no statutory regulation' of the subject. Fleming v. Daly, 55 Pac. 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 de- velopment, 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. 4 M. R. 441; Waterloo Co. v. Doe, 56 Fed. 685. Discovery in Broken Ground. It is a common incident to find the lode at sur- face with its sides and body more or l^L shattered, or perhaps with the entire top of the v^p broken over with the adjacent country. Such a lode is never- 44 DISCOVERY AND LOCATION. theless in place. The shattering and breaking over are only mechanical accidents and no more destroy the position of the vein as a thing in place than a fault breaks the legal continuity of a vein followed on its strike. Jones v. Prospect Co. 31 Pac. 642. Separate Discovery for Each Claim. The attempt to locate two full claims upon one discovery shaft is a palpable fraud. 16 L. D. 1; Mc- Kinstry v. Clark, 4 Mont. 310; Reynolds v. Pascoe, 66 Pac. 1064. It is sometimes alleged that two lodes cross in the discovery 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 except Utah, California and Alaska 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 Su- preme Court have ruled in two cases that it need not be ten feet deep, nor any specific depth, at the breast, but that the adit must be ten feet in length along the vein. Gray v. Truby, 6 Colo. 278; Electro Co. v. Van Auken, 9 Colo. 204. 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 iflfy on this construction, and no prospector should consider his discovery complete until he has DISCOVERY AND LOCATION. 45 ten feet in depth at the breast of his cut, or a covered adit at least ten feet in along the vein. The words cross-cut and tunnel are identical terms, except that the former is usually applied to short workings and the latter to those of greater length. In States which have no such statute the law is the same upon general principles. It can make no difference to the government nor to the rights of other prospectors whether the discovery be by verti- cal or horizontal cutting. Either mode complies with both the letter and the spirit of the law. Secret Underground Discovery. The only class of discoveries which would sug- gest any difficulty is where, by extending the works of an old claim, the drift or an underground cross- cut or other working, passes beyond the claim and discloses either a new vein, or the extension of the old vein into clear ground. We can not see any ob- jection to locating such claim upon the discovery so made below, the notice being placed on surface at the proper point above the underground discovery and referring to such point of discovery. In Little Gunnell Co. v. Kimber, 1 M. R. 536, a secret underground working from an old claim was not allowed to hold as a valid basis for re-location of an adjoining claim, but that decision was upon the letter of the Colorado Statute concerning re- locations which in terms requires a shaft to be sunk or other new opening to be made, nor had such secret discovery been followed by proper surface notice. 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 46 DISCOVERY AND LOCATION. 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 placing notice, no distinction exists in the process of locating and recording between these cases and those of surface discoveries. Discovery in Statutory Tunnel. Where a lode is cut in a tunnel located and re- corded so as to claim -the rights of a prospecting tunnel under the Act of Congress (Sec. 2323) we advise where practical a posting, staking and record- ing of each lode as it is cut, exactly as in the case of discovery in an unrecorded cross-cut. But it has been held that such discovery in a located tunnel is good and will hold without any staking on the sur- face against a subsequent surface discovery. Ellet v. Campbell, 18 Colo. 510. In the case referred to a notice had been posted at the mouth of the tunnel and a record had been made reciting the discovery in the tunnel and claiming the proper length and width, but not giving surface boundaries. This case was affirmed in the Federal Supreme Court, so that the question has now received final judicial construc- tion. The Court, however, concede that it may be true, as suggested in previous Editions of the Mining Rights, that before a patent can be secured to the lode there must be a surface location. Campbell v. Ellet, 167 U. S. 116. 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. Breivster v. Shoemaker, 63 Pac. 309. 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, 9 M. R. 498; Hauswirth v. Butcher, 4 Mont. 299; Gohres v. III. Co. 67 Pac. 666; Deeney v. Mineral Co. Id. 724- These decisions are DISCOVERY AND LOCATION. 47 v not made upon local statutes, but as the construction of R. S. Sec. 2324, above printed; nor can we see how any other construction can be contended for. It fol- lows, therefore, that since May 10, 1872, surface stak- ing 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 suggests the time arrived to "prove up" and take his neighbor's lode. This is not a forced illustration it is the very evil which the law is in- tended to prevent. Gleeson v. Martin White Co. 9 M. R. 429; Gonu v. Russell, 12 M. R. 630; Gilpin Co. v. Drake, 8 Colo. 586; Sweet v. Webber, 7 Colo. 443. Posting the discovery notice is not the equivalent of marking the surface boundaries. Doe v. Waterloo Co. 70 Fed. 456. Corners Set on Prior Claims. The setting of stakes on prior locations or pat- ents has been held valid. Such surveys are sustained with the reservation that such technical trespass is accomplished without breach of the peace. Del Monte Co. v. Last Chance Co. Ill U. S. 55; Bunker Hill Co. v. Empire State Co. 109 Fed. 538; 30 L. D. 420; 31 Id. 121. The Locator Owns Only What His Lines Enclose, although not chargeable with fault in making them. It is better for him to lose part of the lode than to 48 DISCOVERY AND LOCATION. make title dependent on the result of developments made after lines have been chosen. Iron Silver Co. v. Elgin Co. 15 M. R. 641. Three Months to .Complete Staking is the time al- lowed by implication from the Colorado Stat- ute. 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, 15 M. R. J/72. Even if the setting of his stakes is delayed be- yond the period of three months, the location is not invalidated where no adverse rights have intervened. McGinnis v. Egbert, 15 M. R. 329; Crown Point Co. v. Crismon, 65 Pac. 87. When the time to complete staking is not fixed by statute or district rule, a reasonable time is al- lowed. Twenty days has been held to be a reasonable time. Doe v. Waterloo Co. 10 Fed. J/56. All Statutes Limiting Time to perfect location and record are directory where there is but a single claimant, or but one set of claimants, and delay be- comes material only where the rights of third par- ties have intervened. Diagram of Location. The diagram of a lode correctly located, under the present Colorado law (Act of 1874), will show substantially as follows: DISCOVERY AND LOCATION. 49 Post Post Post Discovery Shaft** Location Stake Post Post Post ELEMENTS OF LOCATION. 1st. Discovery Shaft at least ten feet deep from the lowest part of the rim at the surface, and show- ing a well-defined crevice. 2d. Location Stake; a plain sign or notice con- taining the name of the lode, the name of the lo- cator, and the date of discovery. 3d. Center Stakes; two substantial side posts sunk in the ground and hewed on the side which is in toward the claim. These side posts must be sunk in the center of each side line; that is, in a 1,500 foot claim, 750 feet from each end line. 4th. Corner Stakes; four substantial stakes, one at each corner of the claim, sunk in the ground and hewed 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 iW. 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 void or defective to that extent. That is to say: the theory of the Statute is that a normal loca- tion will cover the apex of a vein and have the right to follow the vein on the dip. If the location fail to cover the apex and the lode dips away from the claim, 50 DISCOVERY AND LOCATION. 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, another question arises. The points arising in this class of cases are consid- ered under "APEX." Locating Without Aid of Surveyor. In locating any class of claim, a survey is always advisable. If the prospector, however, can not procure a pro- fessional surveyor (and it is often impracticable), a reasonable degree of care will suffice to locate his boundaries with certainty sufficient to make the sub- sequent record valid. The record is merely a description of the claim as staked on the ground; if not properly staked the record does not make a good location, but if the loca- tion has been properly made, the record can readily be made to describe it fully, whether such location has been made by a surveyor or otherwise. The discovery shaft being taken as the center of the claim and the initial point of location, a tape measurement from its center 150* feet 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 an- gles to this line and across the center of discovery shaft run a line 750 feet each way along the supposed course of the lode. This gives the center line length- wise of the claim, and from each end of this center line measure 150 feet on each side for the end lines on the same course as the line between the center * Seventy-five feet in Clear Creek, Gilpin, Boulder and Summit Counties, Colorado, and 150 feet in all other coun- ties in that State ; 1 50 feet in North and South Dakota ; and 300 feet in other States and Territories, unless lim- ited to less by district rule. This 75 feet, 150 feet or 300 feet is of course one-half the width of a 150, 300 or 600 foot wide claim. DISCOVERY AND LOCATION. 51 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 cen- ter, with an offset of 150 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 lines to be measured on a prospector's sur- vey, and the six points at which stakes are to be set: Corner Center Stake Corner \Df'scovery 'Shaft Corner Center Stake Corner Staking and Marks on Stakes. At each of the four real corners of the claim, at the center of each side line and at each extra angle made in the claim, set a substantial stake, blaze it and mark the blazed part with its proper number and the name of the lode. In addition to the number write "North center side stake," "South cen- ter side stake," "N. E. Cor.," etc., as the case may be, and put the name of the lode on each stake. The Statute of Colorado requires each stake to be hewed or marked on the side or sides in toward the claim. This would be satisfied by blazing alone, but it is customary to shave the in side (which in- dicates 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 suf- ficient in a Utah case. Warnock v. DeWitt, 40 Pac. 205. Review of citations on the point of sufficient staking. Howeth v. Sullenger, 45 Pac. 841. 52 DISCOVERY AND LOCATION. Numbering the Corners. Any corner may be called No. 1; call the other corner on the same end line No. 2, and proceed thus continuously around the claim, setting an additional corner post at each angle of the claim. Even in of- ficial surveys there is no uniform rule as to which corner is numbered one. 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 con- sidered as substantially in the center; but on the other hand, they held that if the corner posts were properly on the ground, the absence of center stakes did not invalidate the location. Pollard v. Shively, 2 M. R. 229. Tying the Claim. In addition to staking the boundaries it is essen- tial to have sufficient ties by which to identify the claim in the location certificate. The use of 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, neigh- boring shafts or shaft-houses. Anything which is a "natural object" or "permanent monument" (and reasonably substantial and prominent) is sufficient to identify the claim. Prom the center of the dis- covery and from at least one of the corner posts, take careful measurements of the exact distance to such monuments (the most prominent possible un- der the circumstances) as have been selected to use in the location certificate to tie, describe or identify the claim. DISCOVERY AND LOCATION. 53 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, "a double spruce tree," has been declared a sufficient monument. In certain places trees might be the only objects available, and have been considered good boundary monuments or witnesses from time im- memorial. A neighboring shaft or a prominent post firmly fixed in the ground is a good monument. Jupiter Co. v. Bodie Co. 4 M. R. 412. Mountain peaks are good calls. Craig v. Thompson, 10 Colo. 517. Calling for Adjoining or Neighboring Claims. The earlier decisions were to the effect that a call for another mine or claim was not a call for a permanent monument, and that a location certificate having such a call and no other, or no other suf- ficiently specific, was not a compliance with R. S. Sec. 2324. Baxter Co. v. Patterson, 3 Pac. 741; Drummond v. Long, 1.1 M. R. 510; Gilpin Co. v. Drake. 8 Colo. 586. As late as 1896 an extreme ruling to the s^rne effect was made in an Idaho case, Brown v. Levan, 46 Pac. 661; overruled in 1902 by Morrison v. Regan, 67 Pac. 955. There the first call was "about one-half mile from the Hurt Mines, the direction be- ing Southwest." That call of itself was indefinite enough, but the paper also called for three adjoiners. The Statute of Idaho (at that time) required adjoin- ing 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 it- self 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 certificate. 54 DISCOVERY AND LOCATION. All the later cases hold that a call for even a single claim, either as an adjoiner or near neighbor, makes a sufficient description. That a mine or min- ing claim may be a permanent monument and that if not so developed or known as to be a permanent mon- ument the proof of such fact is upon the objecting party. Book v. Justice Co. 58 Fed. 106; Riste v. Mor- ton, 49 Pac. 656; Kinney v. Fleming, 56 Pac. 723; Seidler v. Lafave, 20 Pac. 78.9, overruling the Baxter case, supra; Shattuclc v. Costello, 68 Pac. 529. A notice calling for adjoiners on all four sides was held valid, although the claim was described as in a quarter section different from the true one. Duryea v. Boucher, 7 Pac. 421. Description by Metes and Courses Not Essential. A record based on a location made as above di- rected, the corners and side stakes being marked and the notice set, which so identifies the situation of the claim (by reference to natural objects or permanent monuments tied to its discovery shaft or corners) that it may be readily found by a stranger examining the record, and for courses calls for some certain gen- eral direction and otherwise complies with all the statutory requirements herein stated is as valid as one which calls for degrees, minutes, metes- and bounds. The Terms Southerly, Northerly, Etc., as used by miners in location certificates and notices, are not to be read as due south or due north so as to defeat the location. Smith v. Newell, 86 Fed. 56; Glass v. Basin Co. 55 Pac. MJfi. See p. 38. Precautions at Time of Location. The side and corner stakes being properly set, the location stake fixed and properly inscribed, and the distance to ties or monuments measured, take the precaution at the time to measure the depth of the discovery shaft to see that the full ten feet in depth exist, recollecting that the collar is apt to cave DISCOVERY AND LOCATION. 55 in and the bottom to fill up with soil, inviting an attack on the location for want of legal discovery. Note the exact result of this measurement on the location stake. Size of Stakes, Etc. The statute says that the posts shall be sub- stantial and shall be sunk in the ground. The Land Office Regulations, which are more specific, 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. It is not essential to put the name of the claim on the boundary stakes. Smith v. Newell, 86 Fed. 56. Trees, Stumps and Boulders As Corner Posts. In Pollard v. Shively, 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 call- ing 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, 15 M. R. 404; Hanson v. Fletcher, 37 Pac. 480. The L. O. Regulations also recognize both stones and rock in place. Rule 143. Cutting a letter into solid rock held not equiv- alent to a stake. Taylor v. Parenteau, 48 Pac. 505. 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 Stat- utes on this point (p. 27) can not be invoked where the setting of the stakes is merely difficult or incon- venient. Croesus Co. v. Colorado Co. 19 Fed. 78. 56 DISCOVERY AND LOCATION. Where the stakes of one end of a 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 was made where a corner fell upon a railroad embankment. Seals v. Gone, 62 Pac. 949. And as a matter of course, the failure to set them through inadvertence or neglect would be fatal. Patterson v. Tar-bell, 37 Pac. 76. Variation Between Courses and Monuments. As the result of carelessness, accident or defective instruments, 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 monuments control. Cullacott v. Cash Co. 8 Colo. 179; 15 M. R. 392; Book v. Justice Co. 58 Fed. 106; Stonewall Co. v. Peyton, 23 So. 440. But it was held in the Hardin Lode case, 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 satis- fied by a "stump" and further, that in the case of possessory claims the monuments must be kept up so as to be found upon the ground and that other- wise the calls in the location certificate must control, observing that this ruling was essential to prevent the danger of swinging locations. Maintaining Stakes. Once properly set stakes have performed their original office and their subsequent removal or ob- literation not done by the act of the party does not vitiate the claim. Book v. Justice Co. 58 Fed. 107; McEvoy v. Hyman, 15 M. R. 397; Smith v. Newell, 86 Fed. 56. But where not maintained, a misdescription in the record, otherwise immaterial, may become serious, if not fatal, because to correct courses or other errors by monuments the monuments must, in general, be found upon the ground. DISCOVERY AND LOCATION 57 A Location May Be Made By An Agent, and in such case written authority is not essential. Hurley v. Ennis, 12 M. R. 360; Schultz v. Keeler, 13 Pac. 481; Rush v. French, 25 Pac. 816; Dunlap v. Pat- tison, 42 Pac. 504. In such case the location certifi- cate should be signed by writing the name of the principal, followed by that of the agent "Barton A. Hopkins by J. Mason Hall, agent." In writing names on stakes and notices this is unnecessary write only the name of the principal because such signing is not : a signature and it is immaterial by whom done so that the act is recognized or adopted by the party whose name is used. Even in subscribing the loca- tion certificate the names are often written by the party who makes out the body of .the paper (without any mention of agency), and we do not apprehend that this invalidates the document. Such writings are obviously of a class different from deeds, notes? etc., where a name can be legally subscribed as a rule only by the party himself or by one fully authorized so to do by power of attorney or other formal author- ization. Morton v. Solambo Co. 4 M. R. 463; Gore v. McBrayer, 1 M. R. 645: Morrison v. Regan, 67 Pac. 955. A Corporation May Locate. This has been expressly decided in the cases of McKinley v. Wheeler, 130 U. 8. 630, and Thomas 'v. Chisholm, 13 Colo. 105. It is required only that it be chartered under the laws of some federal State or Territory. As to the citizenship of its stockholders, see Doe v. Waterloo Co. 70 Fed. 463. Minors. The case of Thompson v. Spray, 72 Gal. 531, holds that a minor child may make a valid mining loca- tion. Location Prevented by Colluding Co-Tenant. If the staking and record are in fact not made the claim never becomes perfected, although the rea- 58 DISCOVERY AND LOCATION. son be that a co-owner violated his duty by colluding with third parties and allowing them to take up the ground. The sole remedy of the injured party is by appropriate action against his co-owner, based on his fraud. Lockhart v. Wills, 54 Pac. 336. Irregular Locations Fractions. The contemplation of the law is that a lode claim should be substantially a parallelogram. Del Monte case, 171 U. 8. 84. But it seems that with the limita- tion that the length may not exceed 1,500 feet^nor the width 600 feet a location may be made in any con- venient shape, the only loss from such form of survey being that no extralateral rights can be claimed for a Survey which has not parallel end lines. Sur- veys in the shape of a horse shoe and in the shape of a triangle respectively were considered in the Stone Lode case, 15 M. R. 641, and in Montana Co. v. Clark, 16 M. R. 80. In the North Star case, 83 Fed. 658, both patents were of no conformable shape, but each of them had issued on a consolidation of claims located before 1872. "There is liberty of surface form under the Act of 1872." Walrath v. Champion Co. 171 U. 8. 312. Where a fraction is found lying between older Surveys it may be staked so as to make a claim in the exact shape of the vacant ground or, it would seem, under the authority of the Del Monte case, supra, the claimant can set his corners on the older claims and thus secure parallel end lines and the extralateral rights which would be denied if he con- fined himself to the lines proper of the fraction. A wedge shaped fraction is valid for what clear ground it covers. Crown Point Co. v. Buck, 97 Fed. 462. Locating Across the Strike. The loss of extralateral rights by such location is considered under APEX. In Walsh v. Mueller, 40 Pac. 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 STATUTORY REQUIREMENTS. 59 predicated upon such fact standing alone. It simply loses the right to follow on the dip and the surface beyond the proper distance from center of vein is open to hostile location, as explained by diagram on p. 25. Sunday. In Union Co. v. Leitch, 64 Pac. 829, the first act of location was done on a Sunday and in the subse- quent contest no point was made on this fact. TABLE OF STATUTORY REQUIREMENTS. Indispensable Federal Requirements. Whether required or not by State Statute or Dis- trict Rules, the Federal Statute requires that the lo- cation must be distinctly marked on the ground, so that its boundaries can be readily traced, and the location certificate must contain (1) the name or names of the locators, (2) the date of the location and (3) such a description of the claim or claims located by reference to some natural object or perma- nent monument as will identify the claim. R. 8. Sec. 2324. Taking Colorado as a basis for the manner of locating and recording lode claims, the difference in the regulations of the other States and Territories of the Pacific slope is noted in each paragraph num- bered to correspond with the Colorado table below: Before filing his location certificate the discov- erer is required by Statute in Colorado. 1. To place at the point of discovery, on the sur- face, a notice containing 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 showing a well de- fined crevice. 60 STATUTORY REQUIREMENTS. 3. To mark the surface boundaries by six posts, 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 suffices instead of the ten-foot shaft. 5. Within three months from date of discovery he must file a location certificate with the County Recorder giving a proper description of the claim and containing also the name of the lode, the name of the locator, the date of the location, the number of feet in length on each side of the center of the discovery shaft and the general course of the lode. Alaska. On June 6, 1900, Congress passed an Act purport- ing to be a full code of Statute Law for this Terri- tory.^ 8t. L. 321. It leaves the status of mining titles the same as in those States which have but few statutory regu- lations. It provides for three Recording Divisions and these Divisions are to be subdivided into Recording Districts, for each of which is provided a recorder. The Clerk of the Court is ex officio recorder of all that part of any Recording Division not set off into recording districts. Until the above District Recorders are appointed the miners may appoint a recorder of any organ- ized local mining district. Sec. 16. There is obvious confusion in these provisions, but it seems evident that the office of the recorder of the recording district is the place where records are ultimately to be filed. The Act allows ninety days after discovery for the record, and while by its general terms necessarily requiring a discovery and such marking of bounds and description as are everywhere required by the STATUTORY REQUIREMENTS. 61 terms of R. S. Sec. 2324, ante p. 27, it does not re- quire a discovery shaft or any other special condi- tion. Sections 15 and 26 of the act are printed under the heading ALASKA. Arizona. 1. Erect at point of discovery stone monument three feet high, or a post four feet above ground, on which, post notice containing same as Colorado, add- ing length and width, distance from discovery to each end, the general course and the locality of the claim by reference to natural object or permanent monument. 2. Within ninety days from time of location, sink discovery shaft ten feet deep showing a lode, deposit or mineral in place. 3. Within ninety days, mark boundaries by six posts or stone monuments, same as Colorado; posts must be four feet above ground; stone monuments three feet high. 4. Same as Colorado; amount of work must be equal to a shaft ten feet deep and four feet wide by six feet long. 5. Within ninety days from time of location, record with the County Recorder a copy of the lo- cation notice posted. California. No statutory regulations. A Mining Code was enacted in 1897, but repealed in 1899. The manner of staking and other incidents of location are con- trolled by district rules, and R. S. Sec. 2324. See p. 21. These rules usually prescribe time for filing location certificate, and by Sees. 1159 and 1169, Civil Code, 1901, a record with the County Recorder seems to be required. Idaho. 1. At time of discovery erect monument at place of discovery showing a notice same as Colorado, add- 62 STATUTORY REQUIREMENTS. ing distance claimed along vein each way from monu- ment. 2. Within 60 days "after such location" sink dis- covery shaft 10 feet deep and of not less than 16 square feet area. 3. Within 10 days after discovery mark bound- aries by monuments at each corner and at each angle in side lin^s, marked with name of claim and cor- ner or angle it represents. Monuments must be 4 feet above ground; posts or trees must be 4 inches square or diameter, and hewn and marked on side facing discovery. 4. Any excavation which cuts the vein 10 feet deep and measures 160 cubic feet in extent shall be sufficient. 5. Within 90 days after location file with County Recorder or Deputy Recorder of Mining District a substantial copy of "notice of location" (see No. 6) with affidavit of one of locators attached, that he is a citizen of the United States or declared his inten- tions; that he is acquainted with the ground claimed and that no part has been. located, or if located, that it has been abandoned by failure to perform labor, and that he has done 10 feet of new work. 6. At the time of marking boundaries post at discovery monument a notice of location containing same as No. 5, Colorado, and adding distance on each side of middle of vein, distance and direction from discovery monument to natural object or permanent monument and the name of Mining District, County and State where claim is located. Montana. 1. Same as Colorado, adding date of location, the number of feet in width on each side of vein and general course of lode. 2. Sixty days from date of posting sink shaft 10 feet deep showing well defined crevice or valuable deposit. STATUTORY REQUIREMENTS. 63 3. Thirty days to mark boundaries by tree, rock in place, post or stone at each corner or angle of claim, and marked to designate the corner. Posts must be 4 inches square by 4 feet 6 inches long, one foot in ground and mound of earth or stone 4 feet in diameter and 2 feet high placed around the post. If a stone, not a rock in place, is used, it must be 6 inches square by 18 inches long, set two-thirds its length in the ground. 4. Same as Colorado. 5. Within 60 days from posting notice file with Clerk of County a declaratory statement containing same as Colorado and adding the width on each side of vein, dimensions and location of discovery shaft and location and description of each corner with the markings thereon. This statement must be verified by the locators, showing that the location has been made in good faith and that the matters therein stated are true. Nevada. 1. Same as Colorado, adding length each way from discovery, width on each side of vein, and gen- eral course of lode. 2. Before expiration of 90 days from posting sink shaft 10 feet deep to show a lode or deposit of mineral in place. 3. Within 90 days mark boundaries by a tree or rock in place or setting a post or stone same as Colorado, and marked to designate the corner. Posts must be 4 inches square by 4 feet 6 inches long, set one foot in ground with mound of stone or earth, 4 feet in diameter and 2 feet high. If a stone, not a rock in place, is used, it must be 6 inches square by 18 inches long, set two-thirds its length in the ground. 4. Same as Colorado. Amount of work must be equal to a shaft 10 feet deep, 4 feet wide and 6 feet long. 64 STATUTORY REQUIREMENTS. 5. Within 90 days from date of posting record with Mining District Recorder and County Recorder, a location certificate containing same as Colorado, and adding width on each side of vein, dimensions and location of discovery shaft, and location and de- scription of each corner, with the markings thereon. Recording with county recorder is required whether there is a district recorder or not. New Mexico. 1. Post in some conspicuous place on location a notice in writing stating thereon the name of the locator, his intention to locate the claim, and a de- scription of the claim, by reference to permanent monument. 2. Within 90 days from date of taking posses- sion sink a discovery shaft to a depth of at least 10 feet, exposing mineral in place. 3. Mark surface boundaries by four substantial posts or monuments set at each corner of the claim so as to distinctly mark the claim on the ground so that its boundaries can be readily traced. 4. Same as Colorado. 5. Within three months after posting notice record a copy in the office of the Recorder of the County. North Dakota. 1. Same as Colorado, adding length on each side of discovery and width on each side of lode. 2. Within 60 days from uncovering lode sink discovery shaft sufficient depth to show well defined mineral vein or lode. 3. Same as Colorado, adding two posts, one at center of each end line, marking posts with name of lode, and the corner, end or side of claim they re- spectively represent. 4. Same as Colorado. 5. Within 60 days from date of discovery record in office of Register of Deeds a location certificate STATUTORY REQUIREMENTS. 65 containing same as Colorado, adding width claimed on each side of vein. Oregon. 1. Same as Colorado, adding length each way from discovery, width on each side of lode, general course of lode, and reference to natural object or permanent monument. 2. Within 60 days from date of posting, sink discovery shaft 10 feet to show a lode or vein of min- eral deposit in place. 3. Within 30 days after posting, mark bound- aries by six posts or mounds of earth and stone, one at each corner and one at center ends of claim; posts 3 feet above ground, 4 inches square or diame- ter; mounds 2 feet high. 4. Same as Colorado, but open cut must be at least 6 feet deep, 4 feet wide and 10 feet in length along the lode. 5. Within 60 days after date of posting, record with Recorder of conveyances, if there be one, other- wise with Clerk of County, a copy of the notice posted, attaching thereto an affidavit showing that required location work was performed. NOTE. By Sec. 3829, Hill's A. L., only one claim, by location, may be held upon each lead or vein, by the same person ; the discoverer of any new lead or vein, not pre- viously located upon, is allowed one additional claim. South Dakota. 1. Same as Colorado, adding length on each side of discovery and width on each side of lode. 2. Before filing location certificate sink shaft 10 feet deep to show a well defined mineral vein or lode. 3. Same as Colorado, adding two posts, one at center of each end line, marking posts with name of lode and the corner, end or side of claim they respec- tively represent. 4. Same as Colorado. 66 STATUTORY REQUIREMENTS. 5. Within 60 days from date of discovery, record in office of Register of Deeds, a location certificate containing same as Colorado, adding width claimed on each side of vein. On filing the location certificate, the Register furnishes the locator with a certificate, and it, or a copy, must be posted on the same post or tree where the original notice is posted, and in a conspicuous place. If not posted within 90 days from date of original notice the claim is deemed abandoned. Utah. 1. At time of making discovery erect a monu- ment and place thereon a notice containing same as Colorado, and adding length each way from discov- ery, width -on each side of vein, general course of lode and description with reference to natural object or permanent monument. 2. Regulated by District Rules. 3. Claims must be distinctly marked on the ground so that the boundaries can be readily traced. Details of marking left to District Rules. 4. Regulated by District Rules. 5. Within 30 days from date of posting the loca- tion notice, file for record in office of County Re- corder, if claim be situate without and beyond an original mining district, a substantial copy of the notice of location. NOTE. The Acts of 1899, page 26, allow districts to be organized, but provide that the nearest boundary line of district shall not be within 10 miles of the office of any County Recorder. Also, that where location certificate is filed with Dis- trict Mining Recorder, it must be filed in duplicate, which duplicate the District Mining Recorder sends to the County Recorder to be by him recorded. Washington. 1. Post at the discovery, at the time of discov- ery, a notice containing same as Colorado. 2. Within 90 days from date of discovery sink shaft 10 feet deep. This requirement of shaft does RECORD. 67 not apply to any mining claim located west of the summit of the Cascade mountains. 3. Within 90 days mark boundaries by substan- tial posts or stone monuments, bearing name of lode and date of location, at each corner of claim. Posts and monuments not less than 3 feet high; posts not less than 4 inches in diameter. Brush must be cut away and trees must be blazed along lines of claim. 4. Same as Colorado, except that cross-cuts are not mentioned. 5. Within 90 days from date of discovery, re- cord in office of the Auditor of County, a notice con- taining same as Colorado (except no specific require- ment that it contain name, of lode). Wyoming. 1. Same as Colorado. 2. Within 60 days from date of discovery sink a discovery shaft 10 feet deep. 3. Mark the surface by six substantial monu- ments of stone or posts, placed and marked same as Colorado. 4. Same as Colorado. 5. Within 60 days' from date of discovery record with County Clerk a location certificate containing same as Colorado, adding width on each side of dis- covery shaft, and describing claim, if on surveyed land, by such reference to section or quarter section corners, as shall identify the claim beyond question. RECORD. Essentials of Location Certificate. R. S. Sec. 2324. * * * All records of mining- claims hereafter made shall contain the name or names of the locators, the date of the location, and such a descrip- tion of the claim or claims located by reference to some natural object or permanent monument as will identify the claim. * * * Sec. 5 f A. C. May 1Q, 1872. 68 RECORD. Colorado Statute Time to File. M. A. S. Sec. 3150. The discoverer of a lode shall, within three months from the date of discovery, record his claim in the office of the recorder of the county in which such lode is situated, by a location certificate which shall contain : First The name of the lode. Second The name of the locator. Third The date of location. Fourth The number of feet in length claimed on each side of the center of discovery shaft. Fifth The general course of the lode as near as may be. Feb. 1%, 181$. Indefinite Record Void. M. A. S. Sec. 3151. Any location certificate of a lode claim which shall not contain the name of the lode, the name of the locator, the date of location, the number of lineal feet claimed on each side of the discovery shaft, the gen- eral course of the lode, and such description as shall iden- tify the claim with reasonable certainty, shall be void. Id. Separate Record of Each Claim. M. A. S. Sec. 3163. No location certificate shall claim more than one location, whether the location be made by one or several locators. And if it purport to claim more than one location it shall be absolutely void, except as to the first location therein described, and if they are described together, or so that it can not be told which location is first described, the certificate shall be void as to all. Id. The Statutory Requirements essential to a loca- tion certificate stated in section 3150 above printed are followed by like statutes in all the mining States and Territories, except California and Alaska. The statutory requirements in the several States, in ad- dition to those above noted, are tabulated, page 59. Where no statutory requirements other than the Federal Statute exist, a certificate following the form below given (page 72) would in any State or Territory fully comply with the requirements of the law. Necessity for Record. The Federal Statute does not in terms require a record to be made, but the above quoted section 2324 presupposes record in some form or at least some written publication of title, under state or district law. To give public written notice of claim was an RECORD. 69 ' almost universal custom before any U. S. mining act was passed. In the early periods this record was made in the office of the district recorder and in some States this custom prevails to the present time, but the general statutory requirement is to make it in the office of the county recorder. The Time to Record the location certificate is fixed by statute in Colorado within 3 months; North and South Dakota and Wyoming, 60 days; Alaska and Washington, 90 days from date of discovery; Utah, within 30 days; Montana and Oregon, 60 days; Nevada, 90 days; New Mexico, 3 months from date of posting notice; Arizona and Idaho, within 90 days from date of location; In California no time is fixed by statute. For proper office or offices in which to file the lo- cation certificate, see Statutory Requirements tabu- lated on page 59. Where there is no organized mining district, and therefore no district recorder, the certificate should always be filed with the county recorder. Recording Location Notice as Certificate. It is a custom in California and in many local districts elsewhere to make the location notice in du- plicate, placing one on the claim and filing the other for record. The same" is the statutory regulation in Idaho, Arizona, Utah, Oregon and New Mexico. The location certificate, or record, everywhere, must con- tain all that is required of the notice besides giving a full description which is not required of the notice. If, therefore, the custom be to make these instruments duplicates, each must contain what is required of the greater and both would have to contain a full de- scription with reference to monuments, to conform to the Act of Congress. If not exact duplicates it is not fatal. Gird v. California Co. 60 Fed. 531; 17 M. R. 70 RECORD. Location Notice, Without Record. It seems undoubtedly true under the decisions, that if the notice contains such full description and no record is required by rule or statute, that none is required by the Congressional act. Souter v. Maguire, 21 Pac. 183; Thompson v. Spray, 14 Pac. 185; Haws v. Victoria Co. 160 U. 8. 303. In such instance the notice, containing the required reference to monuments, makes the location complete without record. But to go as far as the case of Poujade v. Ryan (NevJ, 33 Pac. 660, and hold that no record is required and that the notice need not contain the Congressional de- scription, seems to construe away the force and mean- ing of the Act entirely. Filing for Record is equivalent to record, and subsequent errors or neglect of the officer can not prejudice the locator. Weese v. Barker, 7 Colo. 178; Shepard v. Murphy, 58 Pac. 588. The Record Follows the Location, as the location follows the discovery. The record is a publication of the location, and is therefore called the location certificate. Many of the old forms of these certifi- cates are not sufficiently specific, and the Surveyor- General frequently requires a new record to be made before issuing order of survey upon applica- tion for patent. The Certificate As Proof of the Acts of Location. See EJECTMENT. RECORD. 71 1 J 72 RECORD. Description of Claim Ties. The record contains a description of the claim as staked on the ground. If not properly staked, the record does not make a good location; but if the loca- tion has been properly made, the certificate can read- ily be written so as to describe it fully, whether lo- cated by a surveyor or otherwise. The essentials of a valid location certificate are stated concisely in sections 3150, 3151 and 3163 above printed, and a form is given below. The discovery shaft should always be treated as an essential point of description, and tied to some near and prominent monument, with course and dis- tance therefrom, because it is a much more permanent monument than any stake or corner. In addition, one or more corners should be tied to other "natural objects or permanent monuments," a government corner or discovery shaft of an ap- proved survey being unobjectionable. FORM OF LOCATION CERTIFICATE. KNOW ALL MEN BY THESE PRESENTS, That I, Edmund H. Lunken, of the City and County of Denver, State of Colo- rado, claim by right of discovery and location, fifteen hun- dred feet, linear and horizontal measurement, on the CAR- DINAL LODE, along the vein thereof, with all its dips, varia- tions and angles ; together with one hundred and fifty feet in width on each side of the middle of said vein at the sur- face; and all veins, lodes, ledges, deposits and surface ground within the lines of said claim ; seven hundred and fifty feet on said lode running north 88 east from the center of the discovery shaft, and seven hundred and fifty feet running south 88 west from said center of discovery shaft. Said claim is situate on the eastern slope of Bull Hill in Cripple Creek Mining District, County of Teller, State of Colorado, and is hounded and described as follows, to wit : Beginning at corner No. 1 (northwest corner of claim), from ivhich deep shaft of Manning Lode bears N. 2 E. 70 feet and running thence 8. 2 E. 300 feet to corner No. 2; thence N. 88 E. 750 feet to south-center stake; thence same course 750 feet to corner No. 3; thence N. 2 W. 3SO feet to corner No. k (northeast corner), from which Hazed' pine tree 2 feet in diameter marked "F," bears N. 8 W. 22 feet; thence 8. 88 W. 750 feet to north-center stake, and thence same course 750 feet to the place of beginning. RECORD. ^ 73 From discovery shaft; corner No. 2 of Neivman Lode, survey lot No. 787, bears B. 45 E. 280 feet., and discovery shaft of Wiseman Lode bears S. J t 5 W. 275 feet. Date of discovery, January 2, 1903. Staked and lo- cated February 2, 1903. Date of certificate, February 3, 1903. EDMUND H. LUNKEN. ATTEST W. E. SoRelle. The above form corresponds in ties and courses to the diagram on page 71. Descriptive Defects in Location Certificate. In addition to the cases cited on page 63 under "LOCATION," there are certain other decisions in particular requiring mention because of their ten- dency to condone very vague records. The most material of these cases, because de- cided by the Court of highest authority, is that of Hammer v. Garfield Co. 16 M. R. 125. There, the opinion, after stating that "a reference to some nat- ural object or permanent monument" is required, says: "Of course the section means when such ref- erence can be made." And it then proceeds to up- hold a record whose only call or tie was "about fif- teen hundred feet south of Vaughn's Little Jennie Mine." The opinion further treats the claim's own stakes as sufficient monuments. It was with refer- ence to this case that HALLETT J. on objection being made in the Circuit Court to an indefinite record, overruled the objection with the observation "The Supreme Court has repealed the Statute on this point." In Gamer v. Glenn, 20 Pac. 654, a "large bowlder at the west end of the Tim lode" was the starting point. This was the only monument. Adjoiners were named, but it was proved that no such claim as the "Tim" was known or existed. The record was maintained. The test applied in this case was a fair and reasonable one in its terms, to wit: it must be a description which would enable a person of reason- able intelligence to find the claim and trace its 74 ^RECORD. boundaries. Cited and followed on very similar rec- ord in Bramlett v. Flick, 57 Pac. 871. Hanson v. Fletcher, 37 Pac. 480, decided in terms that the claim's own corners were sufficient monu- ments within the "Act, treating them as a complete description without even referring to the attempted tie to another mine about a mile distant. An equally vague description was upheld on the same lines in Credo Co. v. Highland Co. 95 Fed. 911. Both these decisions cite and follow the Garfteld case, supra; Farmington Co. v. Rhymney Co. 58 Pac. 832. The statute requires the location to be "marked on the ground" and also a "description by reference.'' This means and has always been considered to mean a reference to an object or monument distinct from its own stakes or corners, but the above citations go far towards maintaining any record which bounds itself by calling from corner to corner. In Darger v. Le Sieur, 30 Pac. 363, and Brown v. Levan, 46 Pac. 661, the location certificates were held void for indefiniteness; while in Bennett v. Hark- rader, 158 U. 8. 443, it was held that a location cer- tificate with practically no description at all was good. This last case can .not be safely depended on as a precedent to be followed, as the Court proceed to pass finally on the law by holding that an Act of Congress of 1884, 23 Stat. L, 24, validated all claims in Alaska prior to its date without regard to form, if the claimants were in actual possession. A description by the points of the mariner's com- pass was maintained in Hayden v. Brown, 53 Pac. 490. Rule of Construction. Location certificates are of a class to which a lib- eral, not a technical, rule of construction will be ap- plied and any language which will be fair notice to subsequent prospectors will make a sufficient de- scription. Fissure Co. v. Old Susan Co. 3 Pac. 587; RECORD. 75 Morrison v. Regan, 67 Pac. 955; Wells v. Davis, 62 Pac. 3; McCann v. McMillan, Id. 31. But Where the State Statute Requires a Descrip- tion more specific than that implied from the A. C. Sec. 2324, such requirements are mandatory and a record calling only for its own corners is void. Purdum v. Laddin, 59 Pac. 153; the same as to any such statutory requirements prescribing details of location. Copper Globe Co. v. Allman, 64. Pac. 1020. Tying to Locating Monument. In Idaho there must not only be a description by reference to natural object or permanent monu- ment, but such object must be tied both by course and distance to the monument erected at the point of discovery. Clear Water Co. v. San Garde, 61 Pac. 137. Surplusage Misdescription. The addition of statements not pertinent or ma- terial does not vitiate the paper. Preston v. Hunter, 67 Fed. 996. And where there is a false course or a false tie, but after discarding the misleading clause enough remains to fully identify the claim, the rec- ord is valid. Or a mistake in course or distance may be corrected by a call for a monument or some ob- jective point. Smith v. Newell, 86 Fed. 56. The fact that the last call fails to close will not vitiate a location certificate otherwise -regular. Providence Go. v. Burke, 57 Pac. 641. Parol Proof to Connect the Paper With the Thing Described Ultimate Question of "Location Proved" for the Jury. Where the description is uncertain by reason of latent defects that is, where the record has suf- ficient calls, but the Court can not tell from in- spection whether such calls are natural objects or permanent monuments if the paper makes out a suf- ficient description, conditioned that they be such ob- jects or monuments, the certificate will be admitted, 76 RECORD. leaving the jury to decide this as a question of fact. Upton v. Larkin, 15 M. R. 404; O'Donnell v. Glenn, 19 Pac. 302; Russell v. Chumasero, 15 M. R. 508. The sufficiency of the location that is, whether the facts proved show a location complying with the law as the Court gives them the law is for the decision of the jury. Flavin v. Mattingly, 19 Pac. 384; Fissure Co. v. Old Susan Co. 63 Pac. 587. Whether certain monuments of a certain size would mark the boundaries so that they could be readily traced, is for the jury to say. Taylor v. Middleton, 15 M. R. 284. The claimant may by parol, identify the objects called for as permanent monuments. Seidler v. Max- field, 20 Pac. 794; Metcalf v. Prescott, 16 M. R. 137. And a government corner is a, good call, although its true position was seriously disputed. Gird v. Cali- fornia Co. 60 Fed. 531. The Test of Sufficiency. On the same line as the above case of Gamer v. Glenn, and stating the converse of the proposition, the party attacking the certificate may show that a person could not find the premises, taking the loca- tion certificate for a guide. Dillon v. Bayliss, 27 Pac. 725. Contradicting. A location certificate regular on its face may be shown by parol to be false in what it calls for. Dillon v. Bayliss, 27 Pac. 725. Its recited dates may be proved not true. Muldoon v. Brown, 59 Pac. 720. The same case holds that the misdating must be pleaded. But that is to require a party to plead his evidence. The locator is estopped to deny the validity of his discovery or location as against his grantee. Blake v. Thome, 16 Pac. -270; McCarthy v. Speed, 80 N. W. 135. RECORD. 77 Overlapping Stakes. Where a fractional claim was located by stakes all set on or near the lines of the surrounding claims, the staking was upheld. West Granite Co. v. Gran- ite Co. 17 Pac. 547. And the same where through locating in the night the stakes overset on the ad- joiners. Doe v. Tyley, 14 Pac. 375. Immaterial Calls. The statute does not require the certificate to state the distance from the discovery shaft to the side lines. Quimby v. Boyd, 8 Colo. 194. Wrong County. Where the record is made in the right county but a wrong county is called for in the description the error is not fatal. Metcalf v. Prescott, 16 M. R. 137. Like ruling where the record failed to name county or State. Talmadge v. St. John, 62 Pac. 79. Verification. A statute of Montana requires the location cer- tificate, there called the Declaratory Statement, to be verified by one of the locators or by an officer of any corporation locating.- Mattingly v. Leivisohn, 35 Pac. 111. The rulings on what it must contain have been technical if not extreme. McCowan v. McLay, 40 Pac. 602; Berg v. Koegel, Id. 605. A like statute in Idaho requires the verification to show that the locator is a citizen of the United States; that no part of the ground claimed has been located, or if located it has been abandoned or for- feited, and that the locator has opened new ground to the depth of ten feet. Oregon requires an affida- vit showing that the required location work has been performed. Such requirements are legitimate subjects of state legislation under R. S. Sec. 2322. Van Buren v. Mc- Kinley, 66 Pac. 936. 78 RECORD. Priority of Record is so generally involved with questions of priority of location and of continued possession that this point has in most cases less weight than is generally supposed. Record is the inception of the written title, but the actual title of a mining claim, properly followed up, reaches back to the discovery. But if a discovery be not followed by a location and record within the time fixed by the statute, an intervening record becomes the prior title. In other words, the rights acquired by discovery are forfeited by neglect to perfect the title by location and record; and that title which if properly followed up would have dated from discovery, will, if it be not so fol- lowed up, be suspended in favor of any valid record made after the expiration of a reasonable time, or the period fixed by statute, and before any record of such prior discovery. Or a record filed before the statutory period has expired, although based on a junior discovery, be- comes the senior title the moment the time allowed to the first discovery to complete its record has elapsed without such record being consummated. The same rule applies to any senior locator who allows the time allowed for sinking his discovery shaft, to expire before he has reached the required depth and found the required crevice. Actual Possession Without Valid Location or Record. The cases upon this point require careful ex- amination to ascertain the distinctions made and even after such examination manifest inconsistencies appear. One series of cases states that where a party is in actual possession no stranger can invade such pos- session in order to initiate an adverse title; in other words, a prospector can not go upon the claim how- ever invalid or defective, to sink a discovery, set up a notice or plant stakes. Phenix Co. v. Lawrence, 12 RECORD. 79 M. R. 261; North Noonday Co. v. Orient Co. 9 M. R. 524; Weese v. Bar Jeer, 7 Colo. 178; Craig v. Thompson, 10 Colo. 517; Rush v. French, 25 Pac. 816. Certain of these cases hold that he may not in- vade the actual workings then or lately occupied. Faxon v. Barnard, 9 M. R.-516. Others hold that he may not enter within the lines of the claim. Eilers v. Boatman, 15 M. R. 462. The above citations can be justified, within cer- tain limits, on the principle of preserving the peace on the public domain. But their logical result, if taken without qualification, would be that a party in possession could hold by his possession alone, in dis- regard of all the requirements of the State Statute and of the Acts of Congress. On the other hand there are many decisions to the effect that a party, after the lapse of the statutory time to complete location and record, can not hold against a claim later in discovery but which has been the first to complete a valid location and record under the Statute that a miner can hold his claim only by compliance with the regulations prescribed by the owner of the fee (the United States) and the State or district regulations which such owner has author- ized. McKinstry v. Claris, 4 Mont. 395; Noyes v. Black, Id. 527; Hor swell v. Ruiz, 15 M. R. 488; Gar- field Co. v. Hammer, 8 Pac. 153; O-leeson v. Martin White Co. 9 M. R. 435; Sweet v. Webber, 7 Colo. 443; Lalande v. McDonald, 13 Pac. 349; DuPrat v. James, 15 M. R. 341. First Complete Location One Party in Default. The first In time to comply with all the require- ments, after allowing to the one who takes the first step to initiate a title his reasonable or his statutory time to complete the same is the first in law. If the first discoverer fail to sink his shaft within the statutory period, or to stake or record within the time fixed by law (or within a reasonable time where there is no Statute), and a second party 80 RECORD. makes a discovery while the first party is in default, such second party has the statutory time to complete his location and record and will hold the ground against the original discoverer, although such orig- inal discoverer perfects his location and record be- fore the discovery of the second location is complete. We think the language of the two preceding paragraphs is justified by the language of the Su- preme Court in Lockhart v. Johnson, 181 U. 8. 527, and many other cases. Copper Co. v. Allman, 64 Pac. 1020; Gregory v. Pershbaker, Id M. R. 602; Patterson v. Hitchcock, 5 M. R. 542. There is, however, one exceptional case wholly discordant with this proposition that of Omar v. Soper, 15 M. R. 496. In this case the Golden Bell lode was first discovered, put up its notice, sunk its shaft in due time, but did not record until the three months had expired. The Verde had made a discov- ery during the sixty days allowed to sink the Golden Bell shaft, making such discovery beyond the dis- tance claimed by the Golden Bell notice. After the three months allowed to the Golden Bell had expired, and when the Golden Bell was in default but the Verde within its time, the Verde made its survey by such survey taking up ground covered by the Golden Bell notice. The court held that the Verde, though its discovery shaft was sunk on clear ground, was a title initiated by trespass and could not be made the basis of a claim to survey over the Golden Bell territory. No exact rule can be laid down to meet every variation in which the question could present itself, but after conceding that a man's actual occupation of his workings may not be invaded, and that a drift would amount to such actual occupation of the vein for the length of such drift upon the vein above and below; and that an adverse entry would not be al- lowed so near to, although not actually upon, the workings of the prior party as to threaten to provoke a breach of the peace it would seem that after such RECORD. . 81 concessions, the first party having made no record, or no location certificate amounting to a valid record, or having otherwise failed in any essential point necessary to constitute a valid location, the ground would be open to the location and record of a valid claim thereon. Lockhart v. Wills, 54 Pac. 336. The Supreme Court of the United States says "such location is a condition precedent to the grant. Mere possession not based upon a valid location would not prevent a valid location under the law." Belk v. Meagher, 1 M. R. 534. Record Complete Before Adverse Rights Initiated. Notwithstanding delay to record or delay to sink discovery or to set stakes or to find a well-defined crevice or to do any other essential act of location, it has been repeatedly and in many forms held that if at length the record or location be in fact perfected before the hostile title had its inception, that the title to such delayed but finally completed location is perfect as against any later initiated title, and that the last act of location relates back to and the title begins from the original date of discovery. McGinnis v. Egbert, 15 M. R. 329; Preston v. Hunter, 67 Fed. 996. All Parties in Default. In the suit between the Green Mountain and the Ontario it appeared that the Green Mountain was dis- covered in August, 1877, and recorded in March, 1878. The Ontario was discovered in February and recorded in July, 1878. Each had exceeded the three months allowed by law to record and the priority in title (as to this point) was given to the first discovery. It seems that it would have been otherwise if the On- tario, although a later discovery, had completed its record within the three months. Faxon v. Barnard, 9 M. R. 515. The Green Mountain had both first discovery and first record, but with a long interval between. Dur- ing its delay a second discovery had intervened, but 82 RECORD. it also over-stepped the statutory time and so allowed the Green Mountain to secure the first record. This case has been lately approved in Lockhart v. Johnson, 181 U. 8. 527. We have always contended that where all parties are in default in completing their location and record within the statutory periods that the first record based upon a valid discovery and location be- comes a perfected title and takes the ground without regard to priority of discovery. Copper Co. v. All- man, 64 Pac. 1020. Possession During Locating Period. The possession of the prospector during the pe- riod allowed by law to complete his location and record is protected, although he has so far no paper title. Erhardt v. Boaro, 15 M. R. 472; Marshall v. Harney Peak Co. 47 N. W. 290. His location certifi- cate when recorded relates back to the date of his discovery. And no party can intrude within his lines marked out or within the ground which he has a right to cover during that period limited to 750 feet on each end of his discovery, unless his location notice (page 38) fixes the number of feet claimed each way. Bram- lett v. Flick, 57 Pac. 869. Possession Without Valid Location or Kecord After Such Period Elapsed. Possession, at all times, without regard to record, location or even the fee simple, still gives a certain title as against a mere trespasser, upon which eject- ment and other actions may be maintained. Camp- bell v. Uankin, 12 M. R. 257; Hawxhurst v. Lander, Id. 214; Haios v. Victoria Co. 160 U. 8. 303. Long con- tinued possession presumes ownership. Risch v. Wiseman, 59 Pac. 1111. But as we have already inti- mated, such right by possession yields place at once to right by title, when such title is offered and proved. Wilson v. Triumph Co. 56 Pac. 301. It re- quires location to give the right of possession. Jor- dan v. Duke, 36 Pac. 896. See "EJECTMENT." RKCORD. 83 Possession is a title only by sufferance in default of something better it is the starting point, not the goal of title and will not prevail against the fee simple; Gourchaine v. Bullion Co. 12 M. R. 235; or against a title perfected under the district rules; English v. Johnson, Id. 202; or against a complete location and record made in compliance with the law. Sears v. Taylor, 5 M. R. 318. Where neither party perfects a valid location the first in possession has the better right. Neuebaumer v. Woodman, 26 Pac. 900. Trespass Force Fraud. No right can be initiated on government land by force or clandestine entry upon the actual posses- sion of another, whether the location of such other be valid or invalid. Nevada Co. v. Home Co. 98 Fed. 674- Title to a mining claim cannot be initiated by an entry upon a prior valid existing location. Kirk v. Meldrum, 65 Pac. 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 Fed. 277. Defective Record Aided by Possession. In Eaton v. Norris, 63 Pac. 856, the Court consid- ered both the fact of continued possession and the fact that the intruders had admitted knowledge of the prior claim as matters of evidence to aid the older title. These dicta were wholly unnecessary to the decision, as the prior locators had substantial proof of location without these incidents. In Tal- madge v. St. John, 62 Pac. 79, a description calling only for its own corners was held valid by the aid of such possession. But in Brown v. Oregon Co. 110 Fed. 728, it is held in terms that if the prior location is not valid the later comer may locate though with full notice of the prior asserted claim. In general terms, the first who complies with the law in completing his location is the first in right and this complaisant recognition of priority on the ground, and of void notices, as tending to raise a 84 ABANDONMENT. supposed equity, is simply judicial weakness, leading only to uncertainty and injustice. The Oregon Co. case boldly states the law as it shoitld 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. < / ! i - Extensions. j - ; ;^| The paragraph from section 2320, quoted on page 27, of itself disposes of all "extensions" and side claims, unless they be of themselves, howsoever named, independent discoveries and locations. "Ex- tension" is a word often added to the name proper of a location staked off to the right or left of some developed vein, suggestive of the hope, if not the fact, that the new location is planted on the same ore body on its strike. Lode Location Held (rood as Placer, Where a party had located a claim, not describ- ing it as a lode, but of the length and width of a lode claim upon a deposit usually classed as placer, the Court held that placers and lodes are taken up by substantially the same procedure and that if what was done made it a valid mining location it would be sustained as a placer. McCann v. McMillan, 62 Pac. 31. ABANDONMENT. District and Territorial Regulations. The district regulations in early years often de- clared what acts or omissions should amount to an abandonment. Failure to represent or work for a single season or even for a very limited period was usually sufficient cause. As a camp became more or ABANDONMENT. 85 less deserted the miners about to leave frequently met and passed resolutions to the other extreme that all claims should remain valid without any work or representation. Where the district organizations are still pre- served a rule covering or attempting to cover this point may remain valid and enforceable except that a rule requiring less than $100 annual labor would be an infringement upon the Congressional Act. Original Co. v. Winthrop Co. 60 Cal. 631; Northmore v. Simmons, 97 Fed. 386. The legislatures have not attempted the danger- ous matter of defining in terms what amounts to abandonment. The circumstances surrounding each particular case vary too much to make a sweeping rule in all instances fair. Confined to Possessory Titles Associated With Annual Labor. Although the title to mining claims has been at all times of that class which might be lost by aban- donment (Ferris v. Coover, 10 Cal. 631), and although a technical abandonment may at this day be proved with regard to any sort of possessory title, the sub- ject has lost much of its importance except in con- nection with the annual labor acts. A Question of Fact and Intention. Abandonment is a question of fact, and the fact is to be found from the intention. Myers v. Spooner, 9 M. R. 519; Taylor v. Middleton, 15 M. R. 284; Mal- lett v. Uncle Sam Co. 1 M. R. 17 ; Oreamuno v. Uncle Sam Co. Id. 32; Marshall v. Barney Peak Co. 4? A 7 - W. Rep. 290. It is a question of fact for the jury. Aye v. Philadelphia Co. 44 Atl. 555. Desertion and abandonment are equivalent terms. Derry v. Ross, 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 86 ABANDONMENT. to others to occupy it as their own, such manifest proof of intent would establish abandonment; but for all practical purposes the performance of the annual labor is the test, and the law of annual labor involves no question of intent. Depuy v. Williams, 5 M. R. 251; Doherty v. Morris, 11 Colo. 12. Ceasing to work because ore not salable is no abandonment. Hosford v. Metcalf, 84 N. W. 1054. In McCann v. McMillan, 62 Pac. 31, parties who had expressed their intention to abandon and begun to re-locate for a third party were allowed to recall their intention and were held to have not abandoned. A father failed to do the work in 1890. His son re-located in 1891 and afterwards conveyed to the father. The location of 1891 was defective. In a suit by the owner of a later location, Held; that de- fendant, the father, could not recall his abandon- ment and rely on his original title. Niles v. Kennan, 62 Pac. 360. Quitting to Lure. Such a thing as a conditional abandonment can not be recognized. Where the owner allows strangers to hold a claim under color of title, standing by and intending to resume work only in case its develop- ment shows pay, his action amounts to abandon- ment. Trevaskis v. Peard, 44 Pac. 2JjS. How Proved. Lapse of time, though not conclusive, is an in- cident tending to prove abandonment. Mallett v. Uncle Sam Co. 1 M. R. 17; Beaver Co. v. St. Vrain Co. 6 Colo. App. 130. Leaving tools in the mine tends to disprove it. Harkness v. Burton, 9 M. R. 318. Proof that a stranger had relocated ground as aban- doned does not prove that it was in such condition. McGinnis v. Egbert, 15 M. R. 329. Abandonment is not presumed and is to be proved by the party that asserts it. Johnson v. Young, 18 Colo. 625; Nichols v. Mclntosh, 19 Colo. 22. ABANDONMENT. 87 Of Prospect Before Kecord. Where a discoverer by conduct shows an intent to quit and not perfect his location begun, the claim is abandoned and strangers need not await the ex- piration of the prospector's time before locating. Kinney v. Fleming, 56 Pac. 122. Ditches and Water. Failure to use water and allowing ditch to go to decay are evidence tending to prove abandonment. Dorr v. Hammond, 7 Colo. 79; Sieber v. Frink, 7 Colo. 149. But non-user alone does not of itself necessarily imply abandonment. Welch v. Garrett, 51 Pac. 405; Integral Co. v. Altoona Co. 75 Fed. 379; N. A. Co. v. Adams, 104 Fed. 404. A ditch may be abandoned without abandonment of the owner's wa- ter rights. Nichols v. Mclntosh, 19 Colo. 22. Other Subjects of Abandonment. A leasehold interest, water, slag and tailings, are things which may be lost by abandonment. Glasgow v. Chartiers Co. 25 Atl. 232; Barker v. Dale, 8 M. R. 597; Dougherty v. Creary, 1 M. R. 35; McGoon v. AnJceny, Id. 9; Porter v. Noyes, 10 N. W. 77. A pros- pecting contract may be abandoned. Chadbourne v. Davis, 15 M. R. 620; McLaughlin v. Thompson, 2 Colo. App. 135. And failure to supply his outfit to the prospector will justify abandonment. Murley v. Ennis, 12 M. R. 360. Pleading. It has been ruled that abandonment need not be specially pleaded. Bell v. Bed Rock Co. 1 M. R. 45; Willson v. Cleaveland, 30 Cal. 192. But it is no issue when not raised by either pleadings or proof. Cole- man v. Davis, 13 Colo. 98. Where the abandonment is by reason of failure to (Jo annual labor, the deci- sions have generally required a special plea and it is hard to draw a tenable distinction between them. 88 ANNUAL. LABOR. The current of authority is that abandonment must be specially pleaded. Hector Co. v. Valley View Co. 64 Pac. 20.5. See p. 102. Outstanding Abandoned Title. The fact that there may have been locations now abandoned and not claimed by either party renders such outstanding titles of no relevancy to the rights of either. Craig v. Thompson, 10 Colo. 511. ANNUAL LABOR, Annual Expenditure. R. S. Sec. 2324. * * * On each claim located after the tenth day of May, eighteen hundred and seventy- two, and until a patent has been issued therefor, not less than one hundred dollars' worth of labor shall be per- formed or improvements made during each year. On all claims located prior to the tenth day of May, eighteen hun- dred and seventy-two, ten dollars' worth of labor shall be per- formed or improvements made by the *first day of January,, eighteen hundred and- seventy-five, 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 oc- curred 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 following words : "Provided, That the period within which the work required to be done an- nually on all unpatented mineral claims shall commence on *In the Revised Statutes the date printed is June 10, 1874, the compilers having overlooked the second Act ex- tending the time, approved June 6, 1874. 18 Stat. L., part S, page 61. ANNUAL LABOR. 89 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 hun- dred and seventy-two." Approved Jan. 22, 1880. Not Required by Statute Before 1872. Annual labor was not required by either Legisla- tive or Congressional law until after 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 re- ferred to. Their provisions both as to amount re- quired and the period in which to perform are largely if not entirely superseded by the terms of the Con- gressional Act. See p. 7. The idea of annual or periodical labor is not new; it was a part of the Spanish system, and gen- erally prevailed on the Pacific slope. The A. C. May 10, 1872, divided lodes into two classes with respect to labor: First Lodes located before its passage. Second Lodes located after its passage. Claims located Before May 10, 1872. The amount of labor required on all lodes was $10 for each hundred feet, but where claims were held in common, the whole amount of work might be done on one claim. The time for the first work on old lodes was originally fixed to expire May 10, 1873, i. e., one year after the passage of the Act. It was further extended to June 10, 1874, and finally postponed to January 1, 1875. Thompson v. Jacobs, 2 Pac. 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, 90 ANNUAL LABOR. 1875, constituted the period for the first required labor. Where the lode consists of undivided claims of 100 or 200 feet each, as in the case of most locations made before May 10, 1872, any one or more claims may be saved by the expenditure of $10 worth of la- bor to each 100 feet which the owner desires to segre- gate and hold, leaving the remainder to forfeiture; or when the series of claims are held in common, the full amount may be expended on any one claim, whether they were originally recorded as joint or as several locations; but in all cases where less than the amount required to hold the entire lode is ex- pended, the owner, in his proof of labor, should state the work as done for the purpose of holding pnly so many feet, designating where they lie upon the lode. But few claims remain subject to this law. Dur- ing the lapse of time, now more than thirty years, they have been either abandoned or passed on to patent or have been re-located under the Act of 1872. When so relocated they would be governed by the terms of the next subdivision. Claims Located Since May 10, 1872. The various extensions of time for work on old lodes did not apply to the new lodes. The period for the first work was 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 the date of dis- covery, or 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 ANNUAL, LABOR. 91 upon the claim and the clause as to "each 100 feet in length along the vein" not applying to these new loca- tions, it does not seem that a party, by expending any portion of the full amount, can save any frac- tional portion of his lode. But if a party own a segregated 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 ten- ants in common, but to include all the owners, either in common or after they have segregated their inter- ests; the claim seems to be treated as an individual item so far as the relations between the Government and the miner are concerned; if, therefore, all the labor is performed by the owner of the east end, he may claim forfeit of the west end; or if it is all performed by the owner of an undivided half, he is in position to become the sole owner by proper notice under the forfeiture clause upon refusal of the other co-tenant to contribute his proportion. But 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 92 ANNUAL, LABOR. 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 application for patent, does not dispense with the necessity for the annual expenditure. Pending Application for Patent, until entry, the work must be kept up. South End Co. v. Tinney, 35 Pac. 89. Where an applicant after publication delays entry and neglects his annual labor the ground is open to relocation. Gillis v. Doiv- ney, 85 Fed. 483. But see on this point, p. 451. Annual Labor After Entry. It has been decided that annual labor cannot be required after entry in the Land Office, although the patent has not yet been formally issued; and such decision is clearly correct, because the patent, when it issues, relates back to the date of entry, and so satisfies the wording of the Act, which requires the annual labor each year "until patented." Alta Co. v. Benson Co. 16 Pac. 565; 145 U. 8. 428; Aurora Hill Co. v. 85 Co. 15 R. M. 581; L. 0. Reg. 14; 26 L. D. 196: 27 Id. 396; 31 Id. 87. A relocation cannot be made on entered lands so long as the entry stands. Neil- son v. Champaigne Co. Ill Fed. 655; Benson Co. v. Alta Co. 145 U. 8. 428. Nevertheless, in such case, a party runs the risk of the consequences in case his receiver's receipt should be canceled. Swigart v. Walker, 30 Pac. 162. In Murray v. Polglase, 59 Pac. 440, the Receiver's receipt had been set aside for fraud, the annual labor not kept up and there had been a relocation. Held that the claim was lost to the entryman. 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 January 1st, and ending December 31st, ANNUAL LABOR. 93 always noting that since the Act of 1880 no annual labor is required during the year the location is made. Hall v. Hale, 8 Colo. 351; McGinnis v. Egbert, 15 M. R. 329. But a district rule or Statute may im- pose conditions which imply expenditure during the location year. Northmore v. Simmons, 97 Fed. 387. Each Annual Period An Entirety. The owner has the whole of each year to do his $100 worth of work or make his $100 worth of im- provements. BelJc v. Meagher, I M. R. 522; Atkins v. Hendree, 2 M. R. 328; Mills v. Fletcher, 34 Pac. 637. It therefore follows that if, for instance, he has expended $100 during the first m'onth of the first year he may wait until the twelfth month of the second year before he does his second year's work. That such is the law admits of no doubt upon the reading of the Act. At the same time the disposition to take advantage of this fact leads to delays which often ultimate in allowing the whole time to pass by and the claim to become liable to relocation. What Counts for Improvements. Any work done for the purpose of discovering minerals is improvements within the spirit of the statute. U. 8. v. Iron-Silver Co. 24 Fed. 568. Road building counted as annual labor. Doherty v. Mor- ris, 28 Pao. 85; Mt. Diablo Co. v. Callison, 9 M. R. 616. Flumes, drains or the turning of a stream or the sinking of a common shaft will count. St. Louis Co. v. Kemp, 11 M. R. 692. Watchman. Where a mine is idle, the time and labor of a watchman or custodian may be treated as annual labor. Lockhart v. Rollins, 16 M. R. 16; Altoona Co. v. Integral Co. 45 Pac. 1047; Tripp v. Dunphy, 28 L. D. 14. 94 ANNUAL LABOR. What Will Not Count. A house for the use of the miners built 200 feet away from the claim cannot be. considered as annual labor. Remmington v. Bandit, 9 Pac. 819. The expense of taking timbers, lumber, bucket, rope and tools to the mine all carried away after slight use, if used at all will not avail for annual labor. Honaker v. Martin, 27 Pac. 397. Dumping tailings on a claim is no improve- ment. Jackson v. Roby, 109 U. S. 440. Traveling and expenses in getting ready to go to work cannot be considered. McGarrity v. Byington, 2 M. R. 311; DuPrat v. James, 15 \ M. R. 341. Nor work done by third parties and bought in. Little Gunnell Go. v. Kimber, 1 M. R. 536. Taking specimens for assays will not count for annual labor nor as a legitimate resumption of work. Bishop v. Baisley, 41 Pac. 936. Work Done Outside of Claim or on Group. Work done beyond the lines will count when it has direct reference to the drainage or develop- ment of the claim. Packer v. Heaton, 4 M. R. 447; Kramer v. Settle, 9 M. R. 561; Mt. Diablo Go. v. Gal- lison, Id. 616; Klopenstine v. Hays, 57 Pac. 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 Go. 56 Pac. 300; Yreka Go. v. Knight, 65 Pac. 1092. 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; Jupi- ter Go. v. Bodie Go. 4 M. R. 413; St. Louis Go. v. Kemp, 11 M. R. 692; DeNoon v. Morrision, 16 M. R. 33; 23 L. D. 267. The claims must be contiguous to allow work done on one to count for another. Gird v. Califor- nia Oil Go. 60 Fed. 531; 17 M. R. ; Royston v. Miller, 76 Fed. 50. ANNUAL LABOR. 95 The work may be done on an adjoining pat- ented claim but when done outside the bounds of the claim intended to be protected, the burden of proof is on the party asserting that it was for the benefit of such claim and was done as annual labor for the protection of such claim. Hall v. Kearny, 18 Colo. 505; 17 M. R. ... ; Sherlock v. Leighton, 63 Pac. 580 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 Fed. 101. Work done on one of a group held in different names but really owned in common has been ruled to avail for all. Eberle v. Carmichael, 42 Pac. 95. And we see no reason why a tunnel owned in common and worked by the joint labor or contributions of the several owners of different claims intended to be cut by such tun- nel should not avail to protect each claim provided the full $100 is expended for each claim. Fissure Co. v. Old Susan Co. 63 Pac. 587. Annual Labor by Tunnel. See TUNNEL SITES. Amount, How Estimated District Rules. As to such district rules as attempt to fix the value of a day's labor above its real cost in esti- mating the amount of work done, they amount to absolutely nothing. The "fiat" does not alter the "fact." The true measure is the real expenditure. Wright v. Killian, 64 Pac. 98; Penn v. Old- hauler 61 Pac. 649; Woody v. Barnard, 65 S. W. 100. And if the work has been done, or the materials furnished by the owner himself, the measure of value is what it would have cost to procure the same labor and materials from a sec- ond party. In other words, the market value of the labor and materials. Quim'by v$. Boyd, 8 Colo. 194, 342. And its enhancing the value of the claim is no test. Mattingly v. Lewisohn, 35 Pac. 111. 96 ANNUAL, LABOR. The Fact That the Work Has Not Yet Been Paid for does not invalidate its sufficiency to count as annual labor. Lockhart v. Rollins, 16 M. R. 16; Coleman v. Curtis, 30 Pac. 266. Rightful Owner Out of Possession. Where possession is wrongfully taken and with- held, the rightful owner is excused from the neces- sity of doing the work. Utah Co. v. Dickert Co. 21 Pac. 1002; Slavonian Co. v. Perasich, 1 M. R. 541; Mills v. Fletcher, 34 Pac. 637; Trevaskis v. Pear a, 44 Pac. 246. 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 Buttes Co. 25 Fed. 343; Lacey v. Woodward, 25 Pac. 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 in- tervened), and in 1896 the owner enters and per- forms his $100 worth of work for that year, he con- tinues to be the owner of the claim, and his title relates back to the original location of 1890; pro- vided always, that the lode has not been relocated in the meantime. It requires two parties to make a forfeiture ab- solute: First, the party who abandons, and sec- ond, the party who relocates. The second party therefore must take advantage of the first party's default before such default can enure to the sec- ond party's benefit. Little Gunnell Co. v. Kimber, 1 M. R. 536; Beals v. Cone, 62 Pac. 948. The fact that failure to do the work does not ipso facto work a forfeiture and the fact that ad- vantage of the default must be taken by some ad- verse party is important in several classes of cases. First Where the work done before the neglect, is necessary to complete the $500 worth of improve- ments required before patenting. ANNUAL LABOR. 97 Second Where in cases 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 pur- pose of relocation. Fourth The fact that neglect to do one or more years' labor does not, ipso facto, operate as a for- feiture, is of special importance in the case of over- lapping 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 im- provements 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 in due time taken advantage of, the old title remains, dates from original discovery, and consequently old work and new count together as improvements on the claim for purposes of patenting. 2. Where It is Essential to Carry the Title Back to Discovery. The remarks of the foregoing paragraph apply also to this heading. The doctrine of relation car- ries a title back to the first step in its inception, always excepting where an adverse right has inter- vened. 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 purported to be a re- location of the defaulting claim or only incidentally took some of its ground. There is a dictum in Klopenstine v. Hays, 51 Pac. 712, that if work is resumed by the original owner after failure to do work for a certain year 98 ANNUAL LABOR. and after a valid relocation by a second party who also failed to keep up his work, that such resump- tion by the original owner revives the original title. It may be that in such circumstance the original owner may not be required to go through the form of a new location and record; but that his title would go back by relation beyond the point of time when a valid possessory title to the same ground existed in a third party is an extremely doubtful proposition. 3. Where a Third Party Has Entered for Pur- pose of Relocation. The words of the Act relative to the latter class of cases are as follows: "Provided that the original locators, their heirs, as- signs, or legal representatives, have not resumed work upon the claim after failure and before such location." If this location of the third party is complete be- fore the re-entry of the original owner, of course the original owner is too late. If, on the other hand, the original owner has bona fide resumed work 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 suf- ficient to defeat the intervening claimant? The Act says that the owner may resume work at any time "before such location." The location of the inter- venor is not complete until he has done a series of acts, usually requiring several days to consummate. The locator must sink a shaft ten feet in depth, and set his stakes. In the meantime has the original owner the right to resume work? It was so decided in the case of Pharis v. Muldoon, 15 M. R. 348. There, however, the relocator had entered and posted his no- tice just after midnight of the last day of the year ANNUAL, LABOR. 99 and the original owner resumed work by the usual hour for honest labor on the morning of the first. The relocator had barely a technical case, if any. In another instance, on facts much stronger for the second party (G-onu v. Russell, 12 M. R. 630), it was distinctly held that the re-entry of the original owner before the newcomer's location was complete, would save the forfeiture. The same court reaffirms this ruling in McKay v. McDougall, 64 Pac. 669. On the contrary, HALLETT, J., in the case of Lit- tle Gunnell Co. v. Kimber, 1 M. R. 536, held that the party attempting to take up abandoned property has the same period of three months to complete his lo- cation, which is allowed by law to a discoverer; and Pelican Go. v. Snodgrass, 9 Colo. 339, is to the same effect. I have 'little doubt of the correctness of the lat- ter opinion. "The condition of development should be attached to every mine; and courts should, as far as consistent with legal principles, maintain the con- struction of mining customs which accomplish this end." King v. Edwards, 4 M. R. 480; Russell v. Brosseau, 65 Cal. 605. In Belcher Co. v. Deferrari, 62 Cal. 160, the plain- tiff, the original owner, did only one-half the re- quired amount in 1880. In January, 1881, he did $24 worth of work on two claims. Defendant relocated in August, 1881. Held, that the plaintiff 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 con- trary has since been held by the same court. Mc- CormicTc v. Baldwin, 37 Pac. 903. In the well considered opinion in HonaTcer v. Martin (Mont), 27 Pac. 397, the cases on this subject are reviewed by BLAKE, C. J., and it was decided that where a resumption takes place it must be substan- tial, and result in the prompt performance of at least the full amount which should have been done the 100 ANNUAL, LABOR. previous year. It does not decide in terms as in the Pelican case and Gunnell case, that the 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 Equator was located over this ground. The Court held that such location could not be in- itiated while the ground still remained unforfeited, the owners having renewed the work, though they afterwards failed to complete the full assessment Jordan v. Duke, 53 Pac. 191. Sharpening tools off the claim does not count for work: Labor when resumed must be prosecuted with reasonable diligence till the $100 is complete. Hirschler v. McKendricJcs, 40 Pac. 290. 4. Work Neglected on Senior Claim Overlapped by Junior Claim. This does not transfer the title of the overlap- ping portion from the senior to the junior claim, un- less the junior lode makes its relocation, taking up the overlapping ground. This it may do in Colorado as specially provided in M. A. S. Sec. 3160 by the clause: "If at any time the locator of any mining claim * * * * shall be desirous * * * of taking in any part of an over-lapping claim which has been abandoned, * * * such locator, or his assigns, may file an additional certificate" * * * the same as provided for in other cases of relocation by the same section. This section has been construed in scamp v. Crystal R. Co. 58 Fed. 233, holding that the inter- ference does not come to the junior claim without fil- ing the certificate. We consider the statute also, as only declaratory of the rights of the junior claim and that such certificate would operate to the same effect, to wit: as a claim to or relocation of such overlap- ANNUAL LABOR. 101 ping abandoned ground in States and Territories where no such statute exists. 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, al- though the original owner be still (constructively) in possession. DuPrat v. James, 15 M. R. 841. A Relocation Begun Before the Year Expires Is void. Belk v. Meagher, 1 M. R. 522. The case cited so decides, but it would certainly seem that if the .party whose claim was taken did not either resume work or take steps to recover by law until after the expiration of the ensuing annual period that his laches would operate to validate such a relocation, although begun before the proper time. Equity of the Annual Labor Law. The opposition to the requirement of annual la- bor so evident when first required by the Act of 1872 has gradually 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 gov- ernment disposing of such claims as he is unwilling or unable to 1 work, to such as are ready to assume the risk and develop the deposit, the estate of the holder not being absolute, but by implied contract and gen- eral mining custom conditioned upon development; 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, 15 M. R. 472; O'Reilly v. Campbell, 116 U. S. 418; Kramer v. Settle, 9 M. R. 561. Nevertheless the Act is to be strictly construed against forfeiture. Emerson v. McWhirter, 65 Pac. 1036. 102 ANNUAL LABOR. Pleading. The failure to do the annual labor must be spe- cially pleaded; Renshaw v. Switzer, 15 M. R. 345. The later location must plead a failure to do the work, a consequent forfeiture and that the second location thereupon was made upon the ground. Bishop v. Baisley, 41 Pac. 936. The general rule in such cases that forfeiture must be plead specially is found in Morenhaut v. Wilson, 1 M. R. 53; and the principle is supported by the inference as to strict- ness in such cases required. The annual labor need not be proved if no issue is raised on it. Mattingly v. Lewisohn, 35 Pac. 111. Forfeiture when material must be strictly proved. Mt. Diablo Co. v. Callison, 9 M. R. 017; Colman v. Clements, 5 M. R. 247. On the other hand, the Supreme Court of Ne- vada holds that in an adverse claim suit, where the direct issue is: which is the better claim? It mat- ters not that the title of one be founded on a for- feiture, and such fact need not be specially pleaded. Steel v. Gold Co. 15 M. R. 292. No rules of pleading would be required at all, if the issue in every case were reduced to this simplicity: which party ought to prevail? The Burden of Proof is upon the party asserting that the work was not done. Quigley v. Gillett, 35 Pac. 1040; Hall v. Kearny, 18 Colo. 505; 17 M. R. ..; Harris v. Kellogg, 49 Pac. 708; Axiom Co. v. White, 72 N. W. 462; Beals v. Cone, 62 Pac. 948. And the proof should be clear and convincing. Strasburger v. Beecher, 49 Pac. 740; Dibble v. Castle Chief Co. 70 N. W. 1055; Crown Point Co. v. Crismon, 65 Pac. 87. As to burden of proof when the work was done outside the claim, see p. 95. On Rebuttal the other side may show that the work did not benefit the claim. But the work done need not be that which would be most beneficial to the claim. Sherlock v. Leighton. 63 Pac. 580. ANNUAL LABOR. 103 Proof of Annual Labor. M. A. S. Sec. 3161. Within six months after any set time or annual period allowed for the performance of labor or making improvements upon any lode claim or placer claim, the person on whose behalf such outlay was made, or some person for him, may make and record in the office of the recorder of the county wherein such claim is situate, an affidavit in substance as follows : STATE OF COLORADO, County: ss. Before me, the subscriber, personally appeared , who, being duly sworn, saith that at least dollars' worth of work or improvements were performed or made upon (here describe claim or part of claim), situate in mining district, county of State of Colorado, between the day of , A. D , and the day of , A. D Such expenditure was made by or at the expense of , owners of said claim, for the purpose of complying with the law, and holding said claim. Jurat: (Signature) . Affidavit Prima Facie Evidence. And such affidavit when so recorded shall be prima facie evidence of the performance of such labor or the mak- ing of such improvements ; Provided, That all affidavits of labor or improvements upon placer claims heretofore filed and recorded within the period prescribed in this section, or within the period prescribed in section *twenty-four hun- dred and ten of the General Statutes, which shall contain in substance the requirements of the affidavit prescribed by this section or said section twenty-four hundred and ten, shall be prima facie evidence of the performance of such labor or the making of such improvements ; and the original thereof, or a certified copy of the record of the same, shall be received as evidence accordingly by the courts of this State, and this class of evidence shall be receivable, where relevant or material, in all cases, whether now pending or hereafter brought. April 20, 1889. The above Act is a re-enactment of Sec. 15 of the Act of 1874, amended in 1887 to include placers and again in 1889 as above printed by adding the words after "Provided" Its object is to provide a convenient method of preserving proof of the labor performed by making the affidavit prima facie evidence of the fact. Coleman v. Curtis, 30 Pac. 266. *M. A. S. Sec. 3161 was Sec. 2410 of the General Slat utes of Colorado. 104 ANNUAL LABOR. Like acts exist in most of the other States and Territories, the time for filing the certificate being: in Arizona within three months; California and Wash- ington within 30 days; Idaho and New, Mexico within 60 days after the period allowed for performance. In Montana 20 days, Nevada and Wyoming 60 days, Utah 30 days after completion of work. Failure to File Affidavit of Labor. The neglect to file proof of labor, if the labor has in fact been done, would not leave the lode open to relocation, and the doing of the labor can be shown by oral testimony. M cGinnis v. Egbert, 15 M. R. 329; Book v. Justice Co. 58 Fed. 118; 17 M. R. ; Murray Hill Co. v. Havenor, 66 Pac. 762. But the precaution to file should by no means be neglected. The filing makes out the proof of th3 fact of the labor being done, which might afterwards be a difficult matter to show. The California Act of 1891 purported to make the filing obligatory. Harris v. Kellogg, 49 Pac. 708, and in Idaho the failure to file is prima facie evidence that the work has not been done. The great objection to annual labor, with the pro- fessional mind, is that it throws a mining title upon constant parol proof, takes it out of the chain of title as found recorded, and makes it depend upon the ex- istence of facts which do not appear of record. This evil should be obviated as far as possible by precau- tions, such as are above suggested; but, after all, the result remains, that no claim can be considered se- cure until a patent is obtained, and the title reduced to a record basis, and to certainty. FORM OF AFFIDAVIT OF LABOR PERFORMED. STATE OF COLORADO,, Summit County : ss. Before me, the subscriber, personally appeared /. P. Lambing, who being duly sworn, saith that at least one hundred dollars' worth of work or improvements were per- formed or made upon the Chaos Lode, situate on Silver mountain, in Avalanche Mining District, County of Sum- mit, State of Colorado, between the first day of January, A. D. 1902, and the thirty-first day of December, A. D. 1902. Such expenditure was made by or at the expense of Uoltcrt ANNUAL LABOR. 105 W. FootCj owner (or one of the owners) of said claim, for the purpose of complying with the law and holding said claim. I. P. LAMBING. Sworn and subscribed before me this second day of January, A. D. 1903. . James TF. Swisher, [SEAL.] Notary Public. A single affidavit may be filed for the labor on several claims. McGinnis v. Egbert, 15 M. R. 329. And it may be filed before the year elapses. Id. Certificate in Lieu of Annual Labor. In 1893 and 1894 Congress passed Acts suspending for each of those years the requirements of 2324 for annual labor, provided the claimant recorded a notice of his intention to hold and work the claim. 28 St. L. lllf. The conceded impulse to these acts was the de- pression existing during those years but their wis- dom has by no means been universally acknowledged. They belong, however, to that class of remedial stat- utes which are to be liberally construed. Each of the Acts required the record to be made during the year for which it was to have effect. But a certificate filed in 1894, although neither work was done nor certificate filed for 1893, would hold the claim if it had not been in the meantime relocated. The Act of filing the certificate provided for is ac- cepted by the statute the same as the performance of the work and if filed at any time during the period allowed, would prevent a lawful relocation of the claim by third parties. There can be no forfeiture for failure of co-tenant to contribute his proportion of expenditure for 1893, when he has filed the certificate allowed by the Act, even where the work had been done before the Act 'was passed. There is no vested interest in a right to enforce a penalty. Royston v. Miller, 76 Fed. 50. When the Ground Is in Litigation the court may appoint a receiver to see that the work is performed and a forfeiture prevented. Nevada Co. v. Home Co. 98 Fed. 673. 106 ANNUAL LABOR ON PLACERS. ANNUAL LABOR ON PLACERS. Judicial Rulings As to Labor on Placers. The question of annual labor on placers is a curi- ous instance of the growth of law by following the first judicial oversight as a precedent until the wrong interpretation is firmly rooted as the true one. By no fair construction of the Act of 1872 could it be ap- plied to anything except lode claims. The very amount of the labor was fixed by the number of feet "in length along the vein." But in 1876, in Chapman v. Toy Long, 1 M. R. 497, placers were referred to in- cidentally as subject to the labor law. In Jacteson v. Roby, 109 U. 8. 440, without argument, the same dic- tum was expressed. Later, in Carney v. Arizona Co. 65 Gal. 40, the point was definitely made as to whether such labor was required on placers, and the Supreme Court of California, basing their opinion on the force of the general terms of 2329 a section enacted two years prior to the annual labor section sustain the affirmative of the proposition. In Sweet v. Webber, 7 Colo. 44$> the precedents thus established were fol- lowed without any reference to the original statute. Morgan v. Tillotson, 15 Pac. 88. The Forms of affidavit, notice and proof of for- feiture given for lode claims will apply with obvious alterations to placers. Void State Legislation. In 1879 the Legislature of Colorado passed an Act (M. A. 8. 3137) fixing the amount of annual, labor on placers, altering the period during which it was to be performed, and providing for forfeiture of the delinquent co-owners' interest. It was declared in conflict with the Congressional Act in attempting to lessen the annual expenditure in Siveet v. Webber, 7 Colo. 443. It is obviously so in its attempt to inter- FORFEITURE TO CO-OWNER. 107 fere with the beginning and end of the annual period. All the other provisions of the section are superflu- ous where they agree with the Act of Congress and nugatory where they conflict with it. FORFEITURE TO CO-OWNER. 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 improvements may, at the expiration of the year, give such delinquent co-owner per- sonal notice in writing or notice by publication in the news- paper published nearest the claim, for at least once a week for ninety days, and if at the expiration of ninety days after such notice in writing or by publication such delin- quent 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. G. May 10, 1872. Expenditures in Excess of the Statutory Amount. Although one co-owner has expended more than enough to hold the claim, the delinquent co-owner, to save forfeiture under the Act of Congress, is only required to pay or tender his proportion of the amount which the law required to be expended upon the claim. The recovery of his proportion of additional ex- penditures depends upon other grounds, and is to be enforced only by judicial proceedings, involving the question of mining partnership, or the expressed or implied assent of the co-owner to the expenditure of the additional amount. 5 L. 0. 4; Neuman v. Drei- furst, 9 Colo. 228; McCord v. Oakland Q. Co. 64 Cal. 134; 49 Am. R. 689. The distinction is clearly ex- pressed in Holbrooke v. Harrington, 36 Pac. 365. 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 108 FORFEITURE TO CO-OWNER. one-half and join in the division of the forfeited claim 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 developing the claim, it would probably be considered a waiver of the forfeiture. Preservation of Proof. The presumption in law is always against for- feiture, and the party who asserts it must be pre- pared to make his proof in such case. Turner v. Sawyer, 150 U. 8. 578; 17 M. R. . 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 ex- cuse expenditure upon each claim." Haynes v. Bris- coe, 67 Pac. 156. The clause in italics we apprehend refers to the possible case of group work where the full amount might have been expended on a single claim. Choice Between Personal Service and Publication. If the demand is made by personal service of the forfeiture notice the delinquent must comply within ninety days from date of service. If publication be made the forfeiture is not complete, it would seem, until ninety days after the last publication. If publication be attempted it cannot be turned into personal service by showing that copies of the paper were sent to and received by the party in de- fault. Haynes vs. Briscoe, supra. 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, FORFEITURE TO CO-OWNER. 109 tliat it means nearest in a direct line, and not by the usually traveled route. Length of Publication. Publication for 13 weeks was held sufficient in Elder v. Horseshoe Co. 87 N. W. 586. Proceedings to Enforce Forfeiture. In the first instance file the usual affidavit of labor performed, in the form given on page 104. FORFEITURE NOTICE. (A) GEORGETOWN, COLO., January 3, 1903. To Robert H. Tinker: You are hereby notified that I have expended during the year 1902 one hundred dollars in labor and improve- ments upon the Corinne Lode Mining Claim, situate on Re- publican Mountain in Griffith Mining District, County of Clear Creels, State of Colorado, the location certificate of which is found of record in book 20, '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 Revised Stat- utes of the United States, and the amendment thereto ap- proved January 22, 1880, concerning annual labor upon min- ing claims, being the amount required to hold said lode for the period ending on the 31st day of December, A. D. 1902. 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 ex- penditure as a co-owner, which amounts to fifty dollars, your interest in the claim will become the property of the sub- scriber, your co-owner who has made the required expendi- ture, by the terms of said section. JAMES H. PERSIIING. 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) Where the Forfeiture Notice has been personally served. STATE OF COLORADO, County of Clear Creek: ss. James H. Pershing, being duly sworn, saith, that he served the within forfeiture notice upon Robert H. Tinker, the delinquent co-owner therein named, upon the 17th day of March A. D. 1903, at said county, by delivering to him 110 FORFEITURE TO CO-OWNER. a true copy of the same and explaining the contents thereof ; and that 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 second day of July, A. D. 1903. John Tomay, [SEAL.] Notary Public. The above form completes the proceeding where the notice has been personally served, but where it has been by publication, discard the form "B" and use the following "C" and "D." ruBLi SHER'S PROOF OF FORFEITURE, (c) STATE OF COLORADO, County of Clear Creek: ss. (Copy of Notice "A" Attached.} S. E. Wirt, being duly sworn saith, that he is the publisher of the Clear Creek Topics, a weekly newspaper published in said County, and that said Clear Creek Topics is the newspaper published nearest to said Corinne Lode Claim, and that the above notice was published in said pa- per fourteen successive weeks, the first publication appear- ing in the issue of January 6, 1903, and the last publication in the issue of April 7, 1903. S. E. WIRT. Sworn and subscribed before me this ninth day of April, A. D. 1903. John Tomay, [SEAL.] Notary Public. Upon the publisher's proof (C), the party who has done the work will endorse his affidavit of non- payment as follows: AFFIDAVIT OF NON-PAYMENT. (D) STATE OF COLORADO, County of Clear Creek: ss. James H. Pershing, being duly sworn saith that Rob- ert H. Tinker, the person named in the forfeiture notice at- tached 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. D. 1903. John Tomay, [SEAL.] Notary Public. FORFEITURE TO CO-OWNER. Ill These forms "A" and "B," in cases of personal service, and "A," "C" and "D" in cases of advertise- ment, complete the forfeiture and place its proof in a shape where it is recognized in all land office pro- ceedings as the equivalent of a deed from the delin- quent party; but when the forfeiture has to be proved in court, these ex parte proceedings would not be rec- ognized, except the publisher's proof (if this proceed- ing can be considered as an advertisement required by law) which is in Colorado made evidence by stat- ute, M. A. S. 1753. Similar procedure for proof of statutory publication is provided by statutes gen- erally. The forfeiting party is not bound by law to make record proof of the forfeiture except as it may be required by the practice of the Land Office. Riste v. Morton, 49 Pac. 656. Minor Heirs Grouping Notice. In Elder v. Horseshoe Co. 70 N. W. 1060, 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 forfeiture for several consecutive years was valid and that it was optional to serve personal or publi&h a printed notice of forfeiture. A Party Not a Co-Tenant at Time of Notice cannot be deprived of an after acquired title by such notice. Even a patent procured by the forfeiting title will stand to the use of such party. Turner v. Sawyer, 150 U. S. 578; 17 M. R. . The attempted forfeiture is a void proceeding where his share of work has been in fact done by the co-tenant alleged to be in default. Brundy v. May field, 38 Pac. 1067. It has been held that the regularity of the for- feiture cannot be questioned by third parties repre- senting a title hostile to the claim where the alleged forfeiture to co-owner was asserted. Becker v. Pugti, 17 Colo. 243. 112 RELOCATION OF CLAIMS. RELOCATION OF ABANDONED CLAIMS. Statutory Regulation of Such Relocation. M. A. S. Sec. 3162. The re-location of abandoned lode- claiine shall be by sinking a new discovery shaft and fix- ing new boundaries in the same manner as if it were the lo- cation of a new claim ; or the re-locator may sink the orig- inal discovery shaft ten feet deeper than it was at the time of abandonment, and erect new or adopt the old boundaries, renewing the posts if removed or destroyed. In either case a new location stake shall be erected. In any case, whether the whole or part of an abandoned claim is taken, the location certificate may state that the whole or any part of the new location is located as abandoned prop- erty. Sec. 16, Pel. 13, 1874 . The Old Claim Must First Be in Default. This is the basis of the right to relocate. Garthe v. Hart, 15 M. R. 492; Lockhart v. Rollins, 16 M. R. 16. Admits a Prior Hostile Claim. Where the record on its face purports to be a re- location of the claim of a stranger, this amounts to an admission that the old claim had once a legal existence, and an assertion that it has become open to forfeiture. Wills v. Blain, 20 Pac. 798; Shattuck v. Costello, 68 Pac. 529. The burden of proof is upon the relocator. Providence Co. v. Burke, 57 Pac. 641. 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 dis- coverer, although not technically a discoverer at all. Armstrong v. Lower, 15 M. R. 631; Pelican Co. v. Snodgrass, 9 Colo. 339. RELOCATION OF CLAIMS. 113 It has been held that a relocation cannot be made on a blind working a drift which has been run un- derground from the bottom of the shaft on an ad- joining claim. Little Gunnell Co. v. Kimber, 1 M. R. o36. See page 45- 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 stake, and unless he adopts exactly the old location, he 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. The Relocator No Trespasser. 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 Fed. 728; Deeney v. Mineral Co. 67 Pac. 724. No Connection With the Old Title. The relocator has no rights by relation to the date and priority of the title which he has destroyed by his relocation. Cheesman v. Shreeve, 40 Fed. 789, 17 M. R. ... The relocator is not required to do the labor for neglect of which the claim was forfeited, although a substantial relocation might require as great an ex- penditure; nor if it be an abandoned 1,600 or 3,000 foot claim, can it be relocated upon one shaft for more than 1,500 feet. It is substantially a new loca- tion, the same as if no former location or record had ever been made. Re-Entry by Original Owner. After the annual period has expired, the old claimant has still the first right; but if he has com- menced work before another party enters, he must complete the full amount required with reasonable diligence, as otherwise the claim would remain for- 114 RELOCATION OP CLAIMS. feit. Honaker v. Martin, 27 Pac. 397. And after the relocator has entered he has the right to maintain his possession. Morgan v. Tillottson, 78 Gal. 520. When the Original Owner Had Begun Work before the expiration of the year and so being not yet entirely in default was at work on December 31st an entry by a relocator on January 1st (a Sunday) or on January 2 (a legal holiday) will not initiate a valid claim. McNeil v. Pace, 3 L. D. 267. Relocating Instead of Resuming. In WarnocJc v. De Witt, 40 Pac. 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. It cites the case of Hunt v. Patchin, 35 Fed. 816, as upholding such relocation. This Hunt case was a controversy between co-owners where the rights of strangers or of a hostile title were not involved and does not jus- tify the citation. The law requires of the owner to do a certain amount of work within a certain period. It allows him the indulgence of retaining his old title if he re-enters and resumes work either during such pe- riod or during the next year before another has en- tered. To allow him from year to year to renew his monuments and file new records would result in wholly defeating the intent of the law. We think that there is an implied distinction between his rights and the rights of others in such a case. He has forfeited the right to locate that ground by virtue of his default in not living up to his assumed obliga- tion to follow up his location by labor in good faith. The claim is open to relocation by all citizens bar- ring the one whose default is the occasion of its be- ing open and his only rights are those conferred on him by the Statute to wit: the right to resume and perform. Mr. Lindley fully coincides with these views. 1 Lind. 405. RELOCATION OP CLAIMS. 115 Relocation After Patent Applied For. In South End M. Co. v. Tinney, 35 Pac. 89, a lode had applied for patent and completed its publication, but considerable delay ensued without entry and the annual labor was not kept up. During this period a relocation was made. Afterwards the applicant com- pleted his entry, but it was held that the relocation title was valid and that the patentee took the pat- ent in trust for the true owner, the relocator. There would seem to be no doubt that the annual labor must be kept up until actual entry, but whether other courts will go to the extreme of this holding is not to be assumed. MURPHY, C, J. dissented, as did BEL- KNAP, J. in part. See page 92. In Land Office proceedings the party asserting a relocation must prove an abandonment of the orig- inal claim. 21 L. D. 219. Or the original application may be cancelled for laches. See page J$0. Overlapping Senior Claim. It has been held that the filing of amended cer- tificate giving such bounds as include the interfer- ence of a prior survey which has failed to have its annual labor performed operates as a relocation of such abandoned overlapping area without specific mention of such being the intent of the amendment. Johnson v. Young, 18 Colo. 625. See page 100. Relocation of Abandoned Claim by Co-Tenant. Where the several owners of a claim have al- lowed 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. 8. 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 stran- 116 RELOCATION OP CLAIMS. gers, and there is an inherent distinction arising from their joint ownership. It is certain that if all the owners return to the claim their title would relate back to the original discovery; and it is also a rule of law that a tenant in common cannot rightfully do any act which is subversive of his co-tenant's title, and quite as certain that if he were allowed to relo- cate as a stranger he must yield his prior claim abso- lutely, and proceed in all particulars as an entire stranger. The question has been set at rest by repeated de- cisions that any relocation or attempted relocation made by a co-tenant is for the benefit of the common title and one co-tenant cannot by recording in his own name oust his co-tenants. McCarthy v. Speed, 77 N. W. 590; Yarwood v. Johnson, 70 Pac. 123. In Saunders v. Mackey, 6 Pac. 361, a co-owner had agreed to see the work done; he did not do it, and afterwards was a party to a relocation. The court held that the failure operated to defeat the old location, and that the relocation was valid; but in- timated that in a proper action the party who had so violated his agreement would be declared to hold the title in trust. A very like case was Doherty v. Morris, 11 Colo. 12, where the same ruling was made and the breach of trust not considered on the plead- ings. In Royston v. Miller, 76 Fed. 50, it was more broadly held that a co-tenant so acting could tako no advantage of his relocation. But it requires no de- cision to say that if a coowner 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 enure to the good of the injured party. In the Morris case, the actual doing of the work was made apparent on the final trial. 28 Pac. 85; 17 Colo. 105. The late case of Yarwood v. Johnson, 70 Pac. 123, was much like the Doherty case in its facts. Plain- tiff alleged that defendant, a co-tenant, agreed to do the work and did it. Defendant had relocated using RELOCATION OP CLAIMS. 117 his brother's name, as soon as the year expired. The Court held that if the work had been done the re- location was void of course but they further broadly and rightly held that any relocation made by a co- tenant was for the benefit of the common title. The case of Turner v. Sawyer, 150 U. 8. 578; 17 M. R. , lays down the true principle applicable to the case, to wit: that the co-tenant cannot acquire and hold adversely a hostile title without allowing right 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. Suessen- bach v. Bank, 41 N. W. 662; Mills v. Hart, 24 Colo. 505. 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 the undivided interest in the original claim. Hulst v. Doerstler, 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 de- feat the mortgage. Alexander v. Sherman, 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, 16 Pac. 270. For attempted relocation by vendor after sale see Minah Co. v. Briscoe, 89 Fed. 891. But an agent or other party in a fiduciary capa- city cannot relocate for his own benefit. Lockhart 'v. Rollins, 16 M. R. 16. Nor betray the property to a stranger. Utah Co. v. Dickert Co. 21 Pac. 1002. Nor can a hired prospector say that what he has turned over to his outfitter is his own by a prior title. Fuller v. Harris, 29 Fed. 81 J t . Lessees cannot take their lessor's property by going through the form of a relocation. Lowry v. Silver City Co. 179 U. 8. 196. 118 RELOCATION OP CLAIMS. 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. Tracer, 46 Pac. 110. 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 owners of the adjoining pat- ent. Thallmann v. Thomas, 111 Fed. 277. RELOCATION OF CLAIMS NOT ABANDONED. In What Cases Owner May Relocate. M. A. S. Sec. 3160. 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 de- sirous of changing his surface boundaries, or of taking in any part of an over-lapping claim which has been aban- doned, or in case the original certificate was made prior to the passage of this law, and he shall be desirous of secur- ing 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 inter- fere 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 pre- vious location. Sec. 13, Pel. 13, 187',. This section provides an escape from the conse- quences of loose and careless records; it also gives the older claims the opportunity to take the full width allowed by the new 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. But it is only declaratory of the right which any claimant has without the aid of any such statute to RELOCATION OP CLAIMS. 119 amend his own publication of claim.- Thompson v. Spray, 72 Cal. 528. In a relocation under this section, the name of the lode should not ordinarily be changed, and the cer- tificate should show that it is a relocation, and of what lode. FORM OF CERTIFICATE OF RE-LOCATION. KNOW ALL MEN BY THESE PRESENTS, That I, Andrew J. Hughes, of the City and County of Denver, State of Colo- rado, claim by right of relocation, fifteen hundred feet, linear and horizontal measurement, on the Kentucky Lode, along the vein thereof, with all its dips, variations and angles, to- gether 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 fee*" 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 being situate upon said lode, within the lines of said claim, in Silver Cliff Mining District, County of Custer, State of Colorado. Said claim is bounded and described as follows : Beginning at corner No. ! (etc., describe 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 ftoofc 7, page 11, in the office of the re- corder of said county. This further certificate of loca- tion 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 3160 of Mills' Annotated Statutes of Col- orado. Date of relocation, January 7, 1903. Date of cer- tificate. January 8, 3903. Attest : Jcre Mahoney. ANDREW J. HUGHES. Nearly all the mining States have adopted stat- utes similar to the Colorado Act providing for the re- location of abandoned claims, for relocation by the owner, or the filing of amended certificate of loca- tion. Same Particularity As in Original Location. The discovery shaft, side and corner posts should be found on the ground before any second rec- ord is made, and if the relocation changes the bound- aries or is made on account of any previous mistake 120 RELOCATION OF CLAIMS. or irregularity in any act of location the same should be rectified upon the ground before recording. The description in the new certificate will, of course, cor- respond to the new boundaries. A new location stake should also be erected at the discovery, if the length or width called for on the original stake is altered, and especially if the name of the claim is changed. In other instances the old stake could be considered as answering all pur- poses of notice the same as the old discovery shaft which does not need to be sunk to any greater depth if it has already the legal depth. In fact, no change, whatever, upon the ground is necessary if the original location was perfectly regular, and the only idea in relocating or in filing the amended certificate is to formally appropriate abandoned interferences or to correct mistakes in the record. The relocator may use as his corners old monuments already placed. Conway v. Hart, 62 Pac. 44. When admitted in evidence both the original and relocation certificates are to be construed together. Duncan v. Fulton, 61 Pac. 244- i The Intent of the Act is : First, to provide a recognized mode of relieving from the consequences of clerical and other mis- takes; second, to give to old locations the benefit of the additional width allowed under the new Act, and third, to allow change of bounds where the old sur- vey was found to vary from the strike of the lode. Seymour v. Fisher, 16 Colo. 189. An additional or amended location certificate may be filed on old 3,000-foot claims for mere pur- pose of more specific description, but such claim can- not increase its width and at the same time retain its old length. After Loss of Discovery Shaft. Where a discovery is made within the lines of an older claim, or the locator suffers his discovery to be patented by a hostile location, he may make a valid relocation of that part of the claim which remains RELOCATION OF CLAIMS. 121 to him upon a new discovery made on clear ground. Erwin v. Per ego, 93 Fed. 609; Silver City Co. v. Lowry, 57 Pac. 11. Affirmed without discussion of this point in Lowry v. S. C. Co. 179 U. 8. 196. 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 Fed. 849. Changing Boundaries. A claim may be swung at right angles if it takes up no ground to which rights have intervened. Dun- can v. Fultpn, 61 Pac. 244- 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 over- lapping abandoned ground is taken. The certificate filed to show such change is a relocation certificate. But if the error is in the papers only, as by a mis- leading or too vague description, there is no reloca- tion, but only the filing of an amended location cer- tificate. But the terms are not always used with exactness even by the legal profession, all such papers as well as acts being called relocations or relocation certificates, and a misuse of the terms is not generally material. Cheesman v. Shreeve, 40 Fed. 789. The above form would answer in either instance, but the following is more exact in cases where no change is made in the boundaries and no error except indefinite description is to be corrected, and no over- lapping ground to be taken up. AMENDED LOCATION CERTIFICATE. KNOW ALL MEN BY THESE PRESENTS, That I, Maurice W. Levy, of the County of Teller, State of Colorado, do hereby make and file this, my amended certificate of loca- tion upon the Evolution Lode Mining Claim, situate In Roar- ing Fork Mining District, County of Pitkin, State of Colo- rado, claiming one hundred and fifty feet in width on each 122 RELOCATION OP CLAIMS. side of the center of said lode at the surface, and all veins, lodes and ledges within the lines of said claim, with their dips, variations and angles ; one thousand feet on said lode running north 33 degrees cast from center of discovery shaft, and five hundred feet running south 22 degrees west from said center of discovery shaft. Said lode mining claim is bounded and described as follows, to wit : Beginning at corner No. 1 (describe ~by metes and bounds with ties from surveyors' notes) being the same lode of which the original location certificate (made by Samuel Levy) is filed in book 17, page 51, in the office of the clerk and recorder of said Pitkin County. * This amended certificate is filed without waiver of any previous rights, for the purpose of correcting and making more specific the boundaries and description of said lode as originally located upon the ground. Date of original location, April 12, 1900. Date of amended certificate, January 5, 1903. MAUHICE W. LEVY. Such amended location certificate may be filed even after suit commenced. Strepey v. Stark, 7 Colo. 6U { . Relation Back and Intervening Claim. It relates back, where adverse rights have not in- tervened, to the date of the original location. McGin- nis v. Egbert, 15 M. R. 329; Strepey v. Stark, supra. In the case of McEvoy v. Hyman, 15 M. R. 397, and in Craig v. Thompson, 10 Colo. 517, the amended record was allowed in evidence and to affect and cut out intervening claimants. In the latter case the intervening claimant was treated as a trespasser who could not initiate 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 Fed. 787, stating in terms that an amended record related back to the date of the orig- inal record. In the Colorado Statute above printed there is an express saving of intervening rights. But such exception is superfluous because vested rights save themselves. There is no doubt that an amended rec- ord, the land office entry, the patent, every successive incident toward perfecting title, relates back to the RELOCATION OF CLAIMS. 123 first step taken toward obtaining such title. But not- withstanding what might be gathered from the word- ing of the decisions to such effect taken alone, they are to be read in connection with the fact that the doctrine of relation cannot be invoked to work injus- tice to third parties. Gibson v. Chouteau, 13 Wall, 101. And if a location or location certificate was so defective as to be void, or so irregular that it allowed strangers to become legal locators of the same ground, in such cases an amended certificate or a relocation will not relate back so as to cut out such intervening locators. Hall v. Arnott, 22 Pac. 200; Jordan v. Schuerman, 53 Pac. 579; Deeney v. Mineral Go. 67 Pac. 724; Morrison v. Regan, 67 Pac. 956; Brown v. Ore- gon Co. 110 Fed. 728. Where Original Record Was Voidable Only. In Moyle v. Bullene, 7 Colo. App. 308, the very tenable distinction is made that where the original location certificate was so "defective as to absolutely fail to comply with the statutory requirements" it was void and the amended record would not relate back; but if the original paper was only lacking in technical detail the two should be construed as of the date of the first, and both construed together ac- cording to the doctrine of relation. But in Frisholm v. Fitzgerald, 53 Pac. 1109, where a record contained no reference at all to a natural object or permanent monument and was not only constructively void for non-compliance with the Congressional Act, but was declared void in terms by the Colorado Statute, the relocation was held to relate back to the original record and to cut out an intervening title. The opinion in the case is peculiar in this, that it is the personal view of one judge, and both of his associates refused to concur. It is not the opinion of a Court, and therefore has no obligation as a precedent binding the nisi prius courts of that state. Nothing in the case or the reasoning on which it is based shakes our conclusions as stated in the pre- ceding paragraph, and we consider untenable the ]24 RELOCATION OF CLAIMS. proposition that any amendment can cure a void record as against an intervening location. Will Not Cure Want of Discovery. In most of the cases above cited the point was one of objection to the form or contents of the orig- inal Location Certificate that is, to the papers in the case not the merits of the discovery on the location proper, but in Beals v. Cone, 62 Pac. 949, there was no discovery when the original record was made. The second claimant had a valid discovery before the first had any discovery, and the court held that the intervening claimant took the ground and that 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, 45 Pac. 841. Changing Names of Locator on Notices. Trans- fers Before Record. After a record is made based on a valid loca- tion, the possessory title becomes perfect as and for and subject to the conditions of a possessory title. Grioillim v. Donnellan, 15 M. R. 482. But before record it is not unusual for prospectors to settle their rights among themselves by the primitive but prac- tical method of adding or erasing names from the discovery notice. Names cannot be so erased to the wrong of the right vested by putting them there in the first instance. Thompson v. Spray, 72 Cal. 528. But this is matter of complaint only by the parties injured (if injured) and strangers to the title can- not take advantage of such things. Thompson v. Spray, supra; Omar v. Soper, 15 M. R. 496. In Doe v. Waterloo Co. 70 Fed. 456, it was held that a verbal transfer of an interest in a title not UNITED STATES PATENT. 125 yet recorded was valid and that the new associate taken in by the prospector could complete the loca- tion for their joint benefit. 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. 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 objec- tionable only for sentimental reasons, where all par- ties interested consent, a change of name is certainly legal. Seymour v. Fisher, 16 Colo. 197. But when done, as it has been, in instances, preparatory to ap- plication for patent with intent to mislead and fore- stall an anticipated adverse claim, or preparatory to intended forfeiture publication, there could be no stronger circumstance from which to draw the infer- ence of fraud. The Edith lode was located 1,200 feet in length. Discovering that there was 200 feet of vacant ground the Edith owners made a new location 1,400 feet long, calling it the Kirby lode. The Court held that the second location was a relocation of the first and a valid claim. Shoshone Co. v. Rutter, 87 Fed. 801. UNITED STATES PATENT, Policy of the Government As to Mineral Lands, The policy of the United States has always been to pass the fee simple title of its lands to the ulti- mate purchaser, but to encourage offers to purchase from settlers and improvers only. To extend this policy into a system of land tenure it first gives a general license to prospect and discover mineral value passing then to the discoverer the sole right to possess and use, and finally grants the title in fee after due proof of occupation and improvement. 126 UNITED STATES PATENT. A temporary departure from this rule in taking an impolitic royalty from the miner, was made in the attempt to lease the lead and copper lands on the Mississippi and Lake Superior. Lorimier v. Lewis, 12 M. R. 437. The government had no occasion to deal with lands containing the royal metals until the acquisi- tion of California, upon which event, instead of adopting any system of legislation, it merely reserved the mineral lands from sale and acquiesced in the asserted rights of the prospector and miner until 1866. In that year were passed the first of what are known as the Mining Acts, now embraced in Title 32 of the Revised Statutes. This was followed by the Acts of 1870 and 1872, with other slight 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. Progression of Title. Title becomes initiate by discovery; the posses- sory title is complete upon location and record, and is maintained from year to year by compliance with the condition of annual labor. The occupant after $500 expenditure has the right to buy the land from the United States by entry thereof in the local land office. This entry entitles him to receive a patent which issues later from the general land office at Washington. Title After Entry and Before Patent. After entry in the land office, although the title is still technically equitable, it amounts practically to the legal or fee simple, because: First The receiver's receipt for the purchase money is evidence of title in the purchaser, with or without statute to such effect. M. A. 8. 1748; Last Chance Co. v. Tyler Co. 61 Fed. 558. Second The subsequent issue of the patent fol- lows as a mere ministerial act, except where some UNITED STATES PATENT. 127 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, establish the priority of any as- sertion of title to the block representing any certain mining claim, analogous to the method adopted by the British Government with reference to the Austra- lian gold fields, and the same in outline as the system adopted in case of agricultural lands, the departure from which in yielding to prejudice in favor of ob- solete district rules, has caused nearly all the con- tention which is now common. Second A system under which every applicant would receive a patent upon an ex parte proceeding without regard to priority or adverse rights, leaving the several patentees to contest their equities in the courts upon an equal footing analogous to the old land system of Virginia. Third A system based on making the proceed- ing to obtain patent a proceeding in rem, compelling the applicant to give notice of his application and forcing an adjudication of all adverse equities before the issue of the patent, which was the Pennsylvania system. The last is the system adopted by the govern- ment, by the original act of 1866, and continued in all the amendments. % 128 UNITED STATES PATENT. Priorities Adjudicated Before Patent Issues. The result follows that upon the issue of a pat- ent the patentee has got rid of all assertions of title hostile to his own title, and all supposed prior dis- coveries and locations which might have interfered with him are lost, by failure to assert them as ad- verse claims, or to prove them in the ejectment suit brought in support of the adverse claim. Silver Boiv Co. v. Clarke, 5 Pac.. 570; Raunheim v. Dam, 9 Pac. iS, ( ^; Kannaugh v. Quartette Co. 27 Pac. 2.'i5 ; Seymour v. Fisher, 16 Colo. 197. The publication required by the Mining Acts "is in effect a summons to all persons whose interests may be affected by the issuance of a patent," to appear and file their adverse claims. Wolfley v. Leb- anon Co. 13 M. R. 282; Wight v. Dubois, 21 Fed. 693. The Land Department Issues the First Patent to the first applicant, without regard to the priority of his possessory title, and in case the senior pos- sessory title fail to assert its seniority by filing and prosecuting its adverse claim, the seniority of such possessory title is lost, and yields to the title which the government issues to the applicant for patent. Segregation from Public Domain. The Surveyor General shows all conflicts with previous surveys, upon the approved plat; and notes all previous official surveys in the approved field notes; but only approves as to the correctness of the survey, not excluding the area of priorities, if their inclusion is asked. The register of the land of- fice, when application for patent is made, is supposed to except all previous surveys as noted in the approved field notes (where such surveys have been followed by applications for patent), in his notice for publica- tion, which is the first period at which the officers of the United States recognize the segregation of the claim from the mass of the public domain. From this point the claim so first segregated must, under the practice of the land office, be recognized by all subsequent applicants for survey as prior in point of UNITED STATES PATENT. 129 time, and they are compelled to except from their applications such previousjy approved surveys, so duly followed by filing their applications. Under former practice the segregation took place in the office of the Surveyor General. But the Sur- veyor General now approves everything within the exterior boundaries as clear ground, to the applicant for survey, if he so request, leaving to the land office the duty of excepting from his entry and patent, prior patents and applications for patent. Under the Act of 1866 the Survey was not ap- proved until after the application had been otherwise perfected. The Doctrine of Relation. Where successive steps are essential to perfect title, as discovery, location, record, application for patent, entry and finally patent; and during the prog- ress of the time required to complete the series two hostile parties have taken some or all of these steps towards obtaining title to the same ground the doc- trine of relation may become material to determine between them the question of priority* Where discovery is followed by location and rec- ord within the proper or fixed periods allowed and entry and patent follow in due course, the title is considered in general and in theory to relate back to discovery. This theoretical relation is, of course, of no materiality unless a second title has intervened, and if a second title has intervened at a period when the first title was in default the doctrine of relation does not apply, or rather it favors the second title. The different classes of claims to which it ap- plies necessitate certain distinctions. Where Both Are Possessory the first discovery followed up by completed location within the 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. Pat- 130 UNITED STATES PATENT. terson v. Hitchcock, 5 M. R. 542. For instance, if A discover a lode on January 1st in a State which gives 60 days to sink discovery and 30 days more to record, and he completes sinking on the 60th day and records on the 90th day, he has an older and better title than B, who discovers the same vein on January 10th, but promptly completes his sinking by the 20th and sur- veys 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 cannot appeal to the doctrine of relation to defeat the express terms of the statute. Eureka Co. v. Richmond Co. 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 Fed. 420. Thus in the class of cases where two veins par- allel on surface, dip toward each other and are found to unite going down, the doctrine of relation has its full application and title will be carried back to the date of location and if necessary to the date of dis- UNITED STATES PATENT. 131 covery so as to give the united vein to the title first initiated and perfected without default or lapse. Applications Pending at Same Time. The question may also arise between two claim- ants who are applying for patent at the same time. This proceeding begins by an order for Survey, which is followed by the survey in the field and by its approval in the Surveyor Gen- eral'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 who must ad- verse in order to maintain such priority of title as he may claim. 26 L. D. 81; 29 Id. 226. If he fail to ad- verse, his patent when obtained will show the ground excluded in favor of the party who was first to file his "application for patent" (form M, post p. 396), and even if he be the first to enter and pay and obtain the Receiver's Receipt, the entry when made of the Sur- vey 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 proceed- ings where there was no opportunity to adverse and the proceeding therefore not a proceeding in rem as in a conflict between School Land and a mining claim. Heydenfeldt v, Daney Co. IS M. R. 205. Or between a lode and a Town Site. Talbott v. King, 9 Pac. 434; Silver Bow Co. v. Clark, 5 Mont. 378; The Smoke House Lode, 12 Pac. 858. Or where the same ground has been patented as Lode and Placer. Iron S. Co. v. Campbell, 16 M. R. 218. A patent always relates back to date of entry at least. But a senior entry on a junior application will not be prior to the entry of a senior application when made, because relation will carry the junior entry 132 UNITED STATES PATENT. back to the date of its senior application. All three items, the application, the entry and the patent are merely successive steps, and the latter two relate to the date of the first. Many loose assertions are found in the cases on this topic, not taking into consideration the condi- tions above attempted to be pointed out. If, in all cases, a patent related back to discovery, a patent of to-day on a location of 1866 would supplant a patent to the same ground issued twenty years ago. Rela- tion never applies either to defeat a statute or to . work -manifest injustice. Excluded Area. It is the practice of the department to exclude from each later patent all claims which have land office priority and the junior patentee has no right under his patent to follow any vein on its strike through the area reserved in favor of such excluded survey. Montana Co. v. Boston Co. 51 Pac. 159. 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. The Nature of the Merger of the possessory into the patented title is learnedly discussed in Black v. Elkhorn Co. 49 Fed. 549; Affirmed 52 Fed. 859; 163 U. 8. 445. What It Conveys. A patent covers blind lodes within and under- neath its lines. Galhoun Co. v. Ajax Co. 59 Pac. 608; affirmed 182 U. 8. 499. The surface and the right to follow on the dip, veins apexing within its lines. Empire Co. v. Bunker Hill Co. 114 Fed. 420. The surface although the vein has left the side lines. Argonaut Co. v. Turner, 23 Colo. 400. 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 UNITED STATES PATENT. 133 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. Merced Co. 10 M. R. 334- It is also conclusive as to the bounds or limits of the claim. Waterloo Co. v. Doe, 56 Fed. 685. Patent is conclusive evidence that there had been a sufficient location notice. Chambers v. Jones, 42 Pac. 758; that a valid discovery and lo- cation had been made; that the required expendi- ture 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 Fed: 658. 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 Fed. 4^0. And of a valid discovery. Calhoun Co. v. Ajax Co. 182 U. 8. 499. But the late case of Uinta Co. v. Creede Co. 119 Fed. 164, makes the distinction that where a hostile claim has had no opportunity to contest the issue of the patent, as for instance, where a lode has been patented across the line of a tunnel before it was cut in the tunnel, the patent is not conclusive evi- dence of a valid discovery as against the asserted rights of such tunnel. Conclusiveness As to Mineral Character of Land. Where it issues after a supposed determination of the mineral or non-mineral character of the land it is conclusive on that point. Gale v. Best, 78 Cal. 235; 12 Am. St. R. 44. Patent, When Void. If not valid on its face or if issued in spite of a law which forbade its issuance, it is an in- operative paper, and may be passed upon and ex- cluded in a suit at law because it is void. Kahn v. Old Telegraph Co. 11 M. R. 646; St. Louis Co. v. Kemp, Id. 673; Garrard v. S. P. Mines, 82 Fed. 578. A patent for a lode in excess of legal width has been held void. Lakin v. Dolly, 53 Fed. 333; Lakin v. Roberts, 54 Fed. 461; but otherwise as to patent per- 134 UNITED STATES PATENT. fecting locations made prior to the Act of 1872. Gar- son City Co. v. North Star Go. 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 Go. v. Glarke, 5 Pac. 570; Rose v. Rich- mond Go. 17 Nev. 26. A patent is not void as to the excess from the fact that it conveys more than 300 feet from the center of the lode. Peabody Go. v. Gold Hill Go. 97 Fed. 657; 111 Fed. 818. Void Conditions in Patents. The land office cannot insert conditions or ex- ceptions not authorized by law, in a patent. Deffe- back v. Hawke, 115 U. S. 392; Clary v. Hazlett, 7 Pac. 701; Talbott v. King, 9 Pac. 434; Silver Bow Go. v. Clarke, 5 Pac, 570; Davis v. Weibbold, 139 U. S. 527. All Presumptions in Its Favor. When a patent is judicially attacked all presump- tions are indulged to its favor. It will be assumed that everything was done which the law required to be done, and mere irregularities, though proved, will not impeach it. U. S. v. Marshall Co. 16 M. R. 205; U. S. v. Iron-Silver Co. 128 U. S. 673 Placer Patented As Lode Claim. It is no fraud upon the Government if placer ground has been patented as a lode claim at a greater price per acre. Peabody Co. v. Gold Hill Co. Ill Fed. 818. Suits by U. S. to Annul Patent; When obtained by fraud against the United States, as where mineral land has been entered as agricultural, or upon false representations, the false representations being material, the application to set aside being made without too great delay and inno- cent buyers being to a certain extent protected it UNITED STATES PATENT. 135 may be set aside at the suit of the United States. This requires action by the Attorney General, who directs the U. S. District Attorney to bring suit in the U. S. Circuit Court. Boggs v. Merced Co. 10 M. R. 334; Mullan v. U. S. 118 U. S. 271; U. 8. v. Iron- Silver Co. 128 U. 8. 673. Such action lies where the patent has issued through fraud, mistake or erroneous views of law by the Land Department. U. S. v. Winona Co. 67 Fed. 948. See STATUTE OF LIMITATIONS. Degree of Proof. In suits to set aside a patent or to declare a trust in favor of another claimant, the proof to overcome the presumptions in favor of the patent must be clear and convincing. U. 8. v. King, 83 Fed. 188; Thall- mann v. Thomas, 111 Fed. 277. Where Issued to the Wrong Party in fraud of the right of the real owner, the suit is not to set the patent aside, but to have it declared that the party to whom it issued holds in trust, and to compel by decree of court a conveyance from him to the part'y to whom it should have issued. The Federal Courts have jurisdiction of such cases independent of the citizenship of the parties. Gates v. Producers Co. 96 Fed. 7. Such a suit cannot be maintained on mere pri- ority of title, for here an adverse claim should have been filed, but only on the allegation of breach of trust or in like instances. A party who had at the time of its issue no claim of title to the land patented has no standing to at- tack it for fraud practiced on the land department. Peabody Co. v. Gold Hill Co. Ill Fed. 817. Irrevocable No Second Patent. After a patent has issued, the land office has no power to cancel or recall the same nor to issue a second patent for the same land to another party. Moore v. Ro~bUns, 96 U. 8. 530. 136 INTERFERENCE OF CLAIMS. Wrong Description. Where, by reason of erroneous survey or other mistake, the patent describes other land than that actually applied for, it may be corrected upon sur- render of the patent 22 L. D. 101; 28 Id. 307; 29 Id. 160. Title by Receiver's Receipt. After valid entry its holder has a vested estate and the land has ceased to be public domain. Rader v. Allen, 41 Pac. 154. Canceling Receiver's Receipt. But the land office has the power to cancel the receiver's receipt and all preliminary proceedings, and frequently exercises this power in case of irregu- larities in the application. Land Office Adjudications. When the contest for priority between patentees has been contested and adjudicated in the land office their findings within their jurisdiction on matters of fact or mixed law and fact, in the absence of fraud or imposition, are accepted by the courts as conclusive. Jeffords v. Hine, 15 M. R. 575; Aurora Hill Co. v. 85 Co. Id. 581. INTERFERENCE OF CLAIMS. Veins Uniting on Strike or Dip. R. S. Sec. 2336. Where two or more veins intersect or cross each other, priority of title shall govern, and such prior location shall be entitled to all ore or mineral con- tained within the space of intersection ; but the subsequent location shall have the right of way through the space of intersection for the purposes of the convenient 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. INTERFERENCE OP CLAIMS 137 Mining Acts Based on Erroneous Presumption As to Facts Irregularity of Veins. The cause of the principal question under this heading is the fact that the U. S. Mining Acts con- cerning lode claims are based on the supposition or theory that a lode is a straight vein whose course can be readily ascertained and indicated by a straight line or a series of straight lines; and that occasion- ally such a vein !is crossed by another in a similar straight line, merely requiring the right of way to give each claim its proper lode. But in fact a lode is rarely a straight line; it is seldom to be traced with- out confusion for more than a few hundred feet; and in its course other veins are absorbed into it; and offshoots (not only spurs, but perhaps better de- veloped veins than itself) run from it; and in its extension downward," it invariably dips laterally; and often shows a fork of which both parts approach the surface; and it will divide, and may or may not unite at another point; and it will abut suddenly upon country rock and so be thrown far to one side; and instead of showing distinct lines, mineral veins are as irregular, as disproportioned in length and width, as much intermingled, though on a larger scale, as are the veins in a block of marble. The theory that each survey covers a distinct vein, or that a survey covers any vein at all, or that its center line follows the apex of a vein, or that its discovery shaft is sunk on a vein, is all bare assump- tion these points depend upon underground develop- ments, and not on diagrams or surface surveys. Presumption That Survey Covers the Vein. But upon proof of discovery and location it is in- ferred that the survey lines include the apex of the vein, and this presumption throws the burden of proof on the party alleging a departure. Armstrong v. Lower, 6 Colo. 585; 15 M. R. 458; Wakeman v. Nor- ton, 2Jf Colo. 192. The interference of veins by uniting on the strike, or, more commonly, the interference of claims 138 CROSS LODES. by the holder of one part of a blind lode developing into another part of the same lode located by an- other as a. separate lode was of vital importance be- fore the Act of 1872, because surface lines were not marked and each claimant was supposed to follow his vein wherever it ran. But under present law the surface lines and the apex within them in general define the rights of all parties, with the obvious ex- ception of First Cross lodes. Second Veins uniting on the dip which points are considered under the next two headings. Overlapping Surveys. The holder of the oldest patent, i. e., in general the patent which has the senior entry, holds all veins which apex within the area of conflict. Montana Go. v. Boston Co. 51 Pac. 159. The same rule applies in favor of the older title where both are possessory. Where one is patented and the other is possessory the patented claim holds because (1) it may always have been the earlier title, and (2) if not, it has become so by the failure of the overlapper to adverse. Em- pire Go. v. Bunker Hill Co. 114 Fed. 420. Where there are' overlapping surveys, the side lines of the senior claim do not become the end lines of the junior claim when the location extends be- yond the intersecting claims. Gheesman v. Hart, 16 M. R. 263. Lines may be lawfully extended over, and stakes set upon, prior locations so as to secure paral- lel end lines, or for any other legitimate purpose. Del Monte Case, 171 U. 8. 55. CROSS LODES. Priority of Title Controls. R. S. Sec. 2336. Where two or more veins intersect or cross each other, priority of title shall govern, and such prior location shall be entitled to all ore or mineral con- tained within the space of intersection ; but the subse- CROSS LODES. 139 quent location shall have the right of way through the space of intersection for the purposes of the convenient working of the mine. * * * Sec. 1^ A. C. May 10, 1872. The above section being a single section of an entire Act, must, if ambiguous, be compared with all other sections of the same Act which have any bear- ing on the subject matter. The only other pertinent portion of the Act is that part of section 2322 (Sec. 3, A. C. May 10, 1872), which says: "The locators of all mining locations * * * where no adverse claim exists on the tenth day of May, eighteen hundred and seventy-two, * * * shall have the ex- clusive right of possession and enjoyment of all the sur- face included within the lines of their locations, and of all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of such surface-lines ex- tended downward vertically.." * * * * In the case of lodes located under or before the Act of 1866, a right of way is clearly granted under the two sections above quoted. Those old claims held but a single vein, and the owners of any other vein, had a right to work up to the very wall of the crossed vein. Such being the case, the Act of May 10, 1872, merely added the easement of the right to work through the crossed vein; but as to lodes located un- der the Act of May 10, 1872, the matter is complicated by the fact that all claims under that Act have a width ranging from 50 to 600 feet, and that all veins within such distance have been granted to the owner of the claim as fully as the vein upon which his dis- covery is sunk. Title to the Space of Intersection. The question has been often stated in this form: "Does the space of intersection, mentioned in sec- tion 2336, mean the space of the actual crossing of the veins or the space through which the cross lode runs from side line to side line?" But this question does not reach the merits and is based upon a mis- understanding or a want of due attention to the words of the Act. If the cross lode have the right of crossing at the point of actual vein crossing only, how is it to 140 CROSS I.ODKS. be worked across the ground between the side line and the space of actual vein intersection? Of what avail would such right of crossing be to those own- ing no easement or estate in such intervening ground? It is clear then that to make the Act have a just and sensible meaning, the "space of intersection" refers to the whole distance from side line to side line, and this being conceded, the real question remains: "To whom does the cross vein belong,- throughout the space of intersection from side line to side line?" Sec. 2322 had already granted it to the prior owner of the crossed lode. It was within the power of Congress, by a subsequent clause, to have made the crossing lode an exception carved out of the general grant of the words of the previous section; but has it attempted so to do? Tlie only grant of section 2336 is, the right of way, which of itself implies that it is not a grant of the vein, but of an easement to which the estate of the prior location is made servi- ent. To give any part of the space of intersection to the holder of the later location would be to take from the older location something already granted to it. To create an exception out of his grant as he orig- inally takes it under Act of Congress would require in the wording of the Act expressions as strong as are required to create an exception in a deed. An exception is equivalent to the reconveyance of land already conveyed. A right of way is not an excep- tion, but a reservation which may be inferred from any wording indicating an intention to create an easement. It takes nothing from the body of the grant of the first locator; but compels the first loca- tor to use or hold his grant or claim subject to a right or privilege to the junior or overlapping claim- ant, of reaching the other end of his claim by passage through the senior location. It seems to the author, from the above reasoning, that a cross lode takes no estate in the claim it crosses and has no rights as against the crossed claim CROSS LODES. 141 except the mere right to drift through, leaving all ore as the property of the crossed claim. Decisions As to Eights of Cross Lodes. All recent cases are in agreement with these views. Par dee v. Murray, 15 M. R. 515 ; Watervale Co. v. Leach, 33 Pac. 418; Wilhelm v. Silvester, 35 Pac. 997; Calhoun Go. v. Ajax Go. 59 Pac. 607; the latter overrules the case of Branagan v. Dulaney, 8 Golo. 408, which had been so often cited against the above construction. The Ajax case was affirmed in 182 U. S. 499. Cross Surveys Veins Merging. The fact that the surveys cross does not neces- sarily raise the question of cross lodes. There must be an actual crossing of the veins, and if one vein unite with the other on the strike the vein beyond the point of union belongs to the holder of the older patent. Lee v. Stahl, 16 M. R. 152; Book v. Justice Go. 58 Fed. 106; 17 M. R. . There must be two separate mineral veins to make a crossing within the law. Morgenson v. Mid- dlesex Go. 11 Golo. 176; Omar v. Soper, Id. 389. The Burden of Proof is on the party alleging a crossing. Lee v. Stahl, 16 M. R. 152. No Right to Enter to Prove Crossing. The actual crossing of lodes is more often a matter of conjecture than proof, and upon the con- jecture of a crossing a party has no right to enter upon the crossed claim to prospect for his lode or prove the crossing. The latter clause of 2322 con- tains a proviso against the use of the surface in any such case. The right of crossing can be exercised only by following the vein from some point outside of the crossed claim to a point where it enters the crossed claim, and thence by drift along the same. Atkins v. Hendree, 2 M. R. 328. Settlements Between Cross Lode Owners will be upheld, although they were at the time ignorant of 142 VEINS UNITING ON DIP. their strict legal rights. Coffee v. Emigh, 15 Colo. 184. As Between Grantor and Grantee the grantor can- not claim any implied right to cross the granted ground on pretense of following a cross vein. He has conveyed all veins apexing within the granted area. Stinchfield v. Gillis, 40 Pac. 98. VEINS UNITING ON THE DIP. Prior Location Takes Title. R. S. Sec. 2336. * * * Where two or more veins unite, the oldest or prior location shall take the vein below the point of union, including all the space of intersection. Sec. Ik, A. C. May 10, 1872. The above paragraph follows that part of 2336, which says that "priority of title shall govern" in case of interference of veins on their strike." It often happens that on developing two veins by shafts from surface they are found to unite as they go down. A vertical section of the two lodes in such case gives the form of the letter Y. Where both claims are possessory, the older title, i. e., the older discovery properly followed by location and record takes the vein below the point of union. If both are patented, or if one only is patented, the obvious question is: Does the first patent hold on account of failure of the first discovery to adverse? or does the first discovery hold? In the case of the Cham.pion Co. v. Cons. Wyo- ming Co. 16 M. R. 145, the two lodes in controversy so came together at about 500 feet in depth. The Wyoming lode was patented in 1874. The Philip lode claimed to be a location prior in date to the Wyoming, but was not able to prove such allegation, and therefore had no state of facts upon which the court could properly decide this point and interpret the statute. Still, they intimated that the older pos- VEINS UNITING ON DIP. 143 sessory title would hold without regard to patent. In the case of Lee v. Stahl, 16 M. R. 152, which involved the rights of cross lodes only, the court in argument leaned to the same construction. But the point has been since expressly decided and always to the same result, to wit: in favor of the older location. Little Josephine Go. v. Fullerton, 58 Fed. 521; 17 M. R. ; Cons. Wyoming Co. v. Cham- pion Co. 63 Fed. 540. Where two veins apexing in two patents were alleged to unite after they had come by the dip un- der a third patent it was held that the third patent had no title to the vein and that the controversy must arise between the patents which covered the apexes. Roxanna Co. v. Cone, 100 Fed. 168. Relation Presumption. Even if suspected, such union would rarely be provable in time to support an adverse claim, and even if known an adverse claim could not be brought because an adverse is allowed only where there is a surface conflict. 6 L. D. 320. The doctrine of rela- tion back to discovery, therefore, applies, but the date of discovery and of the respective acts of loca- tion are open to parol proof. If the union becomes known or comes in contest, as it generally does after both lodes are patented, there exists a presumption in favor of each that it had a valid discovery and lo- cation at the date of entry, but there is no conclusive presumption that the date of discovery or of location claimed by the recorded location certificate upon which the patent issued is the true date. St. Louis Co. v. Kemp, 11 M. R. 673; 2 Lindley, 730, 783; Last Chance Co. v. Tyler Co. 61 Fed. 557. Conclusive pre- sumptions binding on all parties are fixed only where the party to be bound has had opportunity to have his day in court. Uinta Co. v. Creede Co. 119 Fed. 144 . SIDE VEINS. SIDE VEINS WITHIN LOCATION LINES BEFORE MAY 10, 1872. Congressional Bounty or Confirmation. R. S. Sec. 2328. Applications for patents for mining claims under former laws now pending may be prosecuted to a final decision in the General Land Office ; but in such cases where adverse rights are not affected thereby, patents may issue in pursuance of the provisions of this chapter ; and all patents for mining-claims upon veins or lodes here- tofore issued shall convey all the rights and privileges con- ferred by this chapter where no adverse rights existed on the tenth day of May, eighteen hundred and seventy-two. - Sec. 9, A. C. May 10, 1872. Limited to Single Vein. Under the original Congressional Act of 1866, no vein except the first claimed was covered by the location or conveyed by the patent. A section of Colorado Territorial Act of Febru- ary 9, 1866, attempted to donate to the locator all veins within twenty-five feet of the center of the first discovered lode; but that section is generally deemed to have been in excess of the power of the Terri- torial Legislature, in allowing to the claimant por- tions of the public domain which he had neither dis- covered nor appropriated. A lode claim, therefore, located before May 10, 1872, originally covered but one vein, and a patent is- sued before that date covered but one vein. Blake v. Butte Go. 9 M. R. 503; Eclipse Go. v. Spring, 59 Gal. 304. Side Veins Donated to Old Claims Since 1872. But by the A. C. of 1872, which gave to all new locations and future patents the benefit of every- thing between their side lines, it was added that all old locations and all patents under the old Act should have the same benefit, always saving any rights SIDE -VEINS. 145 which had intervened before the passage of the Act of 1872. #. 8. 2328. The result of this Act is, that a location properly made before May 10, 1872, or a patent issued before that date, covers all side and other interfering veins practically to the same extent, and as fully as loca- tions and patents under the present law; always sav- ing the exception in the section last above cited. Pardee v. Murray, 15 M. R. 515; Walrath v. Champion Co. 63 Fed. 552. SIDE VEINS WITHIN LOCATION LINES SINCE MAY 10, 1872. All Veins Apexing Within the Lines. R. S. Sec. 2322. The locators of all mining locations heretofore made or which shall hereafter be made, * * -* where no adverse claim exists * * * shall have the exclusive right of possession and enjoyment of all the sur- face included within the lines of their locations, and of all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of such surface-lines extended downward vertically, * * * Sec. 3, A. C. May 10, 1872. Colorado Act Conforming to Above Section. M. A. S. Sec. 3156. The location or location certifi- cate of any lode claim shall be construed to include all sur- face ground within the surface lines thereof, and all lodes and ledges throughout* their entire depth, the top or apex of which lie inside of such lines extended downward, ver- tically, with such parts of all lodes or ledges as continue by dip beyond the side lines of the claim, but shall not in- clude any portion of such lodes or ledges beyond the end lines of the claim or the end lines continued, whether by dip or otherwise, or beyond the side lines in any other man- ner than by the dip of the lode. Sec. 9, Feb. IS, 187$. Surface Lines and Apex Within Them Define the Claim. Under the law, as it has existed since May 10, 1872, with or without any State Statute like the 146 DEPARTURE FROM SIDE LINES. above Colorado Act, which is only a concession to tjie admitted force of the higher law of Congress, it is clear that all veins whose tops or apices are within the lines of the claim go with the lode which gives the name to the claim; and the surface lines, rather than identity of the veins, are made to control the extent of the claim, and to fix the boundaries be- tween adverse parties. Book v. Justice Co. 58 Fed. 109; 17 M. R. ; Doe v. Waterloo Go. 54 Fed. 935. The possible exceptions to this general assertion are: First In regard to what are commonly called cross lodes; p. 138. Second Where the outcrops of two apparent veins appear on two separate lines at the surface, but in their downward course such veins dip into each other, unite and form a single vein; p. 142. Third Instances where a location on the dip may have cut off the right of a later appropriator on the apex to follow beyond his side lines extended vertically downward; p. 163. Fourth Locations and patents before May 10, 1872, where adverse rights had intervened so as to prevent them from taking the benefit of the grant of side veins under the Act of that date; p. 144. Fifth Lodes located before May 10, 1872, are apparently excepted from the grant of an overlap- ping patent. Eclipse Co. v. Spring, 59 Gal. 304; but see Lee v. Stahl, 16 M. R. 152. One Set of End Lines for Side Veins. See p. 166. DEPARTURE OF LODE FROM SIDE LINES. Statement of the Point. That the vein, and not the surface, is the mate- rial grant of a patent to a mining claim has never been disputed; nor can it be denied that it is the intention both of the purchaser in buying, and the DEPARTURE FROM SIDE LINES. 147 Government in selling, to deal with the mineral de- posit; the surface being, in itself, comparatively worthless to either. And if the case lay between the Government and the purchaser alone, this mani- fest intention might prevent any attempt to confine the party to an erroneous survey, giving him only valueless surface, notwithstanding the material fact that it is the patentee, and not the United States, who has chosen the lines which produce the mischief. Patterson v. Hitchcock, 5 M. R. 542. But it is the rights of innocent third parties, holding claims beyond the located or patented side lines, which has rendered this question so important, and which must result in maintaining the consistent construction already given to the Act of Congress, confining every claim to its own lines; though even if it were a matter of indifference, this holding re- quires no forced construction of the Acts under ordi- nary rules of interpretation, and had been the con- stant ruling of the Appellate and Circuit Courts before its confirmation by the Federal Supreme Court. Uniformity of Rulings on the Point. This question, however, with singular unanim- ity has been set at rest by the decisions of many courts. It is now beyond controversy that the mo- ment the apex of a vein leaves either side line of its survey the locator has no further claim thereto, on the strike, beyond such point of departure. Wolfley v. Lebanon Co. IS M. R. 282; Johnson v. Buell, 9 M. R. 502; The Flagstaff case, 9 M. R. 607; The Golden Fleece case (Nevada), 1 M. R. 120. These decisions apply equally to patented and unpatented claims, and have been universally ac- ceded to as the only construction which would give to a mining claim the same certainty of title which belongs to other classes of real estate which are free from the complications of dips and departures. 148 DEPARTURE PROM SIDE LINES. Facts of the Golden Fleece Case. The case from Nevada is singularly illustrative of the injustice which would result from a contrary holding. The Golden Fleece Lode was surveyed and staked in 1874, upon a vein supposed to run north- west and southeast. The location claiming 1,500 feet ran due northwest and southeast, and 600 feet width. Afterwards developments by its workings and on the- Leonard Lode, whose discovery was about 800 feet to the southwest, showed that the vein really ran at right angles to its originally supposed course, The Leonard Lode having applied for patent, the Golden Fleece made a second survey at right angles to the first which of course embraced all the workings and croppings on the Leonard, and then filed its adverse claim, based on such relocation. But it was held that The Golden Fleece must be confined to its orig- inal location and to that part of the vein within the lines of such original location. Same Holding on Old 50-Foot Patents. The patent in the Wolfley case was issued under the Act of 1866, so that the decision necessarily ap- plies to all patents; because the argument in favor of following the vein, under the Act of 1866, was much stronger than in the case of patents under the later Act. Lamed v. JenMns, 113 Fed. 634. Not Color of Title. In a later suit, upon the same patent construed in the Wolfley case, it was held that where the patent owner had followed his vein outside and had held it adversely for five years, that he had not even such "color of title" as would operate to allow him the benefit of the statute of limitations. Lebanon Co. v. Rogers, 8 Colo. 34. Surface Location Beyond Point of Vein Departure. If the location fail to cover the vein, not only is the vein lost after it leaves the side lines, but that portion of the location which extends beyond the DEPARTURE PROM SIDE LINES. 149 point where it loses the vein, has been decided to be defeasible, if not void, having no discovery vein upon which to base any further claim to either sur- face or other veins which may lie within its lines. Patterson v. Hitchcock, 5 M. R. 542. See Plat, p. 25. The reason of this decision is the wording of the Act of Congress ( 2320) restricting a lode claim to a certain number of feet on "each side of the middle of the vein" so that if the vein is no longer found within the lines of the claim the loca- tor [has no basis upon which to hold any number of feet, beyond the point of departure. Discarding this language of the statute, the case of Watervale Go. v. Leach, 33 Tac. 418; 17 M. R. , holds that a lode location need pay no attention to the strike and the only consequence of failure to plant it on the strike is to lose the right to follow on the dip. The decisions on this point do not apply to pat- ented claims; Argonaut Co. v. Turner, 48 Pac. 685; 18 M. R. , and there is an initial presumption or prima fades that the survey covers the vein until the contrary is affirmatively proved. Armstrong v. Lower, 15 M. R. 631. The reason that a patented claim is valid to its full extent for what it does cover is that the patent is of a "piece of land," with all the surface its lines include; the patent is supposed to have been based on a location made on a vein, with only the statutory width on either side, and if in fact it was otherwise, or if the vein departed before it reached the end line, it is too late after patent for any adverse claimant to set up any such variations to defeat the operation of its grant to the entire surface and to such part of the vein as it does cover. Gleeson v. Martin White Co. 9 M. R. 429. 150 VEIN WIDER THAN PATENT. VEIN WIDER THAN PATENT. In the unreported case between the Colorado Central and the Equator Lode in the U. S. Court at Denver, each claimed under a 50 foot patent, the vein being admittedly 100 feet wide. The Court held that the older patent, the Equator, could hold only to its side line and could not claim extralateral rights on its dip underneath the Colorado Central Patent. In Bullion Co. v. Eureka Co. 11 Pac. 515 (Utah), the majority of the Court took the opposite view. In the late case of Empire Co. v. Bunker Hill Co. 114 Fed. 417, the Court held that where there were two patents, one covering the hanging and the other the foot wall, that the prior location had extralateral rights and took the whole vein except, of course, the segment within the vertical lines of the later loca- tion. The case of St. Louis Co. v. Montana Co. 104 Fed. 664, which it cites, is to the same effect. A discovery shaft may be the valid basis of a location although it fails, being up to the edge of appropriated ground, to cover the whole width of the lode. Larkin v. Upton, 144 U. S. 19; 17 Pac. 782. LODES, VEINS AND LEDGES. Definition of the Terms. The word "lode" and the word "vein" are used indiscriminately in the Acts of Congress* as well as in the popular language, to signify the same thing. In Bainbridge on Mines, the text, page 2, defines them in the same sentence: "A mineral lode or vein is a *See the text of Sec. 2320, p. 20', Sec. 2322, p. Itf. LODES, VEINS AND LEDGES. 151 flattened mass of metallic or earthy matter, differing materially from the rocks or strata in which it oc- curs." A note to the same suggests the use of the word "vein" as incorrect, when applied to such de- posits as those of anthracite coal. Still the word "vein" is universally used to include coal, and other flat and non-metallic deposits, while the word "lode" is not so used. This is the principal distinction in the use of the words. The word "lode" is of Cornish origin (Bullion Go. v. Croesus Co. 2 Nev. 176); "vein" is Latin. In the Eureka case, 9 M. R. 578, where it is said, every known definition was pre- sented to the Court, the opinion does not intimate any difference in their meaning, but says: "Those Acts give no definition of the term 'lode.' They use it always in connection with the term 'vein.' " The word "ledge" came into use in California after the discovery of quartz mines, because they were generally found in the hills above the gulches, and were often identified with protruding outcrop. The word "reef," not used in the Acts, is the popular equivalent for lode or ledge in Australia and South Africa. The word "range" is much used in the lead districts of the Mississippi valley. Raisbeck v. An- thony, 41 N. W. 72. Connection With Context of the Statute. The only limitation or qualification in the United States Mining Statutes in connection with the words "veins or lodes" or "veins, lodes and ledges," is the expression "of quartz or other rock in place." "In Place." These words have been construed material in cases where the vein has been found eroded or broken up. In Stevens v. Williams, 1 M. R. 557, where both the overlying and underlying bodies were solid, the deposit was held to be a lode "in place." In Tabor v. Dexter, 9 M. R. 614, where the loca- tion was on ore where the overlying rock had been eroded, the ore body remaining covered only with wash or gravel, it was held that the lode was not. in 152 LODES, VEINS AND LEDGES. place. A like ruling was made in Leadville Go. v. Fitzgerald, 4 M. R. 380. The practical point in these decisions is that where a location is claimed to be upon the apex of a lode, it must be upon such apex at a point where it is in place between the original en- closing rocks to be valid as such an apex location as will give a right to the dip. Rock in place is contradistinguished from the soil or debris. It is in place, though loose, broken or disintegrated. Jones v. Prospect Co. 31 Pac. 642. Size and Richness of Deposit Not Material. In North Noonday Co. v. Orient Co. 9 M. R. 531 ', SAWYER, J., says: "A vein or lode authorized to be located is a seam or fissure in the earth's crust filled with quartz, or with some other kind of rock in place, carrying gold, silver or other valuable mineral de- posits named in the statute. It may be very thin and it may be many feet thick, or thin in places almost, or quite pinched out, in miners' phrase and in other places widening out into extensive bodies of ore. So, also, in places, it may be quite, or nearly, barren, and at other places immensely rich. It is only necessary to discover a genuine mineral vein or lode, whether small or large, rich or poor, at the point of discovery within the lines of the claim lo- cated, to entitle the miner to make a valid location including the vein or lode." Its validity as a thing that may be located does not depend on what it runs. Shreve v. Copper Bell Co. 28 Pac. 315; Stinchfield v. Gillis, 30 Pac. 839. Neither walls nor pay ore is essential, but it must show rock distinguishable from the country. Burke v. McDonald, 33 Pac. 49. The fissure must be defined. Cons. Wyoming Co. v. Cham- pion Co. 63 Fed. 540. On the facts in this case it is too late to call one vein a spur and the other a main vein. Carson City Co. v. North Star Co. 73 Fed. 601. There Must Be More Than a Trace of Mineral. An ascertainable quantity but an assay of one or more ounces will suffice. Stevens v. Gill, 1 M. R. 519. LODES, VEINS AND LEDGES. 153 Whatever a Miner Would Follow with the ex- pectation of finding ore, or similar phrases, have been adopted as a practical test of what is to be considered a lode under the Act of Congress. Eureka Co. v. Richmond Co. 9 M. R. 578; Harrington v. Chambers, 1 Pac. 362. Any body or belt of mineralized rock is a lode. Book v. Justice Co. 58 Fed. 106; Shoshone Co. v. Rutter, 87 Fed. 801. Different Degrees of Proof. In Fitzgerald v. Clark, 42 Pac. 283, the distinc- tion is made between the proof sufficient upon which to base a location and the proof required where the continuity of the vein is in question, holding to greater strictness in the latter case. The degree of proof required, and the use of the words "consider- able distance" or "considerable interval" in the con- tinuity, in the instructions, is discussed in Butte Co. v. Societe, 58 Pac. 111. In Land Office Controversies the value of the min- eral deposit is a matter immaterial to the govern- ment save in controversies between mineral and non-mineral claimants. 21 L. D. 440. Faults and pinches do not affect the legal contin- uity of the vein. Cheesman v. Shreeve, 40 Fed. 793. The mineral beyond the fault is a part of the same lode or range. Raisbeck v. Anthony, 41 N. W. 72. Show of Mineral by Seepage. While the richness or poverty of the vein or of the seam or stratum of rock followed as a vein, in determining the question of such rock being vein matter, is not of controlling importance, yet, on prac- tical acquaintance with the subject, it will be seen that such point of relative value cannot be wholly ignored. Where the opinions say that it may be rich or poor, they refer to the well known fact that true veins, for long distances, are often quite barren. But it does not follow that every seam of rock which will assay is necessarily any vein at all. For there do 154 LODES, VEINS AND LEDGES. exist seams which carry a little mineral and yet are not veins within the geological or legal definition. The mineralization in such cases, in some of them at least, is caused by infiltration of ore from a true vein or deposit along some plane of cleavage, or along the plane between two formations, or through mere mechanical cracks in the rock, and all their mineral is only precipitated or crystallized seepage from the lode or deposit above. Such bastard veins have just enough resemblance to true veins to be used as a pretext of title against neighboring locations on the legitimate vein. They are generally lacking in walls, continuity and in the normal uniformity of a true vein, and yet may have slips which are prac- tically indistinguishable from walls, and have some discolored matter and particles "of ore, just enough to be dangerously similar to what is of value only as it is unlike such things. The question of vein or no vein in law, is, in such cases, a fact to be determined by the jury under the instructions of the court. Iron-Silver Go. v. Mike d Starr Co. 143 U. 8. 394; Blue Bird Co. v. Lar- gey, 49 Fed. 289. Mineral Bearing Zone. A broad formation impregnated everywhere with mineral, but traversed by true fissures within itself, cannot be considered as the lode; the fissures within such zone are the lodes and the zone is the country. Mt. Diablo -Co. v. Callison, 9 M. R. 616. Ore distributed generally, though unequally, throughout the entire mass of the limestone of the mountain does not constitute a continuous lode such as may be followed beyond the lines of its location. Hyman v. Wheeler, 15 M. R. 519. A belt of porphyry containing mineralized seams is a lode. Book v. Justice Co. 58 Fed. 106; Shoshone Co. v'. Rutter, 87 Fed. 801. When a larger deposit is separated into distinct seams with separate walls, each seam is a separate lode. Doe v. Waterloo Co. 54 Fed. 935; Hayes v. Lavagnino, 53 Pac. 1029. LODES, VEINS AND LEDGES. 155 Ore in Pockets, Vugs or other irregular and dis- connected occurrences without vein matter between does not make a. lode. Cheesman v. Snreeve, 40 Fed. 787. Nor ore bodies formed outside the fissure. Tombstone Go. v. Way Up Co. 1 Ariz. 426. Where the Continuity of the Ore Body Is Broken by the contact, becoming barren for a consider- able distance, the legal extent of the vein ceases. Stevens v. Williams, 1 M. R. 557; Leadville Co. v. Fitzgerald, 4 M. R. 380. A vein need not be a straight line nor uniform in dip, thickness or richness of ore. The enclosing cleft or fissure may narrow or even close for a few feet and be found further on. Its continuity may be proved by following either the ore or the rock which carries the ore. Slight proof of ore is sufficient where the enclosing boundaries are distinct; there need be no proof of such boundaries if the ore itself can be fol* lowed. But if the vein disappear so far or so com- pletely that it cannot be recognized when it is again found or alleged to be found, there is no sufficient proof of continuity. Iron Silver M. Co. v. Cheesman, 116 U. S. 530', followed substantially in Hyman v. Wheeler, supra, and in the Cheesman case, J^O Fed. 787. All Deposits "in Place" Are Lodes. The uniform ruling has been that all forms of mineral or mineral gangue in place, whether fissure or contact veins, or impregnations, or other irregular deposits, should be construed to come within the ex- pression "veins or lodes" used in the Act of Con- gress, and as such to be subject to location and pat- ent under the Act. Hayes v. Lavagnino, 53 Pac. 1029. There has been in fact a concession that such should be the holding rather than a contention to the contrary. The substantial and contested point has been whether a location or patent on certain forms of deposit was entitled by virtue of including the apex or so-called apex of the vein or deposit, to follow the vein or deposit beyond the side lines un- 156 APEX. derneath the adjoining ground or claims of other parties. This point will be considered under the next heading, APEX. APEX. The Grant of the Apex Right. R. S. Sec. 2322. "The locators of all mining loca- tions * * * shall have the exclusive right of posses- sion and enjoyment of all the surface included within the lines of their locations, and of all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of such surface-lines extended downward ver- tically, although such veins, lodes, or ledges may so far depart from a perpendicular in their course downward as to extend outside the vertical side-lines of such surface locations." Limitation to Planes of Projected End Lines. "But their right of possession to such outside parts of such veins or ledges shall be confined to such portions thereof as lie between vertical planes drawn downward as above described, through the end-lines of their locations, so continued in their ow T n direction that such planes will intersect such exterior parts of such veins or ledges." Sec. S, May 10, 1872. The mining Act of 1866 which was the first pro- vision for advancing possessory claims to patent pro- vided that the applicant should be granted "such mine, together with the right to follow such vein or lode with its dips, angles, and variations, to any depth, although it may enter the land adjoining, which land adjoining shall be sold subject to this condition." This clause has been construed to allow the right to follow a lode patented under that Act at right angles to the strike, without regard to end-lines. Argonaut Go. v. Kennedy Co. 63 Pac. 148. The Act of 1872 made a material change by pro- viding that the end lines of every lode claim should be parallel and that these end lines protracted should become bounding planes between which the proprie- APEX. 157 tor of the apex should have the right to follow his vein. The theory of the Act was that a survey would enclose a vein along its center line from end to end and that the end lines would be at right angles to the strike of the vein. But there are few loca- tions where the miner is so fortunate as to place his stakes so as to comply with such theory. The course of the lode when located or when surveyed for patent is generally a matter more or less of con- jecture and even if known, the vicinity of prior claims may interfere with the desired survey and there being no requirement that the side and end- lines must be at right angles it is found in prac- tice that many difficult points arise upon some of which by this time there is a satisfactory judicial conclusion. The common law grant of lands conveys the surface and whatever minerals underlie the surface within lines drawn perpendicularly downward to- ward the center of the earth. The apex clause in the act modifies the common law by enlargement to the extent that the claimant owns and may follow any lode whose apex he cov- ers, beyond his side lines under land adjoining. On the other hand he is not the owner of lodes found within his lines extended downward vertically where such lodes have their apexs outside of his surveyed lines. Roxanna Co. v. Cone, 100 Fed. 168. Besides the right to follow his own vein on the dip he is, under the common law grant of the pat- ent, owner of the soil and rock within his lines carried vertically downward. This common law grant gives him the ownership of any deposit of mineral belonging to a class which has no apex and also of any lode which though it have an apex, such apex is not located upon or is surveyed in such form as to give no extra-lateral rights to the proprietor of such exterior location. 158 APEX. The above general propositions must be under- stood with "reference to certain limitations and con- ditions as follows: The Lode Must Have An Apex. The outcrop or edge of a vein or deposit is not necessarily its apex. The typical or true fis- sure vein is a narrow zone of ore-bearing rock de- scending indefinitely in depth. It is essentially a perpendicular formation, though always, or nearly always, inclining some degrees from true; this in- clination is called its dip. The bounding planes of such vein are called its walls. The outcrop or near- est approach of such a vein to the surface is, and always has been, properly styled its apex. Such were the veins generally known and worked on the Pacific slope at the time of the passage of the Min- ing Acts. To give to such veins the right to their dip was essential to their full use and enjoyment. Other classes of veins are essentially horizontal in their formation. If found to approach the per- pendicular such fact is accidental, not incidental occasional and rare, not usual or normal. They may be, like coal, a layer of rock itself constituting a separate geological stratum; or they may be a fill- ing between the planes of contact of two dissimilar formations; or they may be impregnations diffused irregularly through a broad zone. Such deposits are called beds or even fields, terms obviously inappli- cable to perpendicular deposits. Their upper bound- ary rock is commonly and properly called the roof rarely the wall; and while they may have an out- crop, such outcrop was never known among miners as an "apex" until the use of such term in the Mining Acts induced the attempt to abuse the term by imposing it upon the outcrop of horizontal forma- tions. The term itself means the top or highest point, and has no signification when applied to horizontal deposits. APEX. 159 In the case of Duggan v'. Davey, 26 N. W. 901 (Dakota), where an eight-degree vein having its out- crop on the side of a hill was claimed throughout its entire extent by those who had their location upon the outcrop, the court ruled that such lode had no apex and that a location on the dip, although made after a location on the outcrop, was valid, and that the outcrop claim could not follow beyond its side lines. The case of Gilpin v. Sierra Nevada Go. 23 Pac. 547, also intimates that blanket veins cannot claim to have an apex under the Mining Acts. The in- clines on the deposit in that instance as worked ran from the surface up, instead of down. In the Leadville and Aspen cases arising upon veins of the character last above described, in the United States Circuit Court at Denver, any such dis- tinction as above made has not been recognized. But the strict ruling on other points, that there should have been no prior location on the dip; that the apex location must be made on a vein in place, with solid matter both above and below the vein, and the neces- sity of having the apex parallel to the side, and not parallel to the end lines, which is a practical impossibility when the real deposit is a ' field, bed or basin, with a more or less circular rim or out- crop, have circumscribed and practically defeated most attempts to follow such veins on their dip. The strength of this position is increased by an attempt to apply the apex law to such deposits as the lead and zinc beds at Joplin, Missouri. There the country for miles is underlaid by a stratum carrying zinc and lead ore. The miner starts a shaft in the open prairie without any indications whatever, of mineral, and at a certain depth confidently expects to pierce this ore-bearing stratum which is substan- tially a flat underlying deposit, the outcrop of which may be miles distant if it have any outcrop at all it is only when some bluff or ravine would expose the edge of the bed at the surface. As to such de- posits it is obvious that there is no such thing as 160 APEX. locating a claim so many feet on each side of the center of the vein, for, as the Department holds: "The apex of the Lode is co-extensive with the side lines." 29 L. D. 689. In Iron 8. Co. v. M. & 8. Co. 143 U. 8. 894, the opinion refers to this distinction and recognizes the validity of such blanket lode locations, treating this incident of no apex proper as an item of minor importance. The End Lines Must Be Parallel. When we claim the right to follow a vein on its dip as it" leaves its side lines and plunges into the earth it is obvious that we are at once deal- ing with a third dimension rarely referred to in sur- face grants. It is also obvious that unless this third dimension is guided by parallel planes the claim will, if the end lines diverge, extend indefinitely as it goes down. If they converge, it would, like a wedge, diminish to a line. The statute therefore in terms requires end lines to be parallel and that require- ment has no reasonable meaning except as taken in connection with the right to follow the lode on the dip. If, therefore, the locator fail or neglect to make his end lines parallel he is in disobedience of the terms of the Act, by either fault or misfortune, and has no right to this statutory donation. It was so ruled in Montana Co. v. Clark, 16 M. R. 80, where the claim was surveyed as a triangle which could not geometrically have two parallel lines. The same in the Elgin case, 15 M. R. 641, which had a survey in the shape of a horseshoe. In both these cases the reason for the parallelism of end lines is fully stated. The Eureka case, 9 M. R. 578, has been cited (Hor -swell v. Ruiz, 15 M. R. 489) as ruling that the requirement of end lines is directory merely and that no consequences attach to its neglect, but the further details of the opinion (on page 596) much qualify the words to that effect used on page 593. We can see no reason why a survey without parallel end lines should be void for the ground within its APEX. 161 lines, nor can we conceive that it should be allowed extralateral rights if it do not have end lines sub- stantially parallel. But the case of Doe v. Sanger, 23 Pac. 365, decides in terms that the end lines need not be parallel and that they do not affect the right to follow the lode on the dip for the weakest of all reasons in statutory construction, to wit: because the requirement of parellelism and the grant of the dip are contained in two different sections of the Mining Act. It is evident from the language used and the plats in Walrath v. Champion Co. Ill U. 8. 294, in the Stone Lode case, 15 M. R. 641, and other decisions that practically a lode may be surveyed in any shape which a locator chooses to give to his lines. That there is no requirement that every claim be substantially a parallelogram or must have two endlines and two sidelines. But no such irregular survey has ever been allowed extralateral rights ex- cept in the case of Doe v. ganger, supra. Such a lo- cation is good for its surface ground and for such parts of veins (not held by location on the apex out- side) as may be found within its vertical planes. Crown Point Co. v. Buck, 97 Fed. 462. Converging End Lines. In the Carson City case, 73 Fed. 597, end lines which would ultimately meet like a wedge were al- lowed to be protracted. The patent in this instance perfected locations made prior to the Act of 1872, and the court held that parallelism of the end lines was not required under the Act of 1866. The Lode Crossing Both Side Lines. In the case of Flagstaff Co. v. Target, 9 M. R. 607, the Supreme Court of the United States at an early date held where the lode crossed from side line to side line at practically a right angle to its survey, that in such case the side lines became end lines, that is to say: They passed down through the lode vertically and cut off all extralateral rights. This decision has been uniformly followed in all cases 162 APEX. where the lode has been found to leave its located or patented area through both side lines. King v^ Amy Silversmith Go. 152 U. 8. 222; Argentine Co. v. Terrible Co. 122 U. 8. 478; Parrot Co. v. Heinze, 64 Pac. 326. The Lode Leaving One Side Line. After much greater contention than in the in- stance of the lode crossing from side line to side line, it has now been repeatedly held that where the lode leaves the claim through one end line and one side line it preserves its extralateral rights, to wit: the right to follow the vein on its dip from the end line to the point on the side line where it also leaves the claim. Such end line is protracted vertically downward and produced on its course to form a bounding plane and the other bounding plane is found by protracting and producing another line parallel to the end line plane across the claim at the point where the vein goes out. Last Chance Tyler case, 54 Fed. 284; 61 Fed,. 557 ; Cons. Wyoming Co. v. Champion Co. 63 Fed. 540; Del Monte and Last Chance case, 66 Fed. 212; 171 U. S. 56; Clark v. Fitz- gerald, 171 U. S. 92; Carson Vity Co. v. North Star Co. 73 Fed. 597. Divergence from Same Side Line Twice. In Catron v. Old, 48 Pac. 687, 18 M. R., the Pul- ton survey had an angle in the center making it a V shaped claim; crossing the diverging halves the lode left the location twice through the south side line, the diagram of the conflict being as follows: APEX. 163 The Supreme Court of Colorado held that the Fulton Lode had no right to follow the vein upon the dip into any ground beyond its side line carried down vertically, and the correctness of such ruling could not be seriously disputed under the authority of the Amy -Silver smith Case. Discovery on the Dip. In Van Zandt v. Argentine Co. 4 M. R. 441, it was held that a prior discovery on the dip would hold against a junior discovery on the apex above. It is also obvious that all tunnel discoveries must neces- sarily be made on the dip and their validity has never been doubted. Jones v. Prospect Co. 31 Pac. 642. Where the width of the claim is sufficient to allow the apex to be within the side lines all doubt on the point ceases, but where the vein discovered on the dip apexes in foreign ground it is argued that it never becomes the property of the locator; that though he may rightfully plant his discovery shaft on the dip he must so locate as to cover the apex above the point of discovery with his survey. Lind- ley on Mines, 364. The case is stronger for such a discovery after patent, for there then arises a presumption that the patent was based on a valid discovery. If there be a valid discovery the patent should certainly convey the vein upon which such discovery was made; and the equity of the case in favor of such an instance, whether location or patent, is to urge strongly against such close construction as would deprive the discoverer of his asserted rights. In Colo. Cent. Co. v. Turck, 50 Fed. 888; 54 Fed. 262, a junior patent was allowed to take the vein on the dip underlying a patent whose discovery shaft was on the same vein, but the vein of which was as- sumed to leave the side lines, though it dipped back and remained between them carried vertically down- ward. 164 APEX. The Common Law Grant of the Patent. Veins Cut Within the Lines, Apexing Outside. The literal grant of a patent issued under the Mining Acts reads as if it conveyed all veins apex- ing within the lines and excluded all those whose apexes are outside. And such is its clear meaning where a prior location has covered the apex of such veins found to dip underneath a junior claim. But where in sinking, veins or deposits are found which have either no apex, or an apex not located upon out- side, or an apex not located upon at the date of the patent under which such veins or deposits are found, to whom do such veins or deposits belong? The decisions have with great uniformity held that such new discoveries presumptively belong to the patentee and refuse to give a literal construction to the patent. The case is fully stated and the point ruled in Doe v. Waterloo Go. 54 Fed. 935, following Duggan v. Davey, 26 N. W. 887; Leadville Co. v. Fitz- gerald, 4 M. R. 385. In Montana Co. v. Clark the ruling was made that such veins apexing outside, but not located out- side, remained still the property of the United States. 16 M. R. 80. This ruling is theoretically correct and such vein or part of a vein would become the estate of any locator who made a proper location upon such apex outside. But it often happens that all the surface ground has been taken up in such form that while the apex is covered it is covered in such shape as to allow no extralateral rights and where such is the case the portions of the vein in such position belong to the party whose survey includes them within the vertical planes of his side and end lines. Parrot Co. v. Heinze, 64 Pac. 326; State v. District Court, 65 Pac. 1020. APEX. 165 Exception of Such Veins in Favor of Proprietor of Other Lodes. In Pacific Coast Co. v. Spargo, 16 M. R. 75, and Amador Co. v. South Spring Co. 36 Fed. 668, it was held that the exception of veins apexing out- side, in favor of the proprietors of such veins, should be confined to instances where the rights of such proprietors were in existence at the time of the grant to the patentee whose claim was underlaid by such veins. But the tendency of all the recent de- cisions does not recognize this distinction, but treats the exception as one standing for the benefit of fu- ture as well as present proprietors. Turck case, supra; Cheesman v. Hart, 16 M. R. 263. An Owner May Amend His Survey, even after patent applied for, to keep his vein within his shortened claim, by making a new end line and dropping that portion into which no vein extends. Last Chance Co. v. Tyler Co. 61 Fed. 557. And may amend to correct diverging end lines. Doe v. San- ger, 23 Pac. 365. In both these instances the amend- ments were allowed after other claims had been lo- cated based on the supposed effect of the original er- ror upon the rights of parties to adjoining ground. But the right so to amend and thereby affect rights intermediately vested in third parties is extremely questionable. Apex Covered by Several Patents. Where there are several contiguous patents the dip-right of each must be treated as a separate grant. The two patents cannot be considered together so as to treat them as if they were one patent enclos- ing the apex of the vein. Del Monte Co. v. New York Co. 66 Fed. 212. On the other hand in Carson City Co. v. North Star Co. 73 Fed. 598, where the owner of several irregular locations had patented them to- gether they were treated as one claim, enlarging to extreme limits the doctrine of Smelting Co. v. Kemp, 11 M. R. 673, where the distinction is made between a location and a claim. 166 APEX. There Can Be But One Set of End Lines, for all the veins covered by the patent. And where departure from one or both side lines renders it material, only the discovery vein can be used to determine what are the planes of the end lines. Walrath v. Champion Co. Ill U. 8. 293; Cosmopoli- tan Co. v. Foote, 101 Fed. 518; St. Louis Co. v. Mon- tana Co. 104 Fed. 664. Relation of End Line to Strike. The extralateral rights being defined by extend- ing the end lines as parallel vertical planes, it is apparent that unless the end lines are at an exact right angle to the vein, which they rarely are, the grant of the patent is not the grant of the right to follow down on the dip, underneath the same feet of apex enclosed. On the contrary there must be a gain in one direction and a corresponding loss in the other. The following diagram will illustrate this. The Senior and Junior lodes above are on the same vein, the Senior located obliquely to the apex. The Junior is correctly laid on the strike of the vein. The Senior is the older patent. By the dashed lines the Senior loses the bottom of its own APEX. 167 shaft and cuts off the shaft of the Junior lode. The dotted lines and the shafts, of course, are at right angles to the strike of the vein. Right to the Vein Within the Four Vertical Planes. Although where the lode crosses from side line to side line it loses its extralateral rights, the claim- ant has a certain compensation by being allowed to follow on the dip to his end line. Where a dipping lode crosses from side line to side line, in following it down, it is obvious that two shafts sunk on the vein at the two points where it leaves the side lines will inclose between them all that part of the vein the apex of which is within the patent Lode Y, Plat X, p. 169. The right to the part of the lode between such two shafts in going down is lost as soon as the ver- tical plane of the south side line is reached. This is the ground marked B on Plat X. The vein below on B he does not own. On the other hand, he retains all of C, which is the vein within the vertical planes of his side and end lines. A patentee following down on the dip cannot take the vein where he finds it between vertical side and end lines of a prior location whose vein crosses both its side lines. Tyler Co. v. Last Chance Co. 71 Fed. 848; 157 U. 8. 684; Argentine Co. v. Terrible Co. 122 U. 8. 478. i Following Lode Beyond End Line. In the Flagstaff Case, the Federal Supreme Court use this language: "The side lines of the location are really the end lines of the claim." In Last Chance Co. v. Tyler, 157 U. 8. 687, it says "the side lines of that location become the end lines and the end the side lines." The use of this expression is far from holding that extralateral rights may be pursued be- yond the end line. In neither of these cases was the 'ground actually in controversy beyond the end lines of any of the claims in dispute, so that the expres- sions quoted are only dicta in both instances. 168 APEX. The. grant of a patent is of a piece of land with an extralateral grant upon a certain condition, to wit: that its lines enclose the apex of a vein, which vein extends "outside the vertical side lines" of its survey. If its lines enclose such apex from end line to end line or from end line to side line, the condition exists and its extralateral right is established. In the proposition that where it has a vein going through both side lines it can follow such vein be- yond its end line there is no assertion of a condition which, having been fulfilled, some right accrues as the incident to the compliance with the condition. The statute expressly gives the right to go be- yond the side line upon the existence of the condi- tion; it does not give such right to go beyond an end line. Nor is there any known principle of law which would enlarge a grant in derogation of the common law, and therefore to be strictly construed by allowing the grantee who fails to come within the terms of the conditions of his grant to be com- pensated out of other lands upon the supposition of an implied condition to that effect. And yet the contrary is strongly contended for (Lindley, 589), and in the only suit where the point has directly arisen, a case arising on an ore contract made in Arizona and sued on in Connecti- cut, the holding was made that the vein could be pursued beyond its end line. Empire Go. v. Tomb- stone Co. 100 Fed. 910. Also, in Bunker Hill Co. v. Empire Co. 109 Fed. 538, the point was conceded to the same effect, but in that case all the claims involved were surveyed squarely across the strike, so that neither had any status as to the ore in contention unless it was so con- ceded. Recapitulation Explanation of Plat X. The plat on page 169 will illustrate several of the instances above mentioned. It represents a vein covered by a location from end line to end line, by another location where the vein crosses from side APEX. 169 170 APEX. line to side line, and a third location where the vein crosses one end line and one side line. The dip of the vein is to the south, that is, to the foot of the plat The X location owns, of course, its entire sur- vey and may follow the vein on its dip between its vertical end lines extended downward indefi- nitely. Y owns the vein in the triangle A. He does not own B. On the other hand, he does own C; being that part of the vein between his vertical side and end lines, unless X is the older location, in which case he loses to X the greater part of C. As to whether Y has any estate in D, being the extension of his vein beyond his end line, is the ques- tion discussed on page 168. Z, whose vein leaves one end line and one side line, is the owner of the parcel E, and the parcel F, the vein on the dip, to the extent of his extralateral rights. He cannot follow into G. The vein in G becomes the property of whoever may disclose and locate the apex in the vacant ground between Y and Z. Presumption Burden of Proof. The presumption, where a miner is found be- yond his side lines, is against him. He is prima facie a trespasser till he has shown that he gets there by following the lode on its dip from its apex within his lines. Cheesman v. Shreeve, 16 M. R. 79; Blue Bird Go. v. Murray, 23 Pao. 1022; Bell v. Skilli- corn, 28 Pac. 768; Cons. Wyoming Co. v. Champion Co. 63 Fed. 540; Iron 8. Co. v. Campbell, 17 Colo. 267; Dugan v. Davey, 4 Dak. 110; Leadville Co. v. Fitz- gerald, 4 M. R. 380; Doe v. Waterloo^ Co. 54 Fed. 935; Maloney v. King, 64 Pao. 351. But the fact that the owner is claiming extra- lateral rights does not prevent the application of the presumption that his surface bounds include his vein in such a manner as to entitle him to extralateral DIP. 171 rights. Wakeman v. Norton, 24 Colo. 192. But the proof of the continuity of the vein downward must be made. Butte Co, v. Societe, 58 Pac. 111. DIP. Dip is a proper mining term and has a plain and important signification. It means the line of depar- ture of a lode from the perpendicular. The number of degrees may of course be calculated from either the perpendicular or from the horizontal, and the usage with professional surveyors is to calculate the degrees from the horizontal, but miners generally speak of a lode as dipping so many degrees from the perpendicular, especially when referring to lodes worked by shafts. It is used along with "angles and variations," in the A. C. 1866, and is with those words omitted in the A. C. 1872, but its place is supplied by the phrase ( 2322): "All veins, * * * throughout their entire depth, * * although such veins, * * *. may so far depart from a perpendicular in their course downward as to ex- tend outside the vertical side-lines, of such surface loca- tions." The term is to so great an extent associated with the terms APEX and DRAINAGE that it has been neces- sarily to a large extent considered under those heads. Practical Effect of Dip to Carry the Lode Away from Its Surface Lines. A lode dipping to the north will gain horizon- tally to the north about 1.7 feet in 100 feet of descent for each degree from the vertical. A shaft sunk upon a dipping vein will, in 100 feet depth, measured along the dip, acquire the fol- lowing vertical depths and horizontal departures from the top of the shaft for the following angles, all taken from the horizontal. 172 DIP. ANGLE VERTICAL HORIZONTAL DEPTH DEPARTURE 10 17.4 feet 98.5 feet 20 34.2 " 94.0 " 30 50.0 " 86.6 " 40 64.3 " 76.6 " 50 76.6 " 64.3 " 60 86.6 " 50.0 " 70 94.0 " 34.2 " 80 98.5 " 17.4 " 90 100.0 " 0.0 " Cubic Incidents of Lode Claims. From the outstart it should be kept in view that a lode claim is a solid body of ground and not a "superficies." Massot v. Moses, 8 M. R. 608. 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, Sec- ond 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 lines, in either event, therefore, does not apply; the claim in its downward course is governed by the dip of the vein whose apices appear at the surface; it extends under the vertical side lines of the adjoining claims on one side, and on the other side it leaves veins pitching under its own side lines as the property of him who is their owner at the surface. Iron Silver Co. v. Cheesman, 116 U. 8. 530. Where a lode cut in a tunnel has a dip it will be assumed that it carries the same dip to the sur- face. Brewster v. Shoemaker, 63 Pac. 309. DIP. 173 The Side or Auxiliary Veins, whose apices may be within the side lines of the claim or pat- ent have the same right to the dip as has the principal or discovery vein. Jupiter Co. v. Bodie Co. 4 M. R. 412; Walrath v. Champion Co. 63 Fed. 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 cannot claim the dip beyond its side lines. The Flagstaff case, 9 M. R. 607; McCormiclc v. Varnes, Id. 506; Argentine Co. v. Terrible Co. 122 U. 8. 478, and cases cited under APEX. Effect of End Lines. The end lines of all lode claims are required to be parallel; and where the lode in its descent reaches the end lines protracted, the claim ceases and the dip cannot be followed across the protraction of the end lines. Richmond Co. v. Eureka Co. 9 M. R. 634; Stone Lode case, 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 160. When the Grantor Conveys a claim or part of a claim he conveys the right to follow on the dip all veins apexing within the granted ground. Stinch- fteld v. Gillis, 30 Pac. 840; 40 Pac. 98; Boston Co. v. Montana Co. 89 Fed. 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. 174 WALLS. WALLS. Defined. In a contact vein the roof or hanging wall is the plane of the contact above; the floor or foot wall is the- plane of the contact below. In fissure veins the walls are the plane of demarcation between the country and the gangue. Relation to the Country. It should seem almost self-evident that the na- ture of the wall must depend upon the nature of the country rock and the nature of the material which it encloses. Between certain rocks the plane of separation would be distinct and traceable; be- tween other rocks a diffusion of the oxides and min- erals of the enclosed material through the adjoining country, would obliterate more or less all trace of the original plane of division. Where this plane of division is manifest to the eye there is what miners call a wall where it has become obliterated they say there is no wall. It is therefore manifest that the fact of the absence of one or both walls, is, in itself alone, no proof of the non-existence of a vein, they being a mere accidental circumstance. And it has been so decided in the Lime Lode case, 116 U. 8. 530, and in the Durant case, 15 M. R. 519. In the former decision, after defining what consti- tutes a lode as "a body of mineral or mineral-bearing rock within defined boundaries," MILLER, J. adds: "In the existence of such body and to the extent of it, boundaries are implied." In the latter case, in such language as would be used by a lawyer thor- oughly familiar with the subject matter, HALLETT J. says: "It is true that a lode must have boundaries, but there seems to be no reason for saying that they must be such as can be seen." SPURS. 175 Broken Ground Slips Natural Cleavage. It is also evident that subsequent 'disturbance of the vein matter would tend to destroy the con- tinuity of the wall; and in many classes of rock the natural cleavage is such as often to be mistaken for and followed as a wall. In such ground a very little manipulation may be made to show an apparent wall where none, in fact, exists. Disappearance of Wall. It is nevertheless true that where a wall has shown itself for some distance and disappears that is an important item to be considered where the fur- ther continuity of the vein is made doubtful by reason of the simultaneous disappearance of the min- eral and an apparent change in the rock which is being followed. See page 1$. Wall or Side of Working. It is also to be observed that the term "wall" is often used with reference to the actual side of a drift, shaft or other working without reference to ita association with the vein, and finding mineral by "cutting through the wall" is spoken of as if it implied no contradiction of terms. SPURS. The word spurs is not found in any of the Acts of Congress nor in the patents issued under them. It is a dangerous term, because its meaning is rela- tive, not definite. That which, when first discovered, may be called a spur, may prove to be a better de- veloped vein than the lode from which it strikes off. But the term found its way into the Colorado Territorial Act of 1866, and is seen in most records; when properly applied it signifies a feeder to, or off- shoot from, a lode. As such it is part and parcel of the lode, at least as far as the side lines of the claim, 176 ANGLES AND VARIATIONS. 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 such "well-defined crevice." Where repeated locations have been made upon a mineral vein it is too late to call it a spur, espe- cially where the law fixes no limit to the size of the vein which may be located, nor admits comparison of different size between conflicting locations. Car- son City Co. v. North Star Co. 73 Fed. 601. When the discovery or existence of a lode is in contention, its size, strength, continuity and other like incidents are questions of fact to be found by the jury. Blue Bird Co. v. Largey, 49 Fed. 289; Book v. Justice Co. 58 Fed. 106. Ore bodies formed off from the fissure do not form separate veins. Tombstone M. Co. v. Way Up Co. 1 Ariz. 426. ANGLES AND VARIATIONS. Use in Statutes and Conveyancing. In 4, A. C. 1866, the words "angles and varia- tions" were used, and under that Act a lode was pat- ented with its "angles and variations." They are neither law terms nor technical mining expressions, but are supposed to cover the digressions of a lode from a straight line, and might be extended to "faults." In arguing the important question arising upon patents under the old law when the vein left the side lines, these words were strongly urged as ANGLES AND VARIATIONS. 177 indicating the intention to pass the vein as the essen- tial grant of the patent. These words, or like terms, are in common use in the phraseology of mining deeds (Bullion Co. v. Crcesus Co. 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 parallelogram intended in the Act of Congress, even if they have two parallel courses which they call end lines, run a risk of being ruled out of any right to claim beyond their side lines. In other respects they may be wholly valid if the end lines are regular and the statutory width and length are not exceeded. Iron Silver Co. v. El- gin Co. 15 M. R. 641; 118 U. S. 200,. Whether the presumption allowed in ordinary cases (Armstrong v. Loiuer, 6 Colo. 582) that the sur- vey covers the vein would be indulged to a claim which has acute angles may be doubted. Such pre- sumption is merely to fix the party on whom is the burden of proof, and on an angled claim ought to yield to very slight evidence. Angles to Allow for Slope. But where the lode has a pitch and is located on rising ground, especially where it crosses the saddle of a mountain or passes through a deep gulch, an angle or angles ought sometimes to be made, the direction of which will depend upon the dip of the lode, whether into or out of the mountain, and the extent of which will depend upon the degree of the dip. Such allowances are not called for where the location is on level ground nor even on rising ground if the lode runs directly up and down hill; but are essential under conditions familiar to surveyors and to experienced prospectors, in order to keep the apex fairly between the side lines. See page 172. 178 DRAINAGE. DRAINAGE. Legislative Control. Sec. 3. The general assembly may make such regu- lations, from time to time, as may be necessary for the proper equitable drainage of mines. Colo. Const. Art. XVI. Under the above authorization M. A. S. 3172- 3180, attempt to regulate this subject. Such State control is also recognized in section 2338 of the U. S. Statutes. But the subject itself is one of inherent difficulty. The Act seeks to provide that where one mine drains another, the mine thus benefited shall pay its propor- tion of the cost of drainage. Where a tunnel or lower adit drains another mine, it is doubtful whether such Acts have any application, as such drainage is only incidental. Baird v. Williamson, 4 M. R. 368; Town- send v. Peasley, 2 M. R. 612. But where one mine hoists the water of another a natural equity is more apparent, and statutes in aid of contribution, even giving a royalty to the draining mine, have been en- forced. Ahren v. Dubuque Go. 5 M. R. 144. Coal Mines. Where in case of veins or deposits of the class represented by coal beds, one mine lies under the dip of another mine at a higher level, it is under servi- tude to the water flow of the mine above. Philadel- phia Co. v. Taylor, 5 M. R. 133. Servitude of the Lower. In lode mines the same rule applies that the lower workings must stand the water from the higher pits, subject to such regulations as the Drainage Act supplies, where such an Act exists and its provisions can be enforced; and the upper mine cannot wan- tonly cast its water on the lower. Locust Co. v. Gor- rell, 5 M. R. 129. The same rule applies to quarries. Ulmer v. Farnsworth, 15 Atl. 65. DITCHES AND WATER. 179 DITCHES AND WATEK. Congressional Recognition of Easements. R. S. Sec. 2339. Whenever, by priority of possession, rights to the use of water for mining, agricultural, manu- facturing, 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 con- struction 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 do- main, the party committing such injury or damage shall be liable to the party injured for such injury or damage. Sec. 9, A. C. July 26, 1866. 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. Claims Subject to Ditches, Flumes and Trails Parol License. M. A. S. Sec. 3158. 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 ; Pro- vided, always, That such right of way shall not be exercised against any location duly made and recorded, and not aban- doned prior to the establishment of the ditch, flume, tram- way or pack trail, without consent of the owner, except by condemnation, as in case of land taken for public highways. Parol consent to the location of any such easement ac- companied 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. 13, 187%. 180 DITCHES AND WATER. Besides the Act of 1866, above printed, Congress allows right of way to ditches, tramways, reservoirs and power lines over the public lands by Act of 1895 and its amendment. 28 St. L. 635; 29 Id. 120; 30 Id. 404. The Right of the Miner to Divert Water from its natural stream, in opposition to the common law, has been not only granted under the Act of Congress of 1866, but that Act has been construed by several decisions of the Supreme Court of the United States. Atchison v. Peterson, 1 M. R. 583; Basey v. Gallagher, Id. 683; Jennison v. Kirti, 4 M. R. 504. These decisions further recognize the right of "appropriation," as it is called, as a necessity in placer mining districts. The party who first appro- priates the water for mining purposes, obtains the right both as to parties who attempt to take it by tapping the stream above, or who need it in the stream below. A homestead or other entry is sub- ject to the rights of a prior appropriation of water. South Yuba Co. v. Rosa, 22 Pac. 222; Tynon v. Des- pain, 22 Colo. 240. Incidents of Water Appropriation. A ditch is an easement over the land which it crosses. Quinlan v. Noble, 75 Gal. 250. A party can- not locate a ditch in such a manner as to prevent the practical mining by hydraulic power, or other- wise, of claims which it crosses; nor so as to cut off the water used by the hydraulic. When ditch crosses ditch, the later claimant must adjust the crossings so as not to interfere with the full use of the prior ditch. Jennison v. Kirk, 4 M. R. 506. Appropriation by Placer Location. It has been lately held that a placer location is of itself an appropriation of all the water flowing across it to the extent needed for working it. Schwab v. Beam, 86 Fed. 41. This is an extreme holding on what seems to us a very doubtful posi- tion. DITCHES AND WATER. 181 The Change of Locality where the water is used does not forfeit the right. Maeris v. BicTcnell, 1 M. R. 601. He may change either the point of diver- sion or the place of use. Strickler v. Colorado Springs, 26 Pac. 314. If he has prior right to the water he may take it by a new and different ditch. Jacob v. Lorenz, 33 Pac. 120; Greer v. Heiser, 16 Colo. 306. Where a party has appropriated water for the purpose of working particular mining claims, after he has worked out the same he may extend his ditch and work other claims, or use the water for a dif- ferent purpose, without losing his priority of right, even against a party who had dug a ditch and appro- priated water from the same stream before the first claims were washed out. Davis v. Gale, 4 M. R. 604- But where water has been used and returned to the stream and been appropriated after its return, the upper appropriator cannot, by changing the line of his ditch, destroy the intervening appropriation below him. Last Chance Co. v. Bunker Hill Co. 49 Fed, 430. Using Gulch or Creek for Channel. A party may use the bed of a natural stream as his means of conducting water added to it by a ditch, without being considered as abandoning the water by mingling it with the original waters of the stream. Butte Co. v. Vaughn, 4 M. R. 552; Oppen- lander v. Left Hand Co. 18 Colo. 142. Location of Ditch Eight. At the point where water is taken from the stream, post notice as follows: DITCH NOTICE. MIDLAND DITCH. I claim 50 inches of the water of this stream, to be taken by ditch from this point to claims on Wightmaris Gulch, in Summit Mining District, Rio Grande County, for mining purposes. January 17, 1903. ALEXANDER G. COCHRAN. Posting this notice, at least when accompanied by collateral acts showing intention to follow up, 182 .DITCHES AND WATER. gives a reasonable time to begin the ditch. Dylte v. CaUwell, 18 Pac. 276. LOCATION CERTIFICATE OF DITCH AND WATER RIGHT. TO ALL WHOM THESE PRESENTS MAY CONCERN : KnOW Ye that I, Alexander G. CocTiran, 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, possession and enjoyment of all and singular, that tract or parcel of land lying and being in Summit Mining District, in the County of Rio Grande, in the State of Colorado, for ditch and mining pur- poses, bounded and described as follows, to wit : The Mid- land Ditch: Head of ditch tapping the waters of the Ala- mosa River at a point indicated by notice there posted on the right bank abont one mile above Summitville, 100 yards southwest from cabin occupied ~by Jacob Ellison, and 110 feet northeast from tree blazed with letters "M. D." ; course of ditch thence, etc., etc. I also claim 50 inches of the waters of said river, to be conveyed by said ditch, with the exclusive right of way for said ditch ; together with all and singular, the heredi- taments and appurtenances thereunto belonging or in any wise appertaining. Witness my hand and seal this 17th day of January, in the year nineteen hundred and three. ALEXANDER G. COCHRAN. [SEAL.] STATE OF COLORADO, County of Fremont: ss. Before me, the subscriber, a Notary Public in and for said County, personally appeared Alexander G. Cochran, to me personally known to be the same person described in, and who executed the within Declaration of Occupation and ac- knowledged that he signed, sealed and published the same as his free and voluntary act and deed for the uses and pur- poses therein set forth. Witness my hand and Notarial Seal, this nth day of January, A. D. 1908. Geo. W. Clclland, [SEAL.] Notary Public. The abo\e is a form prescribed by statute in Colorado (M. A. 8. 3610), but would be valid any- where as a location certificate of ditch rights unless the local statute should prescribe something more than the names, date, description and declaration of intention which such form contains. The ditch should be staked and work com- menced and prosecuted with reasonable diligence. If the notice and record be not followed up within DITCHES AND WATER. 183 a reasonable time by actual work in carrying out the intended appropriation, they amount to abso- lutely nothing. Unless required by district rule or statute the existence of such record could not be insisted on as a condition of title, where the ditch is actually con- structed and continuously used. But such record is customary, always advisable, and when made be- comes the initial point in the chain of recorded title. The staking of a ditch means merely the survey and marking of its line preliminary to excavation. The stakes are not a part of its location as they are of a mining claim. 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; Bradley v. Harkness, 11 M. R. 389; Burnham v. Free- man, 11 Colo. 601; Colorado Act, 1893, p. 298. Appurtenance. Whether a deed of lands 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. Arne v. Linhart, 21 Colo. 188; Gelwicks v. Todd, 24 Colo. 494. The water right goes with the sale of a mill site. N. A. Co. v. Adams, 104 Fed. 404- The ditch was held no appurtenance in Quirk v. Falk, 2 M. R. 19, and Ginocchio v. Amador Co. 67 Cal. 493. A patent does not divest ditch rights. Dodge v. Marden, 1 M. R. 63. The right granted under the A. C. 1866 was not confined to ditches then in exist- ence. Jacob v. Lorenz, 33 Pac. 119. Abandonment. A ditch may be abandoned without necessarily abandoning the water which it carried. New Mercer Co. v. Armstrong, 21 Colo. 357. Non-user of ditch does not necessarily amount to abandonment. Welch v. Garrett, 51 Pac. 405. 184 DITCHES AND WATER. 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 Go. v. Trullenger, 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 M. R. 601; Irwin v. Strait, 18 Nev. 436. But if the ditch be not completed with due dili- gence, the right only accrues from the time the water is actually appropriated. Ophir Go. v. Carpenter, 4 M. R. 640. Facts stated and held to amount to due diligence. Oviatt v. Big Four Go. 65 Pac. 811. Surplus Water. Ditch owner must return surplus. Stanford v. Felt, 71 Gal. 249. After user by placer miner it must be let go to claims below. Alder Gulch Go. v. Hayes, 9 Pao. 581. Waste water defined. Byrne v. Grafts, 73 Gal. 641. Water escaping from a tunnel is not the subject of appropriation such as to impose any obligations on the tunnel owner. Gardelli v. GomstocTc Go. 66 Pac. 950, and the same as to water from the sluice of a placer claim and tapped on the owner's ground by his license. Fatirplay Go. v. Weston, 67 Pac. 160. Parol License to Construct. Where a ditch is constructed on government land or over the land of persons who give their consent, no condemnation proceedings are necessary; the ditch once constructed becomes a lawful easement; or the consent may be treated as giving title by estoppel. Yunker v. Nichols, 8 M. R. 64. Such was the decision made on general princi- ples and upon conditions found equally everywhere on the Pacific slope. We apprehend that it states DITCHES AND WATER. 185 the true rule applying to this class of cases. It was doubted in Stewart v. Stevens, 10 Colo. 44$, hut has been repeatedly followed since. Oppenlander v. L. H. Co. 18 Colo. 142; Tynon v. Despain, 22 Colo. 240. With or without the aid of this or like decisions it remains clear that a ditch over the public land re- quires 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 ease- ment, even the patented title recognizes the validity of the title to such ditch. Tynon v. Despain, 48 Pac. 1039. 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 Do- main 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. Tit- comb v. Kirk, 5 M. R. 10; Jennison v. Kirk, 4 M. R. 504; Noteware v. Sterns, Id. 650. It seems not neces- sary that the 'ditch owners should incorporate to condemn a right of way for ditches, though incor- poration in such cases is usual and is always as- sumed to be necessary in the absence of constitu- tional provisions dispensing with it such as 7, Art. XVI, Colorado Constitution. Irrigation Ditches are granted the same rights of way and the same right to appropriate water as ditches for mining purposes under 2339 above printed. Neither has any class priority over the other. Union Co. v. Dangberg, 81 Fed. 73. The first in time is first in right. They may in gen- eral be located and recorded in the same form as a mining ditch, except when otherwise regulated by statute. 186 . RIGHT OP WAY. By M. A. S. 2265, a map was required to be filed with the County Recorder and the State En j gineer on which were to be endorsed certain details of size of ditch, etc., but the section was declared void for want of a proper title to the Act in Lamar Co. v. Amity Co. 26( Colo. 370. Under this state of the law we apprehend that where the record of an irrigating ditch is required it is sufficient under the form on page 182, changing the word "mining" to "irrigating." 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 guar- anty that the water would be there to fill it. Flick v. Hahn's Peak Co. 66 Pac. 453. For form of incorporation of ditch company see CORPORATIONS. RIGHT OF WAY, ROADS, TRAILS AND OTHER EASEMENTS. State Power to Regulate Easements. R. S. Sec. 2338. As a condition of sale, in the ab- sence of necessary legislation by Congress, the local legis- lature of any State or Territory may provide rules for working mines, involving easements, drainage, and other nec- essary means to their complete development ; and those con- ditions shall be fully expressed in the patent. Sec. 5, A. C. July 26, 1866. Highways. R. S. Sec. 2477. The right of way for the construc- tion of highways over public lands, not .reserved for public uses, is hereby granted. Sec. 8, A. C. July 26, 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. By a very early statute in Colorado all claims are made subject to the right of way for hauling RIGHT OF WAY. 187 quartz (M. A. 8. 3145), and by another section (3158) parol license to build a road is valid without deed. Where such statutes do not exist at the time when a location is made the estate of the miner in his claim is exclusive and a road cannot be laid across it, without his acquiescence, except by con- demnation under the Eminent Domain Acts, with compensation in damages. Titcomb v. Kirk, 5 M. R. 10. Not Divested by Patent. A mineral patent does not divest a valid high- way already on the ground when patent was applied for. And when construed in connection with the Act of Congress and the power of the State to regulate easements it would seem that the patent would be subject to any valid subsisting easement affecting the 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, 15 M. R. 299; Jacob v. Day, 44 Pac. 243. Annual Labor. The building of trails or roads for the benefit of a claim counts as annual labor or towards mak- ing up the $500 improvements required before pat- enting. See page 93. One Tenant in Common can not by his general deed or license create an easement over the common claim in favor of a stranger. Pfeiffer v. University, 74 Gal. 156. Nor has the general manager of a mine, power to grant an easement. Butte Co. v. Montana Co. 55 Pac. 112. Tramways, Canals, Electric Power Lines. By various Acts of Congress the right of way through public lands is given to tramroads, canals, ditches, reservoirs and lines for distribution of elec- tric power. Reference to the several Acts and the regulations of the Secretary of the Interior promul- gated thereunder will be found in 31 L. D. 13 and 188 DUMP. 503, especially with regard to the permit required where the line crosses a government reservation. See also ^8 L. D. 168; 27 L. D. 495. By A. C. May 21, 1896, 29 St. L. 127, oil pipe lines in Colorado and Wyoming are given free right of way over the public land. It has been held that right of way for a tramway over a located claim cannot be condemned. Peo. v. District Court, 11 Colo. U7. Provision for condemnation by electric power companies and by mines seeking to connect with railroads is found in the Colorado- Acts of 1901, pages 131 and 238. Bight 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 ad- judication of the Court of last resort in any of the mining States, to the writer's knowledge; but in the case of Equator Co. v. Marshall Co. U. 8. C. Ct. Colorado, an action brought to restrain the dumping across a claim lying below on the mountain slope, it was Held, as of course, that it was no case for in- junction, unless where work was being prevented, shafts filled, life endangered or other gross and con- tinuing injury, and the remedy, if any, was by action at law for damages. In a later suit in the same Court between the same parties it was held that when continuous dumping had been carried on by owners and lessees, without proof or attempt at proof, as to the injury done by each party, that only nominal damages DUMP. 189 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 Go. v. Richards, 10 M. R. 661. In the case of continuous and indiscriminate dumping over lower claims it may, if not in the meanwhile regulated by statute, be finally recognized as a controlling custom and so fixed as a permanent easement on the lower claims. In the case of careless or wanton injury to im- provements the upper claim is, of course, liable; but the right to dump over unimproved and valueless surface ground is doubtless such an easement as may be allowed by State Statute (R. S. 2338) or proved as a district custom. A Dump Is Real Estate and passes to the grantee without special mention. But a contract to sell the ore found in it need not necessarily be by deed. Smart v. Jones, 15 Com. Bench, N. S. 717. Dump deposited on the land of another and allowed to re- main indefinitely becomes parcel of the land. La- custrine Co. v. Lake Guano Co. 82 N. Y. 476; Erwin's App. 16 M. R. 91. A deposit of tailings becomes an accretion to the land. Rogers v. Cooney, 14 M. R. 85. Under a mining lease in general terms the les- see has the right to work over the dump, but the wording of the lease may be such as to exclude dumps by construction. Boileau v. Heath, L. R. (1898), 2 Ch. 301; Genett v. Delaware Co. 43 N. Y. Sup. 589; 25 N. E. 922. The right to dump may be lost by allowing ad- verse possession of the ground for the statutory period. McLaughlin v. Del Re, 16 Pac. 881. Eject- ment lies to recover ground used for tailings. Campbell v. Silver Bow Co. 49 Fed. 47. 190 PLACERS. The lessee has no property in the dump after his term has expired; nor, during term, to minerals not contemplated in his lease. Erwiris App. 16 M. R. 91; Doster v. Friedensville Co. 21 Atl. 251. Construction of contract to work dump. Fos- ter v. Lumbermen's Go. 36 N. W. 171. Appurtenances. 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 Fed. 821. PLACERS. Open to Location and Patent. R. S. Sec. 2329. Claims usually called "placers," in- cluding all forms of deposit, excepting veins of quartz, or other rock in place, shall be subject to entry and patent, under like circumstances and conditions, and upon similar proceedings, as are provided for vein or lode claims ; but where the lands have been previously surveyed by the United States, the entry in its exterior limits shall conform to the legal subdivisions of the public lands. Sec. 12, A. C. July 9, 1870. Size of Claim. R. S. Sec. 2330. Legal subdivisions of forty acres may be subdivided into ten-acre tracts ; and two or more per- sons, 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 bona-fide settler to any purchaser. Id. Twenty Acres to One Locator. R. S. Sec. 2331. Where placer-claims are upon sur- veyed lands, and conform to legal subdivisions, no further survey or plat shall be required, and all placer-mining PLACERS. 191 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 loca- tion shall include more than twenty acres for each indi- vidual claimant ; but where placer-claims can not be con- formed to legal subdivisions, survey and plat shall be made as on unsurveyed lands ; and where by the segregation of mineral land in any legal subdivision a quantity of agricul- tural 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, A. C. May 10, 1872. 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. k, 1892. 27 8 tat. L. 8^8. Location and Certificate Notice and Stakes. M. A. S. Sec. 3136. The discoverer of a placer claim shall, within thirty days from the date of discovery, record his claim in the office of the recorder of the county in which said claim is situated, by a location certificate, which shall contain : First, the name of the claim, designating it as a placer claim ; second, the name of the locator ; third, the date of location ; fourth, the number of acres or feet claimed ; and fifth, a description of the claim, by such reference to natural objects or permanent monuments as shall identify the claim. Before filing such location certificate the discoverer shall locate his claim : First, by posting upon such claim a plain sign or notice, containing the name of the claim, the name of the locator, the date of discovery, and the num- ber of acres or feet claimed ; second, by marking the sur- face boundaries with substantial posts, and sunk into the ground, to-wit : one at each angle of the claim. March 12, 1879. Legislation Concerning Placers. Placer claims were not covered by the original Act of 1866. The Act of 1870 brought them within Congres- sional recognition and made them open to patent. They have been at all times regulated as to size, labor, mode of location, etc., by the district rules to a much greater extent than lode claims. 192 PLACERS'. Placer Defined. As commonly and properly understood a placer claim means a location in which gold is found loose in sand or gravel and not in the vein or in place; it includes gulch claims, old channels, cement and drift diggings. Mining Claims Divided Into Lodes and Placers. But the U. S. Mining Acts make an arbitrary division of all minerals into two classes, to wit: lodes and placers. All deposits of metallic minerals in place are called, when located, lode claims, and all deposits of other minerals in place or not in place, are placers. Arbitrary as this division is, it is the only construction allowable to the statute, was at once adopted by the Land Office and has been followed by the Courts. Gregory v. Pershbaker, 15 M. R. 602. What Is Classed As Placers. Deposits of alum, asphaltum, soda and sulphur may be patented as placer ground. Circular 1 L. D. 572, Rev. Ed. 561; also kaolin or fire clay, 1 L. D. 579 Rev. Ed. 565; 17 Id. 550; borax beds, 2 Id. 707; auriferous cement, marble, mica and slate, 25 Id. 354; gypsum, Id.; 29 Id. 181; iron, when in the form of a deposit, 1 L. 0. 34; limestone, 17 L. D. 82; phos- phate, 18 Id. 58; 26 Id. 600. Oil Lands. Ever since the passage of the placer mining Act, lands valuable for deposits of petroleum were considered as open to location and patent as placer claims and as such, records were made followed by entries and patents as a matter of ordinary course. 4 L. D. 60; 284; 16 L. D. 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. Califor- nia Oil Co. 60 Fed. 532; Van Horn v. State. 40 Pac. 964. PLACERS. 193 After this unbroken procedure of more than twenty years, the Land Office in 1896 (Union Oil Co. 23 L. D. 222) abruptly held that oil was not a mineral and oil lands therefore not subject to entry. This was immediately followed by an Act of Con- gress making such lands in terms patentable as plac- ers. The ruling itself which induced the confusion was later reversed by the Secretary of the Interior. 25 L. D. 351. The judicial rulings that oil is a mineral have been uniform. Thompson v. Noble, 11 M. R. 137; Gill v. Weston, 110 Pa. St. 317 barring the anomalous case of Dunham v. Kirkpatrick, 101 Pa. St. 36. Salines were the subject of congressional legisla- tion for many years prior to the Mining Acts of 1866-72. Under those Acts they were still, treated as neither lode nor placer but open to entry under special statutes until January 31, 1901, when they were declared to be placer ground. 31 St. L. 145. Quarries Building Stone. It was held under the original Act of 1870 that a quarry of building stone could be entered and pat- ented as placer ground. 3 L. D. 116. But the decis- ion to such effect by the department was overruled in Conlin v. Kelly, 12 L. D. 1; followed by the Delaney case, 17 L. D. 120, excluding both building stone and glass sand as non-mineral. Stone of special commer- cial value however was treated as mineral and placer. 15 L. D. 370; 16 Id. 508. In 1892 was passed the Special Act above printed stating in terms that "lands chiefly valuable for building stone" are to be considered as placer claims. 23 L. D. 329, 516. Even this act would not allow the entry of mere rock land if it were not known to have greater value for legitimate mining of any de- scription. 23 L. D. 353. A ledge of limestone containfng no form of ore cannot be located as either a lode or placer claim. Wheeler v. Smith, 32 Pac. 78J h The location in this case was prior to the passage of the Stone Act of 194 PLACERS. 1892. It has been since expressly ruled that it cannot be patented as a lode claim. 23 L. D. 353, 395; but may be located as a placer claim. 17 L. D. 82. Lands valuable chiefly for stone may be sold on the same terms as timber lands, that is 160 acre tracts at $2.50 per acre. Act of June 3, 1878, 1 Sup. 167, and August 4, 1892, 2 Sup. 65. Location Without Specific Mineral Value. Some of the decisions of the department aided by the Act of 1892 allowing quarries to be entered were sufficiently loose to allow a claim to be laid upon any ground; for either what can be called building stone, or a color of gold in the pan, can be found practically anywhere but the obviously needed declaration was at length made that land could not be taken up as placer ground on mere wash or because a color could be panned, its real value being on account of its proximity to lode claims. It must contain mineral in paying quantities. Royal K. Placer, 13 L. D. 86. Nor where it had no characteristic of any form of placer. Searle Placer, 11 L. D. 441. Discovery or Knowledge of Mineral Value. Unless specifically required by State Statute or District Rule no discovery shaft is required, but the Act of Congress implies that mineral shall have been found before the right to locate upon the same as a placer claim accrues. 13 L. D. 86. A discovery of the mineral sought for upon the claim is held to be essential to a valid placer lo- cation of any kind. Indications or knowledge of its existence upon adjoining lands is not enough. Ne- vada Oil Co. v. Miller, 97 Fed. 688; Nevada Co. v. Home Co. 98 Fed. 673; Olive Co. v. Olmstead, 103 Fed. 568. A discovery pit or shaft on a vein shows to the eye a mineral formation specifically distinct from the surrounding country. A pit or shaft on placer gravel shows nothing of that sort. A pit or shaft on any of the various minerals claimed as statutory PLACERS'. 195 placers might or might not show such indication. Such working is not essential to the disclosure of mineral value on this class of claims. But it is clear from the implied requirement of knowledge or discovery of mineral character, that the ground about to be located must have a special value as either placer proper or for some special deposit treated as placer ground under the statute, and that merely surveying and recording vacant land as and for placer ground without known value under either class is a void proceeding when properly contested or attacked. A Separate Discovery on Each Twenty Acres is not required where there has been a joint loca- tion of 160 acres. McDonald v. Montana Co. 35 Pa",. 668; Union Oil Co. 25 L. D. 351 overruling previous Land Office holding to the contrary. L. 0. Reg. 19. Use of Names Nominal Association. It requires eight l)ona fide locators to lawfully claim 160 acres. The names of nominal parties are often used to locate placer ground, and such nominal association is not questioned in land office proceed- ings, but its validity may well be doubted when con- tested in court. Such use of names with agreement to reconvey without consideration, has been held void as against public policy. Mitchell v. Cline, 24 Pac. 164; Durant v. CorMn, 94 Fed. 382. In Gird v. California Oil Co. 60 Fed. 532 the court held to a very strict construction on this point, and ruled that where three persons in the employ of a corporation located sixty acres it was good only to the extent of a single location of twenty acres. The Excess over the acreage allowed to be located may be taken up by a stranger. Gohres v. Illinois Co. 67 Pac. 666. Size of Claim That May Be located. The amount of ground which may be located is limited to 20 acres to each individual or person; of course a corporation is one person without reference 196 PLACERS. to the number of its incorporators. An association of persons may locate a claim in common not ex- ceeding 20 acres to each individual in the association, and not exceeding 160 acres to the entire associa- tion. Conformation to IT. S. Sectional Subdivisions. The Act speaks of making survey for the placer claim conform as near as possible with the rectangu- lar subdivisions of the public lands, but under the practice this provision has been almost wholly dis- regarded, except on subdivided sections. 2 L D. 764; 20 L. D. 485. Procedure to Complete Location. Presuming that free gold or some other valuable deposit other than a lode in place, is known to exist on the ground, the claimant, if he desires the benefit of the 30 days allowed the discoverer, should place a notice conspicuously as follows: FORM OF PRELIMINARY NOTICE. Gold Bug Placer Claim. The undersigned claims 20 acres for placer mining purposes with 30 days from date to complete location and record. W. W. MCCONNELL. January 9, 1903. We do not consider that the above notice is es- sential in all cases, but it is customary. If the claimant was the actual first discoverer of the min- eral it might not be required; but if the existence of the gold or other deposit had been a matter of common notoriety, we do not see why one person more than another could claim the time allowed to a discoverer without some such notice. Proceeding to perfect the location the claimant must post upon the claim the statutory notice (page 191) which may be in form as follows: LOCATION NOTICE. Nellie Moore Placer Claim. The undersigned claims 20 acres for placer mining pur- poses, as staked 'on this ground. Date of discovery, Jan- uary 9, 1903. JOSIAH WINCHESTER. PLACERS. 197 SECOND FORM. Ballarat Placer Claim. The undersigned claims 1320 feet in length along the gulch by 660 feet in breadth, for placer mining purposes, as staked on this ground. Discovered January 9, 1903. JOHN A. WHITE. Dates. It will be noted that the notice on the stake in Colorado, must contain the date of discovery while the record must contain the date of location. The date when the posting and staking are completed would be such date of location. Place of Posting. Where not directed by statute .or district rule such ^notice should be posted at the center point of the claim; or at some point where the prospecting pits show actual work. It should be conspicuous and either close to the apparent discovery or at the center as above suggested. Stakes and Ties. The locator then stakes his claim, placing a "substantial post," "sunk into the ground" at each angle of the claim. No center stakes are required. Accuracy and strictness- in fixing and marking the boundaries cannot be too severely urged. Of course some of the angles must be tied to "natural objects" or "permanent monuments" in order to make a proper location certificate or record. We advise the same as in case of lode claim. (See page 52.) A failure to stake invalidates the claim. Anthony v. Jillson, 16 M. R. 26. Location by Trespass. The rule that a location cannot be initiated by trespass upon a prior valid possession applied in contest where both claims were placers. Kirk v. Meldrum, 65 Pac. 633. Staking Government Subdivisions. It has been decided that the Statute requiring the boundaries to be marked is not complied with by 198 PLACERS. calling for a government subdivision in the notice or record; that the locator must stake out his claim the same as if he were locating on a private survey. White v. Lee, 78 Gal. 593; 21 Pac. 363; Contra, 22 L. D. 409. Record. The notice being erected and the ground sur- veyed and staked, the location is complete and ready for record, the location certificate being in form as follows : FORM OF PLACER LOCATION CERTIFICATE. KNOW ALL MEN BY THESE PRESENTS, That I, Joslah Winchester, of the City and County of Denver, State of Colo- rado, claim, by right of discovery and location, the Nellie Moore placer claim, containing twenty acres (or 1320 feet in length by 660 feet in width), situate in Cripple Creek Min- ing District, County of Teller, State of Colorado, bounded and described as follows, to wit : Beginning at stake at corner No. 1 : (here insert description, giving a course to each line, and tying one or more corners to a government corner, well known natural object or permanent monument, etc.} Date of discovery, Jan. 9, 1903. Date of location, Jan 15, 1903. Date of Certificate, Jan. 16, 1903. JOSIAH WINCHESTER. Description by claiming so many feet along the creek and so many feet on each side was sustained in McKinley Co. v. Alaska Co. 183 U. S. 563. An amended location certificate may be filed the same as allowed for lode claims. Kirk v. Meldrum, &5 Pac. 634. The Statutory Requirements of the other mining States which provide for the manner of locating placer claims, are as follows: Arizona. 1. Post notice containing name of the claim, name of locator, date of location and number of acres claimed, with reference to natural object or perma- nent monument. 2. Mark surface boundaries with post or monu- ment of stones at each angle of claim; posts must be 4 inches square by 4 ft. 6 inches in length, set PLACERS'. 199 one foot in ground, surrounded by mound of stones or earth 4 ft. in diameter by 3 ft. in height. 3. Within 60 days after date of location, record with County Recorder a copy of the location notice. Idaho. 1. Place post or monument, as required in loca- tion of lode claims, at each corner, and place on one of these a notice of location containing date of loca- tion, name of locator, name and dimensions of claim, the mining district (if any), and County; also the distance from such post or monument to such natural object or permanent monument, if any such there be, as will fix and describe in the notice itself, the location of the claim. 2. Within 15 days after making the location, make an excavation on the claim, for the purpose of prospecting the same, of not less than 100 cubic feet. 3. Within 30 days after the location, record with County Recorder or with Deputy Recorder of mining district, a substantial copy of the location notice, verified as in the case of lode claims (p. 62). Montana. 1. Post notice at point of discovery, containing name of the claim, name of locator, date of location and number of acres or superficial feet claimed. 2. Within 60 days from date of posting, the equivalent in work of a 10-foot shaft must be done upon the claim. 3. Within 30 days from date of. posting, mark boundaries in same manner as required in case of lode claims (p. 63). 4. Within 60 days from date of posting, file with Clerk of County a declaratory statement con- taining same as notice posted, adding description of claim with reference to natural object or perma- nent monument, dimensions and location of work done and the location and description of each cor- ner, with the markings thereon. This statement must be verified by one of the locators (p. 63). 200 PLACERS. Nevada. 1. Post upon a tree, rock in place, stone, post or monument, a notice of location containing the name of the claim, name of locator, date of location, and number of feet or acres claimed. 2. Mark surface boundaries and the location point in the same manner and by same means re- quired for lode claims; on surveyed land when taken by legal subdivision, only the location point need be marked (p. 63). 3. Within ninety days after posting perform not less than $20 worth of labor for development, and record with Mining District Recorder and County Recorder, a certificate stating same as posted notice, and adding description of claim with reference to natural objects or permanent monuments and the kind and amount of work done and the place where done. Washington. 1. Post in a conspicuous place at the point of discovery ,a notice containing name of the claim, name of the locator, date of discovery and posting of notice, which is considered date of location, descrip- tion by reference to legal subdivisions if on sur- veyed lands, otherwise with reference to natural ob- jects or permanent monuments. 2. Within 30 days from discovery distinctly mark the location on the ground so that its boun- daries may be readily traced; marking must be done even if claim is located by legal subdivisions. 3. Within 30 days from discovery record in the office of the Auditor of the County a certificate of location containing the same as the posted notice. 4. Within 60 days from discovery perform labor equivalent in the aggregate to at least $10 worth for each 20 acres. 5. Upon performance of such labor file with the County Auditor an affidavit showing the nature and kind of work done. PLACERS. 201 These statutory provisions do not apply to oil placer locations. Acts 1901. Wyoming. 1. Securely fix upon the claim a plain notice containing the name of the claim, name of the loca- tors, date of discovery and number of feet or acres claimed. 2. Mark the boundaries by substantial posts or stone monuments at each corner of the claim. 3. Within 90 days from discovery record with the County Clerk a location certificate containing same as posted notice and adding date of location and description by such designation of natural or fixed objects as shall identify the claim beyond ques- tion. Alaska, California, New Mexico, North and South Dakota, Oregon and Utah have no specific statu- tory provisions for the manner of 'locating and re- cording placer claims, and in those States such lo- cations are governed by district rules, where such rules exist, and by the terms of A. C. 2324. See p. 59. A placer location made according to the forms given for Colorado, would doubtless be sufficient in any of the above named States where district rules do not require more specific details. No Reservation Against Patentee. .When patented under a location of the ground as a "placer mining or stone quarry claim" the pat- entee owns all minerals found within its bounds ex- cept known lodes. Freezer v. Sweeney, 21 Pac. 20. And doubtless he owns to the same extent under a location before patent subject to the right to locate lode discoveries over the same ground, and except lodes apexing outside but dipping underneath. Homestead. Lands located and used as a placer and also used as a residence by the owner, may be selected by him as a homestead, under the State law of exemptions, 202 PLACER CONTAINING LODE. the question of title in the United States being ex- cluded. Gaylord v. Place, 33 Pac. 484. Area in Feet or Acres. By the following table the number of feet nec- essary to include any desired number of acres when in the shape of a square or parallelogram may be ascertained: Claim 660 x 330 feet contains 5 acres. 500 x 500 " " 5.73 " 660 x 660 " " 10 1320 x 660 " " 20 800 x 1089 " " 20 933% x 933% " " 20 1320 x 1320 " 40 2640 x 2640 " 160 43560 square feet equal one acre. A square 208.71* feet in length and width makes one acre. PLACER CONTAINING LODE. Claim Intersected by Lode. R. S. Sec. 2333. Where the same person, association, or corporation is in possession of a placer-claim, and also a vein or lode included within the boundaries thereof, appli- cation 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 of surface on each side thereof. The remainder of the placer-claim, or any placer- claim not embracing any vein or lode-claim, shall be paid for at the rate of 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 hun- dred 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 decla- ration that the claimant of the placer-claim has no right of possession of the vein or lode claim ; but where the ex- PLACER CONTAINING LODE. 203 istence 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. Known Lodes Excluded. An application for patent to a placer claim is not supposed to include any known lode running through it, unless such lode is owned by the appli- cant and especially designated in the application, but it covers any after discovered lode. O'Keefe v. Cannon, 52 Fed. 898. The placer patentee acquires no title to lodes known to exist prior to and not included in his appli- cation. Clary v. Hazlitt, 67 Col. 286. The exception of known lodes does not apply to placer patents issued on entries prior to May 10, 1872. Cranes G. Co, v. Scherrer, 66 Pac. 487. What Are Known Lodes. Where a lode within the placer lines has been discovered, located and recorded, and has kept up its labor to the time of the placer application, it is clear that such is a "known lode" beyond any possible danger of construction. But where lodes, though known, have not been considered worth locating, or after location have been abandoned, or where they have been known as a matter of common knowledge to be within the lines, as in the case of outcrops not considered worth work- ing these points admit of more or less controversy. In the case of Reynolds v. The Iron Silver Co. 15 M. R. 591, the court ruled that the lode in or under- lying the Wells & Moyer placer being shown to be known to the applicants, could not be recovered by. them in ejectment as against adjoining lode owners who had worked beyond their side lines into the deposit. Known But Not of Known Value. It has been with much reason held that a lode or vein though known to exist but having no such value as would justify its exploration or working, or 204 PLACER CONTAINING LODE. by like expressions to the same effect is not within the exception of the patent. O'Keefe v. Cannon, 52 Fed. 898; Brownfield v. Bier, 39 Pac. 461; Butte Co. v. Sloan, 40 Pac- 217. It must be a lode of known prac- tical value for working. Montana Ry. v. Migeon, 68 Fed. 811; 77 Fed. 2J9; Casey v. Thieviege, 48 Pac. 394. The allegation in an answer that there were no known deposits of sufficient value to pay is a proper plea of no known lodes and does not state a conclu- sion of law. O'Keefe v. Cannon, 52 Fed. 898. Known But Not Recorded. It was held in Noyes v. Mantle, 15 M. R. 611, that a located claim was a known lode. But in Iron Sil- ver Co. v. Mike & Starr Co. 143 U. 8. 394, 17 M. R. the Supreme Court go further and hold that it is sufficient to exclude it that it be a lode known to exist, and that where a lode has been notoriously cut in a tunnel within the claim, it was such a disclosure of the vein as to bind the patentee to a knowledge of it. And while holding (p. 404) that not every out- crop or crevice suggesting mineral would constitute a known lode within the class to be excepted, yet any vein disclosed and understood to be of value was excluded, and whether a vein was known and was of such a character as to be excluded, was a question of fact for nisi prius decision by jury. The mere fact that a lode record had been made over the ground now claimed as placer does not prove that there was a vein on which to record. 23 L. D. 476; Butte Co. v. Sloan, 40 Pac. 217. And when the fact of lode or no lode has been left on conflict- ing evidence to the jury the court will not set their finding aside. Id. To Whom Known. In the Mike d Starr case it was held that it must be known to the applicant or to the community in general. If obvious to casual inspection, knowledge was chargeable to the owner. But a lode discovered, located and of record before the patent application, PLACER CONTAINING LODE. 205 is a known lode whether or not the patentee had knowledge of it. Noyes v. Mantle, 15 M. R. 611. Date of Discovery Material. It had been held that the lode (to be an excepted known lode) must be discovered before entry, but the date of application is now the conceded date. Dahl v. Raunheim, 16 M. R. 214; Mike d Starr case, supra. Of course, the application referred to is the ap- plication upon which the patent ultimately issues and the date of application is the date of filing the paper "M" (post p. 396) in the course of proceedings to obtain patent; but in Clipper Co. v. Eli Co. 68 Pac. 286, the opinion seems to treat an application which had been dismissed by the Land Office as hav- ing given a vested right to all lodes not known to exist at date of such dismissed proceeding. Necessity of Adverse or Protest. If a known lode, whether held by strangers, or not located at all, though known to exist, is under the express terms of the statute as recognized by many decisions excepted from the grant it would seem a necessary deduction that it need not file any adverse claim to preserve its rights. But if it be neglected either to procure an exclusion from the placer survey or to adverse and the placer patent issues, the Land Office will not as of course entertain an application to patent the lode. Before the appli- cation will be received it requires a hearing in the local Land Office after notice to the placer patentee as to whether in fact the lode was known to exist, and unless upon such hearing the fact is affirma- tively so found, it denies the application. South Star Lode, 20 D. D. 204; 27 Id. 676. If the finding is that the lode was known, the placer patentee is still at liberty to contest the lode application by showing and securing a judicial de- termination upon verdict that the lode was not known to exist. Alice M. Co. v. Street, U. S. Circuit Court, Denver, unreported. 206 PLACER CONTAINING LODE. The practice of the Land Office has not been uni- form upon this point, and for some years prior to the South Star case it had refused all applications to en- ter lode claims over placers except by consent of the placer patentee on the ground that the ex parte proof of no known lodes originally made by the applicant definitely established the non-existence of known lodes. And yet, in instances a patent to both lode and placer had been granted, as in Iron S. Co. v. Campbell, 16 M. R. 218. In that case each party hav- ing his proof of legal title in the shape of a paten-t, the question of priority was held to be an extrinsic fact to be found and settled by the jury under the instructions of the court. The patent is held conclusive evidence that the land conveyed was placer ground! Dahl v. Raun- heim, 16 M. R. 214; Butte Co. v. Sloan, 40 Pac. 217. There are expressions in both these opinions which, taken by themselves, would read that the patent was conclusive proof that no lode existed, but to so de- cide on consideration of the whole case was evidently not the intention of the court. The practical conclusion from this vexed state of the title, arising from the unwise reservation from a government grant of a piece of land with no defined bounds and even without acknowledged existence, is that a lode within placer lines should assert itself by adverse against the placer application at the out- start, so as to avoid subsequent Departmental in- quiry. 26 L. D. 573-, 27 Id. 676. And where the ap- plication is by the lode claimant over a prior placer patent, the safe course is for the placer to adverse if the facts exist upon which to contest the title of the lode claimant. Proof of Known Lode by Contiguity. Running a lode survey over placer lines raises no inference that the vein enters within them. Raunheim v. Dahl, 9 Pac. 892; 132 U. S. 260; 26. L. D. 622. Nor is it sufficient that quite a number of shafts sunk elsewhere in the district disclosed hori- PLACER CONTAINING LODE! 207 zontal deposits which might be parts of a vein of continuous extension through all that territory. Sullivan v. Iron Silver Co. 143 U. 8. 431. Nor does the granting of a patent subsequent to the placer patent over the placer ground raise any conclusive presumption. The question in such case is then an extrinsic issue dependent on proof. Iron Silver Co. v. Camp-bell, 16 M. R. 218; 25 L. D. 460. Locating Lode Within Placer. The placer owner, or a stranger with his. con- sent, may locate a lode claim within the placer su-r- vey. McCarthy v. Speed, 77 N. W. 590. And doubt- less the discoverers without such owner's consent by peaceable entry may make such location. 1 Lindley, 413. But in Colorado the sweeping decision, STEELE J. dissenting has been made that the placer location holds all lodes not known to exist at the time of the location. That no prospector can enter to search for them and that if he does so enter and discover a lode he cannot locate it because his location was initiated by trespass. Clipper Co. v. Eli Co. 68 Pac. 286. This practically gives all lodes to the placer .owner and clearly defeats the intent of *the Act of Congress. The question seems to us more analogous to the case where one owns the surface and another the minerals, in which instance it is universally held that the surface may be entered upon and used to the full extent necessary to find and win the mineral values. Width of Such Lode Claim. Where the location of the lode is made within the bounds of the placer location, and after the date of the placer location, it has been held that the lode claimant is restricted to fifty feet in width. Mt. Rosa Co. v. Palmer, 56 Pac. 176. But where the lode was not only known to exist, but was a valid loca- tion prior to a placer location, the lode is entitled 208 TAILINGS. to its full width as staked, against the placer locator or patentee. Noyes v. Mantle, 15 M. R. 611. See 28 L. D. 41. TAILINGS. Each Claim Must Take Care of Its Own. M. A. S. Sec. 3144. In no case shall any person or persons be allowed to flood the property of another person with water, or wash down the tailings of his or their sluice upon the claim or property of other persons, but it shall be the duty of every miner to take care of his own tailings, upon his own property, or become responsible for all dam- ages that may arise therefrom. Sec. 9, Nov. 1, 1861. The Relation of One Claim to Another where both are situate in the same gulch or on the same waterflow was sought to be regulated by the above section passed at an early date which fixed in terms a matter of long continued dispute in Cali- fornia. The tendency of the later decisions is to the effect that the upper claim cannot justify cover- ing up the lower claim on the plea of either custom, priority or necessity. Lincoln v. Roclgers, 14 M. R. 79; Fitzpatrick v. Montgomery, 50 Pac. 416. Upper and Lower Claim in Same Gulch. Notwithstanding the above Act or similar local legislation elsewhere, the natural invitation of the stream to utilize its current is a temptation too po- tent to be resisted. No placer, barring exceptional instances, can be conveniently worked without en- croaching more or less upon the claims below. This leads on the one side to trespass, on the other side to concessions, and their relations thus become in- volved with questions of license, contract and estoppel. The legal right of the claim to be exclusively enjoyed by its own occupant is plain with or without the aid of the Statute, subject to such considerations as courts of equity will give to the hardship of deny- TAILINGS. 209 ing the use of a natural outlet to a claim so situate to its neighbors on the stream below that its use of the stream is a physical necessity. The upper claim is therefore not denied the right to rush its tailings across the lower claim if they are not allowed to lodge upon such claim. A claim staked and recorded below for dumping purposes would also forestall the location of the same ground for mining purposes, except subject to the prior easement of the right to deposit tailings. Slight Injury to Lower Claims. The owner is not liable for pollution of stream incidental to placer mining, or to washing iron ore. It is classed among non-actionable injuries. Nor will such use of the stream be enjoined even if an action lies, except in wilful or extreme cases. Clif- ton Co. v. Dye, 6 So. 192; Hill v. King, 4 M. R. 533; Atchison v. Peterson, 1 M. R. 583. But a, material injury will be prevented by writ or compensated by damages. Columbus Co. v. Tucker, 26 N. E. 630; Tennessee Co. v. Hamilton, 14 So. 167; Drake v. Lady Ensley Co. Id. 749; Hindson v. Markle, 33 Atl. 74. A Boom Ditch was enjoined in Carson v. Hayes, 65 Pac. 814, and hydraulics in York v. Davidson, Id. 819. Injunctive Relief Against Deposit of. Where there is neither license nor the protection of a prior location for tailing purposes and the ground below has been taken up by other parties, the statute is plain that the upper cannot lawfully use the lower claim as a place of deposit. Fuller v. Sw>an River Co. 16 M. R. 252. To do so would be an invasion of the legal rights of the lower claimant for which he might recover damages, but it does not follow that in every case the courts would inter- fere to restrain the upper claimant by injunction. And if the lower claims could be shown to have been located or purchased for any purpose of annoy- ance to the upper claims, the want of equity in such 210 TAILINGS. case upon an application for injunction, would be manifest. Edwards v. Allouez Mining Co. 7 M. R. 577. Placer company enjoined at suit of water works against fouling stream. Travis Co.. v. Mills, 94 Fed. 909. The incidental flow of mud and fine tailings not sufficient to accumulate as deposit, but affecting only the character of the water or causing but slight dam- age, if an injury at all, is not such as to be inter- fered with by injunction. Atchison v. Peterson, 1 M. R. 583; U. S. v. N. Bloomfteld Co. 53 Fed. 631. Property In. Tailings are property of the miner who made them, so long as retained on his own land or under his control and not abandoned. Jones v. Jackson, 14 M. R. 72. When allowed to flow upon the land of another he becomes entitled to them. Id. They belong to the lessee for the time being but not after he has ceased acts of ownership. Erwiris App. 16 M. R. 91. Location of Dump Ground. It has been held in Jones v. Jackson, 14 M. R. 72, that a reasonable amount of ground below a mining claim proper, may be located as a dump or place of deposit for tailings. The same case holds that mere posting of notice would not be sufficient to hold such ground. We would advise as strict a location, in- cluding staking, notice and record as should be made in the case of the location of the mining or ditch claim, to which such tailings claim may be appurte- nant. In the nature of things the boundaries of such a claim also would be strictly confined to the abso- lute needs of the upper claim; nor do we consider that such located easement would hold indefinitely without user. It is a claim not so much of express right as of necessity. The doctrine, however, that an easement may be created on public land is distinctly held in the above case, and in Lincoln v. Rodgers, supra; O'Keiffe v. Cunningham, 9 M. R. 451. In Miser v. O'Shea, 62 Pac. 1$1, such right is expressly denied. TAILINGS. 211 Mill Tailings. A mill owner, though the prior appropriator, has no right to flow tailings into a stream when at slight cost they could be so impounded as not to materially foul the water. Suffolk Go. v. San Miguel Co. 48 Pac. 828. A mill will not be allowed to so pol- lute the water as to render it unfit for use by prior irrigation appropriators. Montana Co. v. Gehring, 75 Fed. 385. The rights and duties of two mills using the same water, one above and one below, are fairly stated in Otaheite Co. v. Dean, 102 Fed. 929. Location "Upon Deposits of Tailings. Vacant land upon which tailings have been de- posited may be claimed and worked the same as land containing natural deposits, and trespass maintained by the claimant against a party carrying away such tailings. Rogers v. Cooney, 14 M. R. 85. A party may take up a claim for mining pur- poses which has been and still is used, as a place of deposit for tailings by another but in such case his mining right would be subservient to the prior right of deposit. O'Keiffe v. Cunningham, 9 M. R. 451. On the other hand the right to dump may be lost by allowing the mining claimant to hold exclu- sive adverse possession. McLaughlin v. Del Re, 16 Pac. 881. The Debris Cases. On the plea of interference with navigable wa- ters the United States has, on the San Joaquin and Sacramento Rivers, in California, prohibited all hy- draulic mining, except under government license and regulation. The Act of 1893 (27 St. L. 507) makes such mining a misdemeanor unless carried on by Federal supervision. This Act and the decisions un- der it is the final outcome of what SAWYER J. can- didly calls "a suit between the mining counties and valley counties." 18 Fed. 792. There are obvious constitutional points arising out of such an act, but 212 MILL SITES. it has been thus far sustained. U. S. v. N. Bloom- field Co. 81 Fed. 243; 88 Fed. 664. A review of the progress of this struggle is fairly given in the opinion of HAWLEY J. in the last citation. The passage of this act and the reference to the opinion in 88 Federal Reporter, renders it unneces- sary to further cite the numerous cases almost uni- formly adverse to the miner, which led up to it. Some of them were so harsh as to suggest that judi- cial power had reached its limits. 9th Ed. p. 182. MILL SITES. Extent How Patented. R. S. Sec. 2337. Where non-mineral land not con- tiguous to the vein or lode is used or occupied by the pro- prietor of such vein or lode for mining or milling purposes, such non-adjacent surface-ground may be embraced and in- cluded in an application for a patent for such vein or lode, and the same may be patented therewith, subject to the same preliminary requirements as to survey and notice as are applicable to veins or lodes ; but no 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> A. C. May 10, 1872. Location and Record. Mill sites are located by posting notice and stak- ing by a substantial post or stake at each angle, which ordinary prudence would require to be in- scribed with the name of the mill site and the num- ber of the corner. There are no Congressional regu- lations of the details of such location, but their record should conform to the requirement applicable to the record of all classes of claims, to wit, that it contain a sufficient description by reference to natural objects or permanent monuments; which MILL SITES. 213 terms of the statute are no more than a statement of what is required as a matter of course without such statute. In other words, where any record whatso- ever is essential to either original claim or convey- ance, it must contain a description sufficient to iden- tify the land intended to be described. In Colorado the form in use is the statutory wording prescribed for all cases of location of non- mineral lands, M. A. 8. 3610. Post location notice at some conspicuous point on the claim, in substance as follows: LOCATION NOTICE. I claim the Corinne mill site (600 feet northeast by WO feet southwest) as staked on this ground. Date of location Jan. 2, 1903. THOMAS W. FITCH, JR. And make record in the proper county of the LOCATION CERTIFICATE OF MILL SITE. TO ALL WHOM THESE PRESENTS MAY CONCERN I Know ye that I, Thomas W. Fitch, Jr., of Pittsburgh, County of Allegheny, Commonwealth of Pennsylvania, do hereby de- clare and publish as a legal notice to all the world that I have a valid right to the occupation, possession and enjoy- ment of all and singular that tract or parcel of land, not exceeding five acres, situate, lying and being in Pioneer Mining District, in the County of Dolores, in the State of Colorado, bounded and described as follows, to wit: The Corinne mill site, beginning at corner No. 1, from which, etc. (description continued) to the place of beginning. Together with all and singular the hereditaments and appurtenances thereunto belonging or in anywise appertain- ing. Witness my hand and seal this 27th day of January, in the year of our Lord one thousand nine hundred and three. THOMAS W. FITCH, JR. [SEAL.] For form of acknowledgment see page 182. A % name is not essential to a mill site, but it is convenient and preferable to style it by a name. Location and record should be accompanied or followed by substantial occupancy or valid improve- ments. The digging of a ditch is not the location of a mill site. "Land is appropriated by one character 214 MILL SITES. of acts, water by another." RoMnson v. Imperial Co. 10 M. R. 377. By the IT. S. Law They Are Limited to Five Acres, but by the district regulations were sometimes re- stricted to much less extent. A square location 466.69x466.69 feet contains five acres. They Cannot Lawfully Be Located on Mineral land. 8 L. ~D. 195; 13 Id. 175. And if so located may be contested by proceedings in the Land Office. 5 L. 0. 51. And a mill site adjoining the end line of a lode claim being presumed to contain the extension of the vein, will be considered as mineral land, and its entry as a mill site will not be allowed; if a mill site abut against a side line, the same presumption does not exist, and its entry may be permitted. 7 L. 0. J t . But the presumption that land on which a lode claim end line abuts, is necessarily mineral, may be rebutted by proof. 7 L. 0. 179. A mill site taken upon land supposed to be non- mineral at the time will hold against a lode loca- tion made later. And the finding of ore not of mer- chantable value does not make the ground mineral land. Cleary v. SJciffich, 65 Pac. 59. In Hartman v. Smith, 14 Pac. 648, it was held that a mill site was a mining claim and as such ex- cluded from a town site patent. In Cleary v. Skiffich, 28 Colo. 367, the Court says "A mill site is a mining location." In the latter case the expression is a mere introductory clause. But to chance the exclusion from a town site patent of a mill site claim on the forced or technical meaning of one word, would be to assume grave risk. Bona fide prior location for ranch purposes will defeat a mill site. Hamburg Co. v. Stephenson, 17 Nev. 450. Two Classes of Mill Sites. The latter clause of 2337 supra, provides for patenting of land actually occupied by a mill, but MILL SITES. 215 the former and more important portion of the sec- tion provides a means of procuring surface area to cover such ground as may be used in any manner incidental to the mine. First Class Mill Site With Lode. Congress allows to each lode claimant the priv- ilege of taking up five acres of ground, upon the theory that such additional surface is, or may be, needed either incidentally for the operation of the mine (storage room, boarding houses, miners' cab- ins, ore houses, etc.) or indirectly by a mill, patio, arastra, or other works for treating ore. In fact, any largely operated mine does require some such space if not more. The land so needed is strictly within the intent of the law; and though no mill may be erected or contemplated, such area of surface is styled a mill site. The land taken under this clause must be: 1. Non-mineral. 2. Non-contiguous to the lode. 3. Used or occupied by the owner for mining or milling purposes. 13 L. D. 175. 1. Non-Mineral. The test on this point, following analogous rul- ings between agricultural and mining claims, would be: has the land greater value for its mineral, or for surface use in connection with the mine? 13 L. D. 86; 517. The form of proof of such non-mineral character is by the affidavits of disinterested witnesses. 2. Non-Contiguous. The object of this requirement is to prevent the ~ taking of an increased area of mining claim under the pretext of mill site uses. 3. What Is Sufficient Use. "The building on the land of a. pumping plant to carry water to the mine is a sufficient mining use. 11 L. D. 338. Or storing water on the same for the mine. 13 Id. 175. Use for storing ores or for tail- 216 MILL, SITES. ings, shops or houses for workmen. 5 Id. 192. Or for houses for workmen on the mill. 14 Id. 173. The use of a cabin on the land for storing tools was held sufficient in Hartman v. Smith, 14 Pac. 648. This case practically decides that the ordinary use of a prospector's cabin, wherever it may be located, if not on ground contiguous to the lode, is enough to justify the claiming of the site of the same as a mill site. Cited and followed in Valcalda v. Silver Peak Mines, 86 Fed. 90. Insufficient Use. The mill site section cannot be availed of to pat- ent water rights proper L. D. 106; 9 Id. 201; 12 Id. 624. Or for the benefit of a third party. 11 Id. 561. The benefit must be to the particular lode in ques- tion.^ Id. 196. A lode owner has no right to attach to his pat- ent application, at the request of a third party, an independent piece of ground as a mill site. Ham- burg Co. v. Stephenson, 30 Pac. 1088. Land for its timber cannot be located as a mill site, though the timber be used and needed at the mine. 7 L. D. 557. But this ruling is strained, as timber has always been considered as a mining neces- sity, and the taking of it for such purpose clearly puts the land to a mining use. Tartar v. Spring Creek Co. 14 M. R. 371; Id. 388, note 9. Second Class Mill or Reduction Works. Under this class, where the application is for the mill site alone, there must be a mill or reduc- tion works incidental uses are not sufficient. That the site contains a dam, penstock and pipe for driv- ing works at neighboring mines will not answer. 9 L. D. 460; 29 Id. 143. And patent will not issue to give additional ground to a mill site already pat- ented. 12 Id. 75. Nor on two adjoining mill sites with improvements on the line between them. 14 Id. 11. It will not be allowed on the strength of carry- ing water to a smelter on other ground. 5 Id. 190. MILL SITES. 217 Separate Application for Mill Site. It has been ruled that where a lode has gone to patent the owner may afterwards by separate appli- cation obtain a patent on a mill site used in connec- tion with the lode, and that such application need not show an actual mill on the ground. Such mill site is allowed to go to patent on the theory that every lode is entitled to a mill site, and it is a matter of indifference to the department whether the owner applies for the patent on lode and mill site together or separately. 22 L. D. 496; L. 0. Reg. 62. The $500 Improvements on the Lode are sufficient to enter both lode and mill site, if the mill site is used or occupied by the applicant for mining or mill- ing purposes. 8 L. D. 195. Proof of Improvements. The early practice of the Land Office was to pat- ent a mill site when applied for in connection with a lode, without proof of either use or improvements. This practice was taken advantage of to patent build- ing lots, and all sorts of claims as mill sites, but the department now requires proof not only that it is non-mineral land, but that it is used for milling purposes or in connection with the mine instances of such use being above given. This proof of the use of the site in connection with the mine is by affidavit of the applicant and of two disinterested witnesses. Intention to use is not sufficient. !J t L. D. 544. Adverse and Protest. When a mill site application conflicts with a prior claim of another to the ground for like pur- poses it may be adversed; or it may adverse or be adversed by a lode or placer. 1 L. D. 566; Rev. Ed. 555. Where in conflict with a mineral claim it may be defeated by a protest and proof of being located on mineral land. 4 L. 0. 3; 5 Id. 51. But see Id. 11. 218 SEVERANCE. SEVERANCE. Separation of Surface and Mineral Estate. The ownership of the minerals may be vested in one, while the ownership of the surface is in an- other. This severance is often created by deed, in which case it amounts practically to a partition on a. horizontal plane, the two estates being entirely sepa- rated, except that from the nature of the case, the surface owner can usually claim the right of support, while the mine owner can claim such incidental use of the surface as is necessary to enable him to win the minerals. Caldwell v. Fulton, 3 M. R. 238; Homer v. Watson, 14 M. R. 1; Marvin v. Brewster Go. 18 M. R. 40. When minerals are so severed they form a sepa- rate part of the freehold and the estate is not a mere easement. Bonson v. Jones, 56 N. W. 515; Thompson v. Mattern, 9 Atl. 70; Plummer v. Hillside Co. 104 Fed. 208. The right of entry on surface cannot be en- larged so as to allow the erection of coke ovens and its use for powder house, blacksmith shop and supply stores depends upon the circumstances of the case as found by the jury. Williams v. Gibson, 16 M. R. 243. The mine owner may erect hoisting plant. Warden v. Watson, 5 8. W. 605. If the surface owner take the minerals he is a trespasser. Ashman v. Wigton, 12 Atl. 74. Where there has been a severance of the surface from the minerals there is no privity between the estates. Hutchinson v. Kline, 49 Atl. 312; and their owners are not tenants in common. Virginia Co. v. Kelly, 24 8. E. 1021. Mining Under Surface Improvements. By statute in Colorado (M. A. S. 3139; 3159) the mine owner is bound to secure the owner of the SEVERANCE. 219 surface improvements if he attempt to mine under any such improvements. Such statutes are no great departure from the common law which compels each estate to be enjoyed with proper regard to the rights of the sub-owner or superficial owner as the case may be, and would enjoin mining under valuable improvements if irreparable injury were threatened by such mining. A miner has no right to work within the enclos- ure surrounding a dwelling house, corral or other im- provements of another. Burdge v. Underwood, 4 M. R. 518. Instances of Severance. The surface and the subjacent strata are rarely owned by separate parties on the western slope except where placer gold or lodes have been discovered in towns before entry under the Town Site Acts; or in instances where conflicting claims have been com- promised by deed, one party taking the surface and improvements, the other the veins underneath. But the subject is important in the Western States chiefly with reference to the question of whether claims located on government land and claims patented by the government take both surface and minerals in all cases, or whether in any case there is an actual or implied severance of the min- erals from the* surface, either from the nature of the claim or from the language of patents confirming the claim. Patented Claims Generally. As to patented claims it has been the policy of the government to grant the entire estate, and retain no interest with the patentee. It has been so held in the case of a Mexican grant confirmed by patent, al- though under the original grant the claimant had received no title to the mines of gold and silver from the Mexican government. It was considered that the confirmatory patent of the United States conveyed the soil, and everything under the soil, and that if the government had intended to reserve the royal 220 SEVERANCE. metals, as the Mexican Republic had done, it should have been so expressly stated in the patent. Moore v. Smaw, 12 M. R. 418. Patented Lode Claims. In patents to lode claims both surface and min- erals are conveyed in terms. Patented Placers. As to placer claim patents, they convey not only the placer deposits and the surface, but also all veins except those known to exist when the application for patent was filed, which are especially excepted. Patented Mill Sites. As to mill site patents it is required that such claims be located on non-mineral land. But aside from the clause referring to the rights of the proprietors of lodes dipping underneath, which is common to all classes of patents, they seem to be a general grant of the land which they enclose, which grant would cover all lodes and mineral rights. A valid lode claim overlying the ground could have protected its rights by an adverse; and not only do the general rules of construction favor the propo- sition that a mill site patent conveys all lodes and deposits found within its lines, but the government having undertaken to decide the mineral or non- mineral character of the ground before the patent issues and thereupon to issue an absolute grant, such grant carries both the soil and what is under the soil. Or if the grant is not considered absolute, owing to the reservation of lodes which penetrate the lines of the mill site on the strike, which has been sometimes inserted, such reservation is one forced into the paper without legal authority, and is therefore void. See Davis v. Weibbold, 139 U. S..507; Gale v. Best, 78 Gal. 235. Patented Agricultural Claims. As to patented agricultural claims obtained in good faith, not at the time of entry known to be min- eral land, minerals afterwards discovered certainly SEVERANCE. 221 belong to the patentee; but where land has been en- tered as agricultural upon which mineral locations existed, in defiance of the rights of mineral claimants, such patents could be set aside as against the mineral claimants, and it was Jield in the case of Gold Hill Co. v. Ish, 11 M. R. 635, that such a patent was absolutely void as to the land covered by the mining claim. A patent, however, howsoever procured, usually operates to pass title, and in such case the holder should be declared a trustee for the use of the owner of the mine. See page 135. Salmon v. Symonds, 30 Cal. 302. The mineral value of the land, to defeat an agri- cultural entry, must be substantial. Abandoned works are not enough. U. 8. v. Blackburn, 48 Pac. 904. Discovery of coal after entry will not defeat the issue of his patent to a homestead claimant. 21 L. D. 92; Colo. Co. v. U. 8. 123 U. 8. 308. Lodes Dipping Under Patents. It may as well be observed under this head that all patents, agricultural as well as mineral, are sup- posed to contain a reservation of the right of lodes apexing outside their bounds, to dip underneath their lines. See page 164. School Lands. Section 16 of each township, if non-mineral, since the organization of the Federal Government, and in later years, Section 36, and in some States ad- ditional sections, have been reserved from sale and granted to the respective States upon their admis- sion, such sections in the Territories being held by the government by an implied trust to that effect 8 L. D. 495. The words of grant to the several States are not uniform but in general the title passes upon approval of the survey. 7 L. D. 459; 9 Id. 408; Cooper v. Roberts, 18 How.* 113. In the meantime before State admission and un- til survey they are open to discovery of mineral and 222 SEVERANCE. location of mineral claims upon them the same as upon the rest of the public domain. When the mineral character of such reserved sections was known before survey the title to no part of the same passes to the State, and claims may be located upon them. 5 L. 0. 178; Heydenfeldt v. Daney Go. 13 M. R. 204; Ivanhoe Co. v. Keystone Go. 13 M. R. 214. But where their mineral character has been dis- covered since they were surveyed, such subsequent discovery of mineral will not divest the title which has already passed. 7 L. D. 459; 9 Id. 408. And the States have control of their sale and disposal. Be- fore admission as a State, a Territory has not such control.// L. D. 390. By Act of Congress approved April 2, 1884 (Sup. p. 424}, Colorado is reimbursed for school sections lost to the state by reason of their mineral charac- ter, and similar Acts apply to other States. Loca- tions may be made on indemnity sections until ap- proval. 27 L. I). 411; 29 L. D. 181. Where lands are mineral at date of the reserva- tion they do not pass to the State upon the subsequent abandonment of the mines. Hermocilla v. Hu'b'bell, 26 Pac. 611. The determination of non-mineral character by the Land Office is not subject to collateral attack. Saunders v. La Purisima Go. 51 Pac. 656. In Nevada the State Lands are by statute open to prospectors and the State Patent does not pass mines claimed under the Act. Stanley v. Mineral Union, 63 Pac. 59. Patented Town Sites. In this case there is an express severance of the minerals. The holder of the lot takes no title to any located claims. The lot is subject to entry to get the mines of gold or silver which it may con- tain. R. S. 2386, 2392. These sections are supplemented, if not supplied by an Act approved March 3, 1891, as follows; SEVERANCE. 223 Reservation of Mineral Eights From Town Sites. Sec. 16. That town-site, entries may be made by incorporated towns and cities on the mineral lands of the United States, but no title shall be acquired by such towns or cities to any vein of gold, silver, cinnabar, copper, or lead, or to any valid mining claim or possession held under existing law. When mineral veins are possessed within the limits of an incorporated town or city, and such possession is recog- nized by local authority or by the laws of the United States, .the title to town lots shall be subject to such recog- nized possession and the necessary use thereof and when entry has been made or patent issued for such town sites to such incorporated town or city, the possessor of such mineral vein may enter and receive patent for such mineral vein, and the surface ground appertaining thereto : Provided, That no entry shall be made by such mineral vein claimant for surface ground where the owner or occu- pier of the surface ground shall have had possession of the same before the inception of the title of the mineral-vein applicant. Sup. p. 9^5. The town patent, where valid mining locations have been made on such discoveries, does not grant the minerals. Moyle v. Bullene, 44 Pac. 69; 26 L. D. 144; ^9 L. D. 89; nor where the land was known to be mineral at time of entry. 29 L. D. 426; 31 Id. 88. Under the terms of the second paragraph of the present Act it seems clear that lode or placer pat- ents can issue for such claims within the town lim- its. 25 L. D. 518. If the mine was located after the occupation of the surface by the lot owner, but be- fore the entry of the town site for patent, the mines and surface are then separate estates, each to be enjoyed under the various applications of the maxim: sic utere tuo ut alienum non laedas. Smoke House Lode Case, 12 Pac. 858; King v. Thomas, Id. 865; Def- feback v. Hawke, 115 U. 8. 392. Under the various reservations in favor of mines out of town site patents, under the Acts in force before 1891, it has been decided that discovery of mineral after the patent issues is of no avail. Tomb- stone T. 8. Cases, 15 Pac. 26; Lamed v. Jenkins, US Fed. 634. That a location not valid on account of in- definite description is not excluded. Blackmore v. Reilly, 11 Pac. 72. Nor a location without a discov- 224 SEVERANCE. ery. Regan v. Whittaker, 85 N. W. 863. That only the lode, and not its surface, is excepted, at least under patents prior to 1872. Dower v. Richards, 73 Cal. 477. That the mine must have been a known, valuable and subsisting claim. Smith v. Hill, 26 Pac. 644; Davis v. Weibbold, 139 U. 8. 507. In the last case it was also held that a reservation in a mining patent in favor of a lot claimant was a nullity be- cause unauthorized. A lode once profitably worked and then abandoned is not excepted, though after the town site patent issues the lode is found to be still valuable. Dower v. Richards, 151 U. 8. 658. The rights of the mine owner against the lot owner may be lost by laches. The Probate Judge's deed covering the mining ground is not void, but only voidable. Horsky v. Moran, 53 Pac. 1064- Doubtful Policy of General Reservations. Out of these attempted reservations of known lodes, mines, or minerals, by general terms under the Acts providing for the patenting of different classes of land, only trouble, uncertainty and litiga- tion ensue; the holdings, therefore, are usually strictly against them. And yet the fault is with the government attempting to protect such rights by sweeping clauses instead of allowing them to ad- verse or to come in as co-applicants the mines be- come abandoned and the lot owner claims the whole estate, or they become of sudden value, tempting the miner to assert more than his rights. The same ob- servations apply with greater force to the reserva- tion of known lodes out of placers. The result in either case is that the surface is disposed of, while the legal title to the minerals remains in the United States. The present practice is to allow an overlap- ping patent to the mineral claimant under certain conditions. 25 L. D. 518; 29 Id. 89; 426. Before the decision in the South Star case, cited p. 205, the de- partment had required the surface patent to be set aside before they would take action. Pike's Peak Lode, 10 L. D. 200; Protector Lode, 12 L. D. 662. TUNNEL SITES. 225 Unpatented Claims. A lode claim covers the entire surface as well as the veins within it. Before the passage of the Mining Acts, it had been held (Brown v. 49 Go. 9 M. R. 600) that a lode location also included float gold below its apex, which had evidently come from that particular vein. It is evident, from the Con- gressional grant of the surface without excepting any form of deposit, that a lode location made in good faith upon an ore-producing vein, without the aid of any such decision, would include placer de- posits within its lines both above and below the vein. But an unpatented placer claim covers no lodes, and a lode claim may be located across it. An un- patented mill site, town site or ranch claim, does not include either veins or deposits of gold or sil- ver. If the holder of such claim discover mineral upon it he should stake and record the same, as a mining claim, and he has the same right as a stran- ger so to do, if he be the first to disclose such min- eral value. McCarthy v. Speed, 77 N. W. 590. Where land has been returned as agricultural the discovery and formal location of a lode or placer deposit over the same, shifts the presumption to one in favor of the mineral claimant. 21 L. D. 502. TUNNEL SITES. Line of Tunnel Neglect to Work for Six Months. R. S. Sec. 2323. Where a tunnel is run for the devel- opment of a vein or lode, or for the discovery of mines, the owners of such tunnel shall have the right of possession of all veins or lodes within three thousand feet from the face of such tunnel on the line thereof, not previously known to exist, discovered in such tunnel, to the same ex- tent as if discovered from the surface ; and locations on the line of such tunnel of veins or lodes not appearing on the surface, made by other parties after the commencement of the tunnel, and while the same is being prosecuted with 8 226 TUNNEL SITES. reasonable diligence, shall be invalid ; but failure to pros- ecute the work on the tunnel for six months shall be con- sidered as an abandonment of the right to all undiscovered veins on the line of such tunnel. Sec. ^ A. C. May 10, 1872. Record. M. A. S. Sec. 3140. If any person or persons shall locate a tunnel claim for the purpose of discovery, he shall record the same, specifying the place of commencement and termination thereof, with the names of the parties inter- ested therein. Nov. 7, 1861. Line of Tunnel. Immediately upon the passage of the mining Act of 1872, containing the tunnel section above printed, controversy arose as to what was meant by the words "the line thereof." The Land Office shortly published their con- struction that it meant "the width thereof and no more." This construction was adopted in the case of Corning Tunnel Co. v. Pell, 14 M. R. 612. This became the generally received interpretation of the act until the case of Enterprise Co. v. Rico Aspen Co. 66 Fed. 200, affirmed by the National Supreme Court in 1897, 167 U. S. 108\ followed by the case of Camp- bell v. Ellet, 167 U. S. 116, affirming 18 Colo. 511. The court holds that a tunnel duly located and its work diligently prosecuted holds the right to all lodes not previously known to exist, on either side of the bore. That is to say, when a lode is reached the tunnel may elect to take 1,500 feet in one direc- tion or 1,500 feet on the other side or may divide the length, so much on either side. That all loca- tions on lodes not previously known, made within such area are voidable at the election of the owner of the tunnel. Location and Record of Tunnel Site. The following form has been drawn in attempted compliance with the Act of Congress, the Land Of- fice regulations and the construction given to the act by the Rico-Aspen case. It purports to claim its entire frontage of 3,000 feet as its line of tunnel, and if the Rico-Aspen case TUNNEL, SITES. 227 stands in its entirety, the claimant is in position to assert his full rights under such form. But the Rico- Aspen case in principle cannot be reconciled with the Erhardt-Boaro case, 15 M. R. 472. There the pros- pector by his notice had an inchoate right to his lode just discovered; such notice not specifying the ex- tent of his claim, he was limited in his right of selec- tion to 750 feet on each side of his point of discovery. This discord as to the two classes of claims still existing, we advise that it is safer fpr the tunnel claimant to elect at the outstart to take 750 feet on each side, or some other definite number of feet on each side, of the bore of his proposed tunnel. LOCATION CERTIFICATE OF TUNNEL. TO ALL WHOM THESE PRESENTS MAY CONCERN : KnOW ye, that I, W. E. Renshaw, a citizen of the United States, of Idaho Springs, County of Clear Creek, State of Colorado, do hereby declare and publish as a legal notice to all the world that I have a valid right to the occupancy, possession and enjoyment of THE HALL TUN.NEL AND TUNNEL SITE, lo- cated January 22nd, A. D. 1903, for the discovery of mines and the development of lodes, and situate in Griffith Mining- District, Clear Creek County, State of Colorado, described as follows, to wit : Mouth of tunnel situate on north slope of Leavenworth mountain; from the mouth of the tunnel, culvert under the middle track of the Georgetown, Breckenridge & Leadville Railroad bears N. 17 SS' W. 32 feet; corner No. 6 survey lot No. 4614-B. Lion mill site bears N. 73 Jf5' W. 100.7 feet; Woodchuck rock bears N. 50 45' E.; Sherman mountain bears N. 72 55' W. Size of tunnel 8 feet wide by 7 feet high in the clear. Course of tunnel from its mouth S. 17 38' E. 3,000 feet to the south end. of said tunnel, at which point is set a substantial stake, being the end stake, and between tunnel mouth and end stake the center line of the tunnel is marked at 500 feet, 1,200 feet, 1,900 feet and 2,528 feet from the mouth by marked stakes or blazed and marked trees. From the end stake Republican mountain bears N. W.; Saxon mountain bears N. 39 40' E.; a stump 9 inches in diameter marked "B. T. & H. T." bears S. 86 15' W. 18.% feet; a tree 5 inches in diameter marked "H. T. & B. T." bears N. 43 W. 2 feet; from said end stake, set a stake N. 72 22' E. 1,500 feet; from said end stake set a stake S. 72 22' W. 1,500 feet; from mouth of tunnel set a stake N. 72 22' E. 1,500 feet; from mouth of tunnel set a stake S. 72 22' W. 1,500 feet; 228 TUNNEL SITES. which last four mentioned stakes are at the exterior cor- ners of the claim of said tunnel site. And I claim for line of tunnel 1,500 feet on each side of the center of the bore or course of the tunnel, and the right to all lodes which may be discovered in the due pros- ecution of said tunnel within 1,500 feet on either side of the center of said line.* Together with all and singular the hereditaments and appurtenances thereunto belonging or in anywise appertain- ing, and all rights granted to the locator as tunnel rights under the terms of section 2323 of the Revised Statutes of the United States. Witness my hand and seal this 22nd day of January, A. D. 1903. W. E. RENSHAW. [SEAL] STATE OF COLORADO, City and County of Denver: ss. Before me, the subscriber, a notary public in and for said county, personally appeared W. E. Renshaiv, to me per- sonally known to be the same person described in and who executed the within declaration of occupation and acknowl- edged that he signed, sealed and published the same as his free and voluntary act and deed for the uses and purposes therein set forth. Witness my hand and notariaf seal this 22nd day of January, A. D. 1903. Joseph K. Bozard, [SEAL.] Notary Public. STATE OF COLORADO, City and County of Denver: ss. W. E. Renshaw, of the County of Clear Creek, State of Colorado, being first duly sworn according to law deposes and says : That he is a citizen of the United States over the age of 21 years ; that he is the owner by pre-emption, location and occupation of the foregoing tunnel site, the said tunnel being prosecuted for the development of lodes belonging to said affiant ; also for the discovery of other lodes ; affiant further says that he has expended in actual work and improvements on said tunnel not less than forty thousand dollars, and that said tunnel has been already run the distance of 1,000 feet, and that it is bona fide his inten- tion to prosecute work on said tunnel so located and de- scribed with reasonable diligence for the purposes therein set forth. W. E. RENSHAW. Subscribed and sworn to before me this 22nd day of January, A. D. 1903. Joseph K. Bozard, [SEAL.] Notary Public. Before recording place at the mouth of tunnel the TUNNEL, SITES. 229 LOCATION NOTICE. The Hall Tunnel and Tunnel Site, located this Jan- uary 22nd, 1903, by W. E. Renshaw. Course S. 17 38' E. 3,000 feet to end post, from which end post Republican mountain bears N. 40 W., Saxon mountain bears N. 39 40' E., stump 9 inches diameter marked "B. T. & H. T." bears S. 86 15' W. 18.4 feet. Height of tunnel 7 feet, width 8 feet. I claim all lodes to be discovered in this tunnel and not previously known to exist, within 1,500 feet on each side of tunnel as staked on the ground.* W. E. RENSHAW. DUMP LOCATION. If ground for a dump is claimed, add, in the loca- tion certificate after the*: "I also claim a square tract of land 125 feet on each side of the mouth of tunnel and extending 250 feet imme- diately below the mouth of the tunnel, as staked upon the ground, for dumping purposes." And to the notice after the* add: "Dump 250 feet square as staked." The actual location, of course, consists in setting the stakes as called for in such notices, and in the starting of the tunnel in good faith. Location of Lodes Cut in a Tunnel. They should be staked and recorded exactly as in the case of lodes discovered at the surface, except that no discovery shaft is required the discovery in the tunnel taking its place and the location stake or notice should be set on the surface at a point midway between side lines and above the discovery in the tunnel. Such location notice, as well as the location certificate, should state the fact that the lode was discovered in the tunnel and the number of feet in from the mouth. In fixing the surface line, approximate calculations should be made for the dip. In Ellet v. Campbell, 18 Colo. 510, affirmed 167 U. S. 116, it was held that the discovery need not be followed by location; but the U. S. Supreme Court conceded that it might be required before patent could be secured. If the width on each side had not been previously fixed by proper form of tunnel loca- 230 TUNNEL SITES. tion, the tunnel discoverer would not be allowed, in any event, more than a reasonable time to elect where he would take his 1,500 feet. In Brewster v. Shoemaker, 63 Pac. 309, the lode was cut 250 feet below the surface in an unrecorded cross-cut. The dip was calculated to the surface and discovery notice posted on the center line, refer- ring to the discovery in the tunnel and the claim was staked and recorded. Held that the location was valid and that no proving up between surface and the tunnel was required. The case holds also that the fact that the tunnel had been driven across patented ground belonging to strangers was not a point which could be raised by third parties. The Right to Penetrate Tinder Other Lands. The right to tunnel has been exercised since lode mining began on the Pacific slope. Such claims are frequently mentioned in the district rules and were recognized by Colorado statute as early as 1861. The trespass of a tunnel cutting through country rock across a claim at great depth is not of that class denominated as destructive or irreparable, but it opens a private back door to the miner's under- ground wealth. And applying the theory that every surface claimant owns to the center of the earth, no man has a right to drive a tunnel underneath the property of another without his license or consent. Such right was constantly exercised without much question and it had been expressly held that it might be asserted under district rules. Bliss v. Kingdom, 15 M. R. 239. But, especially since the sweeping demands of tunnel sites after the Rico-Aspen decision, compelled miners in self-protection to check their encroach- ments, any implied license to penetrate under pre- vious locations or patents without grant or permit has been expressly denied. The decisions to this effect have been uniform and they have been followed by the National Supreme Court. Richards v. Dower, TUNNEL SITES'. 231 64 Cal 62; 73 Cal. 477; Amador Co. v. Dewitt, 73 Cal. 482; Calhoun Co. v. Ajax Co. 182 U. S. 499. A party has no right to tunnel through another's patented ground to cut a vein whose apex is within his own patented lines. St. Louis Co. v. Montana Co. 113 Fed. 900. In Cone v. Roxana Co. (HALLETT J., MS.) the Court held the Colorado Tunnel Act of 1897, giving all tunnels the right to pass through any prior loca- tions or patents, to be in conflict with the Stato Con- stitution. Where the tunnel has already been driven through the claim, it seems that ejectment is the proper remedy, and not injunction. Creede Co. v. Uintah Co. HALLETT, J. MS. Unrecorded Tunnels. Any party running a tunnel would probably hold the tunnel itself (i, e. the bore as far as actually run), without any record whatever (8 L. 0. 11}. This is done every day in the case of cross-cuts, which are simply tunnels on a small scale. But to claim any rights for its line or otherwise under the Act of Congress it should be staked and recorded. Of course, a lode discovered in a tunnel, after the lode has been duly located and recorded on the tunnel discovery is as valid upon an unrecorded as upon a recorded tunnel, its title having by such independent location become a matter wholly apart from the tun- nel location, Failure to Work. The right to blind lodes is conditioned upon prosecuting work with "reasonable diligence." In the Rico Aspen case, 66 Fed. 206, the court intimates that this clause should receive a strict construction, and that prompt and energetic prosecution of the work should be required. Failure to work for six months deprives the Tun- nel Site of its claim to blind lodes, but does not affect its right to continue its bore through claims in ad- vance of it. Fissure Co. v. Old Susan Co. 63 Pac. 587. 232 TUNNEL SITES. Abandonment. A tunnel may, like any other kind of claim, be abandoned; but neglect to work does not operate to effect an abandonment; such neglect only operates to deprive it of tunnel rights along its line. Fissure Co. v. Old Susan Co. 63 Pac. 586. The fact that no labor has been done for many years is evidence of abandon- ment, but not conclusive. As before stated (page 85) abandonment is a question of fact, and in the case of tunnels is wholly independent of the annual labor. Patent Adverse Claim. There is no provision for patenting a tunnel site. Before the Rico Aspen case it was held that it could maintain an adverse claim for the protection of its line and Tunnel rights. 29L. D. 235; Back v. Sierra Co. 11 Pac. 83; and that it could enjoin patent pro- ceedings on a lode claim until it should be demon- strated that the lode would not be cut in the tunnel. But all these rulings were prior to the construction of the Tunnel section by the Court of last resort, and under that decision it is held that a tunnel need not adverse any application for patent on a lode in ad- vance of its breast. That when its bore penetrates under the patent it can claim the ground as owner. (The title to a lode so patented stands in a class anomalous under this decision to any other title known to the common law.) As to lodes already cut in the tunnel, at the time of the application, we as- sume that they should adverse. It is hardly possible to imagine that the court could hold tunnel-cut lodes to be exempt from what is required of all others in like condition. And as to the tunnel adversing to protect its easement or right to penetrate, if its estate in the extralateral lodes not yet cut is saved without adversing, it seems self-evident that the mere ease- ment of its right to bore is protected. A lode located on a tunnel discovery adverses, of course, on its own merits as a lode location. TUNNEL, SITES. 233 Annual Labor by Tunnel. Sec. 1. That section two thousand three hundred and twenty-four of the Revised Statutes, be, and the same is hereby, amended so that where a person or company has or may run a tunnel for the purposes of developing a lode or lodes, owned by said person or company, the money so expended in said tunnel shall be taken and considered as expended on said lode or lodes, whether located prior to or since the passage of said act ; and such person or com- pany shall not be required to perform work on the surface of said lode or lodes in order to hold the same as required by said act. Feb. 11, 1875, Sup. p. 62. The annual labor of $100 on each claim may be performed under the above section by work done on a tunnel, cutting, or which is driven to cut, such claims. 5 L. 0. 5; Id. 34; 17 L, D. 190. The Patent Expenditures of $500 may also be made on such tunnel. 4 L. 0. 67. A party may pat- ent one lode on the line of his tunnel for each $500 of labor spent in driving the tunnel. 30 L. D. 510. Tunnels Over 3,000 Feet Long. The A. C. expressly limits the claim of a tunnel site to lodes not known to exist "within three thou- sand feet from the face of such tunnel." Attempts have been made to evade this provision by filing rec- ords of a second tunnel to begin at a point 3,000 feet in from the mouth of the tunnel projected from the surface; i. e., to begin at the end of the first 3,000 feet, taking 3,000 feet more and even third and fourth extensions have been so recorded. We regard these locations as absolutely void. But we draw the distinction between the right of a tunnel to undiscovered lodes and its right to bore through the mountain. The former is granted by Act of Congress, is limited by its terms and cannot be enlarged. The latter, the right to bore, is a mere easement, exercised under district rules before the Act, and there is no limitation on the claim of a tun- nel to drive itself through the public domain as far as its owners may desire to penetrate. A tunnel in its record therefore, in our opinion, can claim a right of way to drive to any expressed 234 TAXATION. number of feet, but it cannot claim the statutory tunnel right beyond the first 3,000 feet; and the loca- tion of a second tunnel from the breast of the first is an attempt by a self-serving Act to take from the prospector's rights in the ground beyond 3,000 feet an estate which the Act of Congress has not taken from him. TAXATION. By the Colorado Revenue Act of 1902, mining claims are required to be listed by the name, and number of Survey Lot, when patented. Mines are divided into two classes producing and non-producing. A gross output of $5,000 places the mine in the first class, and it is to be assessed at one-fourth of its gross output. If the net output shows a profit of more than a fourth, such net out- put is to be the valuation. Non-producing mines are to be assessed like other real estate, at their sup- posed actual value. Special provisions are made for taxation of group claims and tunnel sites. The owner is required to make return showing the tonnage, freight and mill returns, as stated in de- tail in the Act. Possessory Title Taxable. The estate in unpatented mining claims Is prop- erty subject to the "right of taxation. Forbes v. Gracey, 14 M. R. 183; Seymour v. Fisher, 16 Colo. 188. Notwithstanding the above declaration of taxable status the possessory title has not, as a rule, espe- cially under the Territorial organization, been as- sessed, though taxes have always been levied on the surface improvements when extensive. Patented Claims, or those entered for patent are of course assessed and taxed as other classes of real estate. In Nevada, and other states, attempts, at- tended with continued litigation, have been made to LIENS. 23o tax the net output. Such tax, so plausible in theory, is unjust and grossly unequal after conceding the fact that absolutely equal taxation cannot be realized upon any theory of assessment. See Mercur Co. v. Spry, 52 Pac. 382, construing the Utah law of this character. Net proceeds of coal mines held taxable in Montana. Montana Go. v. Livingston, 52 Pac. 780. Special Instances. A mine cannot be sold for tax assessed against improvements not found on the* mining ground.- Knox v. Higby, 18 Pac. 381. Exemption as mining claim ceases when placer ground is laid out into town lots. Dyke v. Whyte, 29 Pao. 128. Where surface arid minerals are separately owned they may be separately taxed. Cons. Coal Co. v. Baiter, 26 N. E. 651; Stuart v. Com. 23 8. W. 367. The number of the Survey Lot, in Colorado, is an essential part of the description in a Tax deed. Hammon v. Nix, 104 Fed. 689. LIENS. How Affected by Patent. R. S. Sec. 2332. * * * Nothing in this chap- ter shall be deemed to impair any lien which may have at- tached in any way whatever to any mining-claim or property thereto attached prior to the issuance of a patent. Sec. 13, A. C. July 9, 1870. Patent, although relieving claims from adverse rights, does not relieve from liens already attached against the property. On the other hand, the pat- ented title enures to the benefit of the lien holder. Butte Co. v. Frank, 65 Pac. 1. Judgments are liens for the period limited by statute in each State, usually six years, the time run- ning either from the date of judgment or the date of filing the transcript in the Recorder's office. 236 MINERS' LIEN. A mortgage may be so drawn as to secure ex- penses of mining as well as the original debt. Char- ter Oak Co. v. Stephens, 15 Pac. 253. Under an ex- ceptional statute a miner's lien has been held to cut out a prior mortgage (Atlantic Co. v. Ropes Co. 77 N. W. 938), but as a general rule the mortgage takes precedence of all debts incurred by the further work- ing of the mine. The lien of neither mortgage, judg- ment nor attachment, prevents the operation of the mine without an injunction for the protection of the security and such' injunction will be granted only in exceptional instances. Vervalen v. Older, 10 .M. R. 540; Chung Kee v. Davidson, 36 Pac. 519. Such liens do not prevent the free severance and sale of the ore. Young v. Northern Co. 10 M. R. 596. The debtor can continue to mine after sheriff's sale, dur- ing the redemption period. Ward v. Carp River Co. 15 N. W. 889. By Act of 1894, p. 50, trust deeds in Colorado must run to the "Public Trustee," otherwise they can be foreclosed only as mortgages. Whatever form is followed the Statute allows nine months for re- demption. The common law mortgage, both for se- curity to the creditor and for fairness to the debtor, is to be preferred in all cases. A mining partner in certain cases seems to have a lien for his advances in excess of those of a co- partner. Duryea v. Burt, 11 M. R. 395; Beck v. O'Connor, 53 Pac. 94; Childers v. Neely, 34 8. E. 828. See MINERS' LIEN; EXAMINATION OF TITLE. MINERS' LIEN. To Whom Allowed by Colorado Act. Sec. 4. The provisions of this Act shall apply to all persons who shall do work or shall furnish materials or mining, milling or other machinery or other fixtures, as pro- vided in Section 1 of this Act, for the working, preservation, prospecting or development of any mine, lode or mining claim or deposit yielding metals or minerals of any kind MINERS' LIEN. 237 or for the working, preservation or development of any such mine, lode or deposit, * * * Acts of 1899, p. 266. Several Claims Worked Together. Provided, That when two or more lodes, mines or deposits owned or claimed by the same person or persons shall be worked through a common shaft, tunnel, incline, adit, drift or other excavation, then all the mines, mining claims, lodes, deposits and tunnel and mill sites so owned and worked or developed shall, for the purpose of this Act, be deemed one mine ; * * * Id. Mine Worked by Lessees. Provided further, That this section shall not be deemed to apply to the owner, or owners of any mine, lode, deposit, shaft, tunnel, incline adit, drift or other excava- tion, who shall lease the same in small blocks of ground in areas, whether of surface or beneath the surface, not to exceed 150 feet in length by the width of the claim and for a. depth of 150 feet or less to one or more sets of lessees. Id. Water Rights and Easements Included. Sec. 7. Such liens shall likewise attach to rights of water and rights of way that may in any manner pertain to any kind of property hereinbefore specified and to which such liens attach. * * * Id. 269. A miner whose wages or contract money is in default, secures a lien by filing with the County Re- corder a statement substantially as follows: FORM OF LIEN STATEMENT. KNOW ALL MEN BY THESE PRESENTS : That I, Max Dagenais, do hereby give notice of my intention to hold and claim a lien upon the Thomas a'Kempis Lode Mining Claim in Ruby Mining District, County of Gunnison, State of Col- orado. Said lien is claimed for work and labor done by me upon said lode (or materials furnished ~by me to said lode for the working and development of the same and used therein), as miner for days pay, at the special instance and request of J. G. Edwards, one of the owners or reputed owners of said lode, between the first day of July, A. D. 1901, and the 25th day of December, A. D. 1902, both dates inclusive, upon the following abstract of indebtedness : Total amount of indebtedness $742.00 Total amount of credits 441.00 Balance due claimant $301.00 .238 MINERS' LIEN. That the owners or reputed owners of said lode are John L. Routt and J. G. Edwards. Witness my hand this second day of January, A. D. 1903. MAX DAGENAIS, Claimant. STATE OF COLOKADO, County of Gunnison: ss. Before me, the subscriber, Chas. E. Whitfteld, a Notary Public in and for said county, personally appeared Max Dagenais, who, being duly sworn, saith that the foregoing statement and abstract of indebtedness, and the matters and things therein set forth, are true to the best knowledge, in- formation and belief of affiant. MAX DAGENAIS. Sworn and subscribed before me this second day of January, A. D. 1903. Chas. E. Whitfteld, [SEAL.] Notary Public. When the claimant is a sub-contractor or em- ployed by a contractor, strike out "J. G. Edwards, one of the owners or reputed owners of said lode," and insert "at the special instance and request of Daniel Roberts, a contractor under the owners of said lode." Sub-contractors must serve a copy of such state- ment on the owner or his agent, at or before the time of filing, but if neither the owner or agent can be found in the County, an affidavit to that effect shall be filed in lieu of service. The time to file varies from one to three months according to the class or nature of the claim. Special provision is made in the Act for instances where the names of the owners are unknown. Six Months to Sue. An action must be commenced to enforce the lien within six months after work completed or the lien is lost. Where mines are worked as a group the whole are considered as one mine for lien purposes. Tre- dinnick v. Red Cloud Co. 13 Pac. 152. General Statutory Legislation. Miners' or mechanics' liens are pure creations of statute, but are allowed by specific legislation in all MINERS' LIEN. 239 the States and Territories. They uniformly pre- scribe some such statement or notice equivalent to the above form, but the statute of the particular State must be looked to for details. Decisions. A miner has no lien upon the ore. For rule of distribution where work has been performed on various parcels of group, see BassicJc Co. v. School- field, 10 Colo. 46; Malone v. Big Flat Go. 18 Pac. 772. . Lien allowed for pumping and stoping. Ghappius v. Blankman, 60 Pac. 926. A party engaged in hauling ore from the mines to the quartz mill has no lien on the mine. Barnard 'v. McKenzie, 9 M. R. 403. A mining foreman or superintendent has a lien. Palmer v. Uncas Go>. 70 Gal. 614; McLaren v. Byrnes, 45 N. W. 143. See Smallhouse v. Kentucky Go. 9 M. R. 388; Rara Avis Go. v. Bouscher, 9 Colo. 385. An expert has no lien for making report on a mine. Lindemann v. Belden Go. 65 Pac. 403. Lien of Surveyor or Civil Engineer. M. A. S. Sec. 2874. The provisions of this act shall apply to surveyors, civil and mining engineers doing any work of surveying or platting of any mines, mining claims, lodes or mineral deposits, and they shall have like lien and claim as other persons under the provisions of this act. Sec. 8, March 2, 1883. The following form is adapted from the statute to the case of surveyor's lien: FORM OF STATEMENT FOR SURVEYOR'S LIEN. KNOW ALL MEN BY THESE PRESENTS : That I, W. H. Poicless, do hereby give notice of my intention to hold and claim a lien upon all the following described property, to wit : The St. Francis de Sales lode mining claim, in Tarry All Mining District, County of Park, State of Colorado. Said lien is claimed for work and labor done by me in survey- ing and platting said lode, at the special instance and request of Thomas Cornish, the owner or reputed owner of said lode, by running the lines of the same for United States patent, as Survey Lot No. 383, and making plat of the same for the same purpose between the 17th day of March and the second 240 MINERS' LIEN. day of April, A. D. 1903, both dates inclusive, upon which work accrued the following abstract of indebtedness : Whole amount of debt $60.00 Whole amount of credit 20.00 Balance due the claimant $40.00 Witness my hand this 9th day of April, A. D. 1903. W. H. POWLESS. Verify as on page 238. To claim a lien the surveyor is not required to be a U. S. Deputy; and an underground as well as a surface survey is protected. No lien is given in terms for surveying a mill site. Mine Under Lease. The Colorado Act of 1895, was declared inopera- tive to hold the mine for debts incurred by the les- see. Wilkins v. Abell, 58 Pac. 612; but in 1899 there was passed a similar Act with an additional section, which renews the doubt that arose under the former act. There are no reported cases under the present Act. This section (Sec. 5, 1899, p. 267) as it reads is simply unintelligible, but it seems to suggest an in- timation to hold the claim for work done "with the knowledge of the owner" unless a certain notice is posted on the mine, which may be in form as follows: NOTICE. February 27, 1903. Notice is hereby given to all persons performing labor or furnishing skill, materials, machinery or other fixtures, or supplies of any kind to or on the Gen. Gronje mine, upon which this notice is posted, that the undersigned, the owner of said mine, will not be responsible for any labor per- formed on, or any skill, materials, machinery, fixtures or supplies of any kind furnished to said mine, nor shall the interest of said owner be subject to any lien for the same. And all persons are hereby notified that the said mine and premises have been leased to F. M. Roberts. PAUL KRUGER. The title is never bound by lien for work done for a lessee unless by Statute expressly so provid- ing. The Arizona Statute does not give a lien in such case. Griffin v. Hurley, 65 Pac. 147. CONVEYANCE. 241 By Option Holder. When a mine is worked under an option of sale the terms of such contracts vary so widely that no general rule can be safely stated as to when liabil- ity attaches against the fee simple title. On a lease containing covenants for special work with privilege of purchase the owner's estate has been held liable in Eaman v. Bashford, 37 Pac. 24; Hines v. Miller, 55 Pac. 401; Colo. I. Wks. v. Taylor, Id. 942; Hendrie Co. v. Holy Gross Co. 68 Pac. 785. To the contrary. Maher v. Shull, 52 Pac. 1115; Block v. Murray, 31 Pac. 550; Hadley Co. v. Gumming s, 64 Pac. 443; Reese v. Bald Mt. Co. 65 Pac. 578. The employe of a licensee has no lien. Jurgen- son v. Diller, 46 Pac. 610. Nor the employe of the claimant of a hostile title. Idaho Co. v. Winchell, 59 Pac. 533. CONVEYANCE OF MINING PROPERTY. The ordinary printed forms of deeds are usually sufficient to convey mining claims, but owing to the common practice of employing conveyancers totally disconnected with the legal profession, few abstracts, when the deeds, as recorded at length, are examined from the memoranda on the abstract, can show an unbroken line of perfect conveyances. A common imposition is to present a deed in the form of a warranty purporting to convey "all the right, title and interest of the party of the first part," which amounts to no more than a quit-claim; or to make the consideration of a warranty deed nom- inal, which has the same practical effect. WARRANTY DEED ON PATENTED CLAIM. THIS INDENTURE, made this tenth day of January, in the year of our Lord one thousand nine hundred and three, between Henry P. Lowe, of the City and County of Denver, State of Colorado, party of the first part, and John 8. Held, of Juneau, Territory of Alaska, party of the second part : 242 CONVEYANCE. Witnesseth, that the said party of the first part, for and in consideration of the sum of ten thousand dollars, to him in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, hath granted, bar- gained and sold, and by these presents doth grant, bargain, sell and convey unto the said party of the second part, his heirs and assigns : All the following described real estate, situate in Al- hambra Mining District, County of Park,, State of Colorado, to wit : The Fickle Goddess Lode Mining Claim, known as Sur- vey Lot No. 777, being 1,500 feet in length and 300 feet in width, situate on South Mountain. Together with all and singular the mines, minerals, lodes and veins within the lines of said claim, and their dips and spurs and all dumps, plant, fixtures, improvements, rights, privileges and appurtenances thereunto in anywise belonging. To have and to hold the lands, tenements and heredita- ments hereby conveyed unto the said party of the second part, his heirs and assigns, forever. And the said party of the first part, for himself, his heirs, executors and administrators, doth hereby covenant and agree with the said party of the second part, his heirs and assigns, that the said premises and every part thereof, are free and clear of and from any and all liens, incum- brances, trusts and taxes, and that he, the said party of the first part, his heirs, executors and administrators, unto the said party of the second part, his heirs and assigns, the said premises and every part thereof, against himself, his heirs and assigns, and every other person lawfully claiming or to claim the same or any part thereof, SHALL AND WILL WARRANT AND FOREVER DEFEND; alioays saving and excepting the same provisos, reservations and limita- tions contained in the patent of the United States issued for said survey lot. In witness whereof the said party of the first part hath hereunto set his hand and seal. HENRY P. LOWE. [SEAL.] STATE OF COLOKADO,, City and County of Denver: ss. I, Joseph K. Bozard, a Notary Public in and for said County, do hereby certify that Henry P. Loive, who is person- ally known to me to be the same person described in and who executed the within indenture, personally appeared be- fore me this day and acknowledged that he signed, sealed and delivered the said indenture as his free and voluntary act and deed for the uses and purposes therein set forth. Witness my hand and notarial seal this tenth day of January, A. D. 1903. Joseph K. Bozard, [SEAL.] Notary Public. CONVEYANCE. 243 The Date of Expiration of Commission Is Re- quired to be noted on all acknowledgments and affi- davits taken before a notary public under Colorado Statute. M. A. 8. 8281. Warranty of Claim Entered for Patent. Use the same form inserting the words "to be" before "issued" and adding the words "as entered in the Land Office" after the words "said survey lot" in the saving clause of the warranty. * Warranty of Possessory Claim. Use the same form as for "Patented Claims," omitting the words "Survey Lot No. ," and omit- ting the clause in italics. Instead of such clause in- sert "always saving and excepting the United States of America." Special Warranty. When the grantor desires to warrant his own chain of title, but not against parties claiming under other locations, insert before the words "shall and will warrant," this clause: "By, through or under the said party of the first part, or his grantors." QUIT-CLAIM DEED. THIS INDENTURE, made this thirty-first day of Janu- ary, in the year of our Lord one thousand nine hundred and three, between Thomas J. Maloney, of the City and County of Denver, State of Colorado, party of the first part, and W. K. Lee, of the County of weetwater t State of Wyoming, party of the second part : Witnesseth, that the said party of the first part, for and in consideration of the sum of one thousand dollars, to him in hand paid by the said party of the second part, the receipt whereof is hereby acknowledged, hath remised, re- leased and quit-claimed, and by these presents doth remise, release and quit-claim unto the said party of the second part, his heirs and assigns : All the following described real estate, situate in The Consolidated Ten Mile Mining District, County of Summit, State of Colorado, to wit : The GRACE CURRIER lode mining claim, Survey Lot No. 666, 1,500 feet in length and 150 feet in width, located on the west slope of heep Mountain. 244 CONVEYANCE. Together with all and singular the lodes and veins within the lines of said claim, and the dips, spurs, mines, minerals, dumps, fixtures, improvements, rights, privileges and appurtenances thereunto in any wise belonging. To have and to hold the lands, tenements and heredi- taments hereby conveyed unto the said party of the second part, his heirs and assigns, forever. ' In witness whereof, the said party of the first part hath hereunto set his hand and seal. THOMAS J. MALONEY. [SEAL.] Acknowledge as on page 2^2. A Quit Claim Deed is commonly used where the title is possessory, and where the title is clear it passes the title as effectually as a warranty. But the grantee in a quit-claim may be chargeable with no- tice of equities not chargeable to a purchaser by a general or special warranty. Hannan v. Seiden- topf, 86 N. W. 45. Mining Deeds. There has come into use a form of deed called a Mining Deed, the blanks for which vary. They contain after the space left for description, the for- mula "Together with the Dips," etc., substantially as in the above forms. A deed to a mine does not differ from a deed to other real property in the same condition of title, except in the description, and the phrase "Together with," etc., which is really part of the description. Most of these deeds contain in their granting clause the operative words of a warranty in connection with the operative words of a quit- claim "grant, bargain and sell," "remise, release and quit-claim." But their legal effect is more that of a quit-claim than that of a warranty, except that the words "grant, bargain, sell and convey" have the special force of passing an after acquired title, and by legislation the word "grant" in some States is made to imply a war- ranty against incumbrances. In examining abstracts they will of course be considered as transferring the grantor's interest, but no lawyer or trained convey- ancer would advise such deed, or any form of stat- CONVEYANCE. 245 utory deed where certain words are declared to have a certain talismanic charm, in preference to the known, fixed and understood grants and covenants of a common law warranty. Short Form of Deed. By Colorado Act of 1887 (Laws, p. 226) short forms of deeds were introduced. "The implied warranty which the vendor in igno- rance of its nature is made liable for by this stat- utory form, is totally inapplicable to mining claims whether patented or possessory. It would make the vendor liable, if liable for anything, for a fee simple title even to making good the exceptions on the face of the patent. If used in conveying a possessory claim there is a breach of the warranty the moment, the instrument is delivered. What is conveyed by the so-called short form of quit-claim deed, it is im- possible to say. The entire set of forms should be discarded." The above paragraph is the language used about these statutory forms of deeds in the sixth edition of this book. We have never qualified it and only add that the Act was repealed at the 1889 session. Description. The exact description of a located lode or placer is "The Lode Mining Claim" or "The Placer Mining Claim." If patented add the words "Survey Lot No " The number of the min- eral entry is superfluous, and to describe the premises by metes and bounds is not good conveyancing,except, of course, when a' fraction of a claim is conveyed. The name is usually a sufficient description. Smith v. Sherman Go. 31 Pac. 72; Glacier Go. v. Willis, 127 U. S. 472. The word "mine" is a dangerous term and to be avoided, as often an entire group of claims are known collectively by the name of one mine, and such entire group might pass, and, in fact, might be intended to pass by the use of such sweeping term. Smith v. Sherman Co. 31 Pac. 72. The word "lode" 246 CONVEYANCE. is commonly used as synonymous with lode mining- claim. Buckeye Co. v. Carlson, 66 Pac. 168. Deed Subdividing Lode Claim Dip. Owing to the relation of the dip to the strike, when a line is drawn across a lode claim at right angles to the side lines at the surface, such line be- ing intended for the division line between the part retained and the part sold, such line when carried vertically downward may cut off the vein on its dip in such a way as to divide it in an unexpected man- ner. If, for instance, at the surface, it begins at the "west end of discovery shaft," it may leave the bottom of such shaft entirely on one fraction of the lode within a comparatively few feet of sinking. Such result or a similar result will invariably occur where the vein has a dip, unless the end lines are at an exact right angle to the strike of the vein. See Plat, p. 166. Apex Eights of Irregular Fraction. Where the whole lode is conveyed there is no doubt that the deed carries the right to follow it on the dip to the full extent the grantor may have had such right. The same, if a certain number of feet off either end of the claim are conveyed, to the extent of feet granted. But where a strip or irregular fraction of the claim is carved out and sold the question of the apex rights of such segregated parcel arises, and the tendency of the decisions is that the grantee has the right to follow on the dip whatever veins may apex on the ground. Of course such right would be lim- ited by the end lines and planes projected from the end lines of the claim. In Stinchfteld v. Gillis, 30 Pac. 839, it was held that all veins apexing within the surface area are conveyed although carried by the dip into other land of the grantor. In Montana Co. v. St. Louis Co. 102 Fed. 430, the Plaintiff had conveyed a strip of ground to Defend- ant, together with the dips, metals, etc., in the usual CONVEYANCE. 247 language of a mining deed. The deed had been de- livered on settlement of an adverse claim. The Court held that it did not deprive Plaintiff of his right to follow a vein apexing outside the strip, upon its dip underneath the strip. In Boston Co. v. Montana Co. 89 Fed. 529, it was held that the grantee could follow on the projection of one of the lines of the pentagonal tract described, the same as if it were an end line in a patent. This gave to one party diverging, and to the other, con- verging end planes. The contention that each party was to follow as much of the vein as apexed within his own territory both governed by parallel end line planes always seemed to us the more just, simple and reasonable rule to apply to this class of cases. Since the above paragraph was in press the rule contended for has been adopted by the Supreme Court of Montana, and the ruling in the Federal case disap- proved. Montana Co. v. Boston Co. 70 Pdc. 1114. Cross Lodes. The Stinchfteld case, supra, as reported in 40 Pac. 98, holds that the grantor cannot claim for his vein retained, any rights as a cross lode, without special reservation to that effect. Same Ground Covered by Conflicting Locations. The owners of the Edna, after record, changed their stakes so as to produce a conflict with the Lightning. They then sold the Edna by the recorded description and afterwards bought the Lightning. Held that they were estopped to set up the Lightning title against the ground in conflict. Shreve v. Copper Bell M. Co. 28 Pac. 315. Where the same lode or ground is covered by more than one location owned by the same grantor his deed of one may be construed to convey the title under both locations. Weill v. Lucerne Co. 3 M. R. 373; Phillpotts v. Blasdel, 4 M. R. 341; Lebanon Co. v. Cons. Rep. Co. 6 Colo. 372; Shoshone Co. v. Rutter, 87 Fed. 801. For construction of conveyance in general terms after portion of a survey lot had been segre- 248 CONVEYANCE. gated by judgment, see Mollie Gibson Co. v. Thatcher, 57 Fed. 865. Severance of Mines and Surface Reservation. Where minerals are specially granted or where surface is granted without the minerals, there should be special covenants for support of the soil and build- ings or for right of entry to get at the minerals re- served, as the case may be; although in such cases those incidents are implied to the extent necessary to enjoy each severed estate. See p. 218. FORM OF RESERVATION. Insert before the clause "To have and to hold:" Always saving, excepting and reserving unto the said party of the first part, his heirs and assigns, all mines and minerals, lodes, veins and deposits found or to be found under or within the lines or area of the above granted prem- ises with such reasonable use of the surface ground as may be necessary to win, work and carry away said minerals so excepted "and reserved. Rogers p. 880; Bainbridge p. 1^80. Witnesses. No attesting witnesses are required to a deed con- veying land in Colorado or the other States or Terri- tories of the Pacific slope excepting Utah and Wyo- ming, which require one attesting witness, and Ore- gon which requires two. A deed signed with the grantor's mark -must be always witnessed on general principles. Dower Wife's Signature. The wife is not required to join in the husband's deed nor the husband in the wife's deed in Colorado, Nevada, North or South Dakota, or Wyoming. In all those States where the right of dower exists the wife must of course join in the husband's deed, in order to bar her right. These States (and the Eastern States generally) are Alaska, Montana, Oregon and Utah. In Arizona and New Mexico it is questioned whether the right of dower exists under the A. C. March 3, 1887. 24 U. 8. Stat. 638. In Arizona, Cal- ifornia and Washington, in a conveyance of com- munity property, the wife must join in the husband's CONVEYANCE. 249 deed and in the two latter states the husband must join in the wife's deed. The widow has no right of dower in a mining claim held by possessory title. Black v. Elkhorn Co. 163 U. S. 445- Otherwise as to mines owned in fee. Whittaker v. Lindley, 3 8. W. 9; Stoughton v. Leigh, 5 M. R. 47. Husband's Signature Necessary. The husband is required to join in the wife's deed in Idaho, New Mexico, Washington and Oregon. In all cases where the husband is required to join with the wife, or the wife with the husband in any convey- ance, it is assumed that a separate acknowledgment is required to be made by the wife. Acknowledgments. An acknowledgment before a notary public is cus- tomary and valid in any of the Pacific States or Ter- ritories, though the land lies in one state and the acknowledgment is taken in another. Where the deed conveys land in another State a commissioner of deeds for such State, if accessible, is always author- ized to take the acknowledgment. When taken be- fore this officer no certificate of his official character is required. Other officers are named in the statutes of the several States, but a notary public within the State, a commissioner or notary without the State, and a con- sul in foreign countries, are legalized to prove deeds by this form in all the aforesaid States and Territo- ries. For Form of Acknowledgment by an individual see page 242. The following are correct forms in the case of corporations and deeds executed under Power of Attorney: ACKNOWLEDGMENT BY CORPORATION. STATE OF COLORADO, Hinsdale County : ss. I, William L. Siegmund, a Notary Public in and for said County, do hereby certify that John E. Searles, Pres- ident of the Coldstream Mining Company, who is personally known to me to be such President, and the same person who as such President, affixed the corporate name and seal of 250 CONVEYANCE. said Company to the above Indenture, personally appeared before me this day and acknowledged the same to be the free and voluntary act and deed of the said corporation for the uses and purposes therein set forth. Witness my hand and Notarial Seal this third day of January, A. D. 1903. Wm. L. Sieymund, [SEAL.] Notary Public. BY ATTORNEY IN FACT. UNITED STATES OF AMERICA, DISTRICT OF COLORADO : ss. I, Robert Bailey, Clerk of the Circuit Court of the United States in said District, do hereby certify that E. M. Titcomlj, Attorney in Fact, of the within named Arthur B. Frenzel, who is personally known to me to be such Attorney in Fact, and the same person within described as such At- torney in Fact, and who affixed the name and seal of his said principal to the within Indenture, personally appeared before me this day and acknowledged the said Indenture to be his free and voluntary act and deed and the free and vol- untary act and deed of the said Arthur B. Frenzel for the uses and purposes therein set forth. Witness my hand and the Seal of said Court, this third day of January, A. D. 1903. Robert Bailey, [SEAL.] Clerk of Court. Stamps. By the Spanish War Revenue Act stamps were re- quired on certain deeds between July 1, 1898, and July 1, 1902. 30 Stat. L. 460; 31 Stat. L. 946; A. G. April 12, 1902. Agreements for Deed are usually in the shape of a title bond, time being made of the essence of the contract in every form in use; but an executory con- tract in any other form under seal, is of equal valid- ity. M. A. S. 446-448. A title bond or any other paper purporting to allow an option to purchase should always show more than a nominal part of the consideration as paid or contain some express cove- nant by the vendee, to make some payment or ex- penditure, as for instance to do certain specified work upon the property to avoid the possibility of its being held void for want of mutuality. Naked title bonds have been ruled to be mere options, and therefore without consideration and re- vocable. Smith v. Reynolds, 2 M. R. 227; Finerty v. Fritz, 1 M. R. 437; Gordon v. Darnell, 2 M. R. 220. But i CONVEYANCE. 251 where the holder of the bond pays a part of the con- sideration or agrees to develop the property or in any other manner gives a valuable consideration the agreement is valid as a contract, and when recorded binds the property. TITLE BOND. KNOW ALL MEN BY THESE PRESENTS, That I, Dennis Sullivan, of the City and County of Denver, State of Colorado, am held and firmly bound unto David F. Day, of the County of Our ay, in said State, in the penal sum of forty thousand dollars, to be paid to the said David F. Day, his heirs, execu- tors, administrators or assigns ; to which payment, well and truly to be made, / do bind myself, my heirs, executors and administrators, and every of them, jointly and severally firmly by these presents. Witness my hand and seal, this fourth day of May, in the year of our Lord one thousand nine hundred and two. WHEREAS,, The above bounden obligor hath this day sold to the said David F. Day certain real estate situate in Battle Mountain Mining District, County of Eagle, State of Colorado, to wit : The Legality Lode Mining Claim, Survey Lot No. 99, containing 1,500 feet in length by 300 feet in width, on Battle Mountain. Together with all and singular the lodes and veins within the lines of said claim (and not excepted on the official plat) and all mines, minerals, dumps, plant, fixtures, machinery, tramways, improvements, rights, privileges and appurtenances thereunto in anywise belonging. For the sum of twenty thousand dollars to be paid to the said obligor, his executors, administrators or assigns, or deposited to his credit in the First National Bank, Denver, Colorado, on or before the tenth day of May, A. D. 1903, and for the further consideration that said obligee shall, before said last mentioned date, expend the sum of at least one thousand dollars in the actual underground development of said property. Now, THEREFORE, the condition of the above obliga- tion is such that if the above bounden obligor, his heirs or assigns, on payment or deposit of the said sum of twenty thousand dollars in manner aforesaid, and expressly within the time limited as aforesaid, time being of the essence of this contract, as to such payment or deposit, shall make, execute, acknowledge and deliver at his own cost and charges, good and sufficient deed or deeds of general war- ranty to the said David F. Day, his heirs and assigns, or to such person, persons or company as he shall nominate, con- veying said premises with good and perfect title, free from encumbrance, then this obligation to be void, otherwise to remain in full force and virtue. DENNIS SULLIVAN. [SEAL.] 252 CONVEYANCE. In consideration of the option expressed in this ob- ligation, I agree to expend the sum of $1,000 therein men- tioned in the actual underground development of the above described property within three months from the date of this Bond. Witness my hand and seal this fourth day of May, A. D. 1902. DAVID F. DAY. [SEAL.] Cross propositions do not make a sale. Bow- man v. Patrick, 36 Fed. 138. Where one of several parties executes a mining agreement on behalf of all, with their knowledge, they may (in instances) be held without signing. Rice v. Ege, 16 M. R. 179. Time Is of the Essence of the Contract in a title bond on a mine. Presidio Co. v. Bullis, 4 8. W. 860; Idaho Co. v. Union Co. 47 Pac. 95. Or in suit for specific performance. Durant v. Comegys, 28 Pac. 425. And in mining contracts generally. Waterman v. Banks, 144 U. 8. 394- It may be made so either from the nature of the subject matter or the contract of the parties. Settle v. Winters, 10 Pac. 216. But it may be waived verbally or by allowing the vendee to work on assurances of extension. Mason v. Sieglitz, 44 Pac. 588; Presidio Co. v. Bullis, supra. WORKING CONTRACT SALE. For and in consideration of the sum of $500 to me in hand paid by Orrin F. Place, the receipt whereof is hereby acknowledged, I, Charles H. Morris, do hereby agree to place said Orrin F. Place in full and sole possession and control of the Fair Deceiver Lode Mining Claim, situate, etc., with authority to work and prospect the same as he sees fit for the term of sixty days from date, provided only, that such work be done in good and workmanlike manner, and that any ore taken out shall be separated and left on the dump, and not removed during the lifetime of this contract. And at any time within said period, on tender to me of the fur- ther sum of $4,500, I agree to deliver a good and sufficient warranty deed to the said Orrin F. Place, his heirs and as- signs, conveying said above described premises absolutely and clear of encumbrance. In case no such tender is made, said sum of $500 is to be treated as the consideration of this option and right of testing and to be and remain my property as liquidated damages. i CONVEYANCE. 253 In case my title is found defective and I fail to make it good and marketable within said period, I agree to pay said Orrin F. Place the cost of abstract and the vendee's at- torney's reasonable charges for examination of title, and to refund said sum of $500. The ore taken out during said period is to be the prop- erty of the party who remains or becomes the owner at the end of said period of sixty days. Time is of the essence of this contract in all particu- lars. Witness my hand and seal this 10th day of May, A. D. 1902. CHARLES H. MORRIS. [SEAL.] In consideration of the delivery to me of the above option, I agree to expend at least $500 in work upon the above described property within the lifetime of said option. Witness my hand and seal the date above written. ORRIN F. PLACE. [SEAL.] SALE SUBJECT TO EXAMINATION OF TITLE. The undersigned, Sam W. Jones,, of Breckenridye, State of Colorado, hath agreed to sell to Frank M. Taylor, of Denver, in said State, and said Frank H. Taylor hath agreed to buy of and from said Sam W. Jones the Corinne Rowland Lode Mining Claim, situate in Gregory Mining Dis- trict, Gilpin County, Colorado, for the consideration of $18,- 000 to be paid within six months from date, fee simple (or good possessory) title to be delivered and warranted clear of liens. Title subject to approval of Chas. C. Post, attor- ney for purchaser. Cost of deeds to be paid by vendor ; of examination of title by purchaser. Vendor to deliver at his own cost certified abstracts of title within ten days to said attorney. Deeds to pass on tender of the sum above mentioned within the period of six months above lim- ited. If no tender is made w T ithin such period the purchaser shall be in default unless he sh.ow the title materially defective, or a prior breach of contract by vendor, or that material misrepresentations as to the mine or mineral have been made to him by the vendor or by parties in the inter- est of the vendor, and thereupon either party may proceed for specific performance or for damages or both or other- wise as he may be advised. Witness the hands and seals of said parties this 2/fth day of April, A. D. 1902. SAM W. JONES. [SEAL.] PRANK M. TAYLOR. [SEAL.] 254 CONVEYANCE. CONTRACT TO SELL AND TO BUY. I, Edward 0. Wolcott, vendor, hereby agree to sell to Charles 8. Thomas, and I, Charles 8. Thomas, purchaser, agree to buy of said Edivard O. Wolcott, the Dream Placer Mining Claim, situate, etc. The agreed consideration of said sale is $1,000 cash in hand paid, the receipt whereof is hereby acknowledged ; $3,000 to be paid within sixty days from the date hereof, and $6,000 within ninety days from such date, making a total consideration of $10,000. Said vendor within ten days from date will deliver to purchaser, or his attorney, an abstract of title duly cer- tified by the clerk and recorder of said county, or by some reputable abstract office, together with all the original title papers which are in his possession or within his power to produce. And within said time will place in escrow in the First National Bank of Denver a good and sufficient war- ranty deed conveying to said Charles 8. Thomas, or such person as he shall nominate, the said premises clear of en- cumbrance, to be by such bank held in escrow until final payment be made under this contract or default is made under the same. Deposit in said bank to the credit of vendor shall be equivalent to payment of any of said in- stalments. Time is of the essence of this contract as to each and every instalment, and if any instalment or instalments be not paid within the time or times hereby limited there- for, all previous instalments shall be and remain the prop- erty of said vendor, the deed in escrow shall be returned to him for cancellation, and the property shall remain his own, unaffected and unencumbered by this contract. But if he fail to deliver abstract within said period, or to de- posit said deed in escrow, or if his title prove encumbered or otherwise not marketable, vendee may recover any and all instalments paid, or may sue for specific performance and for a perfect title, or for damages or otherwise as he may be advised. Witness the hands and seals of said parties this tenth day of May, A. D. 1902. EDWARD O. WOLCOTT. [SEAL.! CHARLES S. THOMAS. [SEAL.] A better because a fairer contract than the last above given, is a sale by deed, securing the unpaid instalments by note and mortgage. The terms of sale are so variant and the tempta- tions to evade become so great with the fluctuations in value, that it is always preferable to state the bargain fully to an attorney jointly agreed on and CONVEYANCE. 255 whose compensation is not made contingent on the sale, and to have him place the bargain in such form as will express, without fiction or verbiage, the real intention of the parties. Escrow. Where a title bond or other executory contract is delivered it is usually accompanied by a deed exe- cuted and acknowledged and placed in escrow. An escrow amounts to a deposit with a third party of an unrecorded 4eed to be delivered on certain con- ditions, the title bond or other executory contract being actually delivered and held in the meantime. Such escrow is usually in the shape of a deed en- closed in a sealed envelope and endorsed as follows: To THOMAS KEELEY, CASHIER,, FIRST NATIONAL BANK of Denver: You are authorized to deliver the within deed to Thomas F. Walsh, his agent, or order, upon payment to me, or deposit to my order, of the sum of ten thousand dol- lars, on or before the first day of January, A. D. 1903. Mean- while you will hold the same irrevocably. If payment is not made on or before said date, you will return the same to me for cancellation. January 30, 1902. LUTHER M. GODDARD. An escrow is often placed on deposit without any title bond, or the agreement is delivered on con- dition of not going on record, the vendor objecting to clouding the title by recording executory agree- ments which will perhaps never result in conveyance. Such an escrow or agreement (not recorded) if on good consideration, is valid in all respects, except that of giving the purchaser record security. Wol- cott v. Johns, 7 Colo. App. 361. Unrecorded Claim. An incomplete location may be transferred by parol and the record completed by the purchaser. Doe v. Waterloo Co, 70 Fed. 456. Acknowledgments to Contracts. No instrument needs acknowledgment except such as is intended to be placed of record; if an in- strument is recorded without acknowledgment, it 256 CONVEYANCE. may be valid as notice, but the original must be pro- duced or accounted for when used in evidence a certified copy is not evidence. An acknowledgment is not a part of the instrument, but supplies a mode of proving its execution without witnesses and for obtaining a valid copy when lost or mislaid. Fraudulent Sale. Where a sale has been induced by fraud the in- jured party may either rescind or sue for damages. Byard v. Holmes, 6 M. R. 598; Smith v. Bolles, 13 M. R. 159. If he do neither, but continue to exercise acts of ownership over the property purchased, he may be estopped even to plead the false representations to an action on the contract. Butler u. Rockwell, 14 Colo. 126. Proof is admissible that defendant had attempted to salt the same mine on other persons. Mudsill Co. v. Watrous, 61 Fed. 163. Sale of worthless stock may be set aside on like principles as the sale of the mine. Ormsby v.. Budd, 33 N. W. 457. False repre- sentations made by officer are not necessarily charge- able to the company. Watson Co. v. James, Id. 622. A party is bound where he assumes to know and makes assertions accordingly. Lehigh Co. v. Barn- ford, 150 U. 8. 665. Assertions of value are as a rule only expres- sions of opinion. Id. But otherwise as to state- ments that the lands; sold include a certain ore bed. Chatham Co. v. Moffatt, 16 M. R. 103. And opin- ions and promises (false averments of large means and extensive operations intended) may amount to actual fraud. Rorer Co. v. Trout, 83 Va. 397; 5 Am. St. R. 285. The same as to promises never intended to be performed. Lawrence v. Gayetty, 78 Cal. 126. A party cannot cover up a fraud by using his wife's name. Largey v. Bartlett, 44 Pac. 962. MINING LEASE. 257 The parties will not be allowed to stand by and await the result of the adventure before suit. Blen v. Bear River Co. 3 M. R. 435. Delay without sufficient excuse bars the remedy. Great West Co. v. Woodmas Co. l.' f Colo. 90. MINING LEASE. Written or Verbal. The lease if for more than one year must be in writing to avoid the Statute of Frauds. (M. A. 8. 2021). If for a less period it is still often reduced to writing and the covenants being peculiar cannot be too particularly expressed. The actual possession taken by the lessee being notice of his rights, the lease generally is neither acknowledged or recorded. Set Work. In large mines worked on the tribute system, the lease is usually verbal between the manager and the miner, and is more in the nature of a contract of hiring, the foreman retaining general control of the work. Dead Work. The following form is correct to the extent of the usual covenants, but there are often special covenants added in regard to "dead work" and other matters. Dead work is a term of the popular lan- guage and means sinking shafts and running drifts, adits or cross-cuts, or it may embrace everything ex- cept stoping and the timbering incidental to stoping. Its meaning being so general it should not be used at all in the instrument and the intention should be covered by more exact expressions. It is a common stipulation to require no royalty for ore extracted in sinking or in driving levels. Where dead work is to be paid for, care should be taken to express whether the compensation is to 258 MINING LEASE. 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. In wording this covenant a personal liability may be incurred if not properly expressed. The Royalty Reserved Necessarily Varies, 20 or 25 per cent, being the usual amount, and 5 and 75 per cent, being extreme limits. FORM OF LODE LEASE. THIS INDENTURE, made this -first day of May, in the year of our Lord one thousand nine hundred and two, be- tween Charles J. Grist, of London, England, lessor, and A. B. Minor, of Lincoln, State of Nebraska, lessee or tenant : Witnesseth, that the said lessor, for and in consideration of the royalties, covenants and agreements hereinafter re- served, and by the said lessee to be paid, 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 Routt, State of Colorado, to wit : The Owl Bird Lode Mining Claim, Survey Lot No. 172, to- gether 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 1st day of May, 1903, 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 fashion, in manner necessary to good and economical mining, so as to take out the greatest amount of ore possible, with due regard to the development and pres- ervation of the same as a workable mine, and to the special covenants hereinafter reserved. 2. To work and mine said premises as aforesaid stead- ily and continuously from the date of this lease with at least two persons employed underground, for at least 20 shifts to the man each calendar month. 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 neces- sary. 4. To allow said lessor and his agents from time to time, to enter upon and into all parts of said mine for pur- poses of inspection. MINING LEASE. 25'J 5. To not assign this lease or any interest thereun- der, and to not sublet 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 pretence whatever. 6. To occupy and hold all cross or parallel lodes, spurs or mineral deposits of any kind which may be dis- covered by the said lessee, or any person under him, in any manner, by working within, or from the demised ground, as the property of said lessor with privilege to said lessee of working the same as parcel of said demised premises. 7. To keep at all times the drifts, shafts, tunnels and other workings thoroughly drained and clear of loose rock and rubbish, unless prevented by extraordinary mining cas- ualty. 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 Den- ver or Pueblo, and leaving with such mill or ore buyer the percentage of mill returns aforesaid for delivery to the lessor. 10. To deliver to said lessor the said premises with the appurtenances, and all improvements in good order and condition, with all drifts, shafts, tunnels and other passages thoroughly clear of loose rock and rubbish, and drained, and the mine ready for immediate continued working (ac- cidents not arising from negligence alone excusing) without demand or further notice, on the said 1st day of May, A. D. 1903, at noon, or at any time previous, upon demand for for- feiture. 11. And finally, that upon violation of any covenant or covenants hereinbefore reserved, the term of this lease shall, at the option of the said lessor, expire, and the same and said premises, with the appurtenances, shall become forfeit to said lessor ; and 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. Each and every clause and covenant of this Indenture shall extend to the heirs, executors, administrators and lawful assigns of all parties hereto. L'HO MINING LEASE. lii witness whereof, the said parties have hereunto set their hands and seals. CHARLES J. GRIST. [SEAL.] A. B. MINOR. [SEAL.] For acknowledgment, if desired, see page 2J f 2. Special Covenant Against Miner's Liens. 8 a. To promptly pay for all labor and supplies to be done for, or furnished to, the said lessee or any person or persons under or in privity with him upon said prem- ises, and to deliver to the lessor on or before the fifteenth day of each calendar month during the term of this lease, a written statement showing that all labor and supplies have been paid for, or the amount due and owing for such, labor and supplies ; and if any lien be filed or if any such report shows any part of the pay roll, or other mine in- debtedness unpaid, or if such indebtedness exist, whether shown by such report or otherwise, the lessor may, at his election, declare a forfeiture of this lease as hereinafter provided. Covenant to Keep Notice Posted. To at all times keep and maintain posted on said prem- ises and each claim thereof a notice in substance, as follows : For form of notice see page 240. On low grade lodes reservations of a graded royalty are common. In such case discard covenant 9 above printed and insert: Covenant for Graded Royalty. 9. To pay to said lessor as royalty 10 per cent, of the net mill returns of all ore to be extracted from said premises running 30 ounces of silver or under to the ton ; 20 per cent, on ore running over 30 and not exceeding 50 ounces to the ton ; 30 per cent, on all ore running over 50 ounces by delivering all the ore in lots as mined to some mill or to some regular ore buyer in Denver or Pueblo and leaving with such mill or ore buyer the several percentages of mill returns as aforesaid for delivery to the lessor. Estimate of royalty after deducting freight and mill charges is said to be based on the "net" mill returns. Where the royalty is much graded and made dependent on the amount of lead or copper as well as silver or gold, the more simple form is to reserve it on the "price per ton" paid by the ore- buyer, which is 90 to 95 per cent, of the bullion and base metal value, after deducting treatment charges; MINING LEASK. 261 but in the "price per ton" the freight has not been estimated. Royalty on Price Per Ton. 9. To pay to said lessor as royalty 10 per cent, of the net mill returns of all ore sold for $10 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. . The mill returns on which settlements between lessor and lessee are made are substantially accord- ing to the following form: 262 MINING LEASE. H ft I a I hj 3 M 5. Otherwise where there is a fixed rent, or a rent based on an assumed minimum production. Mclntyre v. Mclntyre Co. 11 N. E. 645. An agreement to work is not necessarily an agreement to work continuously. Caley v. Portland, ~>6 Pac. 350. Failure to start work is same as quit- ting. Woodward v. Mitchell, 39 N. E. 439. A parol agreement as to what shall be considered sufficient work is binding on lessor and his grantees. Hartley v. Phillips, 36 Atl. 217. To recover substantial damages against a lessee failing to work, the plaintiff must show that the ore could have been mined to a profit. Colo. F. Co. v. Pry or, 51 Pac. 51. Right to Quit. Under the covenant to work in the above forms, the lessee has no right to quit at discretion. If such right is to be given, as in most instances of common equity it should be given, insert after the second covenant: "The said lessee reserving the right to quit and aban- don 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. Whar- ton, 16 M. R. 239. The lessee may quit at will under a lease containing no covenant to work. Glasooiv v. Chartiers Co. 25 Atl. 232: 17 M. R. . 266 MINING LEASE. Co-Tenant Owners Partnership Lessees. The legal relation of co-lessees is that of part- ners. Meagher v. Reed, 14 Colo. 350. One of such co-tenants or co-partners cannot give a lease of the whole mine technically binding on all the co-owners, but where they cannot agree as to mode of working, a majority interest must control. Dougherty v. Creary, 1 M. R. 36. In Paul v. Cragnas, 59 Pac. 857, the lessee of a minority interest was allowed heavy damages against the majority owner disputing his right to enter and mine. We cannot gather from the opinion upon what theory this anomalous case was decided. BELKNAP, J., dissented. Assessments Forfeiture to Co-Partner. An assessment is defined in Shaw v. Homer, 7 Colo. App. 83, as "an apportionment among the par- ties interested, of an amount of money necessary and not on hand for development purposes." It must be levied by one having authority, each partner must have notice of it and a forfeiture does not ensue for failure to pay unless there is some contract to that effect. Such a contract was enforced in Joseph -v. Davenport, 89 N. W. 1081. Fixtures. Unless otherwise covenanted the fixtures belong to the lessee and are removable. Conrad v. Saginaw Co. 20 N. W. 39; 52 Am. R. 817. And this applies to a forfeited lease. Mickle v. Douglass, 39 N. W. 198. A mortgage on fixtures was held good after for- feiture in Alberson v. Elk Creek Co. 65 Pac. 979. 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 Fed. 432. And though unauthorized to lease, if the com- pany stand by and allow the lessee to spend money, they will be bound. Hoosac Co. v. Donat, 10 Colo. 529. MINING LEASE:. 267 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. Pittsburg Co. v. G-reenlee, 80 Atl. 489; Wilson v. Gerhardt, 9 Colo. 585. A Non-Assessable Interest in a lease is an interest chargeable with its full share of all cost of mining, as well as of freight and treatment as far as the ore proceeds will pay such cost, but not chargeable in case of working to a loss. The decision in Maloney v. Love, 11 Colo. App. 288, holding it entitled to a full share of the gross proceeds is wholly against the meaning of the term as understood by miners. In Taylor v. Thomas (Colo.), 71 Pac. 382, a non- assessable interest in a lease was charged with its full proportion of expenses to the extent of the ore pro- ceeds. Forfeiture. Unless the lease provide for forfeiture none oc- curs for non-payment of rent or breach of covenant. Plummer v. Hillside Co. 104 Fed. 208; Wake field v. Sunday Lake Co. 49 N. W. 135. A forfeiture en-' forced by collusion with employes of lessee is not lawful. 49 N. W. 135. Forfeiture cannot be en- forced by a party who is himself in default. Ingram v. Golden Co. 65 Pac. 549. Draining and pumping is counted as labor under a covenant to keep at work. Miller v. Chester Co. 18 Atl. 565. Where parties have acted loosely in complying with the terms of lease the lessor cannot abruptly be- come strict and declare a forfeiture. Westmoreland Co. v. DeWitt, 18 Atl. 724; Hukill v. Myers, 15 8. E. 151. Miscellaneous Decisions. An advertisement, bid and acceptance make a complete agreement for a lease. Cochrane v. Justice Co. 16 Colo. 415. And "the lessor cannot after such proceedings insist on new and arbitrary terms. Id. 268 LICENSE. Under a mining, lease covenanting to pay a cer- tain royalty and that it shall amount to at least a given sum, lessees are not liable if after full testing no merchantable ore is found. Gibben v. Atkinson, 15 M. R. 428. Whether a lease has been extended is a ques- tion of fact which the Court cannot take away from the jury. Riddle v. Mellon, 23 Atl. 241. A tenant cannot take leases of two hostile titles and then compel his lessors to interplead. Standley v. Roberts, 59 Fed. 83(1 A lessee attempting to relocate the ground for- feits all rights under his lease. Silver City Co. v. Lowry, 57 Pac. 11; Affd. 179 U. 8. 196. A lease of a mining shaft means not only the shaft but the ground- accessible through such shaft. Wesling v. Kroll, J,l N. W. 944. The receipt of royalty admits the validity of the lease. Bicknell v. Austin Co. 62 Fed. 432; Burk- hard v. Mitchell, 16 Colo. 376. Waiver of conditions may be shown by parol. Equator Co. v. Guanella, IS Colo. 548; Bullis v. Noyes, 12 S. W. 397. And release of Royalty. Craw- ford v. Bellevue Co. 38 Atl. 595. LICENSE. Instead of a lease a license may be granted. The material distinction between a lease and a li- cense 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 transferrable. 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 de- LICENSE. 269 feat the charge of trespass but is not that property in the soil such as parties contracting on equal terms for permanent working naturally bargain for. On the other hand, it is usually granted without any, or for a nominal consideration. It has been held in California that a lease which did not bind the lessee to work was a mere license. Wheeler v. West, 11 Pac. 871; 20 Id. 45. The hold- ing is an extreme one and ought not to become in conscience a precedent. In every lease, verbal or written, reserving royalty, there is an implied cove- nant to work (See p. 265) 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. Cons. Coal Co. v. Peers, 37 N. E. 937; Stinson v. Hardy, 41 Pac. 116. The general nature of a license as distinguished from a lease or other like grant is stated in Massot v. Moses, 8 M. R. 607; Doe v. Wood, 9 M. R. 182. 1. Not Exclusive. The owner may work himself, or allow others to work upon the same ground. Johnstown Co. v. Cambria Co. 9 M. R. 226; Woodside v. Ciceroni, 93 Fed. 1. 2. Passes No Property or Vested Estate. A license is authority for the temporary occu- pation of land or to enter upon and do particular acts in and about it. It creates no estate. Fuhr v. Dean, (J 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 cannot arbitrar- ily oust the licensee without compensation for ex- penditures made. Bush v. Sullivan, 9 M. R. 214. After a proper revocation the licensee has no title in what he continues to break and sever. Williams v. Morrison, 32 Fed. 177. A license once given con- tinues till revoked. Keeler v. Green, 12 M. R. 465. 270 PROSPECTING CONTRACT. An executed license (to build a ditch) amounts to a grant. De Graffenried v. Savage, 47 Pac. 902. 4. Not Assignable. Being only a personal privilege any transfer operates as a forfeiture. Dark v. Johnston, 9 M. R. 283. But if the license imply a grant of the ore it may be assigned. Muskett v. Hill, 5 Bing. N. C. 69^. 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, 14 M. R. 329; Tipping v. Robbins, 37 N. W. 427; Omaha Co. v. Tabor, 16 M. R. 184. PROSPECTING CONTRACT. Much litigation has grown out of contracts of this kind owing to the loose manner in which they are generally undertaken and the strong induce- ments to shirk their obligations when a rich discov- ery has been made. Hurley v. Ennis, 12 M. R. 360; Johnstone v. Robinson, Id. 396. The following form covers the legal points necessary to be guarded in this class of contract: GRUB STAKE PROSPECTING CONTRACT. In consideration of provisions advanced to me by Charles C. Hueger, 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 dol- lars in hand paid, I agree to prospect for lodes and deposits in Silver Bow County, Montana, nnd to locate all discov- eries which I may consider worth the expenditure, and re- cord the same in the joint names of said outfitter and my- self, and in our names only, as equal owners. My time and labor shall stand against his money, pro- visions, etc., as aforesaid. All expenses of survey and rec- ord shall be paid by the outfitter, and I agree to make no debts on account of this agreement. Work done on claims PROSPECTING CONTRACT. 271 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 1903 (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, 1903. ' CHARLES BARRON. I agree to the terms above stated. CHARLES C. RUEGER. Under the following form the prospector is al- lowed wages and takes a smaller interest in lodes found : AGREEMENT of date March 7, A. D. 1903, between Au- gustus R. Spechtj Charles J. Allen, and Arthur D. Bullis, outfitters, and John Owen t prospector. WITNESSETH, 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 dol- lars ($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, 1903, 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 industriously 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 Saguache counties, and to locate and record all discoveries which in 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 associates. And that he will at least once each month report progress and all discoveries 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 life- time of this contract and if at any time within one year thereafter he shall become interested by location or pur- chase in any claims on which he may have prospected un- der this contract, he will allow his associates to take an equal interest with himself on the same terms and at the same cost at which he has acquired such interest. 272 PROSPECTING CONTRACT. On final settlement full wages are to be allowed as above agreed, but said prospector shall be charged with his full fourth of any expenses over and above the sums herein expressed, and shall account and pay for all tools and sup- plies on hand when contract expires, if terminated on his notice ; but shall keep such tools and supplies if contract determined at outfitters' election, or by expiration of the full term limited, or by failure to remit proper charges monthly on demand. And the said prospector shall have no right to quit on notice until he shall have prospected two full months under this agreement. Witness the hands and seals of said parties. AUG. R. SPECHT. [SEAL.] CHARLES J. ALLEN. [SEAL.] A. D. BULLIS. [SEAL.] JOHN OWEN. [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, 16 M. R. 236; Meylette v. Brennan, 38 Pac. 75; Ray- mond v. Johnson, 49 Pac. J { 92. There is an isolated contrary ruling in Nevada. Craw v. Wilson, 40 Pac. 1076. The association is practically a partnership. Lawrence v. Robinson, 12 M. R. 387; Abbott v. Smith, 3 Colo. App. 265. 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. Mur- ley v. Ennis, supra. 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. Richard, 15 M. R. 624- But he was not held in this instance to account to outfitter for any share in a lode, the float of which he discovered while prospecting, but did not find the lode till afterward. Of course, the rule in such cases must vary according to the facts and the good faith in the premises. Where an association for prospecting purposes is abandoned, the several late partners may perfect locations on discoveries made on their several ac- WORKING CONTRACT. 273 count. Page v. Summers, Id M. R. 617. If one of the associates quit before mineral is struck he can- not claim an interest in the perfected location. McLaughlin v. Thompson, 29 Pac. 816. Permission by the owner to prospect his ground must be exercised within a reasonable time. C& lioon v. Bay and, 1 N. Y. Sup. 814. But in Woodside v. Ciceroni, 93 Fed. 1, 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. Leelc, 25 Atl. 101; Jamestoivn Co. v. Eg- bert, Id. 1~>1 ; Petroleum Co. v. Coal Co. IS 8. W. 6.5. WORKING CONTRACTS. A contract to sink a shaft does not necessarily imply that the vein will be followed. Buckeye Co. v. Carlson, 66 Pac. 168. The Contractor is not bound to timber where the Contract is silent on that point. No. 5 M. Co. v. Bruce, 3 M. R. 146, 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, US. W. 43. EXAMINATION OF TITLE. The written title to a mining claim begins with the location certificate, after which the conveyances and incumbrances should appear upon the abstract as in other classes of real estate. Inspection and Survey. In addition to the abstract of title a survey and local inspection are indispensable to security, espe- cially when the claim is not patented. 274 EXAMINATION OP TITLE. This inspection and survey should result in as- certaining the depth of discovery shaft, and whether it shows a well denned crevice; whether the loca- tion 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 ascertained) is laid so as to cover the apex or gen- eral course of the lode, and more especially what shafts, tunnels, prospect holes, stakes, notices and improvements, indicate the presence of hostile claims; and if such intervening or overlapping hos-. tile claims are found, their seniority or juniority should be established. The abstract (at least until patent) may show a clear chain of title, and may be based on a record senior to other records on the same vein> and still the title may be absolutely worthless. Patterson v. Hitchcock, 5 M. R. 542. An adverse senior discovery may exist within a few feet of the discovery of the claim under examina- tion. Every hole or stake in proximity to the claim should be examined, its history traced, and the pos- sibility of danger from that source guarded against. Whether the annual labor has been done should also be ascertained. Such inspection having been made, the course of examination will be as follows, the points peculiar to the title, as a mining title, being noted as they occur: 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, in the of- fice of the recorder, conveying, encumbering or in any manner affecting title to the property in ques- tion. The abstract, however, amounts to nothing more than a guide or memorandum to the attorney in his examination. Each deed and other instrument EXAMINATION OF TITLE. 275 should be inspected at length, either by the original, by the record or by a certified copy. The abstract should be furnished by the vendor at his own charges. 2. LOCATION CERTIFICATE. The material points to be observed in the loca- tion certificate are that it contains: 1. The name of the lode. 2. The names of the locators. 3. The date of location. 4. A proper description. See page 72. 5. The location certificate of a placer should contain the name of the claim and of the locator, date of location, description, and there should be one locator for every 20 acres. See page 198. 3. CONVEYANCES. A mine is conveyed by deed or encumbered by mortgage the same as other real estate. The description should contain: 1. The name of the lode. 2. If patented, the number of survey lot. 3. Mining district, County and State. 4. Usually in proper conveyancing, the number of feet in length and width are inserted, and some- times (especially if the conveyance be of part of a claim) their situation relative to center of discovery shaft. The essential points of such description are the name of the lode, district, County and State. Placer claims are usually described by their names, or if patented by the names and number of the survey lot. In early locations they were usually numbered with reference to the local gulch. Bach deed or other instrument must be examined to ascertain: That it has been signed by the proper parties. That it is under seal. That it sets forth a consideration. 276 EXAMINATION OF TITLE. That it contains a sufficient description of the premises. That it contains sufficient words of conveyance. That no lien for purchase money is therein re- served. That there are no words of condition, exception or reservation by which Jess than a fee simple estate may be limited, or by which a supposed conveyance may be construed as a mortgage. That each letter of attorney grants sufficient power to sell and convey. That each deed under power of attorney is exe- cuted in conformity with such power, and that the name of the principal, at least, appears in the body of the deed, and that it is signed "A. B. by C. D., his attorney in fact," or words equivalent thereto. That each title bond or agreement to convey has been released, or has expired by limitation without performance, unless a conveyance has been made in conformity with such bond or agreement. That proper stamps were affixed during the pe- riod when stamps were required July 1, 1898, to July 1, 1902. That every mortgage, trust deed, attachment, miner's lien, certificate of levy, tax sale, judicial sale, judgment or transcript, has been either properly proceeded upon if title is claimed under it; or, on the other hand, satisfied of record if it is found in opposition to a clear title. That especially in sales under a trust deed, due publication has been made and all the terms of such trust deed complied with as to time, place and terms of sale, etc., all of which should appear recited in the deed made by the trustee to the purchaser. That every letter of attorney, deed, mortgage, etc., has been duly acknowledged before some proper officer. See page 2 7 /S. Deeds by Married Women. The separate acknowledgment by a married woman has not been required in Colorado since EXAMINATION OF TITLE. 277 1874. Where still required in any State, such ac- v knowledgment 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 page 2.'iU. After Acquired Title. A warranty deed conveys to the grantee any after acquired title of his grantor, and even a quit- claim made pending application, may carry the pat- ented title to the grantee. Crane v. Salmon, 41 Cal. 63; Bradbury v. Davis, 3 M. R. 398. 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 cast of a deed, a certified copy of the patent being always procurable from the General Land Office. The pat- ent carries the title back to the entry at least. Benson Co. v. Alta Co. 145 U. S. 428. The form of patent is quite different from that of a patent for agricultural lands, and contains specific exceptions as to easements, etc., and in the form used before 1888 and in instances since that date a plat of the survey; and excepts the surface 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 dates of application and of entry or even of the discovery may continue to be material where the question of relation arises. See p. LW. Where a patent has been issued there is no necessity for a strict examination of the location certificate or of the various acts of location. It cures all defects incident to the location and in most in- stances any formal break in the chain of title prior to the application. And especially it cuts out prior hostile titles which have failed to adverse or to successfully maintain their adverse. 278 EXAMINATION OF TITLE. But it does not divest liens, nor the title of a co-tenant dropped in the patent application (see p. 117), 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 paten- tee, trustee of the title for his use. Nor does it dispense with the importance of a surface examina- tion to see that the corners agree with the plat and that the survey lot substantially encloses the vein. 5. PLAT OF PATENT. In the older form of patents was inserted a diagram in which the ground conveyed was colored. But in cases where the patent contains no such plat a certified copy should be obtained from the Surveyor General's office, and a careful comparison of the plat should be made with the metes and bounds contained in the description and the exclu- sions, if any, recited in the patent. 6. LIENS AND JUDICIAL PROCEEDINGS. A certificate should then be had from the Clerk of the District Court of the proper county, certify- ing that there are no judgments, transcripts, attach- ments or other liens of record in such court against the property, or appearing against the names of any of the present or former owners during such time as the abstract may show it was liable to lien through each particular owner. And that there are no suits pending affecting such property or the title thereto, either in such District Court, or in Su- preme Court or Court of Appeals, on error or ap- peal. If there are suits or liens he will so certify, with reference to term and docket, whereupon they should be examined by inspection of the original records, with the same particularity as the deeds in the abstract, so that it may be seen to what extent they encumber the premises or threaten the quiet enjoyment thereof; and if such suits or liens have been satisfied or settled, it should be made plainly so to appear upon the records. EXAMINATION OF TITLE. 279 FORM OF CLERK'S CERTIFICATE. STATE OF COLORADO, County of Teller: ss. I, Alexander W. Grant,, Clerk of the District Court in and for said County, do hereby certify that there are no judgments, attachments, transcripts or other liens, appear- ing of record against (here insert name of each party who has owned an interest within six years) or any of them in said court within six years last past. And that there are no suits pending in safd court claiming or affecting title to the Edelmira lode mining claim, in said County. Witness my hand and seal of said Court, this 12th day of April, A. D. 1903. [SEAL.] ALEXANDER W. GRANT, Clerk. A like certificate should be had from any other local court of record, from the appellate and the federal courts. A patent does not divest liens ac- crued against the possessory title. They are espe- cially saved by the terms of A. C. 2332. The lien of a judgment in Colorado is confined to those cases where a transcript is filed in the Recorder's office and expires six years after date of its original entry. Code, 232; 3 M. A. S. 2529. And in any State where a similar provision exists the clerk's certificate is not usually called for. There 'always, however, exists a possibility of a lien not appearing on the abstract (Laughlin v. Hawley, 9 Colo. 170) but which should disclose itself on the clerk's certificate. There may also exist an unrecorded miner's lien. (See p. 236) or a lien in favor of the State on an audited account (If. A. S. 1839), or for fine and costs in a criminal case, or against the surety on a criminal bond. M. A. S. 1472, 1473. If from the abstract or any of the above certifi- cates there appears to have been a judicial sale, pro- bate sale, tax or other official sale, the whole pro- ceedings from the summons, petition, assessment or other starting point, must be examined as to their validity at all stages, up to their consummation by sheriff's deed or otherwise. 280 EXAMINATION OP TITLE. 7. PARTIES IN POSSESSION. If parties are in actual possession, claiming ad- versely to the grantor, or claiming under him as lessees, their possession is an assertion of their claim, whatever it may be, of which the purchaser must take notice at his peril. Coffee v. Emigh, 15 Colo. 184. 8. CONCLUSION. DUTY OF COUNSEL. If from the abstract, or from any of the cer- tificates, 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 ad- verse interest, or of any missing conveyance in the chain of title, or of any serious defect in the body or acknowledgment of any instrument of such a nature as to invalidate the title the true condition of such title should then, with due secrecy, be ex- pressed to the client. And when the attorney has 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 fc be advised of all points which remain in doubt, and of any contingencies which may threaten the quiet enjoy- ment, or would obstruct a sale of the premises; and of all steps which if presently taken may avoid such conditions and perfect the title, so that the true value of the title in law shall be represented to the client, that is, the intending purchaser. For in 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 mort- gage; because from the necessity of the case, he acts in the interest of the purchaser and of the lender, and not in that of the grantor or of the mortgagor; the charge for his examination should be made against the same side; the charge for the convey- ance, on the other hand, is by custom made against the vendor. ALIENS. 281 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 (M. A. S. ch. 3, and art. 2, sec. 27, of the Constitution) allows ownership by either resident or non-resident aliens. A patent to the use of an alien may not be at- tacked except by direct governmental inquisition. Justice Co. v. Lee, 21 Colo. 260. Ownership of Possessory Title. The Mining Acts throw open the public domain to citizens only and to those who have declared their intentions to become citizens. A. C. 2319. It would seem from their language that an alien could not locate a claim and so it has been re- peatedly held. And if he could not locate, his hold- ing by deed and perhaps by devise or descent might be questioned. But the matter in its practical importance is controlled by the rule laid down in late opinions of the Federal Supreme Court, Manuel v. Wulff. 152 U. S. 505; McKinley Co. v. Alaska Co. 183 U. S. 563, that the question of ownership by an alien is a matter between himself and the government and that as long as the Government does not make inquisition to deprive him of his title, or become a party to proceedings to perfect the title, his title even when he claims under his own location is good against all the world. Adverse Claim Cases. As the Government rarely initiates such pro- ceedings the alien in contests between citizens has 282 ALIENS. therefore the same standing as the citizen (Tornan- ses v. Melsing, 109 Fed. 710) save only on application for patent and in suits supporting adverse claims, in which proceedings the Government is an interested party and the citizenship of the parties becomes ma- terial. If the parties to such suit are citizens the fact that the locator was an alien or that one of several locators was an alien or that intermediate holders were aliens becomes wholly immaterial. North N. Co. v. Orient Co. 9 M. R. 530; Providence Co. v. Burke, 57 Pac. 641; Gorman Co. v. Alexander, 51 N.- W. 346; Billings v. Aspen Co. 52 Fed. 250. The Citizenship of the Original Locator is ma- terial only where he continues to be the claimant to the time of the institution of the adverse suit. Declaration of Intention. One who has declared his intention to become a citizen of the United States may locate, enter and patent a claim the same as a citizen. No fixed period of previous residence is required before making such declaration. The Act of Naturalization Is Retroactive, so that if an alien has located a claim and afterwards become or declared his intention to become naturalized, his location is good from its original date. Osterman v. Baldwin, 6 Wall. 122; 29 L. D. 164; Lone Jack Co. v. Megginson, 82 Fed. 89. 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 nat- uralized, he being a minor emigrant entitled to take out papers without previous declaration of inten- tion, and the Court held that the effect of naturaliza- tion was retroactive, made his claim valid and de- feated the adverse. Children of Aliens. There is a common impression that the natural- ization of the father operates to make citizens of all ALIENS. 283 his children who came to the United States under twenty-one years of age; but this is the case only as to such children who were under that age at the date of the father's naturalization papers. R. 8. 2172. An Alien May Take Title by Descent and hold the claim against all the world except the United States. Billings v. Aspen Co. 51 Fed. 338; 52 Fed. 250; Lohmann v. Helmer, 104 Fed. 178. Pleading and Proof of Citizenship. Except in adverse claim cases it need be neither alleged or proved. Harris v. Kellogg, 49 Pac. 708; Buckley v. Fox, 67 Pac. 659. It may be proved when essential though not averred. Altoona Co. v. Inte- gral Co. 4^ Pac. 1047. Where no issue is made on it, it cannot be controverted. Jackson v. Dines, 13 Colo. 90; Sherlock v. Leighton, 63 Pac. 934. Indirect proof by circumstances has been al- lowed Strickley v. Hill, 62 Pac. 893, and in Jantzen v. Arizona Co. 20 Pac. "93, the broad view was ex- pressed, and as we have always believed correctly expressed, that (in judicial as distinguished from departmental proceedings) a presumption exists in favor of the citizenship of a resident locator. The point of alienage must be raised on the trial below. O'Reilly v. Campbell, 116 U. 8. 420. 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 producton of a certified copy of the record, but there are instances where this strictness is not insisted on. Wood v. Aspen Co. 36 Fed. 25; Provi- dence Co. v. Burke, 57 Pac. 641. 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. Garfteld Co. 16 M. R. 125; O'Reilly v. Campbell, 116 U. S. 420. 2X4 MEXICAN GRANT. Citizenship of the stockholders of an American corporation need not be proved and issue cannot "be taken on this point. Doe v. Waterloo Co. 70 Fed. 436. The Federal Alien Act of March 3, 1887, is in force in the Territories only. That Act (Sup. 556) forbids aliens who have not declared their intentions, to hold any real estate patented or possessory, except by inheritance or as creditors buying to protect debts. It applied also to cor- porations where over 20 per cent, of their stock was held by aliens; but this restriction was removed by the Act of March 2, 1897, 29 St. L. 618, so that now. a corporation not alien may purchase from the Gov- ernment irrespective of the citizenship of its stock- holders. 28 L. D. 118. By the same amendment it allows aliens to acquire and hold by purchase, pos- sessory as well as patented mining claims. Its lan- guage is so vague that it cannot be told without ju- dicial construction whether it would allow of the orig- inal location of a mining claim by. an alien. Except as affected by the Alien Act or by local statute, Chinese or other aliens can work under lease from a citizen. Ah Kle v. McLean, 32 Pac. 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 boun- daries. It had been the policy of the Spanish and Mexican governments to allow the governors of the outlying provinces to pass title to large tracts for colonization purposes but limited to eleven square leagues. Such private cessions of land are recognized by all the treaties as well as by the modern law of ^conquest, and they have been variously confirmed MEXICAN GRANT. 2S5 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 U. S. is under- stood to be bound as fully as was the original gov- ernment. In Moore v. Smaw, 12 M. R. 418, where the sub- ject 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 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 pat- ent from the United States, in confirmation of such grant, making no reservation of the minerals, in- vested the patentee with the ownership of the min- erals. In Fremont v. U. S. 17 How. 060, it was was held that the discovery of gold or silver did not, under the mining laws of Mexico, destroy the title of the in- dividual holding the grant to the surface, without passing upon the rights of the government or of the discoverer, in such minerals. The Moore case followed without qualification in Fremont v. Seals, 11 M. R. 632, and Ah He v. Crip- pen, JO M. R. 367, remained for many years unques- tioned, but in U. 8. v. San Pedro Co. 17 Pac. 337, the Supreme Court of New Mexico held that a confirma- tion 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 n.s proof of title till confirmed by Act of Congress. Astiazaran v. Santa Rita Co. 20 Pac. 189; 148 U. S. 80. But confirmation may be complete without pat- ent. Shaw v. Kellogg, 170 U. S. 312. 286 CORPORATIONS. A raining location may be made on an uncon- firmed Mexican grant. Such land is not reserved against entry. Lockhart v. Wills, 54 Pac. 336; Aff'd 181 U. 8. 516. In Gildersleeve v. New Mexico Co. a confirmed Mexican grant was upheld on the ground of laches of the complainant. 161 U. 8. 573. The Act of 1891 creating the Court of Land Claims (20 8tat. L. 860), contains a special reserva- tion of mineral titles which cannot be safely ex- pressed without quoting its exact language, to wit: "No allowance or confirmation of any claim shall confer any right or title to any gold, silver, or quicksilver mines or minerals of the same, unless the grant claimed effected the donation or sale of such mines or minerals to the grantee, or unless such grantee has become otherwise entitled thereto in law or in equity ; but all such mines and minerals shall remain the property of the United States, with the right of working the same, which fact shall be stated in all patents issued under this act. But no such mine shall be worked on any property confirmed under this act without the consent of the owner of such property until specially authorized thereto by an act of Congress hereafter passed." MINING CORPOBATIONS, DOMESTIC. A Corporation is an "association of persons" within the meaning of the U. S. Mining Acts. U. 8. v. Trinidad Co. 137 U. 8. 160. * Any three or more persons are authorized to file their certificate of incorporation under the Colo- rado Incorporation Act (M. A. 8. 472-635), for pur- *These details vary in the several States and Terri- tories, but each allows of incorporation upon practically the same terms and upon compliance with substantially the same forms as in Colorado. To state each instance where they vary would be beyond the plan and intended size of this work. Nor is it advisable even where the most com- plete local forms and directions are given in any book to attempt to write any such document as a corporate charter without professional counsel. CORPORATIONS. 287 poses of mining or construction of ditches or flumes; to run. tunnels; or in fact "for any lawful purpose," but there, are special provisions in the corporation chapter which refer only to mining, ore reduction, and tunneling companies and other special provi- sions concerning ditch and flume companies. Pipe line companies (1891, p. 94) are required to state in their articles the route of their proposed line. For filing fees, see p. 298. Number of Directors. M. A. S. 585 is a special section providing that the number of directors of a mining company shall not be less than three nor more than nine. The Par Value of Shares cannot be less than one dollar nor exceed one hundred dollars, and the shares may be issued payable in instalments. 480. Rights of Stockholders. Any stockholder has a right to inspect the books of the corporation. 488. And the holders of fifteen per cent, may demand a written statement. 507. But there is no Statute allowing stockholders the right to examine the mine. The Term of Existence cannot exceed twenty years. 413. But may be revived. Acts 1899, p. 163. Stock Paid in Lands. Any such company may issue stock in -payment for mines, such stock to be treated as paid-up stock. 490; 582. Where stock is issued upon excessive overvalua- tion the holder may be held personally liable. Kelly v. Fourth Co. 53 Pac. 959; compare DuPont v. Tilden, 42 Fed. 87. No personal liability is imposed upon stockhold- ers for debts, except to the extent of unpaid stock held by them. 486; 497. Directors and officers be- come liable for failure to make and file an annual report (Acts 1901, p. 125), or declaring fraudulent dividends. 492. 288 CORPORATIONS. Annual Meetings of Stockholders are provided for by Statute, the By-Laws fixing the time and place. The Colorado Act (1895, p. 150} requires notice to be published not less than ten days previous to the meeting, in a newspaper published where the prin- cipal office is kept, and thirty days' notice to each stockholder. Mortgage. A mining company is forbidden to mortgage its property except by majority vote of stockholders. 3 M. A. 8. 481. Corporate Deed. The seal of the Company is prima facie evidence that it was affixed by corporate authority. Union Co. v. Bank, 2 Colo. 226. But to render a conveyance of real property unimpeachable it should be author- ized by the Board of Directors, preceded by action of the stockholders at a meeting called for that purpose. Seal. A corporation may be bound by a scroll seal. G. V. B. Co. v. Bank, 95 Fed. 23. And may adopt new seal when its president withholds the old one. Socorro Co. v. Preston, .'/fl N. Y. 8. 1040. ARTICLES OF INCORPORATION GOLD MINING COMPANY. WKKKEA.S.. Franklin R. Carpenter, Elbert F. Fitzgerald and Arthur B. Frcnzel, 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 certificates in writing, which when filed, shall constitute the Articles of Incorpora- tion of The Yellow Bug Mining Company. ARTICLE 1. The name of said company shall be The Yellow Bug Mining Company. ARTICLE 2. The objects for which said company is created are to acquire, hold, work, and operate placer gold mines and lodes of gold bearing ore in the County of San Miguel in said State of Colorado. To acquire, own and use water, water rights and mills incident to the treatment of gold bearing earth and gold bearing ores, and to do all things incident to the general business of gold mining. CORPORATIONS. 289 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 exist- ence are Franklin R. Carpenter, Elbert F. Fitzgerald and Ar- thur B. Frenzel. ARTICLE 6. The principal office of said company shall be kept at Placerville in said County and the principal busi- ness of said company shall be carried on in said County of San Afiguel. ARTICLE 7. The stock of said company shall be non- assessable. ARTICLE 8. The board of directors shall have power to make such prudential by-laws as they may deem proper for the management of the affairs of the company, not in- consistent with the laws of this State, for the purpose of carrying on all kinds of business within the objects and pur- poses of such company. In witness whereof, the said incorporators have here- unto set their hands and seals this first day of January, A. D. 1903. FRANKLIN R. CARPENTER. [SEAL.] ELBERT P. FITZGERALD. [SEAL.] ARTHUR B. FRENZEL. [SEAL.] STATE OF COLORADO, City and County of Denver: ss. I, Joseph K. Bozard, a notary public in and for said County, do hereby certify that Franklin R. Carpenter, El- bert F. Fitzgerald and Arthur B. Frenzel, who are personally known to me to be the same persons described in, and who executed the within duplicate Articles of Incorporation, ap- peared 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. 1903. Joseph K. Bozard, [SEAL.] Notary Public. The first seven articles in the above form con- tain all the statutory requirements. Article 8 in re- gard to the by-laws, is necessary if it is intended that the directors instead of the stockholders, shall make the by-laws. M. A. 8. 484. One of the said duplicates to be filed with the Recorder of the proper county, and one with the Secretary of State, and if the business is to be car- lo 290 CORPORATIONS. ried 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 chapter concerning corporations provides for assessments upon shares, where, by the charter the stock is made assessable, and the statute re- quires that whether the stock shall be assessable or non-assessable shall be stated in the above 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." ARTICLES OF INCORPORATION SILVER MINING CO. Articles 1 and 2 of a Silver Mining Company may read: ARTICLE 1. The name of said company shall be The Fiat Silver Mining Company. ARTICLE 2. The objects for which said company is created are to acquire, hold, work, and operate mines of silver bearing ore and its associated ores, in the County of Mineral, in the State of Colorado, and to sell, work, mill, reduce or treat the product of such mines and do all things incident to the general business of mining. Where it is 'desired to transact part of the busi- ness out of the State the certificate must so state: 493. ARTICLE 9. A part of the business of said Company shall be carried on in Ecltley, County of Luzerne, Common- wealth of Pennsylvania., and the principal office of said Com- pany out of the State shall be at said Ecleley, at which office meetings of Directors may be held. Where, after organization complete, a company desires to extend its business into other counties, it may do so without, amending charter, by filing certi- fied copy from the Secretary of State's office with the Recorder of the new county. 4^4- On filing the articles a copy certified by the Sec- retary of State should be procured and preserved as the legal voucher for corporate existence: at the same time the Secretary of State issues his "Certifi- cate of Authority" under the Act of 1901, and, there- CORPORATIONS. 291 upon, should be called the organization meeting, to be attended by a majority of the original Board of Directors (by custom the same persons as the in- corporators, though not necessarily so). This organ- ization meeting, so-called, is really the first regular meeting of the Board of Directors, and at such meeting the articles as filed should be formally ac- cepted. ORGANIZATION MEETING. Record of first meeting of the Board of Directors of The Yellow Bug Mining Company, at Placerville, Colo- rado, January 7 S 1903. At a meeting of the persons named in the articles of said Company, there being present Franklin R. Carpenter, Eloert F. Fitzgerald and Arthur B. Frenzel: On motion Franklin R. Carpenter was elected chairman and Arthur B. Frenzel,, secretary pro tern. On motion the Articles of Incorporation as filed in the office of the Secretary of State and in the office of the County Clerk of San Miguel County, were accepted as the articles of incorporation, or charter of said company. On ballot taken Franklin R. Carpenter was elected pres- ident of the company, Elbert F. Fitzgerald was elected vice- president, Arthur B. Frcnzel was elected treasurer, Albert B. Roeder was elected secretary, and Thomas Cornish was elected superintendent. On motion the following by-laws were adopted : *BY-LAWS. I OFFICERS. The officers of this company shall consist of a Pres- ident, Vice-President, Secretary, Treasurer, and Superin- tendent, 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 Di- rectors, except the Secretary and Superintendent, who may or may not be Directors. Said officers shall hold their re- spective offices until their successors are appointed and en- ter upon the duties of their offices. Vacancies among the Directors may be filled at any meeting of the Board of Directors, by ballot. II DUTIES OF PRESIDENT. It shall be the duty of the President to preside at all meetings of the Directors, and to sign all bonds, deeds, *The above by-laws 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. 292 CORPORATIONS. agreements or other instruments in writing, made or en- tered into by or on behalf of the corporation ; to sign all certificates of stock, and all orders for money on the Treas- urer, and in general, perform all acts incident to his office. Ill DUTIES 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 SECRETARY. The Secretary shall give due notice of all meetings of stockholders, and of the Board of Directors ; shall pre- pare and keep proper books of record and of account for the business of the company, and such other books as may be required by law or the Directors may prescribe. He shall countersign and register all certificates of stock, and other documents requiring the signature of the President, attach- ing 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 de- termined by the Directors, shall be allowed the Secretary for his services. He shall be the custodian of the corporate seal. V DUTIES OF TREASURER. 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 satisfactory 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 work- ing 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 or the company's property shall be borne by the company. A suitable qompensation, to be determined by the Board of Directors, shall be allowed him for his services. VII BOARD OF DIRECTORS. The Board of Directors shall consist of three mem- bers, always including the President, Vice-President and Treasurer. It shall be the duty of the Board to exercise general supervision over the affairs of the company ; to receive and pass upon the reports of the Secretary, Treas- urer and Superintendent, to audit all bills and accounts CORPORATIONS. 293 against the company, and to direct the Secretary in corre- spondence. 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 stockhold- ers. IX DIRECTORS' MEETING.S. 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 personal 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' MEETINGS. The first annual meeting of the -company shall be held at the office of the company in Placerville, at 10 o'clock A. M., on the second Tuesday in January, A. D. 190!i, and on the same Tuesday of each succeeding year. If omitted, the Directors shall hold over until their successors are appointed. Special meetings may be called by the Board of Directors, or by one-tenth in amount of all the stock held. Such published notice and personal notice by mail as may be required by law, shall be given of 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 In- spection to the meeting. See Act of 1895, p. 150, and M. A. 8. Sec. 585. XI CERTIFICATES OF SHARES. The subscribers to the capital stock of this company shall be entitled to certificates of their shares, duly signed by the President and countersigned by the Secretary. The certificates of stock shall 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 possession of stock shall not be regarded as evi- dence of ownership of the same, unless it appears upon the stock books of the company - that said certificate was Issued or duly transferred to the holder of the same. xn DEBTS. No debt shall be contracted against the company ex- cept by order of the Board of Directors. XIII DIVIDENDS. Dividends shall be made not in excess of the net earn- ings of the company at the close of every fiscal year, which 294 CORPORATIONS. shall be on the thirty-first day of December of every year ; or oftener as the Board of Directors may see fit. XIV CORPORATE SEAL. This company adopts as its corporate seal, the device described as follows : A pick and shovel crossed, surrounded by the name of the company. XV AMENDMENTS. These by-laws may be changed, amended or revoked at any time, by a two-thirds vote of the Board of Directors. The charter and by-laws being adopted, and the officers elected, the organization of the corporation is complete, and the minutes proceed to note busi- ness as it may be transacted. Reports and Certificates Required. After payment of the last instalment of capital stock the President and a majority of the Board of Directors are required by Sec. 487 to record a certifi- cate in the office of the Secretary of State as follows: CERTIFICATE OF FULL PAID STOCK. STATE OF COLORADO, County of San Miguel: ss. The undersigned, Frrnklin R. Carpenter, President, and Elbert F. Fitzgerald, Director, constituting a majority of the Directors of The Yelloiv *Bug Mining Company, do hereby certify, in accordance with Section 487 of Mills' An- notated Statutes of said State that the amount of the cap- ital stock of said company, as fixed and limited by its Arti- cles of Incorporation, 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 the purchase of property. Witness our hands this 5th day of February, A. D. I 903 - FRANKLIN R. CARPENTER,, President. ELBERT F. FITZGERALD,. Director. STATE OF COLORADO, County of San Miguel: ss. Franklin R. Carpenter and Elbert F. Fitzgerald, being duly sworn, say that they are the officers named in the fore- going certificate, and constitute a majority of the Board of Directors of said company ; that they have heard said cer- tificate read and know the contents thereof, and that the matters and things therein stated are correct and true. FRANKLIN R. CARPENTER, ELBERT F. FITZGERALD, Sworn and subscribed before me this fifth day of Feb- ruary, A. D. 1903. Curtis L Greenwood, [SEAL.] Notary Public. CORPORATIONS. 295 A copy of said certificate is also to be filed and recorded in the Recorder's office of each county where business is done. It is held that when the capital stock is fully paid up it is the duty of the officers to make and record such certificate. Austin v. Berlin, 13 Colo. 200. Since the Act of 1901, however, the personal liability avoided by such certificate, is no longer granted. Annual Report. By Act of 1901 (p. 121) an annual report is re- quired to be filed in the office of the Secretary of State within 60 days from January 1st. The Penalty for failure is personal liability of all officers and directors. The Act requires information and items in detail never previously exacted and while the following form is for its own facts in strict compli- ance with the Statute, the Act is so worded that its terms must be studied with reference to the status of each corporation when about to comply or attempt to comply with its obscure and inquisitorial demands. ANNUAL REPORT OF MINING CORPORATION. In compliance with the terms of Section 11, of an Act of the General Assembly of the State of Colorado, approved April 6, 1901, The Rough Rider Mining Company makes and files this Annual Report, and says : 1. The names of its officers and Directors and their several places of residence, together with the street or busi- ness address of such officers and Directors, are as follows : President and Director, E. H. Cook, of Boulder, Colo- rado. Vice-President and Director, Geo. W. Kretzinger, of 1036 Monadnock Block, Chicago, 111. Treasurer and Director, B. W. Begeer, of 1347 Lafay- ette street, Denver, Colorado. Secretary, Wm. Byrd Page, of No. 932 Equitable Build- ing, Denver, Colorado. Superintendent or Manager, Josiah Winchester, of No. 708, same building. 2. The amount of its capital stock as fixed and deter- mined by its Articles of Incorporation (and amendments thereto) is $100,000. 3. The proportion of such capital stock actually paid in is $100,000, of which $25,000 was paid in cash, and $75,- 000 was paid by purchase of mining property. 296 CORPORATIONS. 4. The amount of the indebtedness of said corpora- tion at the date of filing this report is $5,000. 5. Said Corporation is now engaged in the active oper- ation of its business within the State of Colorado. 6. It. has no personal property except tools, supplies and office furniture. It has twenty men on pay-roll, and is working a producing mine with no lien encumbrance. 7. The property of said Corporation within this State is located in the County of Park, and consists of two Lode Mining Claims, of which the Roosevelt is held under letters patent of the United States, and the Colonel Wood is held by possessory right on the public domain. 8. The amount of w r ork done and improvements made on said property since the time of filing its last annual re- port is $20,000, expended in new hoisting plant and the development and working of its mines. Witness the corporate name and seal of said Company, at the hand of its President, this 5th day of January, A. D. 1903. THE ROUGH RIDER MINING COMPANY, By E. H. COOK, President. Attest : WM. BYRD PAGE, Secretary. STATE OP COLORADO, City and County of Denver: ss. Before me, the subscriber, a Notary Public, in and for said County, personally appeared E. H. Cook, President, and Wm. Byrd Page, Secretary of The Rouyh Rider Mining Com- pany, who being duly sworn, each for himself, saith that he has read the foregoing Report signed by said E. H. Cook, President, and that the same and the matters and things therein stated are true. E. II. COOK, WM. BYRD PAGE. Sworn and subscribed before me, this 5th day of Jan- uary, A. D. 1903. Joseyli K. Bozard, [SEAL.] Notary Public. Other details are required for ditch companies and still others for coal mining corporations. Such report must be signed by the President and verified by the President and Secretary and the corporate seal attached. Acts 1901, p. 124. In either form, where the stock has been paid up by purchase of the mine, the certificate must so state. M. A. S. 490. CORPORATIONS. 297 ARTICLES OF INCORPORATION DITCH COMPANY. Preamble same as page 288. 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 Roaring Fork 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 by 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. Acts 1891, p. 97. ARTICLE 7. The stock of said company shall be as- sessable, upon majority vote at stockholders' meeting, as re- quired by law. ARTICLES 3, 4, 5, 0, 8 and 9 and acknowledgment same form as on page 289. 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 water they are compelled to keep for sale, at rates fixed by County Commissioners. 510. SMELTING AND ORE-SAMPLING COMPANIES. The following Articles stating the purposes of organization are taken from records filed by operat- ing companies. The other Articles for such or other like companies should be substantially in the above form, always observing that the article (No. 7) refer- ring to assessability of stock, and the requirement to print "Assessable" or "Non-Assessable" on the face of the stock certificate is confined to ore-reducing, mining and tunneling companies. 581. (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 products ; 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, 298 CORPORATIONS. 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 trans- acted shall be : 1st. The purchase, lease, erection and operation of smelting and refining 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 property, for the purpose of obtaining said gold, sil- ver 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 oth- erwise real or personal property of any kind, and to use, maintain, enjoy, and dispose of the same for the benefit of said corporation. (The Taylor & Brunt on 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 crush- ing, 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 gen- eral business of maintaining and operating such mills and works, and dealing in all kinds of mineral-bearing ores and the products and proceeds thereof. Stamps. The War Revenue Act of 1898 requiring stamps on certificates of stock was repealed by the Act of April 12, 1902, and no stamps have been required since July 1, 1902. Filing Fees. By Act of April 6, 1901, every corporation upon filing its articles in the office of Secretary of State is required to pay $20 if domestic, $30 if foreign, for the first $50,000 of its capital stock, and 20 cents if domestic, 30 cents if foreign, for each additional $1,000 of stock. Upon any increase of capitalization the charge is 20 cents and 30 cents respectively, for each $1,000 of increase. CORPORATIONS. 299 The additional fees to Secretary of State are $5 for "Certificate of Authority," $2.50 for filing impres- sion of seal, and $2.50 plus five cents for each $1,000 in excess of $50,000 for filing certificate of paid up stock. Foreign corporations pay $5 for filing copies of law of the State of their incorporation, and $5 for filing designation of Agency. License Tax. By the Revenue Acti of 1902, domestic corpora- tions having a capital stock of over $25,000 are charged an annual license tax of two cents upon each $1,000 of its capital stock. All foreign corporations are taxed four cents per $1,000 and those whose stock is less than $1 per share, par value, are taxed 2% cents per thousand shares. The tax is payable to the Auditor of State on or before May 1st, each year. The penalty for failure to pay the tax is a forfeiture of all privileges and of the right to do business in the State or maintain suits. Assessments on Stock. By 3 M. A. 8. 583a-583c statutory provisions were enacted for the assessment of shares of com- panies whose stock is made assessable under the char- ter 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 It) per cent, can be made at one time, and a second as- sessment 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 delin- quent, and may be advertised for thirty days in a daily paper published at the place of the chief office of the company, and also in a daily paper published where the mine is located (with provisions for cases where daily papers are not published). If not paid within twenty days "from the date the same became delinquent," the secretary is em- powered to sell the shares at public auction in front 30;j CORPORATIONS. of the chief office of the company to the highest bid- der for cash. The Act read literally, makes the sale to come off within the period of publication; but it must mean, if it mean anything, that the sale is to take place not less than twenty days after the expiration of the thirty days' publication. The Act further requires notice to be sent to each stockholder, informing him of the assessment. FOP.M OF RESOLUTION TO ASSESS. Resolved, That an nssessment of five per cent, is hereby levied and made upon each and every share of the capital stock of this corporation, payable immediately at the office of the company to George M. Scott, the treasurer. NOTICE OF ASSESSMENT. Office of The Experiment Mining Company, Equitable Building. Denver, Colo., Jan. 1, 1903. To W. E. Bridgman, Stockholder : You are hereby notified that at a regular meeting of the Board of Directors of The Experiment Mining Company this day held at the office of said company, by a majority vote of all the directors, each and every share of the cap- ital stock of said company was assessed five per cent, on the par value, such per cent, amounting to $5.00 on your 100 shares of stock, payable immediately to George M. Scott, the Treasurer, at this office, address above given, and that such assessment, if not paid on or before the 3d day of February, 1903, will be delinquent, and your stock will thereupon be advertised for sale, the sale to take place on the 28th day of March, 1903, according to the terms of the Act approved April 3, 1891, entitled "An Act relating to the powers and duties of the directors of mining stock corporations and to the assessment and sale of delinquent shares of stock, and for other purposes relating thereto, and to repeal all laws inconsistent therewith." C. S. WALLACE, Secretary. It does not seem that this Act can refer to com- panies by whose articles the stock is made non- assessable. Nor does it apply to assessments for in- stalments of the original purchase price of the shares, sale of which on default is provided for by M, A. 8. 480. In the formation of new companies we would advise that the stock be made assessable. As long CORPORATIONS. 301 as the mine is in pay no assessments are needed, but where a mine ceases to pay, there is no practical method to proceed except by assessment. Any other course involves the idea of borrowing money and ultimate sale of the mine, or compelling a few will- ing shareholders to take the risk which should be borne by all. Irregular Action. A company which has habitually neglected all formalities cannot plead the want of them to escape liability. #. V. B. Co. v. Bank, 95 Fed. 23. So held where it allowed one director to assume entire man- agement. Robinson Co. v. Johnson, 50 Pac. 215. A resolution of the Board is not necessary to bind the company where it has had value received with knowl- edge. McKenzie v. Poorman Mines, 88 Fed. 112. Fraudulent Organization. A company may sue its organizers where the real price paid is less than that represented to the stockholders. Pittsburg Co. v. Spooner, 1$ N. W. 259; 17 Am. St. R. 149. Acts of directors distin- guished from acts of the company. Summerlin v. Fronteriza Co. 41 Fed. 249. Bona fide holder of stock issued on over valuation not liable to creditors. Du Pont v. Tilden, 42 Fed. 87. Reorganization. Where a new company is formed with sanie stockholders or other like suspicious incidents it is but a successor and liable for the debts and cove- nants of the old one. Higgins v. California Co. 55 Pac. 155. Agent. The President and Secretary alone have no right to appoint a general agent. Johnson v. Sage, 44 Pac- 641. Miscellaneous Rulings. Incorporators are liable for preliminary ex- penses. Hersey v. Tully, 44 p ac- $54; See Hecla Co. 302 FOREIGN CORPORATIONS. v. O'Neill, 19 N. Y. Sup. 592; Winters v. Hiib Co. 57 Fed. 287. Distinction between de facto and de jure director. Rozecrans Co. v. Morey, 43 Pac. 585. In- stances where officers or stockholders may recover for services on a quantum meruit. Severson v. Bi- metallic Co. 44 Pac. 79; Felton v. West Co. 40 Pac. 70; Ruby Co. v. Prentice, 52 Pac. 210. Dissolution. By Act of 1891 (Acts, p. 95) provision is made for the dissolution of solvent corporations desiring to go out of business, by publication and filing of no- tices, without judicial action thereon. For consideration of the rights of stockholders when the company has quit business and has no known Board of Directors, see Tennessee Co. v. Ayers, 43 8. W. 744. 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 the State of Colorado are that it make and file duplicate certificates, signed by the President and Secretary, duly acknowledged, of which the following is a correct form: DESIGNATION OF PROCESS AGENT. STATE OF NEW YORK, County of Neiv York: ss. It is hereby certified, That the Remonetized Silver Mining Company, a corporation organized under the laws FOREIGN CORPORATIONS. 303 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. Becker, 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 signatures of its President and Secretary, this 3d day of February, A. D. 1908. REMONETIZED SILVER MINING COMPANY, [SEAL.] JOHN K. CREEVEY, President. CLARENCE CARY, Secretary. STATE OF COLORADO ,, 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 John K. Crecvey, President, and Clarence Gary, Secretary of the 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 Feb- ruary, A. D. 1903. Herbert E. Dickson, [SEAL.] Commissioner for Colorado. One copy of the above instrument must be filed with, the Secretary of State, and one in the office of the Recorder of the proper county. A similar form, not naming the agent, but desig- nating him in general terms, was held sufficient in Goodwin v. Colorado Co. 110 U. S. 1. M. A. S. 499, requiring the same certificates, has been construed as mandatory, and it is inti- mated that the acquisition of real estate is doing business within the meaning of the section; but it does not prevent the company resisting a trespass by maintaining suit at law. Utley v. Clark-Gardner Co. 4 M. R. 39; In re Comstock, 3 Saiv. 223. But a single act of business will not bring the company within the requirements of the Act. Colo. Iron Works v. Sierra Grande Co. 15 Colo. 499; Cooper Co. v. Ferguson, 113 U. 8. 727. And where the matter has been at first neglected and yet complied with before the suing out of a quo warranto, or other inquisition, or at least be- 304 FOREIGN CORPORATIONS. fore adverse rights have accrued, the final compli- ance would doubtless be considered as having a retro- active effect in a manner analogous to the case of naturalization. See p. 282. The same section declares that all foreign cor- porations shall be "subject to all the liabilities, re- strictions and duties which are or may be imposed upon corporations of like character organized under the general laws of this State and shall have no other or greater power;" forbids the purchase or holding of real estate by foreign corporations except as pro- vided for in such Act and prohibits any mortgage or other preference to foreign, to the exclusion of domestic creditors, postponing any such mortgage until all domestic debts at the date of its record shall have been paid. An amendment (1893, p. 88) adds provisions for notice of intended mortgage, requiring creditors to prove their claims or be cut out by such mortgage. Copy of Articles. Foreign corporations are further required ( 500) to file a copy of their charter in the office of the Secretary of the State of Colorado; or if "in- corporated by certificate under any general incor- poration law, a copy of such certificate and of such general incorporation law duly certified and author- ized by the proper authority of such foreign State, Kingdom or Territory." These papers are not re- quired to be filed with the County Recorder. The "proper authority" alluded to would be in general the Secretary of the State where organized. Upon failure to comply with the requirements of either section every officer, agent and stockholder, is made personally responsible on all contracfs made while the company remains in default. 501. And this seems to be the practical effect of the Act, mak- ing the penalty a personal one, and the title will pass to and out of such a corporation by proper deeds notwithstanding its failure to comply with these stat- utes. Fritts v. Palmer, 132 U. S. 282. INDIAN RESERVATIONS. 305 By Act of 1891 the reorganization or liquidation of foreign companies to the prejudice of local share- holders is attempted to be prohibited. Acts, p. 99. Filing fees and taxes. See p. 2.9.9. Domestic Charter Preferable. The provisions of the above and like sections in other states, together with the fact that a foreign corporation is liable to attachment as a non-resident in many cases where a defendant; and must file special security for costs where a plaintiff, renders a domestic organization preferable in most cases. Domestic Organization by Non-Residents. The Corporation Law of Colorado does not in terms require the organizing associates to be citi- zens or residents; and although a domestic organiza- tion composed entirely or substantially of non-resi- dents would be practically in some respects a foreign corporation, yet its validity, at least when collaterally attacked, seems to be conceded. Humphreys v. Mooney, 4 M. R. 76. . INDIAN RESERVATION. An Indian reservation is not a part of the public domain open to exploration or occupation, and a valid mining location cannot be made upon it. French v. Lancaster, J/7 N. W. 395. Nor can both parties waive the .point. Id. An attempted location made before the extinguishment of the Indian title must yield to one made after its purchase. Kendall v. San Juan M. Co. 9 Colo. 3^9. But in Noonan v. Caledonia M. Co. 121 U. S. 393, the Supreme Court of the United States have ruled that on the cession of the reservation the claim becomes valid. This case was followed by the affirm- ance of the Kendall case above cited (144 U. S. 658) where the court adjudge that the original location, although not valid, might have been made good by 306 ORE CONTRACTS. record in the nature of a relocation within the same period of time after the opening of the reserve, as is allowed to record from the date of a discovery. This not having been done an intervening locator who entered after the opening of the reservation was held to have the elder and better title. A claim within the reservation cannot be pat- ented. Copp. M. L. 253. And the location of scrip thereon is void. U. 8. v. Carpenter, 111 U. 8. 347. The court will protect a right to mine by license from the Indian Nation. Oolagah Go. v. McCaleb, 68 Fed. 86. When a reservation is opened it is not necessary for mineral prospectors to await the issue of the proclamation. McFadden v. Mt. View Co. 87 Fed. 154. ORE CONTRACTS. An ore purchase contract is not assignable. Arkansas Val. 8m. Co>. v. Belden Co. 127 U. 8. 379; Winchester v. Davis Co. 67 Fed. 45; Wheeler v. Wal- ton Co. 64 Fed. 664. Failure to receive pay justifies failure to make future deliveries. Cherry Val. Co. v. Florence Co. 64 Fed. 569. A promise to pay a debt out of the proceeds of ore is not an equitable assignment of such proceeds. Silent Friend Co. v. Abbott, 42 Pac. 318. 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. 41 Pac. 308. A, in Michigan, agreed to sell to plaintiff, graph- ite ore to be delivered on cars in Mexico; held that cause of action for non-delivery accrued in Mexico. U. 8. Co. v. Pacific Co. 68 Fed. 442. Construction of ore contracts calling for certain percentages of mineral and for special assay values ORB BUYERS. 307 with deductions for moisture. Trotter v. Heckscher, 4 Atl. 83; 7 Atl. 353; Lehigh Co. v. Trotter, 10 Atl. 608; Anvil Co. v. Humble, 153 U. 8. 540; Martinez v. Earnshaw, 22 Atl. 668. Measure of damages for fail- ure to deliver ore. Patrick v. Colo. Sm. Co. 38 Pac. 236. Amount of moisture is determinable by tests of like ore from same mine. Vietti v. Nesbitt, 41 Pac. 151. The smelter is not liable for mineral left in the tailings, there being no proof of negligence. Guild Co. v. Mason, 46 Pac, 001. Where an average of a certain assay is to be ac- counted for, one month may make up for another. Fox v. Mackay, 57 Pac. 672. Construction of contract for delivery of ore "free from foreign substance." Worthington v. Given, 24 So. 739. Of ore breaking contract terminable when prejudicial to the development of the mine. Anvil Co. v. Humble, 153 U. 8. 540. As to when contract to pay out of ore proceeds becomes an absolute promise to pay, see Mclntyre v. Ajax Co. 60 Pac. 552. ORE BUYERS. Ore Book to Be Kept. Every company or individual "engaged in the business of milling, sampling, concentrating, reduc- ing, shipping or purchasing ores in the State of Colorado," is required to keep a book in which shall be entered at the time of the delivery of each lot of ore First. The name of the party on whose behalf such ore is delivered, as stated. Second. The name of the teamster, packer or other persons actually delivering such ore, and the name of the owner of the team or pack train delivering such ore. Third. The weight or amount of every such lot of ore. ::os ORE BUYERS. Fourth. The name and location of the mine or claim from which it shall he stated that the same has been mined or procured. Fifth. The date of delivery of any and all lots or parcels of ore. Sec. 1, Feb. 1, 1S77, M. A. S. Sec. 3227. The succeeding sections provide that parties claiming an interest in ore delivered shall have the privilege of examining such books and for penalties in case of failure to keep the same. And that neglect to make proper inquiries from parties bringing ore to the mill shall not excuse failure to comply. They also attempt to make the purchaser criminally liable for ore bought from mines held "contrary to any penal law now in force," which was intended to in- clude cases where possession had been taken by vio- lence, contrary to the provisions of the Jumping Act. M. A. 8. 3165; 3231. Bullion and Specimen Buyers. In 1889 a similar Act was passed with refer- ence to buyers of gold dust, amalgam, bullion and gold specimens, the intent being to produce means to trace such property when stolen. M. A. 8. % 3243- 3246. Justices of the Peace have jurisdiction of vio- lation of this Statute. 3247. Ore Bought of Wrongful Mine Claimant. In 1889 the question* of the responsibility of the ore buyer for .ore taken by trespass having often arisen and a case of some importance involving the question then pending in the Supreme Court, an Act was passed providing for the case of ore taken from mines, the title to which was in dispute. M. A. 8. 3235-3242. 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 taRe 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: ORE BUYERS. 309 Dcnucr, Colo., Jan. S, 1903. To The Public Sampling Works: Take notice that I am the claimant and owner and en- titled to the possession of the Nightmare Lode Mining Claim, situate in Creede Mining District, County of Mineral, State of Colorado : That James Elliott and Loren M. Hart and persons under them are mining and shipping 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 respon- sible for all ores purchased and delivered from said mine, by said James Elliott and Loren M. Hart, or either of them, or by any person for them, subsequent to the service of this notice. A. B. ROEDER. The person serving this notice must within five days thereafter follow it up with suit for injunction, and provision is made to limit the liability in case the injunction is not heard within thrty days, and to avoid its effect if the writ is denied or afterwards dis- charged, although the plaintiff may ultimately prove title. If such notice is served and followed by ob- taining the writ and the party warned persists in buying the ores in dispute, he is to be held respon- sible to the person ultimately adjudged the owner. If suit has been already brought when the notice is served, add to the above form ( 3230): "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. Ore Mined Under Claim of Right. The suit in the Supreme Court referred to, Omaha Co. v. Tabor, 16 M. R. 184, was decided later, holding the ore buyers liable as trespassers the de- cision making no reference to the point really in- volved or the line of authorities relative to the point that, where personal property is produced from real, by the labor of a party in possession with claim and color of title, it becomes marketable without 310 PENAL PROVISIONS. regard to tho ultimate decision on the question of who was the owner of the realty. Brown v. Cald- ivell, 12 M. R. 674; Smith v. Idaho Q. M. Co. 11 Pac. 878; Mather v. Trinity Church, 14 M. R. 472; Lehigh Co. v. N. J. Co. 26 Atl. 920; Harlan v. Harlan, 15 Pa. St. 507; Anderson v. Hapler, 34 III. 436; Page v. Fowler, 28 Cal. 605; National Co. v. Weston, 1~> Atl. 569; Giffin v. Pipe Lines, 33 Atl. 578. PENAL PROVISIONS. False Weights and Measures, There are in all the mining States penal Stat- utes more or less alike in wording and intent pre- scribing punishment for such self-evident offenses as the using of fraudulent gold dust scales (M. A. S. 1380) false assay or false ore-buyers' weights and scales (M. A. 8. 3232) or the certifying to false assays or making false return of ore weight or value (M. A. 8. 3233) or refusing to turn over proceeds of gold quartz under the old system of custom work. M. A. 8. 1381. Debased Gold Dust. Sections 1262 and 1263 make it penal to know- ingly have or pass debased gold dust. In Peo. v. Page, 1 Ida. 102, the defendant was convicted on in- dictment for having in possession instruments for manufacturing bogus gold dust. In Peo. v. Sloper, 1 Ida. 158 and Peo. v. Page, Id. 189, the offense of ut- tering such material is discussed. Salting Ore. M. A. S. Sec. 1391. 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 per- son or persons, shall, on conviction thereof, be punished by a fine not less than five hundred nor more than one thousand dollars, or by confinement in the penitentiary for PENAL PROVISIONS. 311 a term not less than one nor more than fourteen years, or by both such fine and imprisonment. Feb. 12, 187^. Ore Stealing by Lessees. M. A. S. Sec. 3234. -If any person, lessee, licensee or employee in or about any mine in this State, shall break and sever, with intent to steal the ore or mineral from any mine, lode, ledge or deposit in this State, or shall take, remove or conceal the ore or mineral from any mine, lode, ledge or deposit, with intent to defraud the owner or owners, lessee or licensee of any such mine, lode, ledge or deposit, such offender shall be deemed guilty of felony, and on con- viction shall bo punished as for grand larceny. Feb. 7, 1S77. This section does not apply to ore stealing by strangers, or to what at common law would be con- sidered larceny, in any case where no privity exists between the parties. Its constitutionality was doubted under certain technical clauses of the con- stitution, but it has been declared valid in Clare v. Peo. 9 Colo. 122. Trespass Not Larceny. Taking of ore by severing it from the realty, accompanied by its immediate asportation, can in no case be considered larceny. Peo. v. Williams, 4 M. R. 185; State v. Berry man, Id, 199; State v. Burt, Id. 190. This distinction is in some of the cases referred to as unsubstantial and technical, although its force as decided law is not questioned. On the contrary, it is a distinction necessary to check the constant tendency to seek a criminal remedy where the civil remedy is ample, and in almost all cases of such severance a felonious intent is wholly wanting. Removing Location Marks. M. A. S. Sec. 1423. That if any person or persons shall wilfully and maliciously deface, remove, pull down, injure or destroy any location stake, side-post, corner-post, landmark or monument, or any other legal land boundary monument in this State, designating, or intending to desig- nate, the location, boundary or name of any mining claim, lode or vein of mineral, or the name of the discoverer, or date of discovery thereof, the person or persons so offending shall be guilty of a misdemeanor, and on conviction thereof shall be fined not more than one thousand dollars, or im- prisoned not more than one year, at the discretion of the 312 PENAL PROVISIONS. court ; Provided, That this act shall not apply to abandoned property. Feb. 9, 187G. Under a statute on this subject it was held that there must be proof of a lawful stake on a valid min- ing claim and that where the only proof of discov- ery was that the stake was posted after finding "quartz and vein matter," there was no proof of a valid location stake, such as the law was intended to protect. Territory v. McKey, 19 Pac. 395. Malicious Mischief. By M. A. 8. 317 J, -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 above section as to malicious mis- chief there are two sections (3167, 3168) harsh and cruel, in denning mere trespass into crime, by leav- ing out entirely the element of malice or other crim- inal intent, making the cutting of timber or re- moving of buildings a misdemeanor. The strictest construction against it has been heretofore given to a statute of like character. Bradley v. Peo. 8 Colo. 599. Jumping Claims by Stealth or Violence. M. A. S. 3165, passed in 1874, prohibits acts of this character. The Act consists of a single para- graph of interminable length. It makes the asso- ciation of two or more persons for the purpose of taking possession of a claim in possession of another, by stealth or violence, a misdemeanor punishable by imprisonment not to exceed six months and by fine not to exceed $250. The section is intended to pre- vent what has commonly been termed "jumping," 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, 7 M. R. Ill; Mur- phy v. (7o&&, 5 M. R. 330. As a penal statute it is awkwardly framed, and the substantial remedy is by a section passed at the same time, by which pusses- PENAL PROVISIONS. 313 sion is restored to the party forcibly dispossessed. See p. 334. Homicide Ensuing From Mine Jumping is made murder in the first degree by Act of 1874, amended in 1876 (M. A. 8. 3166), but this ill ad- vised provision is doubtless now nugatory the sec- tion of the penal code defining murder, having been since repeatedly amended. Acts of 1901, p. 153. Coal Mines. There are also special Acts, M. A. 8. 3181-3204. and Acts of 1893 p. 347 regulating coal mines, spe- cially providing for inspection of same and guarding against spontaneous combustion, gob-fires, open pits, fire damp and other dangers. The Federal Act of March 3, 1891 (26 8 tat. L, 1104) provides for the inspection and regulation of coal mines in the Territories and prohibits employ- ment of children in the same. Oil Wells are required to keep their products from emptying into any natural water course. M. A. S. Ventilation Children Strikes. The Constitution, Art. 16, 2, requires the pas- sage of laws securing safety escapes and ventilation in mines, but there have been no statutes yet passed upon these subjects except the Colliery Acts above mentioned. The employment of children under four- teen years of age is forbidden by statute, 413- There are no Acts especialy referring to strikes (barring the Arbitration Act of 1897), negligence of employers, or attempting to regulate working of mines (other than coal mines) under penalties. See INSPECTOR. 314 EJECTMENT. EJECTMENT. Pleadings. Under Code practice the names of the various actions are abolished, but the distinctions being in- herent, the term Ejectment has its specific applica- tion the same as formerly. Section 267 Colo. Code requires a concise state- -ment in the complaint of the nature of the title when possessory. Supporting Adverse Claim. 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. 30.',; Burke v. McDonald. IS Pac. 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. J20. Or each party may be in possession of a part of the contested premises. Rose v. Richmond Co. 27 Pdc. 110'). Notifying defendant not to work is an ouster. Bramlett v. Flick, -57 Pac. 869. 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 interested party, each side must prove its own case affirmatively, and to either recover or successfully defend must show a valid location. Bay State Co. v. Brown, 21 Fed. 167; Jackson v. Roby, 109 U. 8. W> ; McG-innis v. Egbert. 15 M. R. 329; Rosenthal v. Ives, 15 M. R. 324. 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, M. R. 318. But possession alone is good against an intruder, especially one who enters by EJECTMENT. 315 violence. Haws v. Victoria Co. 160 U. S. 303. Pos- session may become incidentally a material issue in the case. See ADVERSE CLAIM. 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 is 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, 60 Pac. 938; Marshall Co. v. Kirtley, 12' Colo. 417; Altoona Co. v. Integral Co. 4$ Pac. 1047; Pennsylvania Co. v. Bales, 70 Pac. 444- The cases to the contrary are Cronin v. Bear Creek Co. 32 Pac. 204; Mattingly v. Lewisohn, 19 Pac. 310. No Second Suit. If suit be dismissed a second suit cannot be brought after the expiration of the thirty days. Steves v. Carson, 16 M. R. 12; and if not filed in time the suit cannot be supported as an ordinary ejectment. Hunt v. Eureka Gulch Co. 14 Colo. 451. Second Trial. The right, as of course, to a second trial in eject- ment in Colorado is abolished. Acts 1899, p. 199. Possession Without Location Location Without Discovery. The Congressional Act, 2320, says that "no location of a mining claim shall be made until the discovery of the vein." And in sequence to this it has been ruled that if there is no valid location there can be no rightful possession. Belk v. Meagher, 1 M. R. 510; Sweet v. Webber, 7 Colo. 450. A pros- pector, at least after he has discovered mineral, has the right to be undisturbed in whatever shaft or 316 EJECTMENT. other work he is prosecuting. Faxon v. Barnard, 9 M. R. 515. But only by compliance with the Statute (by a valid location) can he prevent other prospec- tors from entering upon any ground except that in his actual occupation. Becker v. Pugh, 15 M. R. 304. The posting of notice without discovery or indica- tions of mineral cannot warn off other prospectors. Erhardt v. Boaro, 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, 25 Pac. 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 pros- pectors while he is engaged in hunting for mineral? In other words, can he set up his stakes first and sink his discovery shaft afterwards, on the suppo- sition that when he does strike the vein his stakes already set will be found to cover the legal width on each side? Can he, in spite of the law which says he cannot, make a valid location before dis- covery: or, which is the same thing, have all the practical benefits of a location, before such discov- ery? The cases go to the length of protecting his actual workings and this, would prevent encroach- ment 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 with- out discovery. The burden of the other cases and the text of the law is against the proposition that staking a claim before discovery excludes other pros- pectors. All have 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 seek- ing. See pp. 30, 33. After discovery is made the EJECTMENT. 317 ownership of everything within the boundaries is practically absolute. Seymour v. Fisher, 16 Colo. 192. Possession How Proved. A person who has purchased a mining claim which had been properly located and marked out upon the ground, and who is personally or by his agents upon the claim, working and developing it, and keeping up the boundary stakes and marks thereof, is not merely in the constructive possession of such claim by virtue of mining laws, but is in the actual 'possession of the whole claim: such posses- sion is a possessio pedis, extending to the boundary lines of the claim. North Noonday Co. v. Orient Co. 9 M. R. 531. Digging a shaft, building a cabin, etc., held proof of possession. Koons v. Bryson, 69 Fed. 297. Actual occupation of a part of the claim under papers calling for the entire tract by metes and bounds, gives constructive possession of the entire tract. Harris v. Equator Co. 12 M. R. 178; Attwood v. Fricot, 2 M. R. 305; Hess v. Winder, 12 M. R. 217. Possession is a question of law. Jordan v. Duke, 36 Pac. 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 Mel. 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 possession of the vein wherever the dip may carry it. Montana Co. v. St. Louis Co. 102 Fed. 431. A prospector drilling for oil is in possession and ejectment is the remedy to test his right of posses- sion. Cosmos Co. v. Gray Eagle Co. 112 Fed. //. An Equitable Defense may be set up in eject- ment. South End Co. v. Tinney, ,'?> Pac. 89. Such 318 EJECTMENT. defense must be specially pleaded. Brady v. Husby, 33 Pac. 801. Title in Third Party. The rule that plaintiff must recover on the strength of his own title does not prevail in an ac- tion between possessory claimants. Strepey v. Stark, 7 Colo. 622; 11 M. R. 28; Murray Co. v. Havenor, (M Pac. 762. Otherwise, as to parties claiming under patent, or in ordinary contests as to legal title. Dyke v. Whyte, 17 Colo: 296. A patentee has no right to disturb any person in possession of ground under but excluded from his patent. Reynolds v. Iron Silver Co. lo M. R. 591. The Location Certificate as Evidence Presump- tion of Location. Where a plaintiff has been in actual possession of his claim for the full period of the Statute of Limitations a presumption may be indulged as against a wrongdoer at least, that his location was regularly made, without putting him to proof of its successive steps. Harris v. Equator Co. supra. 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. To same effect. Yreka Co. v. Knight, 65 Pac. 1092. In Cheesman v. Shreeve, 40 Fed. 791 ; 17 M. R. , it was held presumptive evidence of discovery. It is evidence of the performance of all the things which the Stat- ute requires it to recite. Strepey v. Stark, 7 Colo. 619. But that it is in general presumptive proof of location seems to be doubted in Niles v. Kennan, 62 Pac. 360. The defendant may show that plaintiff's discov- ery was upon land not subject to location and the claim therefore invalid. Girard v. Carson, 44 Pac- ~>08. See citations p. 39. Ejectment Lies to Recover Ditch and water rights. Integral Co. v. Altoona Co. 75 Fed. 379. FORCIBLE ENTRY. 319 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; Erhardt v. Boaro, 15 M. R. 473. Allowance for Improvements. A defendant holding by ~bona> fide claim of title is by Statute in instances to be allowed for improve- ments. But mining is not necessarily an improve- ment. Bacon v. Thornton, 51 Pac. 153. FORCIBLE ENTRY. The acts concerning forcible entry and unlawful detainer (M. A. 8. Chap. 53) apply to possessory as well as other claims: but those acts are so involved, and so abrupt and cruel in their attempt to substi- tute haste for deliberation, that they result in driv ing 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 summary process to deprive a defendant of his day in court under pretense of doing speedy justice are open to the same comment. Except as against a tenant holding % over in defiance of his lease or re- fusing 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 proceedings are so vexa- tious, 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. 320 MEASURE OF DAMAGES. MEASURE OF DAMAGES. Trespass for Ore Taken. The true measure of damages depends upon cir- cumstances of aggravation, ranging from the profits of working to the gross value of the ore after break- ing from the stope. Empire Co. v. Bonanza Co. 67 Cal. 406; In re United Merthyr Co. 10 M. R. 153; Ege v. Kille, Id. 212. The cost of mining should be deducted from the value of the ore in all cases where neither fraud nor culpable negligence constitute any element of the case. Waters v. Stevenson, 10 M. R. 240; 29 Am. Rep. 293; Durant Co. v. Percy Co. 93 Fed. 166. Under ordinary circumstances the just rule of compensation is the value of the rock, coal, ore or oil before the mining or quarrying began the value in place. Dougherty v. Chesnutt, 5 8. W. 444,' Coal Creek Co. v. Moses, 15 M. R. 544; Ege v. Kille, 10 M. R. 212; Dyke v. Nat. Tr. Co. 49 N. Y. 8. 180. And where the ore has been taken by defendant's lessee, the royalty may be taken as the net profit. Colo. Cent. Co. v. Turck, 70 Fed. 294; Neiv Dunderberg Co. v. Old, 97 Fed. 150. In willful trespass, or where the defendant has mingled the ore or taken any steps to prevent ulti- mate proof of its value, these acts are to be taken against the defendant. Cheesman v. Shreeve, 40 Fed. 788; even so far as to throw the burden of proving the value upon the defendant. Little Pgh. Co. v. Little Chief Co. 15 M. R. 655; St. Glair v. Cash Co. 47 Pac. 466; and in cases of fraud a co- tenant may even be denied plaintiff's share of legiti- mate expenses. Foster v. Weaver, 15 M. R. 551. A wrongdoer is not entitled to cost of mining. Benson Co. v. Alta Co. 145 U. 8. 428; Sunnyside Co. v. Reitz, 39 N. E. 541. MEASURE OF DAMAGES. 321 Plaintiff may prove assays of ore left standing and computations of what was taken from the stopes but an averaging estimate of how much each miner might have broken is too remote. Golden R. Co. v. Buxton Co. 97 Fed. 413. In Omaha Co. v. Tabor, 16 M. R. 184, the Court adopted the value of the ore when it became a chat- tel 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 ex- treme ruling and against the almost unbroken weight of authority. Where the Mine is Under Lease and ore is taken by trespass, the lessee can recover in trover or trespass. -Hartford Co. v. Cambria Co. 53 N. W. 4; Attersoll v. Stevens, 10 M. R. 67. And the lessor may recover to the extent of his royalty. StocTcbridge Co. v. Cone Works, 6 M. R. 317. 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. The same as to an oil lease to the full value of the leasehold in- terest. Duffield v. Rosenzweig, 23 Atl. 4> No Deduction for Developments. By Statute, 272 of the Code, in suits for mesne profits after recovery in ejectment (which does not necessarily include every trespass suit) "offsets" are not to be allowed for "timbering, cribbing, improve- ments or developments." (Acts 1895, p. 1^1.) Where a Legislature attempts to fix the measure of damages it is a close approach to the exercise by the Legis- lature of the power belonging exclusively to the courts. Special Injury to the Mine cannot, in trespass, be proved as damages, unless specially declared for. Patchen v. Keeley, 14 Pae. 347. Mesne Profits. At common law a plaintiff out of possession could not recover for the ore taken until he had re- 11 322 NEGLIGENCE. covered possession by ejectment. Hugunin v. Mc- Cunniff, 14 M. R. 463. Under the Colorado Code the practice has been to sue for such damages in the same action or by separate actions after recovery. For such second action the Statute seems to plainly provide. Code Sec. 272 (and Amendments, 1895, p. 141, 1899, p. 161). Or he may recover in a single action. Acts 1893, p. 349. The case of Ghost v. Shuman, 4 Colo. App. 88, sometimes cited on this point, makes no mention of section 272 and its spe- cial reference to a second suit in case of mining trespasses. In Miscellaneous Cases. For the measure of damages on refusal to ac- cept deed, see Gilpin M. Go. v. Drake, 8+ Colo. 586. On breach of contract to lease. Chambers v. Brown, 28 N. W. 561. In cases of negligence. Moody v. McDonald, 2 M. R. 187. On tunnel contract. Monroe v. Northern Pac. Co. Id. 652. Against lessor for mining the ground leased.- Chamberlain v. Collin- son, 9 M. R. 37. Against lessee for breach of cove- nants to mine. Cleopatra Co. v. Dickinson, 68 Pac. 456; Colo. Fuel Co. v. Pryor, 25 Colo. 540. Purchase of stock induced by defendant's false representations. Smith v. Bolles, 16 M. R. 159; Warner v. Benjamin, 62 N. W. 179. Conversion of stock of no fixed market value. MoynaTian v. Prentiss, 51 Pac. 94- On sale of coal. Osgood v. Bander, 39 N. W. 887. For stoppage of work on contract to sink, be- fore shaft complete. Mooney v. York Co. 46 N. W. 376. ACTIONS BASED ON NEGLIGENCE, ACCI- DENTS, ETC. The same rule governs the liabilities of own- ers, lessees and contractors in case of accident to employes, as controls in other cases where the rela- tion of master and servant exists and negligence is NEGLIGENCE. 323 the foundation of the action. New York Co. v. Rogers, 11 Colo. 6; Me Andrews v. Burns, 39 N. J. L. Ill; Perry v. Ricketts, 9 M. R. 687; Hall v. Johnson, 9 M. R. 68^; Quincy Co. v. Hood, 12 M. R. 148; Strah- lendorf v. Rosenthal, 10 M. R. 676. The Degree of Care required of the master is fully stated in Southwest Co. v. Smith, 85 Va. 806; 17 Am. St. R. 59. The miner has no recovery for the ordi- nary and unavoidable risks of the business. Chero- kee Co. v. Britton, 45 Pac. 101. Instances of Responsibility. He is liable for failure to timber dangerous ground. Trihay v. Brooklyn Co. 15 M. R. 535; Sampson Co. v. Schaad, 15 Colo. 197. Or for failure to observe his own code of signals. Silver Cord Co. v. McDonald, 16 M. R. 171. Or defective rope or hoisting gear. New York Co. v. Rogers, 11 Colo. 6; Myers v. Hudson Co. 150 Mass. 125; Donnelly v. Booth Co. 37 Atl. 874. Or for scales, the fall of which should have been foreseen. Buckley v. Port Henry Co. 2 N. Y. S. 133; U. P. Ry. v. Jarvi, 53 Fed. 65. For a preventable cave. James v. Emmett Co. 21 N. W. 361; Pantzar v. Tilly Co. 99 N. Y. 368. For rotten ladder. Reese v. Morgan Co. 54 Pac. 759. For sending men into a blind upraise known to be filled with bad air. Portland Co. v. Flaherty, 111 Fed. 312. The mine owner must look to the proper sup- port of his gangways and to the timbering and to the machinery above. Quincy Co. v. Hood, supra; Strahlendorf v. Rosenthal, supra; Ardesco Co. v. Gilson, 10 M. R. 669; Soyer v. Great Falls Co. 37 Pac. 838. Failure to examine gangways. Ashland Co. v. Wallace, 42 S. W. 744. The miner has a right to assume that the roof is safe. Vanesse v. Catsl)urg Co. 28 Atl. 200. The same as to the machinery. Myers v. Hudson Co. 150 Mass. 125; 15 Am. St. R. 176. The owner is liable for accidents resulting from experimenting with new and untried explosives. 324 NEGLIGENCE. Smith v. Oxford Go. 2 M. R. 208. Or for setting new employes at- work fitting caps. Rillston v. Mather, 44 Fed 743; same case, 156 U. S. 391. Or storing magazines too close to works. Bean v. Pioneer Co. 56 Am. R. 106. He must use all appli- ances readily obtainable known to science to prevent gas explosions. Western Co. v. Berberich, 94 Fed. 329. He is responsible when the accident can be traced directly to his own fault or the fault of his partner. Mellors v. Shaw, 9 M. R. 678. And gen- erally where traceable to the fault of the superin- tendent or foreman. Misfire. Consideration of what is reasonable time to wait for blast. Eureka Co. v. Bass, 8 So. 216. Full case on. Anderson v. Daly Co. 50 Pac. 815. The Lessor is not liable for the lessee's negligence. Smith v. Belshaw, 26 Pac. 834. Otherwise, when he lets machinery already out of condition. 1 Thomp. Neg. 317. Under Contractor. The mine owner is not in general liable for ac- cidents occurring under a contractor. Lendberg v. Brotherton Co. 42 N. W. 675; Welsh v. Lehigh Co. 5 Atl. 48. Contributory Negligence Co-Employee. The mine owner, as a general rule, is not liable when the accident was in whole or in part attributa- ble to the negligence of the party injured or to the carelessness of a fellow workman not occupying a directing or superior position to the party injured. Kevern v. Prov. Co. 70 Cal. 392; Ardesco Co. v. Gilson, 10 M. R. 669; Berea Co. v. Kraft, Id. 16; Trihay v. Brooklyn Co. 15 M. R. 535; Colo. Midland Ry. v. O'Brien, 16 Colo. 220. It is not necessarily contributory negligence to use fire for comfort when dynamite is being thawed. Bertha Co. v. Martin, 22 8. E. 869. REPLEVIN. 325 Negligence of fellow servant is no defense if the master knew of the danger. Hancock v. Keene, 32 N. E. 329. That the accident was chargeable to a co-employe is no longer a defense in Colorado. Acts 1901, p. 161. Remaining in Employ After Danger Known is held in instances to be a defense. It is sometimes classed as contributory negligence, though this is a mere abuse of terms: it is only acquiescence, per- haps from moral necessity, in the negligence of the master, perhaps criminal in degree. Lord v. Pueblo Co. 12 Colo. 390; Davis v. Graham, 2 Colo. App. 210. It is hard for the reasoning powers of man to con- clude that this does not amount to a premium on negligence. If the master promise to repair, the workman may rely on the promise and remain. Rogers v. Leyden, 26 N. E. 210. EEPLEVIN. Ore Taken Under Claim of Title, Where a party is in possession of a mine under a 'bond fide claim of title, the party out of possession cannot maintain, replevin, or an action un-der 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. 310. In a case of replevin for ore in Montana which brought up the question of apex rights, the Court took the novel position that it involved no dispute as to title and was only a matter of boundaries. Driscoll v. Dumooody, 16 Pac. 726. Defendant cannot re-replevin ore. Morris v. DeWitt, 12 M. R. 680. 326 INJUNCTION. 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 addressed to the dis- cretion of the Court, but the exercise of this discre- tion does not imply the total absence of principles applicable to the exercise of this discretion. The Ground for the Application of Injunctive relief is that the property may be preserved pend- ing litigation for the ultimate use of the right- ful owner and may not in the meanwhile be de- stroyed by a trespasser. But the pendency of liti- gation 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 probabil- ity of a decision in his favor when the cause is tried on its merits. As he asks relief in advance of the trial, it is only just that he make it appear that the trial When had will show that he was in fact entitled to this protection; and especially so when a decree of this sort, wrongfully 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 com- plainant. Capner v. Flemington Co. 7 M. R. 263; Clavering v. Clavering, 14 M. R. 358; Irwin v. David- son, 7 M. R. 237. Parties. One who has a contract to sink an oil well entered into before the suit, is not bound by an in- junction against his employer. Dunham v. Seiber- ling, 39 N. E. 1044. Lessees should be made parties. High Inj. 690. INJUNCTION. 327 Laches. Further, to entitle him to injunctive relief the complainant must not have been guilty of unreason- able delay nor have allowed the defendant to have proceeded without objection to expend money in good faith upon the property. Klein v. Davis, 27 Pac. 511; Parrott v. Palmer, 3 M. & K. 632; Real del Monte Co. v. Pond Co. 7 M. R. 4-52; Emma Mine case, Id. 493; Field v. Beaumont, Id. 251 ; Mammoth Co.'s Appeal, Id. 460; Patterson v. Hewitt, 66 Pac. 552. The Solvency or Insolvency of the defendant, as well as many other circumstances applicable to par- ticular cases, may be taken into account, but is not a controlling consideration when the case is otherwise clear. Lockwood v. Lunsford, 7 M. R. 532; Hamilton v. Ely, 4 Gill, 34; Sierra Co. v. Sears, 7 M. R. 549; Moore v. Ferrell, Id. 281; Irwin v. Davidson, Id. 231 ; Parker v. Furlong, 62 Pac. 490. Title in Issue. In cases where a determination of the legal title is necessary to finally decide the rights of the par- ties, the complaint should be framed to procure an issue of that sort; or a previous suit must be pend- ing which will result in determining the title; or a . separate action must be brought for such purpose. In the United States Courts where law and equity distinctions are strictly maintained, separate issues must always be made. If no suit be pending to try title the court may order such suit to be brought as a condition precedent to the granting of the writ. Merced Co. v. Fremont, 7 M. R. 313; U. S. v. Parrott, Id. 335; Grey v. Northumberland, Id. 250; Old Tele- graph Co. v. Central Co. Id. 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, 33 Pac. 675. The writ may issue to preserve the property when the issue is between contestants in an equity case. St. Louis Co. v. Montana Co. 58 Fed. 129. The writ will 328 INJUNCTION. not go when the plaintiff's title is not clear and the legal remedy is adequate. Smith v. Jamison, 3 8. W. 212. Preservation of the Property. The gist of the case and the foundation of equity jurisdiction is to save the property from destruc- tion pending the litigation. Thomas v. Oakley, 7 M. R. 254; Bracken v. Preston, Id. 267; Merced Co. v. Fremont, Id. 313; Moore v. Ferrell, 7 M. R. 28 /; Hess v. Winder, 34 Col. 270; West Point Co. v. Rey- mert, 7 M. R. 528; U. 8. v. Gear, 3 How. 132; 14 M. R. 403; Chapman v. Toy Long, 1 M. R. 497. Case Sufficient to Warrant Injunction. To reduce the matter to terms it may be stated as a proposition, supported by the weight of author- ity, that a temporary injunction, pending suit to try title, will issue as of right, to restrain the work- ing of a mine, upon a case whiah shows, after hear- ing 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 ns would, if proved as stated in the bill, support the verdict of a jury in an action of ejectment ; and where the defense suggested in the answer does not show a recovery by plaintiff impossible as a proposition of law ; and the affi- davits or depositions being considered the weight of evi- dence is with complainant upon the question of fact ; and that the defendant is in possession 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 Fed. 129; Par- rot Co. v. Heinze, 62 Pac. 818; More v. Massini, 7 M. R. 455; Magnet Co. v. Page, Id. 540; Lockwood v. Lunsford, Id. 532; Anderson v. Harvey, Id. 291; Er- hardt v. Boaro, 15 M. R. 447; Anaconda Co. v. Butte Co. 43 Pac. 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 the complainant to prevent. Ernest v. Vivian, 8 M. R. 205; Klein v. Davis, 27 Pac. 511, and other cases above cited. INJUNCTION. 329 And as matters more particularly addressed to the discretion of the court are the insolvency of de- fendant, threats of violence and danger of personal collisions, the fact of reckless mining without re- gard to the permanent preservation of the mine, etc. The above propositions are made upon the sup- position of an application for injunction after notice, appearance and answer. It is an abuse of discretion to enjoin the work- ing of a vein on the mere chance that it may apex outside defendant's ground. Montana Co. v. Boston Co. 56 Pac. 120. The court will not enjoin a mere prospect. Spotts v. Gilchrist, cited in Morrison's Colo. Dig. p. 9 537. Nor forbid working for exploration purposes. St. Louis Co. v. Montana Co. 58 Fed. 129. And a writ will not be allowed against "working any vein having its apex in complainant's claim." This would require defendants to ascertain from w'hat acts they are enjoined. Id. Injuries Other than Mining Ore. In a proper case an injunction will issue to re- strain deposit of tailings. Fuller v. Swan River Co. 16 M. R. 252. Or the destruction of flumes. Power v. Klein, 27 Pac. 513. Or to stay the running of an incline drift to cut off an adversary's tunnel. Mon- tana Co. v. Clarlc, 16 M. R. 80. Against assaulting workmen and threats to blow up the mine. Ran- king App. 16 Atl. 82. Against sale of mining stock on the ground of its fluctuating value. McLure v. Sherman, 70 Fed. 190. Refused against cutting tim- ber on claim where defendant solvent and the tim- ber of no special need to the mine. Heaney v. Bulte Co. 27 Pac. 379. Refused against use of adits under- lying plaintiff's ground. Boston Co. v. Montana Co. 59 Pac. 919. Refused against upper mill where it is using all possible effort to restrain its tailings. Otaheite Co. v. Dean, 102 Fed. 929. It may be allowed against an option holder in default on his instalments. 330 INJUNCTION. * Williams v. Long, 61 Pac. 1087. A defendant can- not be enjoined from "entering or trespassing upon" ground of which he is already in possession. Id. Courts will not enjoin in cases charged with doubt or where, on the plaintiff's showing, final re- lief would not be granted. Crescent Go. v. Silver King Co. 45 Pac. 1093. Though to enjoin they will not require so strong a case as on final hearing. Buskirk v. King, 72 Fed. 22. And it may be allowed although the proving up is not yet complete. Maloney v. King, 64 Pac. 351. Practice Answer Not Conclusive. As a rule, in equity pleadings where the de- fendant denies the allegations of the bill in terms, the writ will not issue; but where the bill is sup- ported by affidavits, and is filed to restrain irrep- arable mischief by the working of a mine, and the bill, answer and supporting affidavits being consid- ered together, the case appears as stated for the preservation of the subject matter of controversy and as a rule limited in its application 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. The Venue is usually fixed by the code and com- monly in the county where the land lies. When not so fixed, the court having jurisdiction over the person may enjoin the working of a mine in another county. Jennings v. Beale, 27 Atl. 948. But not in another State. Lindsley v. Union Co. 66 Pac. 382; Johnstown Go. v. Butte Co. 70 N. Y. Sup. 257. 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 148.) And where the defendant prays further time to an- INJUNCTION. 331 swer, it is usual, on slight showing, to grant a re- straining order or preliminary writ. In many States the writ of injunction issues at once upon complainant's showing, and the issue comes before the court upon motion to dissolve. In Colorado a reasonable notice is required to be given before the writ can issue, which allows the de- fendant opportunity to file his answer; so that the argument is heard usually upon the original motion for an injunction and not upon the motion to dis- solve. FORM OF INJUNCTION NOTICE. STATE OF COLORADO, County of Lake: ss. In the District Court of said county. Benjamin 8. Phillips, Plaintiff, v. Frank M. Taylor and John Harvey, Defendants Injunction. To the above-named Defendants: You and each of you will take notice that the said plaintiff will apply to Hon. Frank Oivers, Judge of said Court, at the court house, in Red Cliff, County of Eagle, in said State, at the hour of two o'clock p. m. on the 8th day of January, A. D. 1903, or as soon thereafter as couns^ 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 De- ceiver Lode Mining Claim, situate on Carbonate Hill, in Cal- ifornia 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. J. Stanley Jones, Attorney for Plaintiff. Cripple Creek, January 2, 1903. Ex Parte Writs to enjoin the working of a mine are forbidden by statute. Code 148. This provision has been evaded by praying for a writ to forbid re- moval or sale of the ore, but the granting of such a writ without notice is in violation of the spirit of the law. Practice on Hearing. The notice having been served, the complainant presents his bill or complaint to the court, or judge at chambers. The section of the code allowing a 332 INJUNCTION. hearing before filing the bill having been greatly abused, was purposely omitted in the revision of 1887. 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 affi- davits, or refer the matter to a master or referee to take testimony. Consideration of Eights of Lessee losing part of term by injunction against work. Stahl v. Van Vleck, 41 N. E. 35. 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 intervals, and of submitting to the inspection of some person on be- half of plaintiff and paying the net or gross pro- ceeds into court according to the nature of the case and the framing of the order. Injunction After Appeal Taken. The practice is, where the defendant in the suit or issue at law obtains judgment, to dissolve the writ; on final verdict for plaintiff to make the writ perpetual. Boston Co. v. Montana Co. 66 Pac. 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 INJUNCTION. 333 after appeal taken by the plaintiff. Bullion Co. v. Eureka Co. 12 Pac. 660; Maloney v. King, 71 Pac. 469. And in such case tfre Supreme Court will not interfere with it. Sheaffer's App. 100 Pa. St. 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. In Erhardt v. Boaro, the decision giving a new trial to the party who was plaintiff below, the Supreme Court directed the Court below to restore the injunction. 15 M. R. 447- The appellate Court may enjoin. Ajax Co. v. Tri- umph Co. 69 Pac. 523. But will generally leave the matter to the discretion of the Court below. Steams- Roger Co. v. Brown, 114 Fed. 940. Malicious Prosecution will lie for suing out the writ without probable cause, and damages, even to the loss of anticipated profits may be allowed. New- ark Co. v. Upson, 40 Oh. St. 17. But it will not lie where there was probable cause. Wright v. Ascheim, 17 Pac. 125. Abuse of the Writ. Where plaintiff, having obtained injunction against defendant's mining, entered upon and took possession of the defendant's works, restoration was ordered, on motion. Van Zandt v. Argentine Co. ^8 Fed. 770. 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. Bond. The fact of a bond being filed for the relief of the defendant, if injured, is a protection to him only in theory. A bond is seldom available to the ulti- mate vindication of the right; it is no lien; the 334 INJUNCTION. measure of damages is vexed and unsettled. Dona- hue v. Johnson, 37 Pac. 322; Goosaw Co. v. Carolina Co. 75 Fed. 860. And the security is rarely accessi- ble by the time judgment is obtained. In the Federal Courts the damages may be assessed upon dissolu- tion of the writ. Coosaiv Co. v. Farmers Co. 51 Fed. 107. Mandatory Writ. Section 159 of the Colorado Code provides that where possession of a mine is taken by violence or during intervals of labor, a mandatory writ restor- ing possession shall issue. This Act, passed orig- inally in 1874, has been found effective to accomplish the object intended, and the forcible dispossession of parties working a mine is now almost unheard of. It was construed and enforced in Sprague v. Locke, 28 Pac. 142. A similar Act has been sustained by the Supreme Court of Dakota. Cole v. Cady, 3 N. W. 322. A hearing under this Act goes only to the mat- ter of the unlawful dispossession of the plaintiff and the writ leaves the parties to their legal rights on all other questions as though no such writ had is- sued. An injunction mandatory in effect and implying affirmative acts from the defendant or the surrender of possession of premises is an unusual sort of re- lief, to be granted with great caution, but is not with- out precedent, even as the result of an interlocu- tory decree, and without the aid of any such statute. Cole Co. v. Virginia Co. 7 M. R. 516; Lehigh Co. v. Trotter, 10 Atl. 608; Horsky v. Helena Co. 33 Pac. 689. The object of the Act is to allow the court or judge to grant speedy and practical relief whenever a party, in peaceable possession, has been ousted by force or fraud, without regard to any question, ex- cept the fact and manner of dispossession, and for this object it has been held valid and not unconsti- tutional by all or nearly all the judges at nisi prius, INJUNCTION. 335 and 'has remedied one of the greatest evils ever com- plained of in the mining counties. The Federal Court of Colorado District, shortly after the admission of the State, declined to accept jurisdiction under this Act. But under the principle laid down in the later case of Aspen Co. v. Ruclcer, 28 Fed. 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 pro- visions of the section are not hurt by this isolated provision; they refer merely to the division of time between the parties for taking testimony and for a speedy adjudication, and forbid the use of such a writ in favor of a party who procured his own possession by violation of the spirit of the Act. In framing bills under this Act it is not ad- visable to pray any relief further than the prelim- inary writ and the restoration of possession. At least five days' notice of application must be given; the form on page 331 is sufficient to the words "Writ of Injunction," after which conclude as fol- lows: Having the force and effect of a writ of Restitution, restoring plaintiff to the possession of the Fatality Lode Min- ing Claim, situate 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 Sec- tion 159 of the Code, and that plaintiff will support the application by the complaint and affidavits. Henry C. Charpiot, Denver } January 2, 1903. Attorney for Plaintiff. County Courts are forbidden by Colorado Stat- ute to interfere with the enjoyment, working or pos- session of a mining claim. M. A. S. 7057. 336 INSPECTION AND SURVEY. INSPECTION. AND SURVEY. Under section 364 of the Colorado Code (and see M. A. 8. 3164, 3176), either party, after suit is commenced, is allowed the privilege of a survey and inspection of the premises held by the adverse party, after demand and refusal, and after certain awkward and useless notices and affidavits the sec- tion cited being probably the most complete instance of involved and turgid composition ever found on a statute book. After analysis of its clauses and throwing out such portions as must be discarded in order to give grammatical sense to the paragraph, it seems that the procedure is as follows: 1. A demand in writing is made for permission to survey and inspect some certain portion of the premises. 2. The opposite party has three days in which to consent to or refuse this demand. 3. A refusal being had and the three days elapsed, the party presents to the court or judge a petition under oath in which he must set forth his interest in the premises and "the reason why it is necessary" that he should have such survey and in- spection; stating the demand made and the refusal, and praying an order for survey and inspection. 4. The court or judge then fixes a time and place for hearing this petition and orders notice thereof to be served at least three days before the hearing 4 . 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 con- INSPECTION AND SURVEY. 337 tempt and the costs are taxed against the losing party. This right of inspection always existed, in courts of equity at least, and has been frequently ex- ercised. Ennor v. Barwell, 12 M. R. 101; Lonsdale v. Curwen, 7 Id. 693; Thornburah v. Savage Co. Id. 667; Dugdale v. Robertson, 13 M. R. 662; Lewis v. Marsh, 8 Id. 14; Bennitt v. Whitehouse, Id. 17; Stock- bridge Co. v. Cone Works, 6 Id. 317. A statute giving power to compel inspection is not unconstitutional or oppressive. St. Louis Co. v. Montana Co. 23 Pac. 510; 152 U. 8. 160; In re Carr, 35 Pac. 818; Howe's Co. v. Howe's Ass'n, 34 N. Y. S. 848. And it may be ordered without statute. Blue Bird Co. v. Murray, 23 Pac. 1022. Cost of pumping compelled by court to aid in- spection, allowed to defendant in suit on injunction bond. Tyler Co. v. Last Chance Co. 90 Fed. 16. Survey Without Suit. A statute of Montana authorizes a survey by or- der of Court without institution of suit and it has been held that this is due process of law. Montana Co. v. St. Louis Co. 152 U. 8. 160. But it requires an express statute to allow of any such unusual pro- cedure. State v. Dist. Court, 68 Pac. 570. And the Colorado Statute cannot be construed to allow it without a supporting suit already begun. Peo. v. De France, 68 Pac. 267. In the latter case from Mon- tana, 68 Pac. 570, the Court defines the essential lim- itations and conditions which should be imposed on petitions of this kind very different from the sweep- ing language in which they allowed it as a right in the case which went supra to the U. S. Supreme Court. 9 Mont. 300; 23 Pac. 510. It may be allowed when defendant's secret work- ings are approaching plaintiff's. State v. District Court, 68 Pac. 861. View by Jury. By Colorado Act (1893, p. 78) either party may demand that the jury view the mine. The better 338 STATUTE OF LIMITATIONS. practice of the Federal Court in the same State is never to permit it. The arguments in favor of a jury view in such cases are plausible, but not enough to offset the inconvenience and often the unfairness of such view. Barring exceptional instances, unless by the compulsion of a Statute it ought never to be allowed. But where such view has been had an ap- pellate court may consider it conclusive as to what the jury saw on the ground. Ormond v. Granite Mt. Co. 28 Pac. 289. 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. O. March 3, 1891, Sup. p. 939. The above Section is construed in Peabody Co. v. Gold Hill Co. 106 Fed. 241. Section 2332 of the United States Statutes ex- pressly recognizes possession of a mining claim dur- ing the period fixed by the State Act as sufficient to establish a right thereto. 420 Mining Co. v. Bullion Co. 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; 17 M. R. . Such title by continued pos- session is equivalent to location. Altoona Co. v. In- tegral Co. 45 Pac. 1047. The apparently clear construction of Sec. 2332 is that in ex parte cases an applicant for patent may rely on his continued possession without producing abstract of title, and that a party in like position could adverse on same ground (29 L. D. 401) ; that in the suit supporting the adverse either could rely on such possession until defeated by the production of some superior title. And such is the import of all STATUTE OP LIMITATIONS. 339 the above citations. But in Montana it has been held that such possession gave no title, and that the statute was a mere permission to support patent ap- plications on possession, in non-contested cases. McCowan v. McLay, 40 Pac. 602. Seven years completes the bar of the Statute in Colorado, 3 M. A. S. 2923-2926, and all taxes must be paid. Eberville v. Leadville Co. 64 Pac. 200. The period varies in every state, in Nevada being as low as two years. South End Co. v. Tinney, 35 Pac. 89; 38 Pac. 401. And in Montana only one year as to possessory claims. Horst v. Shea, 59 Pac. 364. The possession of the claim must be open and notorious. Hamilton v. S. Nevada Co. 15 M. R. 314. The continuous working of a mine, or even its working during successive seasons with intervening seasons during which the mine is left idle, accord- ing to the custom of the country, is as complete an adverse possession as could be gained by agricultural operations or other acts of possession. Stephenson v. Wilson, 13 M. R. 408; Wilson v. Henry, 1 M. R. 152, 157; 420 M. Co. v. Bullion Co. 11 M. R. 608; Bell v. Denson, 56 Ala. 444- In the case of Harris v. Equator Co. cited p. 317, it was intimated in the opinion of the court, HAL- LETT J., 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 loca- tion, without proof of the various acts of location, and such must from the nature of things be the ulti- mate decision of all courts upon this point. See p. 70. 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, 15 Pac. 254. 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, 12 Pac. 865; Weibold v. Davis, 14 Pac. 865. Nor until the patent actually 340 BUREAU OF MINES. issues. South End Co. v. Tinney, 38 Pac. 401; Clark v. Barnard, Id. 834. Adverse possession of water for the statutory period gives title. Cox v. dough, 70 Gal. 345; Her- riman Co. v. Butterfield Co. 57 Pac. 537. To make adverse possession available there must be: 1. The occupation or use of the land. 2. Claim and color of title. The Colorado Supreme Court has ruled that a party following a patented vein on its strike beyond its side lines has not sufficient color of title to main- tain such defense. Lebanon Co. v. Rogers, 8 Colo. 34. Possession under title bond gives claim and color after payment of purchase money. Woods v. Montevallo Co. 84 Ala. 560; 5 Am. St. R. 393. In instances the title may ripen without being initiate on any paper. Minnesota Co. v. Brasier, 45 Pac. 632; Risch v. Wiseman, 59 Pac. 1111. As to actions for trespass for coal or ore taken but the fact not ascertained by plaintiff within the statutory period see Lewey v. Frick Co. 31 Atl. 261; 17 M. R. ; Williams v. Pomeroy Co. 6 M. R. 195. And as to that class of cases (as in secret under- mining) where a long interval may elapse before the resulting injury, see Hall v. Duke of Norfolk, L. R. (1900), 2 Ch. 493; Sterrett v. Northport Co. 70 Pac. 266. BUREAU OF MINES COMMISSIONER INSPECTOR. By Art. 16, Sec. 1, of the Constitution of Colo- rado, the office of Commissioner of Mines was author- ized. The appointment to the office was provided for by Act of 1877, and in 1889 the independent office of inspector of metalliferous mines was established. In 1895 a Bureau of Mines was created and the Act ASSAYS. 341 of 1889 was repealed; and in 1899 the Bureau of Mines Act was amended. The Act now provides for the appointment of a Commissioner, Inspectors and Deputies; the super- vision and safe guarding of mines and the protection of miners: makes it the duty of operators to report accidents and of the Commissioner to investigate the cause, and provides regulations for the government of mining, such as the storage of explosives, use of wooden tamping bars, signals, ladders, ventilation, covering of shafts, etc.; and provides penalties for failure to comply with its terms. Acts 1899, p. 277. 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 mineral 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 342 ASSAYS. 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 (pulver- ized) is divided into portions one for the buyer, one for the seller, and one to be kept for reference in case of difference between the other two. After division, each portion is in itself a sample. Both buyer and seller have a control assay (assay in du- plicate) made of their respective samples. The sale is customarily made on the assay of the buyer, and the sample of the seller is intended for a check on the assay of the buyer. The results of carefully made assays should not differ more than two oz. silver or two tenths oz. gold except where the ore contains much free gold, native silver or silver glance, the particles of which cannot be reduced to exact evenness, and make assays of these classes of ore treacherous. In case of dis- agreement, the third portion of the original sample, called the umpire, is tested by a third party for a control, and this assay is final unless there be such unusual and excessive variation as to suggest the necessity of resampling. 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. Pliipps v. Hully, 15 M. R. 350. Dis- tinction in results of wet and fire assays. In re Puget Co. 96 Fed. 90. Sales based on assay are not bound by the assay in case of gross error. Cox v. Prentice, S M. & S. 344- As to the custom of assay ers, and of which party, if of either, he is the agent, see this case and Trotter v. Heckscher, 40 N. J. Eq. 612; 42 Id. 251. As to de- ductions for moisture see this litigation continued in LeMgh Co. v. Trotter, 42 N. J. Eq. 661. Sufficient proof by assay that samples were salted with pow- dered silver. Mudsill Co. v. Watrous, 61 Fed. 163. By assay with litharge, a trace of silver may be SCHOOL OP MINES. 343 shown in any kind of rock. Ormond v. Granite Mt. Co. 28 Pac. 289. An assay of two lots is no proof of the value of a series of shipments. Pittsburg Co. v. GlicTc, 42 Pac. 188. Mill samples control car samples. Vietti v. Nes- Utt, 41 Pac. 151; Fox v. Hale Co. 41 Pac. 308. The "Assay value" of gold means its universal standard value and not the value of local gold bullion. Id. But a contract to pay 95 per cent, of the silver con- tents .of the "product of said ore" does not mean 95 per cent, of the assay value of the raw ore. Silver Co. v. N. C. 8m. Co. 29 8. E. 940. An assay is material proof on an issue as to whether certain rock is mineral bearing. Healey v. Rupp, 63 Pac. 319. SCHOOL OF MINES. The General Assembly may provide that the Sci- ence of Mining and Metallurgy be taught in one or more of the institutions of learning under the pat- ronage of the State. Colo. Const. Art. 16, Sec. 4- Under the above provision the "School of Mines" at Golden is specially incorporated under M. A. 8. Chap. 110. and is supported by the State. Its declared object is to furnish "such instruc- tion as is provided for in like technical schools of a high grade," and it is authorized to confer degrees. M. A. 8. 4074. The course includes four years of two terms each. These are divided, after the first year, into Mining and Metallurgical and Electrical Engineer- ing. Similar State schools are established at Rolla, Missouri; Houghton, Michigan; Rapid City, South Dakota; and Butte, Montana. The University of California also has a department styled a School of Mines. 344 LAND OFFICE RULES. *LAND OFFICE REGULATIONS. Re-Issued by the General Land Office, July 26, 1901. **NATURE AND EXTENT OP MINING CLAIMS. 1. Mining claims are of two distinct classes : Lode claims and placers. LODE CLAIMS. 2. The status of lode claims located or patented previous to the 10th day of May, 1872, is not changed with regard to their extent along the lode or width of surface ; but 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. 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 10, 1812, 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. 4. From and after the 10th May, 1872, any person who is a citizen of the United States, or who has declared his in- tention 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 as- sociation 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, whatever may be the number of per- sons composing the association. *NOTE. Prior to 1895 the surveyors general had each a separate set of rules, based upon the Land Office Rules, reg- ulating work in their departments. In that year the Com- missioner issued a Manual of Instructions which superseded all local circulars. By the last revision of the Regulations, the Manual of Instructions is made a part of the Regula- tions. **In the circular these instructions are preceded by a copy of the act of Congress. LAND OFFICE RULES. 345 5. Width Surface Ground. With regard to the extent of surface ground adjoining a vein or lode, and claimed for the convenient 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 hundred feet on each side o'f 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 rea- son of prior claims but 100 feet can be taken on one side, the locator will not be restricted to less th,an 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 parallelogram fifteen hundred feet in length by six hundred feet in width, but whether surface ground of that width can be taken depends upon the 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 sur- face rights be limited to less than fifty feet in width unless adverse claims existing on the 10th day of May, 1872, render such lateral limitation necessary. 7. Location Certificate. Locators can not exercise too much care in defining their locations at the outset, inasmuch as the law requires that all records of mining locations made subsequent to May 10, 1872, shall contain the name or names of the locators, the date of the location, and such a description of the claim or claims located, by reference to some natural object or 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 346 LAND OFFICE RULES. or drift to a sufficient depth therein to discover and de- velop a mineral-bearing vein, lode, or crevice ; should de- termine, 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 description thereof given in the record of locations in the district, and should be duly recorded. 10. Adjoining Claims Staking Location Notice, In addi- tion 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 foregoing descrip- tion, should state whether the entire claim of fifteen hun- dred feet is taken on one side of the point of discovery, or whether it is partly upon one and partly upon the other side therof, 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 re- spects 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 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 hun- dred dollars' worth of labor must be performed or improve- ments made thereon annually. Under the provisions of the act of Congress approved January 22, 1880, the first an- nual expenditure becomes due and must be performed during the calendar year succeeding that in which the location was made. Where a number of claims are held in common, the aggregate expenditure that would be necessary to hold all the claims, may be made upon any one claim. 13. 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 lo- LAND OFFICE RULES. 347 cator, his heirs, assigns, or legal representatives have re- sumed work after such failure and before relocation. 14. Annual expenditure is not required subsequent to entry, the date of issuing the patent certificate being the date contemplated by statute. 15. Forfeiture of Coowners Interest. Upon the failure of any one of several coowners to contribute his proportion of the required expenditures, the coowners, who have per- formed the labor or made the improvements as required, may, at the expiration of the year, give such delinquent coowner personal notice in writing, or notice by publication in the newspaper 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 ex- piration of one hundred and eighty days after the first newspaper publication of notice, the delinquent coowner shall have failed to contribute his proportion to meet such expenditures or improvements, his interest in the claim by law passes to his coowners who have made the expend- itures 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 coowner failed to contribute his proper proportion within the period fixed by the statute. TUNNELS. 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 by such tunnel, which were not previously known to exist, within three thousand feet from the face or point of commencement of such tunnel, and to prohibit other parties, after the commencement of the tunnel, from prospecting for and making locations of 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 min- ing tunnel will be required, at the time they enter coyer 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 348 LAND OFFICE RULES. 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 determine the locus in manner heretofore set forth applicable to lo- cations 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 intervals, 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 the specific boundaries within which prospecting for lodes not previ- ously known to exist is prohibited while work on the tun- nel is being prosecuted with reasonable diligence. 18, Record of Tunnel, At the time of posting notice and marking out the lines of the tunnel as aforesaid, 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 pro- jectors of such tunnel, setting forth the facts in the case ; stating the amount expended by themselves and their pred- ecessors in interest in prosecuting work thereon ; the extent of the work performed, and that it is boner fide their inten- tion to prosecute work on the tunnel so located and de- scribed 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 sworn statement attached, kept on the re- corder's files for future reference. PLACEE CLAIMS.* 19. But one discovery of mineral is required to support a placer location, whether it be of twenty acres by an indi- vidual, 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. Reg- isters and receivers should make a reference 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, provides 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. *See, also, Regulations 58-60. LAND OFFICE RULES. 349 22. Ten-Acre Lots No Survey, By section 2330 author- ity is given for the subdivision of forty-acre legal subdi- visions into ten-acre lots, which is intended for the greater convenience of miners in segregating their claims both from one another and from intervening agricultural lands. It is held, therefore, that under a proper construction of the law these ten-acre lots in mining districts should be con- sidered and dealt with, to all intents and purposes, as legal subdivisions, and that an applicant having a claim which conforms to one or more of these ten-acre lots, con- tiguous in case of two or more lots, may make entry thereof, after the usual proceedings, without further survey or plat. 23. Idem Mode of Entry. In cases of this kind, how- ever, the notice given of the application must be very spe- cific and accurate in description, and as the forty-acre tracts may be subdivided into ten-acre lots, either in the form of squares of ten by ten chains, or, if parallelograms, five by twenty chains, so long as the lines are parallel and at right angles with the lines of the public surveys, it will be necessary that the notice and application state specifically what ten-acre lots are sought to be patented in addition to the other data required in the notice. 24. Description by Legal Subdivisions. Where the ten- acre subdivision is in the form of a square it may be de- scribed, for instance, as the "SE. % of the SW. *4 of the NW. %," or, if in the form of a parallelogram as aforesaid, it may be described as the "W. % of the W. y 2 of the SW. i/4 of the NW. % (or the N. y 2 of the S. % of the NE. 14 of the SE. %) of section , township , range ," as the case may be ; but, in addition to this de- scription of the land, the notice must give all the other data that is required in mineral application, by which parties may be put on inquiry as to the premises sought to be patented. The proofs submitted with applications for claims of this kind must show clearly the character and the 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 section 2324, Revised Statutes, must be made upon placer claims as well as lode claims. 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 cases, whether the lode is claimed or excluded, it must be surveyed and marked 350 LAND OFFICE RULES. 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 1ms 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 section 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. Section 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 and the rectangular subdivisions of such surveys, and such locations shall not include more than twenty acres for each individual claim- ant. 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 loca- tions are upon surveyed or unsurveyed lauds. REGULATIONS UNDER SALINE ACT. 31. Only One Location Allowed 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 Territories and the district of Alaska, so as to permit the location and pur- chase 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 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 LAND OFFICE RULES. 351 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 mem- ber of an association. It follows, therefore, that no ap- plication 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 notice of location pre- sented for record and the application for patent must each contain a specific statement under oath by each person whose name appears therein that he never has, either as an indi- vidual or as a member of an association, located or entered any other lands under the provisions of this act. Assign- ments made by persons who are not severally qualified as herein stated will not be recognized. 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 bound- aries are required to be distinctly marked by monuments on the ground. Four plats and one copy of the original field notes in each case 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 his 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 ojftcio the U. S. surveyor- general. 35. Idem None Before Record. The survey and plat of mineral claims required to be filed in the proper land office with application for patent must be made subsequent to the recording of the location of the claim (if the laws of the State or Territory or the regulations of the mining district require the notice of location to be recorded), and when the original location is made by survey of a United States deputy 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 352 LAND OFFICE RULES. 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 desig- nated at date of issuing the order therefor, in addition 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 connect- ing a corner of the claim with the nearest public corner of the United States surveys, unless such claim be on unsur- veyed lands at a distance 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 tivo miles in length, and should be measured on the ground direct betw r een the points, or calculated from actually surveyed traverse lines if the na- ture 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 connec- tion with a United States mineral monument. The con- necting line or traverse line must be surveyed by the deputy mineral surveyor at the time of his making the particular survey, and be made a part thereof. 37, Diagram of Claim on Surveyed Land. Upon the ap- proval of the survey of a mining claim made upon surveyed lands the surveyor-general will prepare and transmit to the local land office and to this office a diagram made upon the usual drawing paper township blank, showing the portions of legal 40-acre subdivisions made fractional by reason of the mineral survey, designating each of such portions by the proper lot number, beginning with No. 1 in each section, and giving the area of each lot. 38, The following particulars should be observed in the sur- vey 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 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 conflicting prior surveys should be noted in the field notes and represented upon the plat. (3) Conflicts with unsurveyed claims, where the ap- plicant 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 ex- terior boundaries should be stated, and also the area in con- flict with each intersecting survey, substantially as follows ; LAND OFFICE RULES. 353 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 re- quired 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 patent should state the portions to be excluded in express terms. 39. The claimant is then required to post a copy of the plat of such survey in a conspicuous place upon the claim, to- gether 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 of 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. 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 affi- davit 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 he has the possessory right to the premises therein described, in virtue of a compliance by himself (and by his grantors, if he claims by purchase) with the mining rules, regulations, and customs of the mining district, State, or Territory in which the claim lies, and with the mining laws of Congress ; such sworn statement to narrate briefly, but as clearly as possible, tfce facts constituting such compli- ance, the origin of his possession, and the basis of his claim to a patent. 42. Abstract of Title, This sworn statement must be supported by a copy of the location notice, certified by the officer in charge of the records where the same is recorded, and where the applicant for patent claims the interests of others associated with him in making the location, or only as purchaser, in addition to the copy of the location notice, must be furnished a complete abstract of title as 12 354 LAND OFFICE RULES. shown by the record in the office where the transfers are by law required to be recorded, certified to by the officer in charge of the record under his official seal. The officer should also certify that no conveyances affecting the title to the claim in question appear of record other than those set forth in the abstract, which abstract shall be brought down to the date of the application for patent. Where the applicant claims as sole locator and does not furnish an abstract of title, his affidavit should be furnished to the effect that he has disposed of no interest in the land lo- cated. 43. Lost Records, In the event of the mining records in any case having been destroyed by fire or otherwise lost, affidavit of the fact should be made, and secondary evi- dence of possessory title will be received, which may con- sist of the affidavit of the claimant, supported by those of any other parties cognizant of the facts relative to his location, occupancy, possession, improvements, &c. ; and in such case of lost records, any deeds, certificates of location or purchase, or other evidence which may be in the claim- ant's possession and tend to establish his claim, should be filed. 44. Two Applications for Same Land. Before receiving and filing a mineral application for patent, local officers will be particular to see that it includes no land which is em- braced in a prior or pending application for patent or entry, or for any lands 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 a mineral application should not, for these or other reasons, be accepted and filed, they should formally reject the same, giving the reasons therefor, and allow the applicant thirty days for appeal to this office under the Rules of Practice. 45. Publication Publisher's Agreement. Upon the receipt of these papers, if no reason appears for rejecting the ap- plication, 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 pub- lication), 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 iveekly newspaper, nine consecutive insertions are necessary; when 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. 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 LAND OFFICE RULES. 355 of the claim and a United States mineral monument or a corner of the public survey, and thence the boundaries of the claim by courses and distances. 47. The register shall publish the notice of application for patent in a paper of established character and general cir- culation, to be by him designated as being the newspaper published nearest the land. 48. Surveyor-General's Certificate of $500 Improvements. The claimant at the time of filing the application for patent, or at any time within the sixty days of publication, is 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 improvements made, by the applicant or his grantors, upon each location embraced in the application, or if the application embraces several locations held in com- mon, 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 cor- rect ; that the field notes of the survey, as filed, furnish such an accurate description of the claim as will if incor- porated in a patent serve to fully identify the premises and that such reference is made therein to natural objects or permanent monuments as will perpetuate and fix the locus thereof : Provided, That as to all applications for patent 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 em- braces several locations held in common, proof of an expend- iture of five hundred dollars upon the group will be sufficient and an expenditure of that amount need not be shown to have been made upon, or for the benefit of, each location embraced in the application. 49. The surveyor-general may derive his information upon which to base his certificate as to the value of labor ex- pended or improvements made from his deputy who makes the actual survey and examination upon the premises, and such deputy should specify with particularity and full de- tail the character and extent of such improvements. 50. It will be the more convenient way to have this certifi- cate indorsed by the surveyor-general, both upon the plat and field notes of survey filed by the claimant as aforesaid. 51. Proof of Publication and of Plat Remaining Posted. After the sixty days' period of newspaper publication has expired, the claimant will furnish from the office of pub- lication a sworn statement that the notice was published for the statutory period, giving the first and last day of such publication, and his own affidavit showing that the plat and notice aforesaid remained conspicuously posted upon the claim sought to be patented during said sixty days' publication, giving the dates. 52. Entry Price Proof of Sums Paid, Upon the filing of this affidavit the register will, if no adverse claim was 356 LAND OFFICE RULES. filed in his office during the period of publication, permit the claimant to pay for the land according to the area given in the plat and field notes of survey aforesaid, 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 duplicate 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 re- ceiver 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 Prior to Patent. At any time prior to the issuance of patent, protest may be filed against the patent- ing of the claim as applied for, upon any ground tending to show that the applicant has failed to comply with the law in a matter which would avoid the claim. Such protest can not, however, be made the means of preserving a surface conflict lost by failure to adverse or lost by the judgment of the court in an adverse suit. 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 protected 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 coowner excluded from an applica- tion 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. 8. 578-586. 54. Any party applying for patent as trustee must disclose fully the natur* 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 in- serted in the final certificate of entry. 55. The annual expenditure of one hundred dollars in labor or improvements on a mining claim, required by section 2324 of the Revised Statutes, is 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 committed exclusively to the courts. 56. Failure to Prosecute Application Diligently. The fail- ure of an applicant for patent to a mining claim to prose- cute his application to completion, by filing the necessary proofs and making payment for the land, within a reason- able time after the expiration of the period of publication of notice of the application, or after the termination of adverse proceedings in the courts, constitutes a waiver by the ap- plicant of all rights obtained by the earlier proceedings upon the application. LAND OFFICE RULES. 357 57. Idem Prosecution Delayed by Adverse. The proceed- ings necessary to the completion of an application for patent to a mining claim, against which an adverse claim or pro- test has been filed, if taken by the applicant at the first opportunity afforded therefor under the law and depart- mental 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 de- posits excepting veins of quartz or other rock in place, are similar to- the proceedings prescribed 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. Two Dollars and Fifty Cents Per Acre. The proceed- ings for obtaining patents for veins or lodes having already been fully given, it will not be necessary to repeat them here, it being thought that careful attention thereto by ap- plicants and the local officers will enable them to act under- standingly in the matter, and make such slight modifications in the notice, or otherwise, as may be necessary in view of the different nature of the two classes of claims ; placer claims being fixed, however, at two dollars and fifty cents per acre, or fractional part of an acre. 60. Classification of the Land Descriptive Report. In placer applications for patent care must be exercised to de- termine the proper classification of the lands claimed. To this end the clearest evidence of which the case is capable should be presented. (1) If the claim be all placer ground, that fact must be stated in the application and corroborated by accompany- ing proofs ; if of mixed placers 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, pos- sessory or otherwise. (2) Deputy surveyors shall, at the expense of the parties, make full examination of all placer claims surveyed by them, and duly note the facts as specified in the law, stating the quality and composition of the soil, the kind and amount of timber and other vegetation, the locus and size of streams, and such other matters as may appear upon the surface of the claim. This examination should include *See, also, Regulations 19-30. 358 LAND OFFICE RULES. the character and extent of all surface and underground workings, whether placer or lode, for mining purposes. (3) In addition to these data, which the law requires to be shown in all cases, the deputy should report with ref- % erence to the proximity of centers of trade or residence;' also of well-known systems of lode deposit or of individual lodes. He should also report as to the use or adaptability of the claim for placer mining ; whether water has been brought upon it in sufficient quantity to mine the same, or whether it can be procured for that purpose ; and, finally, what works or expenditures have been made by the claimant or his grantors for the development of the claim, and their situation and location with respect to the same as applied for. (4) This examination should be reported by the deputy under oath to the surveyor-general, and duly corroborated ; and a copy of the same should be furnished with the appli- cation for patent to the claim, constituting a part thereof, and included in the oath of the applicant. (5) Applications awaiting entry, whether published or not, must be made to conform to these regulations, with respect to examination 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. MILL SITES. 61, Land entered as a mill site must be shown to be non- mineral. Mill sites are simply auxiliary to the working of mineral claims, and as section 2337, which provides for the patenting of mill sites, is embraced in the chapter of the Revised Statutes relating to mineral lands, they are therefore included in this circular. 62, Noncontiguous to Lode Independent Application, To avail themselves of this provision of law parties holding the possessory right to a vein or lode, and to a piece of nonmineral land not contiguous thereto for mining or mill- ing purposes, not exceeding the quantity 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 in- clude, embrace, and describe, in addition to the vein or lode, such noncontiguous mill site, and after due proceedings as to notice, etc., a patent will be issued conveying the same as one claim. The owner of a patented lode may, by an independent application, secure a mill site if good faith is manifest in its use or occupation in connection with the lode and no adverse claim exists. 63, Lots "A" and "B," Where the original survey in- cludes 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 LAND OFFICE RULES. 359 its appropriate numerical designation ; the course and dis- tance 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 he conspicuously posted upon the mill site as well as upon the vein or lode for the statutory period of sixty days. In making the entry no separate receipt or certifi- cate 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 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. In every case there must he satisfactory proof that the land claimed as a mill site is not mineral in character, which proof may, where the matter is unquestioned, consist of the sworn statement of two of more persons capable, from acquaintance with the land, to testify understandingly. CITIZENSHIP. 66. The proof necessary to establish the citizenship of ap- plicants for mining patents must be made in the following manner : In case of an incorporated company, a certified copy of their charter or 'certificate of incorporation must be filed. In case of an association of persons unincorporated, the affidavit of their duly authorized agent, made upon his own knowledge or upon information and belief, setting forth the residence of each person forming such association, must be submtted. This affidavit must be accompanied by a power of attorney from the parties forming such associ- ation, authorizing the person who makes the affidavit of citizenship to act for them in the matter of their applica- tion for patent. 67. In case of an individual or an association of individuals who do not appear by their duly authorized agent, you will require the affidavit of each applicant, showing whether he is a native or naturalized citizen, when and where born, and his residence. 68. In case an applicant has declared his intention to he- come a citizen or has been naturalized, his affidavit must show the date, place, and the court before which he declared his intention, or from which his certificate of citizenship issued, and present residence. 69. The affidavit of the claimant as to his citizenship may be taken before the register or receiver, or any other officer authorized to administer oaths within the land district ; or, if the claimant is residing beyond the limits of the district, the affidavit may be taken before the clerk of any court of 360 LAND OFFICE RULES. record or before any notary public of any State or Terri- tory. 70. Proof by Disinterested Witnesses. If citizenship is established by the testimony of disinterested persons, such testimony may be taken at any place before any person authorized to administer oaths, and whose official character is duly verified. 71. Scrutiny of Proofs, No entry will be allowed until the register has satisfied himself, by careful examination, that proper proofs have been filed upon the points indicated in the law and official regulations. Transfers made sub- sequent to the filing of the application for patent will not be considered, but entry will be allowed and patent issued in all cases in the name of the applicant for patent, the title conveyed by the patent, of course, in each instance inuring to the transferee of such applicant where a transfer has been made pending the application for patent. 72. The consecutive series of numbers of mineral entries must be continued, whether the same are of lode or placer claims or mill sites. 73. Register's Certificate of Posting in Land Office Plat. In sending up the papers in a case the register must not omit certifying to the fact that the notice was posted in his office for the full period of sixty days, such certificate to state distinctly when such posting was done and * how long continued. The plat forwarded as part of the proof should not be folded, but rolled, so as to prevent creasing, and either transmitted in a separate package or so enclosed with the other papers that it may pass through the mails without creasing or mutilation. If forwarded separately, the letter transmitting the papers should state the fact. POSSESSORY RIGHT. 74. Chain of Title Broken, "but Possession Clear. The pro- visions of section 2332, Revised Statutes, will greatly lessen the burden of proof, more especially in the case of old claims located many years since, the records of which, in many cases, have been destroyed by fire, or lost in other ways during the lapse of time, but concerning the possessory right to which all controversy or litigation has long been settled. 75. Details of Proof in Such Case. When an applicant desires to make his proof of possessory right in accordance with this provision of law, he will not be required to produce evidence of location, copies of conveyances, or abstracts of title, as in other cases, but will be required to furnish a duly certified copy of the statute of limitation of mining claims for the State or Territory, together with his sworn statement giving a clear and succinct narration of the facts as to the origin of his title, and likewise as to the contin- uation of his possession of the mining ground covered by his application ; the area thereof ; the nature and extent of LAND OFFICE RULES. 361 the mining that has been done thereon ; whether there has been any opposition to his possession, or litigation with re- gard to his claim and, if so, when the same ceased : whether such cessation was caused by compromise or by judicial de- cree, and any additional facts within the claimant's knowl- edge having a direct bearing upon his possession and bona fides which he may desire to submit in support of his claim. 76. There should likewise be filed a certificate, under seal of the court having jurisdiction of mining cases within the judicial district embracing the claim, that no suit or action of any character whatever involving the right of pos- session to any portion of the claim applied for is pending, and that there has been no litigation before said court affecting the title to said claim or any part thereof for a period equal to the time fixed by the statute of limitations for mining claims in the State or Territory as aforesaid, other than that which has been finally decided in favor of the claimant. 77. The claimant should support his narrative of facts rela- tive to his possession, occupancy, and improvements by cor- roborative testimony of any disinterested person or persons of credibility who may be cognizant of the facts in the case and are capable of testifying understandingly in the prem- ses. ADVERSE CLAIMS. 78. An adverse mining claim must be filed with the register and receiver of the land office where the application for patent was filed, or with the register and receiver of the district in which the land is situated at the time of filing the adverse claim. It must be on the oath of the adverse claimant, or it may be verified by the oath of any duly authorized agent or attorney in fact of the adverse claim- ant cognizant of the facts stated. 79. Where an agent or attorney in fact verifies the adverse claim, he must distinctly swear that he is such agent or at- torney, and accompany his affidavit by proof thereof. 80. The agent or attorney in fact must make the affidavit in verification of the adverse claim within the land district where the claim is situated. 81. The adverse notice must fully set forth the nature and extent of the interference or conflict ; whether the adverse party claims as a purchaser for valuable consideration or as a locator ; if the former, a certified copy of the original location, the original conveyance, a duly certified copy thereof, or an abstract of title from the office of the proper recorder should be furnished, or if the transaction was a merely verbal one he will narrate the circumstances attend- ing the purchase, the date thereof, and the amount paid, which facts should be supported by the affidavit of one or more witnesses, if any were present at the time, and if he claims as a locator he must file a duly certified copy o* the location from the office of the proper recorder. 362 LAND OFFICE RULES. 82. Plat of Conflict Legal Subdivisions. In order that the "boundaries" and "extent" of the claim may be shown, it will be incumbent upon the adverse claimant to file a plat showing his entire claim, its relative situation or position with the one against which he claims, and the extent of the conflict : Provided, however, That if the application for pat- ent describes the claim by legal subdivisions, the adverse ' claimant, if also claiming by legal subdivisions, may de- scribe his adverse claim in the same manner without fur- ther survey or plat. If the claim is not described by legal subdivisions, it will generally be more satisfactory if the plat thereof is made from an actual survey by a deputy mineral survevor, and its correctness officially certified thereon by him. 83. Notice of Filing Adverse. Upon the foregoing being filed within the sixty days' publication, the register, or in his absence the receiver, will give notice in writing to both parties to the contest that such adverse claim has been filed, informing them that the party who filed the adverse claim will be required within thirty days from the date of such filing to commence proceedings in a court of competent juris- diction to determine the question of right of possession, and to prosecute the same with reasonable diligence to final judgment, and that, should such adverse claimant fail to do so, his adverse claim will be considered waived, and the ap- plication for patent be allowed to proceed upon its merits. 84. Adverse Stays Proceedings. When an adverse claim is filed as aforesaid, the register or receiver will indorse upon the same the precise date of filing, and preserve a rec- ord of the date of notifications issued thereon ; and thereafter all proceedings on the application for patent will be sus- pended, with the exception of the completion of the publi- cation and posting of notices and plat, and the filing of the necessary proof thereof, until the controversy shall have been adjudicated in court, of the adverse claim waived or withdrawn. 85. Copy of Judgment. Where an adverse claim has been filed and suit thereon commenced within the statutory period, and final judgment rendered determining the right of pos- session, it will not be sufficient to file with the register a certificate of the clerk of the court, setting forth the facts as to such judgment, but the successful party must, before he is allowed to make entry, file a certified copy of the judg- ment, together with the other evidence required by section 2326, Revised Statutes. 86. Where such suit has been dismissed, a certificate of the clerk of the court to that effect or a certified copy of the order of dismissal will be sufficient. 87. Relinqu ; shment After Adverse. After an adverse claim has been filed and suit commenced, a relinquishment or other evidence of abandonment of the adverse claim will not be accepted, but the case must be terminated and proof thereof furnished as required by the last two paragraphs. LAND OFFICE RULES. 363 88. Certificate of No Suit Brought. Where an adverse claim has been filed, but no suit commenced against the ap- plicant for patent within the statutory period, a certificate to that effect by the clerk of the State court having jurisdic- tion in the case, and also by. the clerk of the circuit court of the United States for the district in which the claim is situated, will be required. APPOINTMENT OF DEPUTIES FOR SURVEY OF MINING CLAIMS CHARGES FOR SURVEYS AND PUBLICATIONS FEES OF REG- ISTERS AND RECEIVERS., ETC. 89. Newspaper Charges. Section 2334 provides for the appointment of surveyors to survey mining claims, and au- thorizes the Commissioner of the General Land Office to es- tablish the rates to be charged for surveys and for news- paper publications. Under this authority of law the fol- lowing rates have been established as the maximum charges for newspaper publications in mining cases : (1) Where a daily newspaper is designated the charge shall not exceed seven dollars for each ten lines of space occupied, and where a weekly newspaper is designated as the medium of publication five dollars for the same space will be allowed. Such charge shall be accepted as full payment for publication in each issue of the newspaper for the entire period required by law. It is expected that these notices shall not be so abbre- viated as to curtail the description essential to a perfect no- tice, and the said rates established upon the understanding that they are to be in the usual body type used for adver- tisements. (2) For the publication of citations in contests or hearings involving the character of lands the charges shall not exceed eight, dollars for five publications in weekly newspapers or ten dollars for publications in daily news- papers for thirty days. 90. Appointment of Deputy Surveyors Bond. The survey- ors-general of the several districts will, in pursuance of said law, appoint in each land district as many competent surveyors for the survey of mining claims as may seek such appointment, it being distinctly understood that all ex- penses of these notices and surveys are to be borne by the mining claimants and not by the United States. The statute provides that the claimant shall also be at liberty to employ any United States deputy surveyor to make the survey. Each surveyor appointed to survey mining claims before entering upon the duties of his office or appointment shall be required to enter into such bond for the faithful performance of his duties as may be prescribed by the regulations of the land department in force at that time. 91. Surveyor-General's Fees. With regard to the plat- ting of the claim and other office wor'k in the surveyor-gen- eral's office, that officer will make an estimate of the cost thereof, which amount the claimant will deposit with any 364 LAND OFFICE RULES. assistant United States treasurer or designated depository in favor of the United States Treasurer, to be passed to the credit of the fund created by "individual depositors for sur- veys of the public lands," and file with the surveyor-gen- eral duplicate certificates of such deposit in the usual man- ner. 92, Deputies for Each District. The surveyors-general will endeavor to appoint surveyors to survey mining claims, so that one or more may be located in each mining district for the greater convenience of miners. 93, The usual oaths will "be required of these surveyors and their assistants as to the correctness of each survey exe- cuted by them. The duty of the surveyor ceases when he has executed the survey and returned the field notes and preliminary plat thereof with his report to the surveyor-general. He will not be allowed to prepare for the mining claimant the papers in support of an application for patent, or otherwise per- form the duties of an attorney before the land office in connection with a mining claim. The surveyors-general and local land officers are ex- pected to report any infringement of this regulation to this office. 94, Should it appear that excessive or exorbitant charges have been made by any surveyor or any publisher, prompt action will be taken with the view of correcting the abuse. 95, The fees payable to the register and receiver for filing and acting upon applications for mineral-land patents are five dollars to each officer, to be paid by the applicant for patent at the time of filing, and the like sum of five dollars is payable to each officer by an adverse claimant at the time of filing his adverse claim. (Sec. 2238, R. S., paragraph 9.) 96, Receipt for Fees. At the time of payment of fee for mining application or adverse claim the receiver will issue his receipt therefor in duplicate, one to be given the ap- plicant or adverse claimant, as the case may be, and one to be forwarded to the Commissioner of the General Land Office on the day of issue. The receipt for mining appli- cation should have attached the certificate of the register that the lands included in the application are subject to such appropriation, as far as shown by the records of his office. 97, Monthly Reports to General Land Office, The register and receiver will, at the close of each month, forward to this office an abstract of mining applications filed, an ab- stract of adverse claims filed, an abstract of mineral lands sold, and a report of receipts from such sales. 98, The fees and purchase money received by registers and receivers must be placed to the credit of the United States in the receiver's monthly and quarterly account, charging up in the disbursing account the sums to which the register LAND OFFICE RULES. 365 and receiver may be respectively entitled as fees and com- missions, with limitations in regard to the legal maximum. HEARINGS TO DETERMINE CHARACTER OF LANDS. 99. The Rules of Practice in cases before the United States district land offices, the General Land Office, and the De- partment of the Interior will, so far as applicable, govern in all cases and proceedings arising in contests and hear- ings to determine the mineral character of lands. 100. Agricultural Entry of Lands Returned as Mineral. Public land returned by the surveyor-general as mineral shall be withheld from entry as agricultural land until the presumption arising from such a return shall be overcome by testimony taken in the manner hereinafter described. 101. Hearings to determine the character of lands are prac- tically of two kinds, as follows : (1) Lands returned as mineral- by the surveyor-gen- eral. When such lands are sought to be entered as agricul- tural under laws which require the submission of final proof after due notice by publication and posting, the filing of the proper nonmineral affidavit in the absence of allega- tions that the land is mineral will be deemed sufficient as a preliminary requirement. A satisfactory showing as to character of land must be made when final proof is sub- mitted. In case of application to enter, locate, or select such lands as agricultural, under laws in which the submis- sion of final proof after due publication and posting is not required, notice thereof must first be given by publication for sixty days and posting in the local land office during the same period, and affirmative proof as to the character of the land submitted. In the absence of allegations that the land is mineral, and upon compliance with this requirement, the entry, location, or selection will be allowed, if otherwise regular. (2) Lands returned as agricultural and alleged to be mineral in character. Where as against the claimed right to enter such lands as agricultural it is alleged that the same are mineral, or are applied for as mineral lands, the proceedings in this class of cases will be in the nature of a contest, and the practice will be governed by the rules in force in contest cases. 102. Where a railroad company seeks to select lands not returned as mineral, but within six miles of any mining lo- cation, claim, or entry, or where in the case of a selection by a State, the lands sought to be selected are within a township in which there is a mining location, claim, or entry, publication must be made of the lands selected at the ex- pense of the railroad company or State for a period of sixty days, with posting for the same period in the land office 366 LAND OFFICE RULES. for the district in which the lands are situated, during which period of publication the local land officers will re- ceive protests or contests for any of said tracts or subdi- visions of lands claimed to be more valuable for mining than for agricultural purposes. 103, Protests Against Railroad Selections. At the expira- tion of the period of publication the register and receiver will forward to the Commissioner of the General Land Office the published list, noting thereon any protests, or con- tests, or suggestions as to the mineral character of any such lands, together with any information they may have received as to the mineral character of any of the lands mentioned in said list, when a hearing may be ordered. 104. In lieu selections under the acts of June 4, 1897, and June 6, 1900, of land which has been returned as mineral, or which is within six miles of any mining claim, notice of the selection, commencing within twenty days thereafter, must be given, for a period of thirty days, by posting upon the land and in the local land office, and by publication at the cost of the applicant in a newspaper designated by the register as of general circulation in the vicinity of the land and published nearest thereto. Where the selection em- braces noncontiguous tracts the notice must be posted upon each tract ; but such notice will not be required in any case where the selection is in lieu of "a tract covered by an unperfected bona fide claim," viz. : A tract the title to which has not passed out of the United States or for which patent certificate has not issued. 105. Examination of Witnesses. At the hearings under either of the aforesaid classes, the claimants and witnesses will be thoroughly examined with regard to the character of the land ; whether the same has been thoroughly pros- pected ; whether or not there exists within the tract or tracts claimed any lode or vein of quartz or other rock in place, bearing gold, silver, cinnabar, lead, tin, or copper, or other valuable deposit which has ever been claimed, located, re- corded, or worked ; whether such work is entirely abandoned, or whether occasionally resumed ; if such lode does exist, by whom claimed, under what designation, and in which subdi- vision of the land it lies ; whether any placer mine or mines exist upon the land ; if so, what is the character thereof whether of the shallow-surface description, or of the deep cement, blue lead, or gravel deposits ; to what extent mining is carried on when water can be obtained, and what the fa- cilities are for obtaining water for mining -purposes ; upon what particular ten-acre subdivisions mining has been done, and at what time the land was abandoned for mining pur- poses, if abandoned at all. 106, The testimony should also show the agricultural capa- cities of the land, what kind of crops are raised thereon, and the value thereof ; the number of acres actually culti- vated for crops of cereals or vegetables, and within which particular ten-acre subdivision such crops are raised ; also LAND OFFICE RULES. 367 which of these subdivisions embrace the improvements, giv- ing in detail the extent and value of the improvements, such as house, barn, vineyard, orchard, fencing, etc., and mining improvements. 107. The testimony should be as full and complete as pos- sible : and in addition to the leading points indicated above, where an attempt is made to prove the mineral character of lands which have been entered under the agricultural laws, it should show at'what date, if at all, valuable deposits of minerals were first known to exist on the lands. 108. Segregating Mineral from Agricultural Land. When the case comes before this office, such decision will be made as the law and the facts may justify. In cases where a survey is necessary to set apart the mineral from the ag- ricultural land, the proper party, at Ms own expense, will be required to have the work done by a surveyor to be des- ignated by the surveyor-general. Application therefor must be made to the register and receiver, accompanied by de- scription of the land to be segregated and the evidence of service upon the opposite party of notice of his intention to have such segregation made. The register and receiver will forward the same to this office, when the necessary instructions for the survey will be given. The survey in such case, where the claims to be segregated are vein or lode claims x must be executed in such manner as will conform to the requirements in section 2320, United States Revised Statutes, as to length and width and parallel end lines. 109. Such survey when executed must be properly sworn to by the surveyor, either before a notary public, officer of a court of record, or before the register or receiver, the de- ponent's "character and credibility to be properly certified to by the officer administering the oath. 110. Verified Plat by Surveyor-General. Upon the filing of the plat and field notes of such survey with the register and receiver, duly sworn to as aforesaid, they will trans- mit the same to the surveyor-general for his verification and approval ; who, if he finds the work correctly performed, will furnish authenticated copies of such plat and descrip- tion both to the proper local land office and to this office, made upon the usual drawing-paper township blank. The copy of plat furnished the local office and this office must be a diagram verified by the surveyor-general, showing the claim or claims segregated, and designating the separate fractional agricultural tracts in each 40-acre legal subdivision by the proper lot number, beginning with No. 1 in each section, and giving the area in each lot, the same as provided in paragraph 37 in the survey of mining claims on surveyed lands. 111. Proceedings if Land Decided to Be Mineral. The fact that a certain tract of land is decided upon testimony to be mineral in character is by no means equivalent to an award of the land to a miner. In order to secure a pat- 368 LAND OFFICE RULES. ent for such land, he must proceed as in other cases, in accordance with the foregoing regulations Blank forms for proofs in mineral cases are not fur- nished by the General Land Office. DISTRICT OF ALASKA. 112. Section 13, act of May 14, 1898, according to native- born citizens of Canada "the same mining rights and priv- ileges" in the district of Alaska as are accorded to citizens of the United States in British Columbia and the Northwest Territory by the laws of the Dominion of Canada, is not now and never has been operative, for the reason that the only mining rights and privileges granted to any person by the laws of the Dominion of Canada are those of leas- ing mineral lands upon the payment of a stated royalty, and the mining laws of the United States make no provis- ion for such leases. 113. For the sections of the act of June 6, 1900, making further provision for a civil government for Alaska, which provide for the establishment of recording districts and the recording of mining locations ; for the making of rules and regulations by the miners and for the legalization of min- ing records ; for the extension of the mining laws to the district of Alaska, and for the exploration and mining of tide lands and lands below low tide ; and relating to the rights of Indians and persons conducting schools or mis- sions, see page 20 of this circular (81 L. D. p. j.70). MINERAL LANDS WITHIN FOREST RESERVES. 114. The act of June 4, 1897, provides that "any mineral lands in any forest reservation which have been or which may be shown to be such, and subject to entry under the ex- isting mining laws of the United States and the rules and regulations applying thereto, shall continue to be subject to such location and entry," notwithstanding the reservation. This makes mineral lands in the forest reserves subject to location and entry under the general mining laws in the usual manner. The act also provides that, "The Secretary of the In- terior may permit, under regulations to be prescribed by him, the use of timber and stone found upon such reserva- tions, free of charge, by bona fide settlers, miners, residents, and prospectors for minerals, for firewood, fencing, build- ings, mining, prospecting, and other domestic purposes, as may be needed by such persons for such purposes ; such timber to be used within the State or Territory, respectively, where such reservations may be located." For further instructions under this act see circular of April 4, 1900 (30 L. D. 23, 28-30.) LAND OFFICE RULES. 369 SURVEYS OF MINING CLAIMS.* GENERAL PROVISIONS. 115. Appointment of Deputies. Under section 2334, U. S. Rev. Stats., the U. S. surveyor-general -"may appoint in each land district containing mineral lands as many competent surveyors as shall apply for appointment to survey mining claims." 116. Persons desiring such appointments should therefore file their applications with the surveyor-general for the dis- trict wherein appointment is asked, who will furnish all information necessary. 117. All appointments of deputy mineral surveyors must be submitted to the Commissioner of the General Land Office for approval. 118. Suspension of Deputy. The surveyors-general have authority to suspend or revoke the commissions of deputy mineral surveyors for cause. Before final action, however, the matter should be submitted to the Commissioner of the General Land Office for approval. 119. Such surveyors will be allowed the right of appeal from the action of the surveyor-general in the usual manner. Such appeal should be filed with the surveyor-general, who will at once transmit the same, with a full report, to the General Land Office. 120. Investigation of Deputy's Charges. Neither the sur- veyor-general nor the Commissioner of the General Land Office has jurisdiction to settle differences, relative to the payment of charges for field work, between deputy mineral surveyors and claimants. These are matters of private contract and must be enforced in the ordinary manner, i. e. f in the local courts. The Department has, however, author- ity to investigate charges affecting the official actions of deputy mineral surveyors, and will, on sufficient cause shown, suspend or revoke their appointment. 121. The surveyors-general should appoint as many compe- tent deputy mineral surveyors as apply for appointment, in order that claimants may have a choice of surveyors, and be enabled to have their work done on the most advantage- ous terms. 122. The schedule of charges for office work should be as low as is possible. No additional charges should be made for orders for amended surveys, unless the necessity there- for is clearly the fault of the claimant, or considerable ad- ditional office work results therefrom. 123. In cases where the error in the original survey is due to the carelessness or neglect of the surveyor who made it, * Since 1895, and until the present Revision, the fol- lowing Rules were contained in the "Manual of Instruc- tions." 370 LAND OFFICE RULES. he should be required to make the necessary corrections in the field at his own expense, and the surveyor-general should advise him that the penalty for failure to comply with in- structions within a specified time will be the suspension or revocation of his commission. 124. Mineral surveyors will address all official communica- tions to the surveyor-general. They will, when a mining claim is the subject of correspondence, give the name and survey number. In replying to letters they will give the subject-matter and date of the letter. They will promptly notify the surveyor-general of any change in post-office ad- dress. 125. Mineral surveyors should keep a complete record of each survey made by them and the facts coming to their knowledge at the time, as well as copies of all their field notes, reports, and official correspondence, in order that such evidence may be readily produced when called for at any future time. Field notes and other reports must be written in a clear and legible hand or typewritten, in non- copying ink,' and upon the proper blanks furnished gratu- itously by the surveyor-general's office upon application therefor. No interlineations or erasures will be allowed. 126. No return by a mineral surveyor will "be recognized as official unless it is over his signature as a United States dep- uty mineral surveyor, and made in pursuance of a special order from the surveyor-general's office. After he has re- ceived an order for survey he is required to make the sur- vey and return correct field notes thereof to the surveyor- general's office without delay. 127. Claimant Contract With Deputy. The claimant is required., in all cases, to make satisfactory arrangements with the surveyor for the payment for his services and those of his assistants in making the survey, as the Untied States will not be held responsible for the same. 128. Deputy Not Act as Attorney. A mineral surveyor is precluded from acting, either directly or indirectly, as at- torney in mineral claims. His duty in any particular case ceases when he has executed the survey and returned the field notes and preliminary plat, with his report, to the sur- veyor-general. He will not be allowed to prepare for the mining claimant the papers in support of his application for patent, or otherwise perform the duties of an attorney be- fore the land office in connection with a mining claim/ He is not permitted to combine the duties of surveyor and notary public in the same case by administering oaths to the parties in interest, but as a notary public he may ad- minister the oaths to his assistants in making the survey ; otherwise he must have absolutely nothing to do with the case, except in his official capacity as surveyor. He will make no survey of a mineral claim in which he holds an interest, nor will he employ chainmen interested therein in any manner. LAND OFFICE RULES. 371 SURVEY HOW MADE. 129. Survey Must Be Actual, The survey made and re- turned must, in every case, be an actual survey on the ground in full detail, made by the mineral surveyor in per- son after the receipt of the order, and without reference to any knowledge he may have previously acquired by rea- son of having made the location survey or otherwise, and mus.t show the actual facts existing at the time. This pre- cludes him from calculating the connections to corners of the public survey and location monuments, or any other lines of his survey through prior surveys made by others and substituting the same for connections or lines of the survey returned by him. The term survey in this para- graph applies not only to the usual field work, but also to the examinations required for the preparation of affi- davits of five hundred dollars expenditure, descriptive re- ports on placer claims, and all other reports. 130. The survey of a mining claim may consist of several contiguous locations, but such survey must, in conformity with statutory requirements, distinguish the several loca- tions, and exhibit the boundaries of each. The survey will be given but one number. 131. The survey must be made in strict conformity with, or be embraced within, the lines of the location upon which the order is based. If the survey and location are identical, that fact must be clearly and distinctly stated in the field notes. If not identical, a bearing and distance must be given from each established corner of survey to the cor- responding corner of the location, and the location corner must be fully described, so that it can be identified. The lines of the location, as found upon the ground, must be laid down upon the preliminary plat in such a manner as to contrast and show their relation to the lines of the survey. 132. Corners Not to Be Changed. In view of the princi- ple that courses and distances must give way when in conflict with fixed objects and monuments, the surveyor will not, under any circumstances, change the corners of the location for the purpose of making them conform to the description in the record. If the difference from the location be slight, it may be explained in the field notes. 133. Not Exceed Statutory Length and Width, No mining claim located subsequent to May 10, 1872, should exceed the statutory limit in width on each side of the center of vein or 1,500 feet in length, and all surveys must close within 50-100 feet in 1,000 feet, and the error must not be such as to make the location exceed the statutory limit, and in absence of other proof the discovery point is held to be the center of the vein on the surface. The course and length of the vein should be marked upon the plat. 134. Instrument True Meridian. All mineral surveys must be made with a transit, provided with a solar attach- 372 LAND OFFICE RULES. raent, by which the meridian can be determined independ- ently of the magnetic needle, and all courses must be re- ferred to the true meridian. The variation should be noted at each corner of the survey. The true course of at least one line of each survey must be ascertained by astronom- ical observations made at the time of the survey ; the data for determining the same and details as to how these data were arrived at must be given. Or, in lieu of the foregoing the survey must be connected with some line the true course of which has been previously established beyond question, and in a similar manner, and, when such lines exist, it is desirable in all cases that, they should be used as a proof of the accuracy of subsequent work. 135. Ties to Public Survey, Corner No. 1 of each loca- tion embraced in a survey 'must be connected by course and distance with nearest corner of the public survey or with a United States location monument, if the claim lies within two miles of such corner or monument. If both are within the required distance the connection must be with the corner of the public survey. 136. Mineral Monuments in Suspended Townships. Sur- veys and connections of mineral claims may be made in suspended townships in the same manner as though the claims were upon unsurveyed land, except as hereinafter specified, by connecting them with independent mineral monuments. At the same time, the position of any public- land corner which may be found in the neighborhood of the claim should be noted, so that, in case of the release of the township from suspension, the position of the claim can be shown on the plat. 137. No Choice of Tie. A mineral survey must not be returned with its connection made only with a corner of the public survey, where the survey of the township within which it is situated is under suspension, nor connected with a mineral monument alone, when situated within the limits of a township the regularity and correctness of the survey of which is unquestioned. 138. Corner No, 1 Section Lines. In making an official survey, corner No. 1 of each location must be established at the corner nearest the corner of the public survey or location monument, unless good cause is shown for its be- ing placed otherwise. If connections are given to both a corner of the public survey and location monument, corners Nos. 1 should be placed at the corner nearest the corner of the public survey. When a boundary line of a claim inter- sects a section line courses and distances from point of in- tersection to the Government corners at each end of the half mile of section line so intersected must be given. 139. Erection of Mineral Monuments. In case a survey is situated in a district where there are no corners of the public survey and no monuments within the prescribed limits, a mineral monument must be established, in the lo- LAND OFFICE RULES. 373 cation of which the greatest care must be exercised to in- sure permanency as to site and construction. 140. The site, when practicable, should be some prominent point, visible for a long distance from every direction, and should be so chosen that the permanency Of the monument will not be endangered by snow, rock, or landslides, or other natural causes. 141. Dimensions and Marking. The monument should consist of a stone not less than 30 inches long, 20 inches wide, and 6 inches thick, set halfway in the ground, with a conical mound of stone 4 feet high and 6 feet base along- side. The letters U. S. L. M., followed by the consecutive number of the monument in the district, must be plainly chis- eled upon the stone. If impracticable to obtain a stone of required dimensions, then a post 8 feet long, 6 inches square, set 3 feet in the ground, scribed as for a stone monu- ment, protected by a well-built conical mound of stone of not less than 3 feet high and 6 feet base around it, may be used. The exact point for connection must be indi- cated on the monument by an x chiseled thereon ; if a post is used, then a tack must be driven into the post to indicate the point. 142. Ties to Mineral Monument. From the monument, connections by course and distance must be taken to two or three bearing trees or rocks, and to any well-known and permanent objects in the vicinity, such as the confluence of streams, prominent rocks, buildings, shafts, or mouths of adits. Bearing trees must be properly scribed B. T. and bearing rocks chiseled B. R., together with the number of the location monument ; the exact point on the tree or stone to which the connection is taken should be indicated by a cross or other unmistakable mark. Bearings should also be taken to prominent mountain peaks, and the approximate distance and direction ascertained from the nearest town or mining camp. A detailed description of the locating monument, with a topographical map of its location, should be furnished the office of the surveyor-general by the sur- veyor. 143. Corners may consist of First. A stone at least 24 inches long set 12 inches in the ground, with a conical mound of stone 1% feet high, 2 feet base, alongside. Second. A post at least 3 feet long by 4 inches square, set 18 inches in the ground and surrounded by a substantial mound of stone or earth. , Third. A rock in place. A stone should always be used for a corner when pos- sible, and when so used the kind should be stated. 144. Marking Corners. All corners must be established in a permanent and workmanlike manner, and the corner and survey number must be neatly chiseled or scribed on the sides facing the claim. The exact corner point must be 374 LAND OFFICE RULES. permanently indicated on the corner. When a rock in place is used its dimensions above ground must be stated and a cross chiseled at the exact corner point. 145. In case the point for the corner be inaccessible or un- suitable a witness corner, which must be marked with the letters W. C. in addition to the corner and survey number, should be established. The witness corner should be located upon a line of the survey and as near as possible to the true corner, with which it must be connected by course and distance. The reason why it is impossible or impracticable to establish the true corner must always be stated in the field notes, and in running the next course it should be stated whether the start is made from the true place for corner or from witness corner. 146. The identity of all corners should be perpetuated by taking courses and distances to bearing trees, rocks, and other objects, as prescribed in the establishment of location monuments, and when no bearings are given it should be stated that no bearings are available. Permanent objects should be selected for bearings whenever possible. 147. Tying to Official Survey If an official survey has been made within a reasonable distance in the vicinity, there should be a connecting line run to some corner of the same, and in like manner all conflicting surveys and claims should be so connected, and the corner with which the connection is made described.. In survey of contigu- ous locations which are part of a consolidated claim, where corners are common, bearings should be mentioned but once. 148. Topography. The mineral surveyor should note carefully all topographical features of the claim, taking dis- tances on his lines to intersections with all streams, gulches, ditches, ravines, mountain ridges, roads, trails, etc., with their widths, courses, and other data that may be required to map them correctly. All municipal or private improvements, such as blocks, streets, and buildings, should be located. 149. Conflict With Other Surveys. If, in running the ex- terior lines of a claim, the survey is found to conflict with the survey of another claim, the distances to the points of intersection; and the courses and distances along the line intersected from an established corner of such conflicting claim to such points of intersection, should be described in the field notes : Provided, That where a corner of the con- flicting survey falls within the claim being surveyed, such corner should be selected from which to give the bearing, otherwise the corner nearest the intersection should be taken. The same rule should govern in the survey of claims embracing two or more locations the lines of which inter- sect. 150. A lode and mill-site claim in one survey will be dis- tinguished by the letters A and B following the number of the survey. The corners of the mill site will be numbered independently of those of the lode. Corner No, 1 of the LAND OFFICE RULES. 375 mill site must be connected with a corner of the lode claim as well as with a corner of the public survey or United States location monument. 151. When a placer claim includes lodes, or when several contiguous placer or lode locations are included as one claim in one survey, there must be given to the corners of each location constituting the same a separate consecutive numerical designation, beginning with corner No. 1 in each case. 152. Conflicting Surveys Named, Throughout the descrip- tion of the survey, after each reference to the lines or corners of a location, the name thereof must be given, and if unsur- veyed, the fact stated. If reference is made to a location included in a prior official survey, the survey number must be given, followed by the name of the location. Corners should be described once only. 153. The total area of each location and also the area in conflict with each intersecting survey or claim should be stated ; also the total area claimed. But when locations embraced in one survey conflict with each other such con- flicts should only be stated in connection with the location from which the conflicting area is excluded. 154. Section, Township and Range to Be Shown. It should be stated particularly whether the claim is upon surveyed or unsurveyed public lands, giving in the former case the quarter section, township, and range in which it is located, and the section lines should be indicated by full lines and the quarter-section lines by dotted lines. 155. The title-page of the field notes must contain the post- office address of the claimant or his authorized agent. 156. In the mineral surveyor's certificate of the value of the improvements all actual expenditures and mining improve- ments made by the claimant or his grantors, having a direct relation to the development of the claim, must be included in the estimate. 157. What Improvements Excluded, The expenditures re- quired may be made from the surface or in running a tun- nel, drifts, or crosscuts for the development of the claim. Improvements of any other character, such as buildings, ma- chinery, or roadways, must be excluded from the estimate, unless it is shown clearly that they are associated with act- ual excavations, such as cuts, tunnels, shafts, etc., are essen- tial to the practical development of, and actually facili- tate the extraction of mineral from, the claim. 158. Ties Abandoned Improvements. All mining and other improvements claimed will be located by courses and distances from corners of the survey, or from points on the center or side lines, specifying with particularity and detail the dimensions and character of each, and the improvements upon each location should be numbered consecutively, the point of discovery being always No. 1. Improvements made 376 LAND OFFICE RULES. upon other locations, or by a former locator who has aban- doned the claim, can not be included in the estimate, but should be described and located in the notes and plat. 159. In case of a lode and mill-site claim in the same sur- vey the expenditure of five hundred dollars must be shown upon the lode claim. 160. Expenditure During Publication, If the value of the labor and improvements upon a mineral claim is less than five hundred dollars at the time of survey, the mineral sur- veyor may file with the surveyor-general supplemental proof showing five hundred dollars expenditure made prior to the expiration of the period of publication. 161. Preliminary Plat. The mineral surveyor will re- turn with his field notes a preliminary plat on blank sent to him for that purpose, protracted on a scale of two hun^ dred feet to an inch, if practicable. In preparing plats the top is north. Copy of the calculations of areas by double meridian distances and of all triangulations or traverse lines must be furnished. The lines of the claim surveyed should be heavier than the lines of conflicting claims. 162. Errors Joint Survey. Whenever a survey has been reported in error the surveyor who made it will be required to promptly make a thorough examination upon the premises and report the result, under oath, to the surveyor-general's office. In case he finds his survey in error he will report in detail all discrepancies with the original survey and sub- mit any explanation he may have to offer as to the cause. If, on the contrary, he should report his survey correct, a joint survey will be ordered to settle the differences with the surveyor who reported the error. A joint survey must be made within ten days after the date of order unless satis- factory reasons are submitted, under oath, for a postpone- ment. The field work must in every sense of the term be a joint and not a separate survey, and the observations and measurements taken with the same instrument and chain, previously tested and agreed upon. 163. The surveyor found in error, or, if both are in error, the one who reported the same, will make out the field notes of the joint survey, which, after being duly signed and sworn to by both parties, must be transmitted to the surveyor- general's office. 164. Inasmuch as amended surveys are ordered only by special instructions from the General Land Office, and the conditions and circumstances peculiar to each separate case, and the object sought by the required amendment, alone govern all special matters relative to the manner of making such survey and the form and subject-matter to be embraced in the field notes thereof, but few general rules applicable to all cases can be laid down. 165. The amended survey must be made in strict conform- ity with, or be embraced within, the lines of the original survey. If the amended and original surveys are identical. LAND OFFICE RULES. 377 that fact must be clearly and distinctly stated in the field notes. If not identical, a bearing and distance must be given from each established corner of the amended survey to the corresponding corner of the original survey. The lines of the original survey, as found upon the ground, must be laid down upon the preliminary plat in such manner as to contrast and show their relation to the lines of the amended survey. 166. The field notes of the amended survey must be pre- pared on the same size and form of blanks as are the field notes of the original survey, and the word "amended" must be used before the word "survey" wherever it occurs in the field notes. 167. Descriptive Report on Placers, Mineral surveyors are required to make full examinations of all placer claims at the time of survey and file with the field notes a descrip- tive report, in which will be described (a) The quality and composition of the soil, and the kind and amount of timber and other vegetation. (&) The locus and size of streams, and such other matter as may appear upon the surface of the claims. (c) The character and extent of all surface and under- ground workings, whether placer or lode, for mining pur- poses, locating and describing them. (d) The proximity of centers of trade or residence. (e) The proximity of well-known systems of lode de- posits or of individual lodes. (f) The use or adaptability of the claim for placer mining, and whether water has been brought upon it in sufficient quantity to mine the same, or whether it can be procured for that purpose. (g) What works or expenditures have been made by the claimant or his grantors for the development of the claim, and their situation and location with respect to the same as applied for. (h) The true situation of all mines, salt licks, salt springs, and mill sites which come to the surveyor's knowl- edge, or a report by him that none exist on the claim, as the facts may warrant. (i) Said report must be made under oath and duly corroborated by one or more disinterested persons. 168. The employing of claimants, their attorneys, or par- ties in interest, as assistants in making surveys of mineral claims, will not be allowed. 169. Accuracy Required Threat of Revocation. The field work must be accurately and properly performed and returns made in conformity with the foregoing instructions. Errors in the survey must be corrected at the surveyor's own ex- pense, and if the time required in the examination of the returns is increased by reason of neglect or carelessness, he will be required to make an additional deposit for office work. He will be held to a strict accountability for the 378 CIRCULAR TO APPLICANTS faithful discharge of his duties, and will be required to observe fully the requirements and regulations in force as to making mineral surveys. If found incompetent as a sur- veyor, careless in the discharge of his duties, or guilty of a violation of said regulations, his appointment will be promptly revoked. BINGER HERMANN, Commissioner. Approved. E. A. HITCHCOCK, Secretary. *CIRCULAR TO APPLICANTS. To Applicants for Mineral Survey Orders: You will observe the following requirements in the con- duct of your business with the Surveyor General's Office, the same being based upon the United States mining laws and circular and special instructions from the Commissioner of the General Land Office : 1. All applications for survey orders, descriptive re- ports on placer claims, or certificates of five hundred dollars expenditure, should be addressed to the Surveyor General and be signed by the claimants, their agent or attorney. 2. Each application should contain : (a) The name of the claimant in full, and as it is desired to appear in the application for patent. (6) The name of each location embraced in the claim. (c) The name of the land and mining districts in which the claim is located. (d) The name of the United States deputy mineral surveyor to whom it is desired the order shall be issued. 3. You are required to file with each application for survey order, a copy of the record of location of the claim, properly certified by the recorder of the county or mining district where the claim is situate. 4. The deputy mineral surveyor is required to sur- vey the claim in strict conformity with or within the lines of the location upon which the order of survey is based. You are, therefore, advised before filing your application to see that your location has been made in compliance with the law and regulations, and that it properly describes the claim for which the patent is sought. The act of Congress of May 10, 1872, expressly provides that "the location must be distinctly marked on the ground, so that its boundaries can be readily traced," and "that all *NOTE. This circular was part of the Manual of In- structions issued in 1895, and is unaffected by the Revision of Land Office Regulations, of July 26, 1901, Ante, p. 31,1,. CIRCULAR TO APPLICANTS 379 records of mining claims hereafter made shall contain the name or names of the locators, the date of location, and such a description of the claim or claims, located by refer- ence to some natural object or permanent monument, as will identify the claim." "These provisions of the law must be strictly complied with in each case to entitle a claimant to a survey and patent, and therefore should a claimant under a location made subsequent to the passage of the mining act of May 10, 1872, who has not complied with said requirements in regard to marking the location upon the ground, and record- ing the same, apply for a survey, you will decline to make it." "The only relief for a party under such circumstances, will be to make a new location in conformity to law and reg- ulations, as no case will be approved by this office, unless these and all other provisions of law are substantially com- plied with." (See General Land Office circular dated No- vember 20, 1873.) [Sickel 562.] 5. Par. 99 (now 91), General Land Office circular, of December 10, 1891, edition December 1, 1894, relating to the expense of office work connected with the survey of mineral claims, reads as follows : "With regard to the platting of the claim and other office work in the Surveyor General's office, that officer will make an estimate of the cost thereof, which amount the claimant will deposit with any assistant United States treasurer, or designated depository, in favor of the United States treasurer, to be passed to the credit of the fund cre- ated by 'individual depositors for surveys of the public lands,' and file with the Surveyor General duplicate cer- tificates of such deposits in the usual manner." 6. The various Surveyors General have adopted schedules of rates for office work, and an estimate of the cost in any particular case may be had upon application. Should an applicant deem an estimate excessive, he will be allowed the right of appeal to the General Land Office in the usual manner. In transmitting such an appeal the Surveyor General should transmit therewith a full report. 7. Should the office work in any case amount to more than the estimate, or if an amended order is issued, an additional deposit will be required. 8. In districts where there are no United States de- positories, you should deposit with the nearest assistant United States treasurer, or depository, and in all cases im- mediately forward the original certificate to the Secretary of the Treasury and the duplicate to the Surveyor General's Office, retaining the triplicate for your own use and secur- ity. Under no circumstances will the deposit be made by the Surveyor General. (See paragraph 5, preceding.) 9. An application for an amended survey order must be accompanied with a statement setting forth fully the reasons for the proposed amendment and all the material facts in the matter. 380 CIRCULAR TO APPLICANTS 10. If, after having obtained a survey order, you should abandon your purpose of having a survey made, you can apply the deposit, less the amount estimated for office expenses already incurred, on a new survey if one is desired. 11. Upon discovery of any error or defect in an or- der you are requested to return it to the Surveyor General's Office for correction or amendment. 12. If, after having obtained an order for survey, you should find that the record of location does not prac- tically describe the location as staked upon the ground, you should file a certified copy of an amended location cer- tificate, correctly describing the claim, and obtain an amended order for survey. If a relocation of the claim is made embracing ground not included in the original or- der, or other material change is made, you will abandon the original number of the order for survey, and a new order will be issued in which a number in the current series will be substituted. 13. The order of approval of surveys of mineral claims is prescribed by General Land Office circular dated March 3, 1881, as follows : "The mining survey first applied for shall have the priority of action in all its stages in the office of the Sur- veyor General, including the delivery thereof, over any other survey of the same ground or any portion thereof. "The Surveyor General should not order or author- ize a survey of } a claim which conflicts with one previously applied for until the survey first applied for has been com- pleted, examined, approved and platted, and the plats de- livered. "When the conflict does not appear until the field notes of the respective surveys are returned, then the survey first applied for should be first examined, approved, and plat- ted, and the plats delivered before the field notes of the survey last applied for are taken up for examination or plats constructed. "When the survey first authorized is not returned within a reasonable period, and the applicant for a conflict- Ing survey makes affidavit that he believes (stating the rea- sons for his belief) that such first applicant has abandoned his purpose of having a survey made, or is deferring it for vexatious purposes, to wit, to postpone the subsequent ap- plicant, the Surveyor General shall give notice of such charges to such first applicant, and call upon him for an explanation under oath of the delay. He shall also re- quire the deputy mineral surveyor to make a full state- ment in writing, explanatory of the delay ; and if the Sur- veyor General shall conclude that good and sufficient rea- sons for such delay do not exist, he shall authorize the applicant for the conflicting survey to proceed with the same ; otherwise the order of proceedings shall not be changed. "Whenever an applicant for a survey shall have rea- son to suppose that a conflicting claimant will also apply SURVEYOR GENERAL'S CIRCULAR. 381 for a survey for patent, he may give a notice in writing to the Surveyor General particularly describing such con- flicting claim, and file a copy of the notice of location of such conflicting claim. In such case the Surveyor General will not order or authorize any survey of such conflicting claim until the survey first applied for has been examined, completed, approved and platted, and the plats delivered." 14. You have the option of employing any United States deputy mineral surveyor in the district to execute the order of survey, and must make satisfactory arrange- ments with such surveyor for the payment of his services and those of his assistants in making the survey, as the United States will not be held responsible for the payment of the same. The duty of the deputy surveyor in any par- ticular case ceases when he has executed the survey and returned the same to this office. He is not allowed to pre- pare for the mining claimant the papers in support of an application for patent, being precluded from acting either directly or indirectly as attorney in mineral claims. (Sec. 2334.) 15. You are advised of your right to appeal to the Commissioner of the General Land Office from the approval or disapproval of the survey of your claim. The appeal must be in writing or in print, should set forth in brief and clear terms the specific points of exception to the ruling appealed from and should be transmitted through the Sur- veyor General's Office. SURVEYOR GENERAL'S CIRCULAR. The following circular relating to expense of office work in the Surveyor General's Office in Colo- rado, dated June 21, 1902, is now in force. In accordance with paragraph 91, General Land Office Circular of the United States Mining Laws, approved July 26, 1901, relating to the expense of office work connected with the survey of mineral claims, which authorizes the Surveyor General in each district to require a deposit for platting and other office work for mineral surveys ; it is directed, the same having been approved June 18, 1902, by the General Land Office, that on and after July 1, 1902, the estimated cost of platting and other office work in con- nection with the survey of mineral claims, be computed as follows : For lode claim $30.00 For placer claim 35.00 For mill-site 30.00 382 APPLICATION FOR PATENT. For mill-site included in one survey with a lode claim 20.00 For each lode claim within and included in the survey of a placer claim 20.00 For several lode locations included in one survey, the first location named 30.00 All other locations included, each 25.00 For several placer locations included in one survey, the first location named.. 35.00 All other locations included, each 30.00 For affidavit of $500 expenditure of im- provements, after approval of survey. 5.00 Should an amended order issue, an additional deposit will be required. C. C. GOODALE, Surveyor General. * APPLICATION FOR PATENT. The following pages are intended to contain the forms of application and proceedings to obtain pat- ent, in the order of time in which the several papers should be made and filed. Request for Official Survey. A citizen of the United States, or one who has declared his intention to become such, or a corpora- tion chartered within the United States, being the holder of the possessory title to a lode claim, causes application for an official survey to be made by an **A. APPLICATION FOR ORDER FOR SURVEY. DENVEK, November 1, 1902. To the U. 8. Surveyor General, District of Colorado, Denver: SIR : You are requested to issue an order for an of- ficial survey of the mining claim of E. H. Cook, upon the *For many valuable suggestions upon points covered by this book, especially in this chapter, I am under obliga- tions to E. E. Chase, Deputy U. S. Mineral Surveyor, Denver, and Charles J. Christian, Chief of Mineral Division in the Surveyor General's office ; upon geological points to Ernest Le Neve Foster, late State Geologist of Colorado, and Frank- lin R. Carpenter, Ph. D. **The forms for placer and mill site applications are substantially the same. APPLICATION FOR PATENT. 383 Bear lode, located in Cripple Creek mining district, Teller county, Pueblo land district, Colorado. I herewith transmit certified copy of the location cer- tificate of said claim, and have deposited for office fees* on same $30 to the credit of the treasurer of the United States, at the First National Bank (U. S. Depository) with request that duplicate certificate be forwarded to you. Send order to*E. E. Chase, U. S. Dep. Min. Sur., at Denver, Colorado Yours respectfully, E. H. COOK, Claimant. By Emilio D. DeSoto, Attorney. Postoffice address (of Claimant) Denver, Colorado. Postoffice address (of Attorney) 5(ty Equitable Bldg., Denver. The payment mentioned in the application is not by draft to the Surveyor General but by a deposit in a bank recognized as a United States Depository. Upon payment to such bank the claimant receives triplicate certificates of deposit, of which he mails the Original to the secretary of the treasury at Wash- ington, the Duplicate he mails with the letter (A) to the Surveyor General (or the bank forwards it) and the Triplicate he retains. This certificate is a mere receipt for money and has no farther value, except where the application is withdrawn, in which case the unexpended balance will be allowed to apply on another survey. In reply to the application (A) the Surveyor General mails to the U. S. deputy mineral surveyor designated therein the B. ORDER FOR SURVEY. DEPARTMENT OF THE INTERIOR, OFFICE OF U. S. SURVEYOR GENERAL, > DENVER, COLO., November 3, 1902. ) E. E. Chase, U. 8. Deputy Mineral Surveyor for the District of Colorado. SIR : You are hereby directed to survey the claim of E. H. Cook, upon the Bear lode, in Cripple Creek mining dis- trict, Teller county, Colorado. This survey will be desig- nated "Survey No. 11,310 Pueblo land district," and must be made in strict conformity with the location certificate (or amended location certificate) dated July 28, 1902. C. C. GOODALE, U. S. Surveyor General for Colorado. *For costs in Surveyor General's office, see p. S81, 384 APPLICATION FOR PATENT. With the order B is enclosed a copy of the loca- tion certificate made in the Surveyor General's of- fice from the certified copy filed by applicant. The numbers of the survey lots were formerly consecutive in each mineral district, but since the abolition of mineral districts they are consecutive throughout the State, beginning with No. 4,501, with which number the new series was commenced No- vember 30, 1886. Survey to Conform to the Record. This order of survey "B" being received by the deputy U. S. surveyor designated in "A," he must proceed in person to the premises, make an actual survey, and mark each post with the number of the survey and the number of the corner. Where there has been a previous survey from which the certificate of location has been made, it will be followed. The copy of location certificate mentioned as in- closed in "A" must be certified* by the recorder. The deputy, in making his official survey, must follow the lines as staked upon the ground. Changing Lines After Order Received. The Surveyor General will not allow a serious de- parture from the lines called for in the location certificate, without insisting upon the filing of an amended or relocation certificate in the office of the recorder of the proper county, and the deposit of a certified copy of such amended record in the Sur- veyor General's office, and when such certified copy has been filed an amended order of survey issues, in which, if any new ground has been acquired, the original number of the survey is abandoned and a new number in\ the current series substituted. An additional fee of $5 is charged for the amended order, besides the cost of additional labor, if any, imposed on the Surveyor General's office. APPLICATION FOR PATENT. 385 Amending Record After Order Received. If the certificate be indefinite, or if the end lines are not parallel, or if not properly tied, or if the cer- tificate be without date or otherwise irregular, it will be returned for amendment. Care in the first in- stance will obviate delays on such grounds. For form of amended location certificate see pages 119 and 121. In surveys upon old lodes (before May 10, 1872) whose location certificates were not supposed to call for course or monument, the deputy is presumed to make his official survey according to the location and original claim of the locator, but practically it is made wherever it may be supposed to cover the vein, or wherever vacant ground can be found to include in the survey. In almost all cases of early location (and in many recent ones) it is advisable to make a formal relocation before asking for order for survey. This may save time in the Surveyor General's office and prevent fatal results in resisting adverse claims. For instructions as to making survey on the ground, see LAND OFFICE RULES, pp. 352, 369. Delay to Proceed With Survey. The first applicant has priority as long as he proceeds with diligence. When he fails to perfect, to the injury of a party desiring to proceed, the steps to be taken by the latter are indicated in Sec. 13 of the Circular, p. 380. The survey being complete the deputy makes and forwards to the Surveyor General a diagram of the lode giving its corners, courses, distances, ties, conflicts, adjoiners and improvements, which is known as C. THE PRELIMINARY PLAT. The plat made by the deputy was formerly treated as the official plat of the claim, from which the connected plat of all claims kept by the Surveyor General was made, but under present practice the 13 386 APPLICATION FOR PATENT. N O o/r O \ \ \ Sup. NO. U3fo BEAR LOO U&DEP. M/N. > SURVEY NO. 11,310^ PUEBLO LAND DISTRICT. APPLICATION FOR PATENT. 387 deputy's plat is only treated as a correction to the field notes, all official plats now being made in the office of the Surveyor General. Along with this diagram or preliminary plat "C," the deputy forwards to the Surveyor General his D. FIELD NOTES, the following form being arranged to illustrate the more ordinary complications: Survey No. 11,310. Pueblo Land District. FIELD NOTES Of the survey of the claim of E. H. Cook, known as the Bear lode, in Cripple Creek mining district, Teller County, Colorado. Section 22, Township 15 South, Range 69 West. Surveyed under instructions dated November 3, 1902, by E. E. Chase, U. S. Deputy Mineral Surveyor. Survey began November 6, 1902, and completed Novem- ber 6, 1902. Address of claimant : E. H. COOK, Denver, Colorado. SURVEY NO. 11310. BEAR LODE. FEET. 1242. 1440.28 1500. Beginning at Cor. No. 1. Identical with Cor. No. 1 of the location. A spruce post, 5 ft. long, 4 ins. square, set 2 ft. in the ground, with mound of stone, marked 1-11310 whence The W. % cor. Sec. 22, T. 15 S. R. 69 W. of the 6th Principal Meridian, bears S. 79 34' W. 1378.2 ft. Cor. No. 1, Gottenburg lode (unsurveyed), Neals Mattson, claimant, bears S. 40 29' W. 187.67 ft. A pine 12 ins. dia. blazed and marked B. T. 1-11310 bears S. 7 25' E. 22 ft. Mt. Pisgah bears S. 80 15' W. Bull Hill bears N. 80 W. Thence S. 24 45' W. Va. 15 12' E. To trail, course N. W. and S. E. Intersect line 1-4, Sur. No. 2560, at N. 38 52' W. 76.6 ft. from Cor. No. 1. To Cor. No. 2. Identical with Cor. No. 2 of the location. A granite stone 25x9x6 ins. set 18 ins. in the ground chiseled 2-11310, whence Cor. No. 1, Sur. No. 2560, Carnarvon lode, David Davis et al., claimants, bears N. 88 E. 61.6 ft. 388 APPLICATION FOR PATENT. North end of bridge over Grassy gulch bears N. 65 15' W. 1250 ft. Thence N. 65 15' W. Va. 15 20' E. 300. To Cor. No. 3. Identical with Cor. No. 3 of lo- cation. A cross at corner point, and 3-11310 chiseled on a granite rock in place, 20x14x6 ft. above the general level, whence Cor. No. 2, Sur. No. 2560 bears S. 72 45' E. 325 ft. A spruce 16 ins. dia. blazed and marked B. T. 3-11310 bears S. 58 W. 18 ft. Thence N. 24 45' E. Va. 15 20' E. 218. Intersect line 4-1, Sur. No. 2560 at N. 38 52' W. 396.4 ft. from Cor. No. 1. 371.74 To trail, course N. W. and S. E. 1145.62 Intersect line 2-3, Gottenburg lode, at N. 25 56' W. 76.26 ft. from Cor. No. 2. 1500. To Cor. No. 4. Identical with Cor. No. 4 of the location. A pine post 4.5 ft. long, 5 ins. square, set one foot in the ground, with mound of earth and stone, marked 4-11310 whence A cross chiseled on rock in place, marked B. R. 4-11310 bears N. 28 10' E. 58.9 ft. Thence S. 65 15' E. Va. 15 12' E. 28.5 Intersect line 4-1, Gottenburg lode, at N. 25 56' W. 285.13 ft. from Cor. No. 1. 300. To Cor. No. 1, the place of beginning.* Area. Total area of Bear lode 10.33 acres Less area in conflict with Sur. No. 2560 956 acre Gottenburg lode 1.363 ncre 2.319 acres Net area Bear lode 8.011 acres Location. This claim is located in the W. V 2 Sec. 22, T. 15 S. R. 69 W. Expenditure of Five Hundred Dollars. I certify that the value of the labor and improvements upon this claim placed thereon by the claimant and his grantors, is not less than five hundred dollars, and that said improvements consist of *Adjoining claimants are mentioned as they are reached in the notes, as they ambit the claim. Rule 1$. APPLICATION FOR PATENT. 389 The discovery shaft of the Bear lode, 6x3 ft. 10 ft. deep in earth and rock, which bears from Cor. No. 2 N. 4 E. 362 ft. Value $80. An incline 7x5 ft. 45 ft. deep in coarse gravel and rock, timbered, course N. 58 15' W. dip 62, the mouth of which bears from Cor. No. 2 N. 19 37' B. 1025 ft. Value $550. A log shaft-house 14 ft. square, over the discovery shaft Value $100. Two-thirds interest in a tunnel 6.5x5 ft. running due west 835 ft,, timbered, the mouth of which bears from Cor. No. 2 N. 51 15' E. 837 ft. This tunnel is in course of construction for the de- velopment of the Bear lode and also for the Carnarvon lode, Survey No. 2560, David Davis et a?., claimants, the remain- ing one-third interest therein having already been included in the estimate of five hundred dollars expenditure upon the latter claim. Total value of tunnel, $13,000. A drift 6.5x4 ft. on the Bear lode, beginning at a point in tunnel 550 ft. from the mouth, and running N. 20 20' E. 195 ft. thence N. 54 15' E. 40 ft. to breast. Value $2,800. Other Improvements. A log cabin 35x28 ft., the S. W. corner of which bears from Cor. No. 3 N. 30 44' E. 650 ft. Said cabin belongs to the claimant herein. An adit 6x4 ft. running N. 70 50' W. 100 ft., the mouth of which bears from Cor. No. 1 S. 58 12' W. 323 ft, belonging to Neals Matfson, claimant of the Gottenburg lode. Instrument. The survey was made with a Buff <& Berger transit with Smith's solar attachment. The courses were deflected from the true meridian as determined by solar observations. The distances were measured with 500 and 100 ft. steel tapes. MEMORANDA AS TO CHAINMEN., ETC. (PART OF "D".) A list of the names of the individuals employed by E. E. Chase, United States Deputy Mineral Surveyor, to as- sist in running, measuring, and marking the lines, corners and boundaries described in the foregoing field notes of the survey of the mining claim of E. H. Cook, known as the Bear lode, and showing the respective capacities in which they acted. L. E. Lemen, Chainman. W. A. Jayne, Axman. AFFIDAVIT OF ASSISTANTS. STATE OF COLORADO, County of Teller: ss. We, L. E. Lemen and W. A. Jayne, do solemnly swear that we assisted E. E. Chase, United States Deputy Mineral 390 APPLICATION FOR PATENT. Surveyor, in marking the corners and surveying the bound- aries of the mining claim of E. H. Cook, known as the Bear lode, represented in the foregoing field notes as having been surveyed by said Deputy Mineral Surveyor and under his direction and that said survey has been in all respects, to the best of our knowledge and belief, faithfully and correctly executed, and the corner and boundary monuments established according to law and the instructions furnished by the United States Surveyor General for Colorado. L. E. LEMEN, Chainman. W. A. JAYNBJ Axman. Subscribed and sworn to by the above named persons before me this 8th day of November, 1902. Henry H. Clark, [SEAL.] Notary Public. FINAL AFFIDAVIT OF U. S. DEPUTY MINERAL SURVEYOR. Part of "D." I, Edwin E. Chase, U. S. deputy mineral surveyor, do solemnly swear that, in pursuance of instructions received from the United States Surveyor General for Colorado, dated November 3, 1902, I have, in strict conformity to the laws of the United States, the official regulations and in- structions thereunder, and the instructions of said sur- veyor general, faithfully and correctly executed the sur- vey of the mining claim of E. H. Cook, known as the Bear lode, situate in Cripple Creek Mining District, Teller County, Colorado, in Section 22, Township No. 15, 8. Range No. 69 W., designated as Survey No. 11,310, 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 the 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 regu- lations and instructions thereunder ; and I do further sol- emnly swear that the foregoing are the true and original field notes of said survey and my report therein, and that the labor expended and improvements made upon said min- ing claim by claimant or his grantors are as therein fully stated, and that the character, extent, location and itemized value thereof are specified therein with particularity and full detail, and that no portion of said labor or improvements so credited to this claim has been included in the estimate of expenditure upon any other claim. EDWIN E. CHASE, U. S. Deputy Mineral Surveyor. Subscribed and sworn to by the said Edwin E. Chase, U. S. deputy mineral surveyor, before me, a notary public, this 10th day of November, 1902. Henry H. Clark, [SEAL.] Notary Public. APPLICATION FOR PATENT. 391 The Preliminary Plat "C" and Field Notes "D" containing, besides what are strictly the Field Notes, also the memoranda of improvements, list of helpers, etc., with certificate and affidavit as above given, are then forwarded to the Surveyor General, who com- pares the plat, reviews the notes, etc., and if errors appear, as they often do, or if he cannot make the connections agree with his "connected plat," they are returned for correction; but if correct, the Field Notes are endorsed as follows: E. APPROVAL OF SURVEY. DEPARTMENT OF THE INTERIOR. ) Office of the U. S. Surveyor General, r DENVER, COLO., Dec. 11, 1902. I, C. C. Goodale, U. S. Surveyor General for Colorado, do hereby certify that the foregoing and hereto attached field notes and return of the survey of the mining claim of E. H. Cook, known as the Bear lode, situated in Cripple Creek Mining District, Teller County, Colorado, in Section 22, Township No. 15 8., Range No. 69 W. designated as Sur- vey No. 11310, executed by E. E. Chase, U. S. deputy min- eral surveyor, November 6, 1902, under my instructions dated November 3, 1902, have been critically examined and the nec- essary corrections and explanations made, and the said field notes and return, and the survey they describe are hereby approved. A true copy of the copy* of the location cer- tificate filed by the applicant for survey is included in the field notes. C. C. GOODALE, U. S. Surveyor General for Colorado. 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 of which the original is retained in the Surveyor General's office, one copy is forwarded by the Sur- veyor General to the proper local land office and two copies are forwarded to the deputy surveyor. *This is the copy mailed to the deputy with the order B, and has now been returned attached to the field notes. 392 APPLICATION FOR PATENT. 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. Date of (amended) location, July 28, 1902. Mineral Sur- vey No. 11310, Pueblo land district. Plat of the claim of E. H. Cook, known as the Bear lode, Cripple Creek mining district, Teller County, Colorado, containing an area of 8.011 acres. Scale of 200 feet to the inch. Variation 15 20' east. Surveyed by E. E. Chase, U. S. Deputy Mineral Surveyor, Nov. 6, 1902. The original field notes of the survey of the mining claim of E. H. Cook, known as the Bear lode, from which this plat has been made under my direction, have been ex- amined and approved, and are on file in this office, and I hereby certify that they furnish such an accurate descrip- tion 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 improvements made upon said mining claim by claimant or his grantors and that said improve- ments consist of the discovery shaft, an incline, a shaft house, an interest in a tunnel, and a drift, as appears by the affidavit of the deputy 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 ap- proved. C. C. GOODALE, U. S. Surveyor General for Colorado. U. S. Surveyor General's Office, Denver, Colorado. Dec. 11, 1902. The amount of improvements is to be found by the Surveyor General or his deputy, or from the tes- timony of witnesses. U. 8. v. King, 83 Fed. 188. Along with two copies of the diagram "F," with its endorsement "G" the Surveyor General forwards to the surveyor fdr claimant the H. TRANSCRIPT OF FIELD NOTES, otherwise called "APPROVED FIELD NOTES." This instrument "H" is verbatim the same as "D," including all its exhibits, but not the Surveyor APPLICATION FOR PATENT. 393 General's certificate "G." Instead of the certificate "G" such transcript is certified as follows: I. SURVEYOR GENERAL'S CERTIFICATE TO TRAN- SCRIPT "H." DEPARTMENT OF THE INTERIOR., ) OFFICE OF U. S. SURVEYOR GENERAL. Denver. Colorado, Dec. 11, 1902. ) I, C. C. Goodale, U. 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 E. H. Cook, known as the Bear lode, situate in Crip- ple Creek mining district, Teller County, Colorado, in Sec- tion 22, Township No. 15, S. Range No. 69 west 6th P. M. 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 refer- ence is made therein to natural objects or permanent monu- ments 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 said mining claim by claimant or his grantors, and that said im- provements consist of the discovery shaft, an incline, a shaft house, an interest in a tunnel, and a drift, and that no portion of said labor or improvements has been in- cluded in the estimate of expenditures upon any other claim. I further certify that the plat thereof, filed in the U. S. land office at Pueblo, is correct and in conformity with the foregoing field notes. C. C. GOODALE, United States Surveyor General for Colorado. These matters are all preliminary to the appli- cation for patent proper which is made to the local land office, these proceedings in the Surveyor Gen- eral's office being necessary because each lode claim must be separately surveyed, whereas in case of agricultural land a party simply enters upon a par- ticular quarter section which has been already sur- veyed and platted. Delivery of Papers to the Attorney. The above transcript "H" received from the Surveyor General which is generally termed the "Ap- proved Field Notes," the deputy then delivers; along with the plats or diagrams received from the same office, to the attorney for the claimant, who is sup- 394 APPLICATION FOR PATENT. posed to supervise the signing and filing of all the subsequent papers, and takes charge of the applica- tion from this point, although in fact the further papers and the superintendence of the posting, etc., are. frequently left in charge of the deputy. Respective Duties of Surveyor and Attorney. The deputy surveyors are not allowed to act as attorneys. Rule 128. The surveyor's services seem properly to end with the preparation of papers for the Surveyor General's office and the reception of papers from that office. These latter he turns over to the attorney, who makes out or supervises all papers intended for the land office. The deputy'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 profes- sion ought not to object to deputies filling out the ordinary blanks, especially in cases where no adverse claim is expected, nor to their attending to posting, publication, proofs of citizenship, etc., if they will not attempt to make out the location and relocation certificates which are strictly legal papers the in- terference 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 cases of land office contest any interference by the surveyor would be officious and reprehensible. The claimant or his attorney then prepares four copies of "K": one for posting on the claim, 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. Survey No. 11310. U. S. LAND OFFICE, Pueblo, December 15, 1902. Notice is hereby given that in pursuance of the Act of Congress approved May 10, 1872, E. H. Cook, whose post- office is Denver, Colorado, has made application for a pat- ent for 1500 linear feet on the Bear lode, bearing gold and silver, the same being 365 feet southwesterly and 1135 feet APPLICATION FOR PATENT. 395 northeasterly from discovery shaft thereon, with surface ground 300 feet in width, situate in Cripple Creek mining district, Teller County, State of Colorado, and described by the official plat and by the field notes on file in the office of the register of Pueblo land district, Colorado, as fol- lows, viz. : Beginning at corner No. 1, whence the W. % cor. Sec. 22, T. 15 S. II. G9 W. of the 6th Principal Meridian, bears S. 79 34' W. 1378.2 feet. Cor. No. 1, Gottenburg lode (unsurveyed) Neals Matt- son, claimant, bears S. 40 29' W. 187.67 ft. Thence S. 24 45' W. 1500 ft. to cor. No. 2, whence cor. No. 1, sur. No. 2560, Carnarvon lode, bears N. 88 E. 61.6 ft. Thence N. 65 15' W. 300 ft. to cor. No. 3. Thence N. 24 45' E. 1500 ft. to cor. No. 4. Thence S. 65 15' E. 300 ft. to cor. No. 1, the place of beginning; containing 8.011 acres (exclusive of survey No. 2560 and the Gotten- burg lode), and forming a portion of the west % of sec- tion 22, in township 15 S. Range 69 W. of the Sixth Prin- cipal Meridian. The names of adjoining and conflicting claims as shown by the plat of survey are the Gottenburg lode on the northwest and the Carnarvon lode on the south. Witness: E. H. COOK. 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. One of the notices "K" should be at once posted on the claim, along with one of the certified dia- grams received from the Surveyor General, the two papers being loosely attached, or, as more usual, placed side by side, in some conspicuous place on the claim (usually at the discovery shaft) in presence of two persons who attach their signatures as shown upon form "K." Another of the notices "K" is attached to L. PROOF OF POSTING NOTICE AND DIAGRAM ON THE CLAIM. STATE OF COLORADO, Teller County : ss. John C. Clark and D. 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 396 APPLICATION FOR PATENT. States, over the age of twenty-one years, and was present on the 15th day of December, A. D. 1902, when a plat repre- senting the claim of E. H. Cook, and certified as correct by the United States Surveyor General of Colorado, and desig- nated by him as lot No. 11,310 together with a notice of the intention of said E. H. Cook to apply for a patent for the mining claim and premises so platted was posted in a con- spicuous place upon said mining claim, to wit : upon the outside of the door of the shaft house at the discovery, where the same could be easily seen and examined. A copy of the notice so posted upon said claim is herewith attached and made a part of this affidavit. JOHN C. CLARK. B. F. PlNSON. Subscribed and sworn to before me this 15th day of December, A. D. 1902, and I hereby certify that I consider the above deponents credible and reliable witnesses, and that the foregoing affidavit and notice were read by each of them before their signatures were affixed thereto, and the oath made by them. [SEAL.] Henry Moody, Notary Public. The form "L" is subscribed by at least two post- ing witnesses. The applicant does not sign it, and should not be one of the two witnesses. The third notice "K," signed by the applicant, but not by the witnesses, goes with the second of the plats received from the Surveyor General (page $91}, when it is sent with the first set of papers to the land office, where the register attaches his at- testing signature, and it will remain posted in the land office, while its fellow notice and plat are stand- ing on the claim during the period of publication. The next paper to be prepared is the M. APPLICATION FOB PATENT. STATE OF COLORADO/ Teller County : ss. Application for patent for the Bear Lode Mining Claim. To the Register and Receiver of the IT. S. Land Office at Pueblo, Colorado : E. H. Cook, whose postoffice address is Denver, Colo- rado, being duly sworn, according to law, deposes and says : that in virtue of a compliance with the mining rules, regu- lations and customs, by himself (and his grantors) he, the applicant for patent herein, has become the owner of and is in the actual, quiet and undisturbed possession of 1500 linear feet of the Bear vein, lode or deposit, bearing gold and silver, together with surface ground 300 feet in width, for the convenient working thereof as allowed by local rules and APPLICATION FOR PATENT. 397 customs of miners, said mineral claim, vein, lode or deposit and surface ground being situate in Cripple Creek mining district, County of Teller, and State of Colorado, as more particularly set forth and described in the official field notes of survey thereof, hereto attached, dated December 11, 1902, find in the official plat of said survey, now posted conspicu- ously 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 min- ing claim, vein, lode, or deposit and surface ground so sur- veyed and platted, are substantially as follows, to wit : The Bear lode was discovered on or about the fourth day of July, A. D. 1897, by James A. McFadden, who afterwards, and be- fore the twenty-eighth day of July, A. D. 1897, completed a location of the same as a mining claim of the length and width aforesaid, having substantially located the same and otherwise complied with all local rules and regulations, the laws of the State of Colorado and of the United States relating to mining claims. The said discoverer and locator conveyed all his inter- est in the claim to Chas. O. Baxter and Frank M. Taylor, who by divers intermediate conveyances transferred the same to applicant, who thereupon took possession and is the sole present owner, all of which will more fully appear by refer- ence to the copy of the original record of location and the abstract of title herewith filed ; the value of the labor done and improvements made upon said Bear lode mining claim by the applicant (and his grantors) being equal to the sum of five hundred dollars. Said improvements consist of dis- covery shaft, an incline, shaft house, a drift and two-thirds interest in tunnel (but expressly excepting and excluding from this application all that portion of the ground em- braced in mining claim or survey designated as lot No. 2560 and the claim of Neals Mattson on the Gottenburg lode) in consideration of which facts and in conformity with the provisions of Chapter VI, Title 32 of the Revised Statutes of the United States, application is hereby made for and in behalf of said E. H. Cook for a patent from the United States for the said Bear lode mining claim, vein, lode or de- posit and the surface ground so officially surveyed and plat- ted. E. H. COOK. Subscribed and sworn to before me this 16tJi day of December, A. D. 1902, and I hereby certify that I consider the above deponent a credible and reliable person, and the foregoing affidavit, to which was attached the field notes of survey of the Bear lode mining claim, was read and exam- ined by him before his signature was affixed thereto and the oath made by him. Henry Moody, [SEAL.] Notary Public. Where an application is presented in the land office before the plat and notice have been posted on the claim as required by R. S. 2325, such application 398 APPLICATION FOR PATENT. has been held void al) initio. 1 L. D. 551 ; Rev. Ed. 545. This application "M" is attached to the tran- script "H," commonly styled "The Approved Field Notes." At the same time there should be prepared: N. The abstract of title. O. The proof of citizenship. P. The publisher's agreement. Q. The publication notice which, with those already referred to, complete the first set of papers, to wit: N. ABSTRACT OF TITLE. STATE OF COLORADO, County of Teller: ss. I, Frank P. Mannioc, Clerk and ex-officio Recorder of said County, do hereby certify that the foregoing is a true, full and correct abstract of the title of the Bear lode therein described, as the same appears of record in nay 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 December , A. D. 1902. FRANK P. MANNIX, [County Seal.] Recorder. It should contain a memorandum of the location certificate, including any amended location certifi- cates, and the usual memoranda of the deeds and other instruments appearing of record in his office, and should be brought up to and include the date of application, and should be certified to by the Re- corder. Rule 42. The abstract often contains a copy of the loca- tion certificate, and in such case the recorder's cer- tificate should be varied to state that it contains a true copy thereof; but the better practice is to mail with the application papers a certified copy of the location certificate (or certificates if there be more than one), separately, and after the filing of the "application papers" but during the period of pub- lication to send the abstract proper, which in such case will contain only the memorandum of the loca- tion certificate with names, dates, etc., in the same APPLICATION FOR PATENT. 399 manner as the memoranda of the separate deeds. This precaution is to make the abstract certainly include the 'date of the filing of the application. When the applicant for patent is the original locator himself (and there have been no transfers of title), he should file with the application papers a certified copy of his location certificate, with his affidavit that he has disposed of no interest in the claim, or during the period of publication as before advised, should forward an abstract containing a memorandum of such location certificate certified as follows : STATE OF COLORADO, County of Teller: ss. I, Frank P. Mannix, 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 Bear lode therein described, as the same appears of record in said office, and that there are no deeds or other instruments appearing of record purporting to convey or affect the same except the certificate of location therein referred to. Witness my hand, etc., as a~bove. 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 that there were co-owners who had been forfeited out for non-performance of annual labor, this is con- sidered 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 disre- garded. 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-tenants are in- advertently omitted in the application they have been allowed to bo supplied and the patent issued to all. 10 L. O. 206; but this is irregular. O. PROOF OF CITIZENSHIP. STATE OF COLORADO, County of Teller: ss. E. H. Cook, being first duly sworn according to law, de- poses and says that he is the applicant for patent for the Bear Lode Mining Claim, situate in Cripple Creek Mining 400 APPLICATION FOR PATENT. District, County of Teller, State of Colorado ;* that he is a native born citizen of the United States, born in the County of , State of New York, in the year , and is now a resident of Denver, State of Colorado. E. H. COOK. Subscribed and sworn to before me this 15th day of December, A. D. 1902. Henry Moody, [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, 1880, and is now a resident of Kokomo, State of Col- orado. If the applicant has not taken out his final pa- pers, it will show, as required by Rule 68, when, where and in what Court he took out his first pa- pers: 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 nat- uralization, 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 Sec- tion 2172 of the Revised Statutes of the United States, and is now a resident of Aspen, County of Pitkin, State of Colo- rado. Serving in the army or navy does not complete citizenship of itself. Soldiers must comply with 2166 and sailors with 2174 of the R. S. or 28 Stat. L. p. 124. Where there are several applicants each makes his own affidavit of citizenship. Affidavit, Where Made. By Act of April 26, 1882, the affidavit of citizen- ship, where the applicant resides outside of the land APPLICATION FOR PATENT, 401 district, may be made anywhere in the United States, before any notary or Clerk of Court of Record where the applicant may reside or happen to be found. Proof by Two Witnesses. When the affidavit of the applicant cannot be procured the land office will allow proof of his citi- zenship by the affidavits of two disinterested wit- nesses. Rule 70. Citizenship of Corporation. A corporation must file a copy of its charter or articles of association, certified to by the Secretary of iState of the State within which it is operating, whether it be a domestic corporation or a corpora- tion of some other State doing business in that State. Rule 66; 27 L. D. 351. Or it may file a "Certificate of Incorporation" and the Land Office will not pass on the point that it is not by its articles a corporation which could lawfully take title to mineral lands. 20 L. D. 116; 22 L. D. 83. Entry secured by fraudulently suppressing the fact that it was for the benefit of an alien corpora- tion will be cancelled and purchase price will not be refunded. 20 L. D. 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 by the Revision of 1901 such proof is no longer re- quired and the question is left by the -Department to be settled by adverse claimants in the courts. Rule 55; 29 L. D. 302, 401; 31 Id. 69. But a delay to make entry until beyond the end of the calendar year after publication, Held fatal to the entry, where relocation for failure to do anual labor is alleged by protest. 31 L. D. 69. 402 APPLICATION FOR PATENT. P. PUBLISHER'S CONTRACT. I, the undersigned, publisher and proprietor of the Cripple Creek Star,, a weekly newspaper published in Cripple Creek, Teller County, State of Colorado, hereby agree to pub- lish a notice dated TJ. S. Land Office, Pueblo, Colo., Decem- ber 15, 1902, required by Act of Congress, approved May 10th, 1872, of the intention of E. H. Cook to apply for a patent for his claim on the Bear Lode, situate in Cripple Creek Mining District, County of Teller, State aforesaid, and to hold the said E. H. Cook alone responsible for the amount of our bill for publishing the same. And it is hereby expressly stipulated and agreed that no claim shall be made against the government of the United States, or its officers or agents, for such publication. Witness my hand this 16th day of December, A. D. 1902. P. H. Knowlton, Publisher. In What Newspaper. The notice must be published in a newspaper to be by the Register designated as published near- est to the claim. R. 8. 2325; 11, L. D. 138. When there are two or more in the nearest town, either may be designated. Cameron v. Seaman, 13 M. R. 584; 2 L. D. 758, The practice of the Register, where two or more local papers in the same town are pub- lished, is to designate that one which the attorney may suggest. The distance is to be calculated not by an air line, but by the most usually traveled route. The language of the Act allows much discretion in the designation of the newspaper. 17 L. D. 560; 26 Id. 145. The notice must be continued in the same paper and cannot be shifted from the daily to the weekly edition. 3 L. 0. 18. What Constitutes a Newspaper. It must be a reputable newspaper of general circulation. 2 L. D. 205; 758. The Register has a discretion in deciding what constitutes such a news- paper. 8 L. 0. 156; 3 L. 0. 36; 10 L. D. 655; 26 Id. 14o. Q. PUBLICATION NOTICE. This is verbatim the same as "K" and amounts to a fourth copy of "K," except that it is not signed by the applicant but is forwarded in blank to the APPLICATION FOR PATENT. 403 land office where it receives the application number, is signed by the Register and returned by him to the attorney for claimant or direct to the printer. It usually contains at the foot the dates of the first and last publication; 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 45; and while the notice is going through its newspaper publication, it also stands posted on the claim, and tacked to the bulletin of the land office. Each of these methods of publi- cation is mandatory and essential. See p. 437. First Set or "Application" Papers. The above mentioned papers, constituting the following list, to wit: F. The final plat one copy. H. The approved field notes. K. The copy intended for posting in land office. K. Second copy with "L" proof of posting at- tached. M. Application for patent. N. Abstract of title. O. Proof of citizenship. P. Publisher's agreement. Q. Publication notice which complete the first set of papers commonly called the "application pa- pers," are all forwarded at one time by the attorney to the local land office. Upon receipt of the application papers, accom- panied by the filing fee of ten dollars, the register gives the papers an application number, makes a rec- ord of the application in the nature of an index, attests the posting of the notice "K" in his office, affixing the date, and returns to the attorney for claimant the notice for publication "Q" headed with the application number, or sends it direct to the 404 APPLICATION FOR PATENTS proper paper for publication. The return of the pub- lication notice to the attorney or paper is an implied approval of the publisher's contract and a sufficient designation of that paper. RECAPITULATION. It may be convenient to review the proceedings at this point. The papers A to I, inclusive, have performed their office. A, the request for survey; C, the preliminary plat; D, the field notes, and P, the final plat, remain with the Surveyor General. B, the order for survey, remains in the hands of the deputy, being his voucher against the applicant for work done under it. E, G, and I are mere certificates endorsed 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 claim, and one copy forwarded to the local land office as one of the application papers. One of the notices K has been posted on the claim; one has been attached to the proof of post- ing; one has been posted in the land office, and one, Q, remains to be published or is being published. L, the proof of posting; M, the application; and P, the publisher's agreement, have been filefl in the land office. , N, the abstract, and O, the proof of citizenship, have been filed, or if not, may be filed at any time pending the publication. The Second Set or "Final Entry" Papers which re- main to be filed after the publication is complete, con- sist of: APPLICATION FOR PATENT. 405 R. Proof of continuous posting. S. Proof of publication. T. Proof of sums paid. U. Application to purchase, to wit: When the period of publication is complete, proof of the notice having remained on the claim and of the publication are made as follows: R. PROOF THAT PLAT AND NOTICE REMAINED POSTED ON CLAIM DURING TIME OF PUBLICATION. STATE OF COLORADO, County of Teller: ss. E. H. Cook, being first duly sworn according to law, deposes and says, that he is the claimant of the Bear lode mining claim, Cripple Creek Mining District, Teller County, State of Colorado, the official plat of which premises to- gether with the notice of his intention to apply for a pat- ent therefor was posted thereon, on the 15th day of Decem- ber, A. D. 1902, as fully set forth and described in the affi- davit of John C. Clark and B. F. Pin-son f dated the 15th day of December, A. D. 1902, which affidavit was duly filed in the office of the register, at Pueblo, in this State ; and that the plat and notice so mentioned and described, remained continuously and conspicuously posted upon said mining claim from the 15th day of December , A. D. 1902, until and including the 19th day of February, A. D. 1903, including the sixty days' period during which notice of said application for patent was published in the newspaper. j^ jj COOK. Subscribed and sworn to before me, this 20th day of February, A. D. 1903, and I hereby certify that the foregoing affidavit was read to the said E. H. Cook, previous to his name being subscribed thereto. D. C. Crawford, [SEAL.] Notary Public. This affidavit of continuous posting the claim- ant may make from information derived from hear- say. 9 L. D. 503. S. CERTIFICATE OF PUBLICATION. I, P. H. Knowlton, do certify that I am Publisher of the Cripple Creek Star, a weekly newspaper published in Cripple Creek, in the County of Teller, and State (Copy of publication n o tice cut from of Colorado, and that the annexed notice was published in said paper once each and cf ri every week for nine consecutive weeks, 50 the first publication being on the 18th day of December, A. D. 1902, and the last publication being on the 12th day of Feb- ruary, A. D. 1903. p H KNQWLTON. 406 APPLICATION FOR PATENT. The publisher's re- ceipted bill is com- monly attached to this Subscribed and sworn to before me this 20th day of February, A. D. 1903. Henry Moody, [SEAL.] Notary Public. blank. Together with these proofs of publication and posting, the claimant forwards, under one of the in- structions of the department, the following: T. PROOF OF SUMS PAID. STATE OF COLORADO,, County of Teller: ss. E. H. Cook, 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 1500 feet upon the Bear Lode, in Cripple Creek Mining District, Teller County, Colorado ; that in the prosecution of such application he has paid the following sums of money, viz. : For office work in the Surveyor General's office $ 30 To E. E. Chase, Deputy Surveyor, for surveying and platting 50 To Register and Receiver, for filing application in Land Office 10 To the Cripple Creek tftar, for publishing notice of ap- plication V 20 To the Receiver of the local Land Office, for land 45 $155 E. H. COOK. Subscribed and sworn to before me this 20th day of February, A. D. 1903. 7). C. Crawford, [SEAL.] Notary Public. These are the official costs only; it does not in- clude attorney's fees, notary's charges, nor cost of abstract. The total expense of patenting one lode, without mill site, varies from $150 to $250. The filing of this paper, T, completes the pre- requisites of entry and payment except the formal application to purchase, U, and the register's proofs, V and W. U. APPLICATION TO PURCHASE. To the Register and Receiver United States Land Office, at Pueblo, Colorado. The undersigned, claimant under the provisions of the Revised Statutes of the United States, Chapter VI, Title 32, and legislation supplemental thereto, hereby applies to pur- APPLICATION FOR PATENT. 407 chase that Mining Claim known as the Bear lode, located in the west half of section 22, township No. 15, S. Range No. 09, west of the sixth principal meridian, designated as lot No. 11310, said lot No. 11310 extending 1,500 feet in length along said Bear vein or lode, but expressly excepting and excluding from this application all that portion of the ground embraced in mining claim or survey designated as lot No. 2560, the Carnarvon lode, and the claim of Neals Matt son, on the Gottenburg lode, and also all that portion of any vein or lode, the top or apex of which lies inside of said excluded ground, said lode mining- claim embracing 8.011 acres in the Cripple Creek Mining District, in the County of Teller, and State of Colorado, as shown by the survey thereof, and hereby agrees to pay therefor forty-five dollars, being the legal price thereof. Dated Pueblo, February W, 1903. E. H. COOK. I, John R. Gordon, Register of the land office at Pueblo, Colorado, do hereby certify that the aforesaid mining claim or lot No. 11310 as applied for above, is subject to entry by the above named applicant ; the area of said lode mining claim being 8.011 acres and the legal price thereof forty-five dollars. February 20, 1903. JOHN R. GORDON,, U does not need to be verified. Register. Excluded Areas. The notice and the application must show what areas are excluded and if the entry be of any such excluded areas a republication and posting will be ordered. 22 L. D. Ill; 28 Id. 436. Entry may embrace land excluded from applica- tion, but which, on adverse proceedings, was awarded to applicant. 29 L. D. 71. May be amended to in- clude a tract at first excluded on account of defective title. 29 Id. 287. Will not be allowed for land em- braced in a prior subsisting entry. 29 Id. 62. Entry Cancellation Relinquishment. Entry cancelled without notice must be rein- stated. 23 L. D. 113; 31 Id. 51. Cancellation does not subject claim to relocation. 23 Id. 113; but repub- lication and posting is required. 29 Id. 470. Reinstate- ment will not be made when entryman has filed ad- verse against subsequent application. 26 Id. 60S. Entry may stand on proper proof where title is sub- sequently acquired. 29 Id. 208. Entry allowed by mistake pending adverse, will be cancelled. SO Id. 408 APPLICATION FOR PATENT. 298. A relinquishment during publication and be- fore adverse claim is filed runs to the government though in terms made for the benefit of another claimant and the ground relinquished cannot there- after be made the basis of an adverse. 27 Id. 369. Register's Proof Completes Application. Upon receipt of the final entry papers (R U) accompanied by the purchase money (all other pa- pers being 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. REGISTER'S CERTIFICATE OF POSTING NOTICE FOR SIXTY DAYS. [Attached to Bulletin copy of K.] UNITED STATES LAND OFFICE, ) At Pueblo, Colorado. February 21, 1903. ) I hereby certify that the official plat of the Bear lode, designated by the surveyor general as lot No. 11310 was filed in this office on the 16th day of December, A. D. 1902, and that a notice, of which the attached notice is a copy, of the intention of E. H. Cook to apply for a patent for the mining claim or premises embraced by said plat, and 'de- scribed in the field notes of survey thereof filed in said ap- plication, was posted conspicuously in this office on the 16th day of December, 1902, and remained so posted until the nth day of February, 1903, being the full period of sixty consecutive days during the period of publication as re- quired by law ; and that said plat remained in this office dur- ing that time subject to examination and that no adverse claim thereto has been filed. JOHN R. GORDON, Register. It is important that this bulletin notice, "K," should have been properly posted. The land office holds that it is essential that the three notices, to wit: by newspaper, by posting and by the bulletin should be concurrent, and in a case where the bulle- tin was not posted till the third day of advertise- ment they allowed an adverse on the 63rd day, hold- ing that the double and contemporaneous publica- tion was not until such day complete. The bulletin APPLICATION FOR PATENT. 400 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 value- less. 29 L. D. 467. W. REGISTER'S FINAL CERTIFICATE OF ENTRY. Mineral Entry No. 2,000. UNITED STATES LAND OFFICE, ) Lot No. 11.310. At Pueblo, Colorado. February 21, 1903. ) It is hereby certified that in pursuance of the pro- visions of the Revised Statutes of the United States, Chap- ter VI, Title 32, and legislation supplemental thereto, E. H. Cook, whose postoffice address is Denver, Colorado, on this day purchased that mining claim known as the Bear lode, in the west % of section 22, in township No. 15, S. Range No. 69 W. of the sixth principal meridian, designated as lot No. 11,310, said lot No. 11,310 extending 1,500 feet in length along said Bear vein or lode, expressly excepting and exclud- ing from said purchase all that portion of the ground em- braced in mining claim or survey designated as lot No. 2560, Carnarvon lode ; also the claim of Neals Mattson, on the Got- tenburg lode, and also all that portion of any vein or lode, the top or apex of which lies inside of said excluded ground ; sa'id lode mining claim, as entered, embracing 8.011 acres in the Cripple Creek mining district in the County of Teller and State of Colorado, as shown by the plat and field notes of survey thereof, for which the said party first above named this day made payment to the receiver in full, amounting to the sum of forty-five dollars. Now, therefore, be it known that upon the presentation of this certificate to the Commissioner of the General Land Oflice, 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 E. H. Cook if all be found regu- lar. JOHN R. GORDON, Register. Receiver's Receipt. At the same time the receiver issues in dupli- cate the receiver's receipt and files the original with the papers, and delivers or sends the duplicate to the claimant, and all the preliminary proceedings are now complete. This receiver's receipt should be kept by the claimant until notice from the local land office that patent has arrived at such local land of- fice, as its surrender is required before the patent is delivered. If mislaid, proof of loss must be made. 410 APPLICATION FOR PATENT. X. AFFIDAVIT OF LOST RECEIVER'S RECEIPT. STATE OF COLORADO, County of Teller: ss. In the Pueblo 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 patent on the Brelau lode min- ing claim survey lot No. 7000 in Cripple Creek mining dis- trict, County of Teller f State of 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. 1902. That on the date of said entry he received the du- plicate receiver's receipt therefor. That said duplicate re- ceiver's receipt 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 receiver's receipt and still remains the owner and in possession of the land therein described and is the party entitled to receive the patent therefor.* Wherefore affiant asks that the patent to said survey lot be delivered to him without the surrender of said receiver's receipt upon this his affidavit of loss. JOHN BEST. Sworn and subscribed to before me this eighth day of January, A. D. 1903. John R. Gordon, Register. If the title has been transferred insert between the * * "Owner by purchase of the Brelau lode, etc. (descrip- tion). That he purchased the same since the same was en- tered for patent by deed from the party who made the entry. That he never received the duplicate receiver's receipt from his vendor, and does not know where the same can be found. That he has made diligent inquiry of the attorney and sur- veyor 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 for- warded to the General Land Office at Washington and the patent issues in due course usually arriving within one year, the department being behind in its office work; but this is upon the supposition that all the preliminary steps have been regular, and that the land was in fact open to entry if material errors APPLICATION FOR PATENT. 411 or defects are discovered after the receiver's receipt issues, it may be, and often is, recalled and cancelled, and if land entered as agricultural is shown to be mineral at any time before patent issues, the same result follows. 7 L. 0. 23. Corrections and Additional Proofs. The entire series of papers are reviewed at Washington and if irregularities, such as errors in survey, insufficient proof of improvements, errors in affidavits, etc., are discovered, the local land office is notified from the General Land Office, and (unless the mistake is a fatal one) the claimant or his at- torney is, by letter from the local land office, notified to supply the defect by further affidavit or certificate, as the case may be. Government Price $5 Per Acre. The application papers (p. 403) are accompanied by the money to be paid for the land, being $5 for each acre or fractional part of an acre of the surface ground. The extreme limit of claim in Colorado be- ing 1,500 feet long by 300 feet Abroad, such claim contains 10 and 33-100 acres; the fractional acre be- ing paid for as one acre, makes the claim equivalent to 11 acres. The amount paid will therefore vary between $5 and $55 for a single lode location with no mill site. The price of placer ground is $2.50 per acre, or fraction of an acre. Acreage of Lode Claims. In computing this acreage all interfering surveys which have been deducted, are excluded. The pay- ment is based on the amount of claimed surface ground covered by the survey and not excluded in favor of prior applications. Claim 1500 x 600 feet contains 20.66 acres. 1500 x 300 " 10.33 " 1500 x 150 " 5.16 " 3000 x 50 " 3.44 " 1400 x 50 " 1.60 " 1600 x 50 " " 1.83 " 412 APPLICATION FOR PATENT. Affidavits Where Made. All affidavits made in support of the application must be made within the land district. An exception to this is the publisher's affidavit (S) where the pa- per "nearest the claim" happens to be a newspaper in another land district. Another exception is the affidavit of citizenship. Adverse claim may be veri- fied in certain cases beyond the land district. See page 468. It has been ruled that any officer, as for instance the Clerk of the U. S. Court, whose jurisdiction extends over the territory of the land district, may administer the oath anywhere within his jurisdic- tion. 3 L. 0. 195. Before What Officer. They may be made before a 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. Where the Application Is Joint, any one co- owner may make all the affidavits required, on behalf of his co-owners as well as on his own behalf, except the affidavit of citizenship. See p. 400. When a claim is owned in common, it is some- times convenient to have a quit-claim executed by the others to one of their number, placing the title for the time being, in his name, the grantors secur- ing themselves by title bond or otherwise. Application by Agent. "Provided, That where the claimant for a patent is not a resident of or within the land district wherein the vein, lode, ledge, or deposit sought to be patented is located, the application for patent and the affidavits required to 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 con- versant with the facts sought to be established by said affi- davits : * * * A. C. Jan. 22, 1880. APPLICATION FOR PATENT. 413 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. And the fact of absence should be recited in the power of attorney. In other words, he cannot delegate the power while he is present, by mere caprice or desire to avoid personal attention to the matter. Where an application is by agency there must be a written power of attorney, the original of which is filed in the Land Office. Y. FORM OF 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. J. Vivian, of Idaho Springs, County of Clear Creek, State of Colorado, my attorney-in-fact, 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 Moun- tain in Griffith mining district, County of Clear Creek, 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 ad- verse claim or suit in support thereof, either in the land office or in judicial proceedings, and in such judicial proceed- ings, 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. 1903. JOHN GLENN. [SEAL.] Acknowledge according to form on page 2^2. The deputy surveyor cannot accept such power nor act directly or indirectly as agent. Rule 93. In Each Affidavit Signed by Agent should be in- serted, by way of precaution, the following clause: "Affiant further saith that the said claimant is not a resident in the land district in which said claim is situate, but resides at Tallahassee, State of Florida, and that affi- ant is the duiy authorized agent of said claimant, and is conversant with the facts sought to be established by snirl affidavit." 414 APPLICATION FOR PATENT. Where a Corporation Applies all papers are signed by the president, or other officer designated as stated in the next paragraph; but more usually (and advisably), it executes the form Y to some resi- dent person or agent. See p. 401. Where it does not adopt the latter plan the land office practice requires proof that the officer purport- ing to act for the company was authorized to make the application. Such proof may consist of a copy of the resolution of the board of directors instructing some designated officer to apply for patent to the claim or claims mentioned, certified by the secretary, under the corporate seal. Mill Site Application. Where a mill site is applied for separately it must be upon land occupied by mill or reduction works (p. 216). In such case the forms herein given are sufficient, changing the word lode to mill site, and adding the two forms next following. The price per acre is also the same (p. 212). The appli- cations for mill sites alone are rare, they being usu- ally 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. 28 L. D. 1/96. Z. NON-MINERAL AFFIDAVIT. STATE OF COLORADO. County of Clear Creek: ss. Clarence Jarbeau and Benj. C. Catren, each of law- ful 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 Annie Boyd mill site claim of John A. Emery, situate in Queens mining district, in said County, upon which said John A. Emery has applied for pat- ent of the United States, and knows the character of said described land, havinng frequently been actually upon the APPLICATION FOR PATENT. 415 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 therefor ; that no portion of said land is claimed for mining purposes under the local customs or rules of miners or otherwise ; that no 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 inter- est whatever in said claim, or in said application for patent. | Clarence Jarbeau. Verification as in form BB. Benj. C. Catren. 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 in connection with a lode a second affidavit substantially according to the following form is required. 13 L. 0. 159. A A. PROOF OF MILL SITE USED FOB MINING (OB MILL- ING) PUBPOSES. STATE OF COLORADO, County of Garfleld: ss. Before me, the subscriber, a notary public in and for said County, personally appeared C. N. Greig (claimant), and Harry Evans and James W. Ross (witnesses), who being duly sworn each for himself and not one for the other, saith that he is a citizen of the United States and resides in said County. That he is familiar with the Oagool mill site, sur- vey lot No. 7666 B, for which the said C. N. Greig has ap- plied for patent in the United States land office at Glen- wood Springs^ Colorado. ' That the ground embraced in said survey is used or occupied by said claimant for mining pur- poses, to wit: as a dump for the Quartermain lode; and contains an ore house used in the working of said lode; also a boarding house used by miners engaged in working said lode; also a tramway and Cornish jig used in operating said lode (etc., as the case may be). And the said Harry Evans and James W. Ross, sever- ally, say that they have no interest whatever in said mill site or in the application for patent therefor. G. N. Greig. Verification as in form BB. Harry Evans. James W. Ross. The improvements must be in the nature of mills, flumes, ditches, or other things incidental to 416 APPLICATION FOR PATENT. milling or mining. Buildings and roads not used for such purposes cannot be considered; otherwise if they are so used. Trails off the claim, used for car- rying ore, have been accepted as part of the improve- ments. 6 L. D. 220. See p. 217. It is generally advisable to apply for a mill site in connection with a lode claim; and in applying for a lode patent a mill site can be included and surface for building purposes' readily acquired, at a cost of $50 less than if separate applications are made. See pages 212, 217. The lode is always distinguished as survey lot "A" the mill site by the same number with the addition of "B." The mill site may be in another mining district or in a section different from that containing the lode. In such application there must be a plat, and no- tice K posted on both lode and mill site; if not posted on the latter, republication will be required. 25 L. D. 165; 27 Id. 373; Rule 63. A mill site is not allowed to abut against the end line of a lode claim (9 L. 0. 188) unless there be special proof that, notwithstanding the presumption in such case, the land is not mineral, and the lode does not continue through it. 7 L. 0. 179. The department has ruled that a lode inter- sected by a mill site or placer may be patented only to the edge of the intersecting, claim 13 L. D. 146; 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. The land office distinguishes between a mere wa- ter right and a mill site. 5 L. D. 190. The use of a spring is not a mill site occupation. Id. APPLICATION FOR PATENT. 417 PLACER PATENT. Lodes and Placers Distinguished. Only metalliferous deposits in place are consid- ered lodes under the mining act. 9 L. 0. 165. Every- thing else of a mineral character, i. e. lands con- taining a mineral substance rendering them of more value for the extraction thereof than for surface purposes, is treated as placer ground. The rulings to this effect are cited on pages 192, 193. In addition to the cases there given it has been ruled that lime- stone for lime kiln purposes may be located as placer ground. 9 L. 0. 5 ; and it cannot 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. Iron may be lode or placer, according to the nature of the deposit. A deposit of brick-clay does not make placer ground. L. D. 761; 31 L. D. 108. Placer claims require a material subdivision into (1) Claims located on unsurveyed lands. (2) Claims located by adopting the govern- mental subdivisions 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 alterations, will suffice. In addition to such forms used for lode applica- tions 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 espe- cially applied for in the application itself, or ex- cluded therefrom as the property of others, and a certified copy of the Descriptive Report (CC) based on L. O. Circular, September 23, 1882, 1 L. D. 5////, Rev. Ed. 685, now embodied in Rule 60, p. 357. 418 APPLICATION FOR PATENT. BB. PROOF THAT NO KNOWN VEINS EXIST IN PLACER CLAIM. STATE OF COLORADO,, County of Gil-pin: ss. John C. Jenkins and Thomas H. Potter, each of lawful age, and resident 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 Mining Claim, sit- uate 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 II. POTTER. Subscribed and sworn to before me, this second day of February, A. D. 1903, and I hereby certify that the foregoing affidavit was read to the above named John C. Jenkins and Thomas H. Potter, previous to their names being subscribed thereto, and that deponents are reputable persons, to whom full faith and credit should be given. Morris Hazard, [SEAL.] Notary Public. This affidavit must be made, by two or more wit- nesses (Rule 26) and filed in the Land Office, to- gether with transcript FF, with the first set of pa- pers. The descriptive report the deputy makes out without special instructions on receipt of "B" the order for survey, and forwards it, with the field notes of the survey to the Surveyor General. APPLICATION FOR PATENT. 419 CC. THE DESCRIPTIVE REPORT. Survey No. *7000. Under General Land Office Circular "N," of September 23, 1882, upon the placer mining claim known as the Hyena placer, claimed by Ethan E. Byron situate in Spanish Bar mining district, Clear Creek County, Colo- rado, embracing 160 acres, in section 8, township 3 S. range 73 W. 6th P. M. Examination made February 5, 1903, by Frank A. Maxwell, U. S. Deputy Mineral Sur- veyor. (a) The soil is a black loam, varying from 3 to 6 inches in depth, underlaid with auriferous gravel. The timber consists of a scattering growth of spruce and yellow pine trees, and along the banks of the creek there is a dense growth of small willows. (&) Beaver Creek, a small stream about 10 feet wide, runs in a northeasterly direction through the claim. (c) The workings upon the claim consist of an open cut 90 feet long, 20 feet wide and 10 feet deep. Course N. 80 E. The center of the westerly end bears N. 5 W. 30 feet from corner No. 4. A ditch .850 feet long, 2 feet wide and 18 inches deep, course northeasterly, the head of which bears N. 3 E. 120 feet from corner No. 6. A shaft 3x6 feet, 10 feet deep, which bears from corner No. 4, N. 2 W. 75 feet, and a drift 3x6 feet, 18 feet long, which bears from corner No. 4, N. 37 E. 420 feet. (d) This claim is located about three miles in a south- easterly direction from the town of Maysville, and one mile west of Clear Creek Junction. (e) The Baker and Swansea lodes, located about three miles in a northerly direction from this claim, are the near- est well known lode claims. No lode has ever been discov- ered upon this claim or in the immediate vicinity. (f) The claim is well adapted for placer mining pur- poses. 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 % mile above to work the whole claim. ( { 5), 219. Burke v. Bunker Hill Co. 440. v. McDonald, 21, 29, 32, 152, 314, 442, 446. Burkhard v. Mitchell, 268. Burnham v. Freeman, 183. Bush v. Sullivan (3 G. Greene, 3',^, 269. Buskirk v. King, 330. Butler v. Rockwell, 256. Butte & Boston Co. in re, 424. Butte Co. v. Frank, 14, 235. v. Montana Co. 187. v. Sloan, 204, 206. v. Societe, 153, 171. v. Vaughn (11 Cal. 1^3), 181. Byard v. Holmes (33 N. J. L. 119), 256. Byrne v. Crafts, 184. Cahoon v. Bayaud, 273. Caldwell v. Fulton (31 Pa. St. J,75), 218. Caley v. Portland, 265. Calhoun Co. v. Ajax Co. 132, 133, 141, 231. Cambers v. Lowry, 499. Cameron v. Seaman (69 N. Y. S96) , 402. Campbell v. Ellett, 46, 226. v. Rankin (99 U. S. 261), 82. v. Silver Bow Co., 189. Capner v. Flemington Co. (3 N. J. Eq. //67), 326. Cardelli v. Comstock Co. 184. Carney v. Arizona Co. 106. Carr, in re, 337. Carson v. Hayes, 209. Carson City Co. v. N. Star Co. 58, 133, 134, 152, 161, 162, 165, 176. Casey v. Thieviege, 204. Gates v. Producers Co. 135. TABLE OF CASES CITED. 481 Catron v. Old, 162. Chadbourne v. Davis (9 Colo. 581), 87. Chamberlin v. Collinson (45 Iowa, 429), 322. Chambers v. Brown, 322. v. Harrington, 94. v. Jones, 133. Champion Co. v. Cons. Wyoming Co. (75 Cal. 78), 142, 439. Chapman v. Toy Long (/, Saicy. 28), 106, 328. Chappius v. Blankman, 239. Charter Oak Co. v. Stephens, 236, 339. Chatham Co. v. Moffatt (147 Mass. 403), 256. Cheesman v. Hart (42 Fed. 98), 138, 165, 318. v. Shreeve (37 Fed. 36), 37, 42, 113, 121, 122, 153, 155, 170, 318, 320. Cherokee Co. v. Britton, 323. Cherry Val. Co. v. Florence Co. 306. Childers v. Neely, 236. Chung Kee v. Davidson, 236. Clare v. Peo, 311. Clark v. Barnard, 340. v. Fitzgerald, 162. Clarno v. Grayson, 263. Clary v. Hazlitt, 134, 203. Clavering v. Clavering (2 P. Wms. 388), 326. Clear Water Co. v. San Garde, 75. Cleary v. Skiffich, 214. Cleopatra Co. v. Dickinson, 322. Clifton Co. v. Dye, 209. Clipper Co. v. Eli Co. 205, 207. Coal Creek Co. v. Moses (15 Lea. Tenn. 300), 320. Cochrane v. Justice Co. 267. Coffee v. Emigh, 142, 280. Cole v. Cady, 334. Cole Co. v. Virginia Co. (/ S'rnr//. 680), 334. Coleman v. Curtis, 96, 103. v. Davis, 87. Colman v. Clements (23 Cal. 2>,r>). 9, 102. Colo. Cent. Co. v. Turck, 163. 16.",. 320. Colo. C. & I. Co. v. U. S. 221. Colo. F. Co. v. Pryor, 265, 322. 16 Colo. I. W'ks. v. S. Grande Co. 303. v. Taylor, 241. Colo. Midland Ry. v. O'Brien, 324. Columbus Co. v. Tucker, 209. Comstock, in re, 303. Cone v. Roxana Co. 231. Conlin v. Kelley, 193. Conrad v. Saginaw Co. 266. Cons. Coal Co. v. Baker, 235. v. Peers, 269. Cons. Rep. Co. v. Lebanon Co. (9 Colo. 343), 19, 26. Cons. Wyoming Co. v. Champion Co. 143, 152, 162, 170. Conway v. Hart, 120. Cooper v. Roberts, 221. Cooper Co. v. Ferguson, 303. Coosaw Co. v. Carolina Co. 334. v. Farmers Co. 334. Copper Globe Co. v. Allmann, 42, 75, 80, 82. Corning T. Co. v. Pell ( '/ Colo. 507), 226. Cosmopolitan Co. v. Foote, 166. Cosmos Co. v. Gray Eagle Co. 317. Courchaine v. Bullion Co. ( J iYcr. 369), 83. Cox v. Clough, 340. v. Prentice, 342. Craig v. Thompson, 53, 79, 88. 12** Crane v. Salmon, 277. Crane's Gulch Co. v. Scherrer. 203. Craw v. Wilson. 272. Crawford v. Bellevue Co. 268. Credo Co. v. Highland Co. 74. Creede Co. v. Uinta Co. 231. Crescent Co. v. Silver King Co. 330. Croesus Co. v. Colorado Co. 55. Cronin v. Bear Creek Co. 315. 44:5. Crown Point Co. v. Buck, 58, 101. v. Crismon, 48, 102. Cullacott v. Cash Co. (8 Colo. 179), 56. Dahl v. Raunheim (132 I . N. jinn). 205,. 206. Darger v. Le Sieur, 74. Dark v. Johnston (55 Pa. St. /<>'i), 270. Davis v. Gale (32 Cal. 26), 181. - v. Graham, 325. 482 TABLE OP CASES CITED. v. Weibbold, 134, 220, 224. Debris Cases, 211. Deeney v. Mineral Co. 36, 46, 113, 123, 443, 448. Deffeback v. Hawke, 134, 223. De Graffenried v. Savage, 270. Delaney Case, in re, 193. Del Monte Co. v. Last Chance Co. 47, 58, 138, 162. v. New York Co. 162, 165. De Noon v. Morrison (83 Cal. 163), 94. Depuy v. Williams (26 Cal. 310), 86. Derry v. Ross (5 Colo. 295), 85. Dibble v. Castle Chief Co. 102. Dillon v. Bayliss, 76. Dodge v. Marden (7 Or eg. 456), 183. Doe v. Sanger, 161, 165. v. Tyley, 77. v. Waterloo Co. 36, 47, 48, 57-, 124, 146, 154, 164, 170, 255, 284, 442, 446. v. Wood (2 Barn. & Aid. 724), 269. Doherty v. Morris, 86, 93, 116. Donahue v. Johnson, 334. Donnelly v. Booth Co. 323. Dorr v. Hammond, 87. Doster v. Friedensville Co. 190. Dougherty v. Chesnutt, 320. v. Creary (30 Cal. 290), 87, 266. Dower v. Richards, 224. Drake v. Lady Ensley Co. 209. Driscoll v. Dunwoody, 325. Drummond v. Long (9 Colo. 538), 53. Ducie v. Ford, 451. Duffield v. Rosenzweig, 321. Dugdale v. Robertson (3 Kay A J. 695), 337. Duggan v. Davey, 159, 164, 170. Duncan v. Fulton, 120, 121. Dundas v. Muhlenberg (35 Pa. St. 351), 321. - Dunham v. Kirkpntrick, 193. - v. Seiberling, 326. Dunlap v. Pattison, 57. DuPont v. Tilden, 287, 301. Du Prat v. James (65 Cal. 555), 79, 94, 101. Durant Case (29 Fed. 354), 374. Durant v. Comegys, 252. - v. Corbin, 195. Durant Co. v. Percy Co. 320. Durgan v. Redding, 442. Duryea v. Boucher, 54. v. Burt (28 Cal. 569), 236. Dyke v. Caldwell, 182. v. Nat. Tr. Co. 320. v. Whyte, 235, 318. Eagle-Badger Case, 42. Earnan v. Bashford, 241. Eaton v. Norris, 83. Eberle v. Carmichael, 95. Eberville v. Leadville Co. 339. Eclipse Co. v. Spring, 144, 146. Edwards v. Allouez M. Co. (SS Mich. 46), 210. Ege v. Kille (84 Pa. St. 333), 320. Eilers v. Boatman (3 Utah, 159), 79. Elder v. Horseshoe Co. 109, 111. Electro-Magnetic Co. v. Van An ken, 44. Ellet v. Campbell, 46, 229. Emerson y. McWhirter, 10, 101. Emma Mine Case (2 Legal Ga zette, 81), 327. Empire Co. v. Bonanza Co. 320. v. Bunker Hill Co. 130, . 132, 133, 138, 150. v. Tombstone Co. 168. English v. Johnson (17 Cal. 107), 26, 83. Ennor v. Barwell (1 DeG., F. d J. 529), 337. Enterprise Co. v. Rico-Aspen Co. 226, 227, 231, 232. Equator Co. v. Guanella, 268. - v. Marshall Co. 188. Erhardt v. Boaro (2 McCrary, 141; 113 U. S. 527, 537), 29, 30, 36, 48, 82, 101, 227, 316, 319, 328, 333. Ernest v. Vivian (33 L. J. Ch. 513), 328. Erwin v. Perego, 32, 121. Erwin's App. (12 Atl. 149), 189, 190, 210. Eureka Co. v. Bass, 324. v. Richmond Co. (4 Sawy. 302), 130, 151, 153, 160. Fairplay Co. v. Weston, 184. Farmington Co. v. Rhymney Co. 74. TABLE OF CASES CITED. 483 Faxon v. Barnard (2 McGrary, 44), 79, 81, 316. Felton v. West Co. 302. Ferris v. Coover, 85. Field v. Beaumont (1 Swanst. 204), 327. v. Grey, 316. Finerty v. Fritz (5 Colo. 174), 250. Fissure Co. v. Old Susan Co. 74, 76, 95, 231, 232. Fitzgerald v. Clark, 153. Fitzpatrick v. Montgomery, 208. Flagstaff Co. v. Tarbet (98 U. 8. 463), 147, 161, 167, 173. Flavin v. Mattingly, 76. Fleming v. Daly, 43. Flick v. Hahn's Peak Co. 186. Foote v. National Co. (2 Mont. 402), 43. Forbes v. Gracey (94 U. S. 762), 11, 234. Foster v. Lumbermans Co. 190. v. Weaver (118 Pa. St. 42 ), 320. 420 Mining Co. v. Bullion Co. (9 Nev. 840; 3 Sawy. 634), 838, 339. Fox v. Hale Co. 306, 343. v. Mackay, 307. Freezer v. Sweeney, 201. Fremont v. Seals (18 Gal. 433), 285. v. IT. S. 285. French v. Lancaster, 305. Frisholm v. Fitzgerald, 123. Fritts v. Palmer, 304. Fuhr v. Dean (26 Mo. 116), 269. Fuller v. Harris, 9, 117. v. Swan River Co. (12 Colo. 12), 209, 329. G. V. B. Co. v. Bank, 288, 301. Gale v. Best, 133, 220. Gamer v. Glenn, 73, 76. Gartteld Co. v. Hammer, 79. Garrard v. S. P. Mines, 133. Garthe v. Hart (73 Gal. 541), 112. Gaylord v. Place, 202. Gelcich v. Moriarity (53 Gal. 217), Gel wicks v. Todd, 183. Genet v. Delaware Co. 189. Ghost v. Shuman, 322. Gibben v. Atkinson (31 N W. 570), 268. Gibson v. Chouteau, 123. Giffln v. Pipe Lines, 310. Gildersleeve v. New Mex. Co. 286. Gill v. Weston, 193. Gillis v. Downey, 92. Gilpin v. Sierra Nevada Co., 159. Gilpin M. Co. v. Drake, 47, 53, 322. Ginocchio v. Amador Co. 183. Girard v. Carson, 40, 318. Gird v. California Co. 38, 69, 76, 94, 192, 195. Glacier Mt. Co. v. Willis, 245, 338. Glasgow v. Chartiers Co. 87, 265. Glass v. Basin Co. 54. Gleeson v. Martin White Co. (IS Nev. U&), 8, 147, 314. Gohres v. Illinois Co. 21, 46, 195. Golden Fleece Co. v. Cable Co. (12 Nev. 312), 8, 147, 314. R. Co. v. Buxton Co. 321. Terra Co. v. Mahler, 32, 39. Gold Hill Co. v. Ish (5 Oreg. 104), 221. Gonu v. Russell (3 Mont. 358), 26, 47, 99. Goodwin v. Colorado Co. 303. Gordon v. Darnell (5 Golo. 302), 250. Gore v. McBrayer (18 Gal. 583), 9, 29, 57. Gorman Co. v. Alexander, 282. Gray v. Truby, 44. Gray Copper Lode, 124. Great West Co. v. Woodmas Co. 257. Greer v. Heiser, 181. Gregory v. Pershbaker (73 Gal. 109), 80, 192. Grey v. Northumberland (13 Ves. Jr. 235), 327. Griffin v. Hurley, 240. Guild Co. v. Mason, 307. Gwillim v. Donnellan (115 U. 8. 45), 13, 40, 124. Hadley Co. v. Cummings, 241. Hall v. Arnott, 123. v. Duke of Norfolk, 340. v. Hale, 93. v. Johnson (S Hurl, d G. 589), 323. v. Kearny, 95, 102. Hallack v. Traber, 118. 484 TABLE OF CASES CITED. Hamburg Co. v. Stephenson, 214, 216. Hamilton v. Ely, 327. v. S. Nevada Co. (33 Fed. 562), 339. Hammer v. Garfield Co. (130 U. 8. 291), 73, 74, 283. Hammon v. Nix, 235. Hancock v. Keene, 325. Hannan v. Seidentopf, 244. Hanson v. Fletcher, 21, 55, 74. Hardin Lode Case. (See Pollard v. Shivelv.) Harkness v. Burton (39 Iowa, 101), 86. Harlan v. Harlan, 310. Harrington v. Chambers, 33, 35, 153, 447. Harris v. Equator Co. (8 Fed. 863), 13, 317, 318, 339. v. Kellogg, 102, 104, 283. Hartford Co. v. Cambria Co. 321. Hartman v. Smith, 214, 216. Harvey v. Ryan (1,2 Cal. 626), 10. Hauswirth v. Butcher, 21, 46. Haws v. Victoria Co. 70, 82, 315. Hawxhurst v. Lander (8 Cal. 331), 82. Hayden v. Brown, 74. Hayes v. Lavagnino, 31, 154, 155. Haynes v. Briscoe, 108. Healey v. Rupp, 33, 34, 343. Heaney v. Butte Co. 329. Hecla Co. v. O'Neill, 301. Hector Co. v. Valley View Co. 88. Hendrie Co. v. Holy Cross Co. 241. Hermocilla v. Hubbell, 222. Herriman Co. v. Butterfield Co. 340. Herron v. Eagle Co. 14. Hersey v. Tulley, 301. Hess v. Winder (30 Cal. 3$), 19, 26, 317, 328. Heydenfeldt v. Daney Co. (93 U. 8. 634), 131, 222. Hicks v. Bell, 12. Higgins v. California Co. 301. Hill v. King (8 Cal. 337), 209. Hindson v. Markle Co. 209. Hines v. Miller, 241. Hirschler v. McKendricks, 100, Hobart v. Ford (6 Nev. 77), 186. Hoffman v. Beecher, 434. Holbrooke v. Harrington, 307. ITonaker v. Martin, 94, 99. H4. Iloosac Co. v. Donat, 266. Homer v. Watson (79 Pa. St. 2^2), 218. Horsky v. Helena Co. 334. v. Moran. 224. Horst v. Shea, 339. Horswell v. Ruiz (67 Cal. Ill), 79, 160. Hosford v. Metcalf, 86. Howe's Co. v. Howe's Ass. 337. Howeth v. Sullenger, 51, 124. Hugunin v. McCunniff (2 Colo. 367), 322. Hukill v. Myers, 267. Hulst v. Doerstler, 117. Humphreys v. Mooney (5 Colo. 282), 305. Hunt v. Eureka Gulch Co. 315. v. Patchin, 114, 439. Hutchinson v. Kline, 218. Hyman v. Wheeler (29 Fed. 5)7). 154, 155. Iba V. Cent. Assn. 446. Idaho Co. v. Union Co. 252. v. Winchell, 241. Ingram v. Golden Co. 267. Integral Co. v. Altoona Co. 87. 318. Iron Silver Co. v. Campbell (135 U. 8. 286), 131, 170, 206, 207. 424. v. Cheesman, 155, 172. v. Elgin Co. (118 U. 8. 196), 48, 58, 160, 161, 173, 177. v. Mike and Starr Co. 154, 160, 204, 205. Irwin v. Davidson (3 Ircd. Eq. 311), 326, 327. v. Strait, 184. Ivanhoe Co. v. Keystone Co. (102 U. 8. 167), 222. Jackson v. Dines, 283. v. Roby, 94, 106, 314, 449. Jacob v. Day, 187. v. Lorenz, 181, 183. James v. Emmet Co. 323. Jamestown Co. v. Egbert, 273. Jantzen v. Arizona Co. 283. Jeffords v. Hine (11 Pac. 351), 136. Jennings v. Beale, 330. v. Rickard (JO Colo. -W-Ti. 272. TABLE OF CASES CITED. 485 Jennison v. Kirk (98 U. 8. .',53), 180, 185. Job v. Potton, 270. Johnson v. Buell (4 Colo. 557), 147. v. Mnnday, 442. v. Sage, 301. - v. Young, 86, 115. Johnstone v. Robinson (3 McCrary, 42), 270. Johnstown 'Co. v. Butte Co. 330. v. Cambria Co. (32 Pa. St. * 2J { 1), 260. Jones v. Jackson (9 Cal. 231), 210. v. Prospect Co. 44, 152, 163. Jordan v. Duke, 82, 100, 317. v. Schuerman, 123. Joseph v. Davenport, 266. Jupiter Co. v. Bodie Co. (11 Fed. 666), 31, 32. 53, 94, 173. Jurgenson v. Diller. 241. Justice Co. v. Lee, 281. Kahn v. Old Telegraph M. Co. (2 Utah, 17 J f ), 133. Kannaugh v. Quartette Co. 128. Keeler v. Green (21 X. J. Eq. 27). 269. v. Trueman, 13. Kelly v. Fourth Co. 287. Kendall v. San Juan Co. 305. Kevern v. Prov. Co. 324. King v. Amy Silver Smith Co. 162, 163. v. Edwards (1 Mont. 235), 99. v. Thomas, 223, 339. Kinney v. Fleming, 54, 87. Kirk v. Meldrum, 83, 197, 198. 449. Klein v. Davis, 327, 328. Klopenstine v. Hays, 94, 97. Knox v. Higby, 235. Koons v. Bryson, 317. Kramer v. Settle (1 Ida. ',85), 94. 101. Lacey v. Woodward, 96. Lacustrine Co. v. Lake Guano Co. 189. Lakin v. Dolly, 133. v. Roberts, 133. v. Sierra Buttes Co. 96. Lalande v. McDonald, 79. Lamar Co. v. Amity Co. 186. Lampman v. Milks, 184. Largey v. Bartlett, 256. Larkin v. Upton, 39, 150. Lamed v. Jenkins. 148, 223. Last Chance Co. v. Bunker Hill Co. 181. v. Tyler Co. 126, 143. 162. 165, 167, 451. Laughlin v. Hawley, 279. Law v. Grant, 465, 496. Lawrence v. Gayetty, 256. v. Robinson (4 Colo. 567 1 , 272. Leadville Co. v. Fitzgerald, 152, 155, 164, 170. Lebanon Co. v. Cons. Republican Co. 247. v. Rogers, 148, 340. Ledoux v. Forester, 21. Lee v. Stahl (13 Colo. 17J,), 141, 143, 146. Leggatt v. Stewart (5 Monl. J07'\. Lehigh Co. v. Bamford, 256. v. New Jersey Co. 310. v. Trotter, 307, 334, 342. Lendberg v. Brotherton Co. 324. Lewey v. Frick Co. 340. Lewis v. Marsh (8 Hare. 97), 337. Lime Lode Case, 174. Lincoln v. Rodgers (1 Mont. 217), 208, 210. Lindemann v. Belden Co. 239. Lindsley v. Union Co. 330. Little Gunnell Co. v. Kimber, 45. 94, 96, 99, 113. Josephine Co. v. Fullerton. 143. Pittsburgh Co. v. Amie Co. 39, 40. v. Little Chief Co. (11 Colo. 223), 320. Schuylkill Co. v. Richards (57 Pa. St. V f 2), 189. Lockhart v. Johnson, 80, 82. v. Rollins (21 Pac. 13), 93, 96, 112, 117. v. Wills, 58, 81, 286. Lockwood v. Lunsford (56 Mo. 68), 327, 328. Locust Co. v. Gorrell, 178. Lohmann v. Helmer, 283. Lone Jack Co. v. Megginson. 282. 486 TABLE OF CASES CITED. Lonsdale v. Curwen (3 Bligh 0. 8. 168), 337. Lord v. Pueblo Co. 325. Lorimer v. Lewis (1 Morris (la.) 253), 126. Lowry v. Silver City Co. 117, 121. Maeris v. Bicknell (7 Gal. 262), 181, 184. Magnet Co. v. Page (9 Nev. 346), 328. Maher v. Shull, 241. Maine & Phoenix Case, 41. Mallett v. Uncle Sam Co. (1 Nev. 188), 13, 85, 86. Malone v. Big Flat Co. 239. Maloney v. King, 170, 330, 333. v. Love, 267. Mammoth Co.'s App. (54 Pa. St. 183), 327. Manning v. Strehlow, 442, 447. Manuel v. Wulff, 281. Marburg Lode, 451. Marshall v. Harney Peak Co. 35, 82, 85. Marshall Co. v. Kirtley, 315. Martinez v. Earnshaw, 307. Marvin v. Brewster Co. (55 N. Y. 598), 218. Mason v. Sieglitz, 252. Massot v. Moses (3 8. C. 168), 172, 269. Mather v. Trinity Church (3 8. & R. 509), 310. Mattingly v. Lewisohn, 77, 95, 102, 315. Meagher v. Reed, 266. Mellors v. Shaw (1 Best & 8. 437), 324. Merced Co. v. Fremont (7 Gal. 317), 327, 328. Mercnr Co. v. Spry, 235. Merritt v. Judd (14 Gal. 59), 13. Metcalf v. Prescott (10 Mont. 283); 76, 77. Meylette v. Brennan, 272. Michael v. Mills, 40. Mickle v. Douglass, 266. Mike & Starr Case, 154, 160, 204, 205. Miller v. Chester Co. 267. v. Girard, 40. Mills v. Fletcher, 93, 96. v. Hart, 117. Minah Co. v. Briscoe, 117. Minnesota Co. v. Brasier, 340. Miser v. O'Shea, 210. Mitchell v. Cline, 195. Mollie Gibson Co. v. Thatcher, 248. Monroe v. N. Pac. Co. 322. Montana Co. v. Boston Co. 132, 138, 247, 329. v. Clark (^2 Fed. 626), 58, 160, 164, 329. v. Gehring, 211. v. Livingston, 235. v. St. Louis Co. 246, 317, 337. Ry. v. Migeon, 204. Moody v. McDonald (4 Gal. 297), 322. Mooney v. York Co. 322. Moore v. Ferrell (1 Ga. 7), 327, 328 v. Robbins, 135. v. Smaw (17 Gal. 199), 12, 220, 285. More v. Massini (32 Gal. 590), 328. Morenhaut v. Wilson (52 Gal. 263), 102. Morgan v. Tillotson, 106, 114. Morgenson v. Middlesex Co. 141. Moritz v. Lavelle (77 Gal. 10), 272. Morris v. DeWitt (5 Wend. 71), 325. Morrison v. Regan, 53, 57, 75, 123. Morton v. Solambo Co. (26 Gal. 527), 57. Mt. Diablo Co. v. Callison (5 Sawy. 439), 93, 94, 102, 154. Mt. Rosa Co. v. Palmer, 207. Mt. View Co. v. McFadden, 440. Moyle v. Bullene, 39, 123, 223. Moynahan v. Prentiss, 322. Mudsill Co. v. Watrous, 256, 342. Muldoon v. Brown, 76, 448. Muldrick v. Brown, 33, 43. Mullan v. U. S. 135. Murley v. Ennis (2 Colo. 300), 29, 57, 87, 270, 272. Murphy v. Cobb (5 Colo. 281), 312. Murray v. Polglase, 92. Murray Hill Co. v. Havener, 104, o-j o Muskett v. Hill, 270. Myers v. Hudson Co. 323. v. Spooner (55 Gal. 257), 85. McAndrews v. Burns, 323. TABLE OF CASES CITED. 487 McCahan v. Wharton (121 Pa. 424), 265. McCann v. McMillan, 75, 84, 86. McCarthy v. Speed, 76, 116, 207, 225. McCord v. Oakland Q. Co. 107. McCormick v. Baldwin, 99. v. Varnes (2 Utah, 855), 173. McCowan v. McLay, 77, 339. McDonald v. Montana Co. 195. McEvoy v. Hyman (25 Fed. 539, 596), 56, 122, 448. McFadden v. Mt. View Co. 306, 442. McFeters v. Pierson, 13. McGarrity v. Byington (12 Gal. 426), 94. McGinnis v. Egbert (8 Colo. 41), 32, 40, 42, 48, 81, 86, 93, 104, 105, 122, 314, 447, 448. McGoon v. Ankeny (11 III. 558), 87. Mclntyre v. Ajax Co. 307. v. Mclntyre Co. 265. McKay v. McDougall, 99. McKee v. Brooks, 269. McKenzie v. Poor Man Mines, 301. McKinley v. Wheeler, 57. McKinley Co. v. Alaska Co. 198, 281. McKinstry v. Clark, 44, 79. McLaren v. Byrnes, 239. McLaughlin v. Del Re, 189, 211. v. Thompson, 87, 273. McLure v. Sherman, 329. McNeil v. Pace, 114. McShane v. Kenkle, 3. National Co. v. Weston, 310. Neilson v. Champaigne, 92. Neuebaumer v. Woodman, 83. Neuman v. Dreifurst, 107. Nevada Co. v. Home Co. 31, 32, 83, 105, 194. v. Miller, 194. Newark Co. v. Upson, 333. New Dunderberg Co. v. Old, 320. Newman v. Barnes, 449. v. Newton, 446. New Mercer Co. v. Armstrong, 183. New York Co. v. Rogers, 323. Nichols v. Mclntosh, 86, 87. Niles v. Kennan, 86, 318. No Mistake Lode, 438. Noonan v. Caledonia Co. 305. North Am. Co. y. Adams, 87, 183. Northmore v. Simmons, 7, 85, 93. North Noonday Co. v. Orient Co. (1 Fed. 522, 11 Id. 125), 30, 32, 33, 79, 152, 282, 317. Noteware v. Stearns (1 Hont. 311), 185. Noyes v. Black, 79. v. Mantle, 204, 205, 208. No. 5 Co. v. Bruce (4 Colo. 293), 273. O'Donnell v. Glenn, 34, 43, 76. O'Keefe v. Cannon, 203, 204. O'Keiffe v. Cunningham (9 Cal. 589), 210, 211. Old Tel. M. Co. v. Central Co. (1 Utah, 331), 327. Olive Co. v. Olmstead, 194. Omaha Co. v. Tabor (13 Colo. 41), 270, 309, 321. Omar v. Soper (11 Colo. 380), 80, 124, 141. Oolagah Co. v. McCaleb, 306. Ophir Co. v. Carpenter (4 Nev. 534), 184. Oppenlander v. Left Hand Co. 181, 185. Oreamuno v. Uncle Sam Co. (1 Nev. 215), 85. Oregon Co. v. Trullenger (3 Oreg. 1), 184. O'Reilly v. Campbell, 101, 283. Original Co. v. Winthrop Co. 7, 85. Ormond v. Granite Mt. Co. 338, 343. Ormsby v. Budd, 256. Oscamp v. Crystal R. Co. 100. Osgood v. Bauder, 322. Osterman v. Baldwin, 282. Otaheite Co. v. Dean, 211, 329. Overman Co. v. Corcoran (15 Nev. 417), 30. Oviatt v. Big Four Co. 184. Pacific Co. v. Spargo (16 Fed. 348), 165. Packer v. Heaton (9 Cal. 569), 94. Page v. Fowler, 310. v. Summers (70 Cal. 121), 273. Palmer v. Uncas Co. 239. Pantzar v. Tilly Co. 323. TABLE OF CASES CITED. Pardee v. Murray ('/ Mont. 23-',}, 141, 145. Parker v. Furlong, 327. Parley's Park Co. v. Kerr, 9. 22. Parrot Co. v. Heinze, 162. 304, 328. Parrott v. Palmer. 327. Patchen v. Keeley, 321. Patrick v. Colorado Co. 307. Patterson v. Hewitt, 327. v. Hitchcock (3 Colo. 533), 25. 20. 3G, 80, 129. 147, 149, 274. v. Tarbell, 56. Paul v. Cragnas, 266. Paull v. Halferty (63 Pa. St. J,6) , 501. Peabody Co. v. Gold Hill Co. 25, 134. 135, 338. Pelican Co. v. Snodgrass, 99, 112. Penn v. Oldhauber, 95. Pennsylvania Co. v. Bales, 315. People v. De France, 337. - v. District Court, 188. - v. Page, 310. v. Sloper, 310. v. Williams (35 Cal. <;r/. 311. Perego v. Dodge. 442. Perry v. Ricketts (55 III. 234), 323. Petroleum Co. v. Coal Co. 273. Pfeiffer v. University, 187. Pharis v. Muldoon (75 Cal. 28.' f ) , 98. Phenix Co. v. Lawrence (55 Cal. 143), 78. Philadelphia Co. v. Taylor, 178. Philpotts v. Blasdel (8 Nev. 61), 247. Phipps v. Hully (18 Xet'. 133). 342. Phrenix Co. v. Scott, 14. Pike's Peak Lode, 224, 424. Pittsburg Co. v. Glick, 343. v. Greenlee, 267. v. Spooner, 301. Plummer v. Hillside Co. 218, 267. Pollard v. Shively (5 Colo. 309), 52, 55, 56. Porter v. Noyes, 87. Portland Co. v. Flaherty, 323. Poujade v. Ryan, 38, 70. Power v. Klein, 329. Presidio Co. v. Bullis, 252. Preston v. Hunter, 75, 81. Prosser v. Parks (18 Cal. 47), 9. Protector Lode, 224. Providence Co. v. Burke. 75, 112. 282, 283, 442. - v. Marks, 315, 440. Puget Co. in re, 342. Purdiim v. Ladin, 75. Quigley v. Gillett. 102. 449. Quimby v. Boyd. 53. 77, 95, 446. Qiiincy Co. v. Hood (77 111. tfi, 323. Quinlan v. Noble, 180. Quirk v. Falk (47 Cal. .J5.J). 183. Rader v. Allen, 136. Raisbeck v. Anthony, 151, 153. Rankin's App. 329. Kara Avis Co. v. Bouscher, 239. Raunheim v. Dahl, 128, 206. Raymond v. Johnson, 272. Real del Monte Co. v. Pond Co. (23 Cal. 82), 327. Reese v. Bald Mt. Co. 241. v. Morgan Co. 323. Regan v. Whittaker. 224. Rernmington v. Bandit, 94. Renshaw v. Switzer. 102. Reynolds v. Iron S. Co. (116 U. fa. 687), 203. 318. v. Pascoe, 39, 44. Riborado v. Quang Pang Co. 9. Rice v. Ege (42 Fed. 661), 252. Richard v. Wolfing, 40. Richards v. Dower, 230. Richmond Co. v. Eureka Co. 173. v. Rose. 21, 448. Riddle v. Mellon, 268. Rillston v. Mather, 324. Risen v. Wiseman. 82. 340. Riste v. Morton, 54, 111. Robinson v. Imperial Co. (5 AVr. 44), 214. Co. v. Johnson. 301. Rockwell v. Graham (9 Colo. 36). 187, 439. Rogers v. Cooney (7 Ner. 213), 189, 211. v. Ley den. 325. Rorer Co. v. Trout. 256, 265. Rose v. Richmond Co. 134. 314, 449. Rosenthal v. Ives (12 Pac. 904), 314, 449. Roseville Co. v. Iowa Gulch Co. (15 Colo. 29), 14. TABLE OF CASES CITED. Rough v. Simmons (65 Cal. 227), 445. Roxanna Co. v. Cone, 143, 157. Royal K. Placer, 194. Royston v. Miller, 94, 105, 116. Rozecrans Co. v. Morey. 302. Ruby Co. v. Prentice, 302. Rush v. French, 57, 79. Russell v. Brosseau, 99. v. Chumasero (4 Mont. 309), 76. St. Clair v. Cash Co. 320. St. John v. Kidd (26 Cal. 26.' t ), 9. St. Louis Co. v. Kemp (10% U. S. 636). 93, 94, 133, 143, 165, 425. - v. Montana Co. 150, 166, 231, 327, 328, 329, 337, 451. Salmon v. Symonds, 221. Sampson Co. v. Schaad, 323. . Sanders v. Noble, 38. Sands v. Cruikshank, 30. Saunders v. La Purisima Co. 222. v. Mackey, 116. Scheel v. Alhambra Co. 190. Schultz v. Keeler, 57. Schwab v. Beam, 180. Searle Placer, 194. Sears v. Taylor (4 Colo. 38), 9, 83, 314. Seidler v. La Fave, 54. v. Maxfield, 76. Settle v. Winters, 252. Severson v. Bimetallic Co. 302. Seymour v. Fisher, 120, 125, 128, 234, 317. Shattuck v. Costello, 54, 112. Shaw v. Homer, 266. v. Kellogg, 285. Sheaffer's App. 333. Shepard v. Murphy, 70. Sherlock v. Leighton, 95, 102, 283. Shively v. Bowlby. 455. Shoshone Co. v. Rutter, 125, 153, 154, 247, 440, 442. Shreve v. Copper Bell Co. 33, 152, 247. Sieber v. Frink, 87. Sierra Co. v. Sears (10 Nev. 3J,6), 327. Silent Friend Co. v. Abbott, 306. Silver Co. v. N. C. Sm. Co. 343. Silver Bow Co. v. Clarke, 128, 131, 134. Silver City Co. v. Lowry, 121, 268, 448": Silver Cord Co. v. McDonald (/'/ Colo. t91), 323. Sisson v. Somers, 7, 41. Slavonian Co. v. Perasich (7 Fed. 331), 96. Smallhouse v. Kentucky Co. (2 Mont. 443), 239. Smart v. Jones, 189. Smelting Co. v. Kemp. (See St. Louis Co. v. Kemp.} Smith v. Belshaw, 324. v. Bolles (132 U. 8. 125), 256, 322. v. Hill, 224. v. Idaho Q. Co. 310. v. Jamison, 328. v. Newell, 54, 55, 56, 75. v. O'Hara (43 Cal. 371), 183. v. Oxford Co. (42 N. J. L. 467), 324. v. Reynolds (8 Fed. 696), 250. v. Sherman Co. 245. Smoke House Lode Case, 131, 223. Socorro Co. v. Preston, 288. Souter v. Maguire, 70. South End Co. v. Tinney, 92, 115, 317, 339, 340. South Star Lode, 205, 224, 424. South West Co. v. Smith, 323. South Yuba Co. v. Rosa, 180. Soyer v. Gt. Falls Co. 323. Sparrow v. Strong (3 Wall. 97), 11, 29. Spotts v. Gilchrist, 329. Sprague v. Locke, 334. Stahl v. Van Vleck, 332. Standley v. Roberts, 268. Stanford v. Felt, 184. Stanley v. Mineral Union, 222. State v. Berryman (s Nev. 262), 311. rr v. Burt (64 N. C. 619), 311. v. District Court, 164, 337. Stearns.Roger Co. v. Brown, 333. Steel v. Gold Co. (18 Nev. W), 102, 429. Stemwinder Co. v. Emma Co. 21. Stephenson v. Wilson (37 Wis. 482), 339. Sterrett v. Northport Co. 340. Stevens v. Gill, 152. 490 TABLE OF CASES CITED. v. Williams, 151, 155, 327. Steves v. Carson (42 Fed. 821), 315, 448. Stewart v. Stevens, 185. Stinchfleld v. Gillis, 142, 152, 173, 246, 247. Stinson v. Hardy, 269. Stockbridge Co. v. Cone Works (102 Mass. 80), 321, 337. Stone Lode Case. (See Iron Sil- ver Co. v. Elgin Co.) Stonewall Co. v. Peyton, 56. Stoughton v. Leigh (1 Taunt. 402), 249. Strahlendorf v. Rosenthal (30 Wis. 677,), 323. Strasburger v. Beecher, 102. Strepey v. Stark, 37, 122, 318, 447. Strickler v. Colo Springs, 181. Strickley v. Hill, 283, 444. Stuart v. Com. 235. Suessenbach v. Bank, 117. Suffolk Co. v. San Miguel Co. 211. Sullivan v. Iron Silver Co. 207. Summerlin v. Fronteriza Co. 301. Sunnyside Co. v. Reitz, 320. Sweet v. Webber, 47, 79, 106, 315. Swigart v. Walker, 92. Table Mountain Co. v. Stranahan (20 Cal. 5$), 9. Tabor v. Dexter, 151. Talbott v. King, 131, 134. Talmadge v. St. John, 77, 83. Tartar v. Spring Creek Co. (5 Cal. 395), 216. Taylor v. Middleton (67 Cal. 656), 76, 85. v. Parenteau, 24, 55. v. Thomas, 267. Tennessee Co. v. Ayers, 302. v. Hamilton, 209. Terrible Co. v. Argentine Co. 34. Territory v. McKey, 312. Thallmann v. Thomas, 83, 118, 135. Thistle v. Frostberg Co. 317. Thomas v. Chisholm, 57. v. Oakley (18 Ves. 184), 328. Thompson v. Jacobs, 89. v-. Mattern, 218. v. Noble, 193. v. Spray, 57, 70, 119, 124. Thornborough v. Savage Co. 337. Tipping v. Bobbins, 270. Titcomb v. Kirk (51 Cal. 288), 185, 187. Tombstone Co. v. Way Up Co. 155, 176. T. S. Cases, 223. Tornanses v. Melsing, 282. Townsend v. Peasley (35 Wis. 383), 178. Travis Co. v. Mills, 210. Tredinnick v. Red Cloud Co. 238. Trevaskis v. Peard, 86, 96. Trihay v. Brooklyn Co. (4 Utah, 468), 323, 324. Tripp v. Dunphy, 93. Trotter v. Hecksher, 307, 342. . Tuolumne Co. v. Maier, 30, 39. Turner v. Sawyer, 108, 111, 117, 356, 436. Tyler Co. v. Last Chance Co. 121, 167, 337. Tynon v. Despain, 180, 185. Uinta Co. v. Creede Co. 133, 143. Ulmer v. Farnsworth, 178. Union Co. v. Bank, 288. v. Dangberg, 185. v. Leitch, 38, 59. Union Oil Co. in re, 193, 195. U. P. Ry Co. v. Jarvi, 323. United Merthyr Co. in re (L. R. 15 Eq. 46), 320. U. S. v. Blackburn, 221. v. Carpenter, 306. v. Copper Queen Co. 478. v. Gear (3 McLean, 571), 328. v. Iron S. Co. 93, 134, 135. v. King, 135, 392. v. Lynde, 478. v. Marshall Co. (129 U. S. 579), 134. v. North Bloomfield Co. 210, 212. v. Parrott (McAllister, 271), 327. v. San Pedro Co. 285. v. Smith, 8. v. Trinidad Co. 286. v. Winona Co. 135. U. S. Co. v. Pacific Co. 306. Upton v. Larkin (7 Mont. 449), 30, 39, 55, 76. Utah Co. v. Dickert Co. 96, 117. TABLE OF CASES CITED. 491 Utley v. Clark-Gardner Co. (4 Colo. 369), 303. Valcalda v. Silver Peak Mines, 216. Van Buren v. McKinley, 9, 77. Van Esse v. Catsburg Co. 323. Van Horn v. State, 192. Van Zandt v. Argentine Co. (2 McCrary, 159), 33, 43, 163, 333. Vervalen v. Older (8 N. J. Eq. 98). 236. Vietti v. Nesbit, 307, 343. Virginia Co. v. Kelly, 218. Wakefield v. Sunday Lake Co. 267. Wakeman v. Norton, 137, 171. Walrath v. Champion Co. 58, 145, 161, 166, 173. Walsh v. Mueller, 30, 58. Ward v. Carp River Co. 236. Wardell v. Watson, 218. Warner v. Benjamin, 322. Warnock v. De Witt, 51, 114. Waterloo Co. v. Doe, 32, 43, 133. Waterman v. Banks, 252. Waters v. Stevenson (13 Nev. 157), 320. Watervale Co. v. Leach, 141, 149. Watson v. Mayberry, 39. Watson Co. v. James, 256. Weese v. Barker, 70, 79, 319. Weibold v. Davis, 339. Weill v. Lucerne Co. (11 Nev. 200), 247. Welch v. Garrett, 87, 183. Wells v. Davis, 75. v. Leek, 273. Welsh v. Lehigh Co. 324. Wesling v. Kroll, 268. Western Co. v. Berberich, 324. West Granite Co. v. Granite Co. 77. Westmoreland Co. v. De Witt, 267. West Point Co. v. Reymert (45 N. Y. 70S), 328. Wheeler v. Smith, 193. v. Walton Co. 306. v. West, 269. White v. Lee, 198. Whittaker v. Lindley, 249. Wight v. Dubois, 128. Wilhelm v. Silvester, 141. Wilkins v. Abell, 240. Willeford v. Bell, 33. Williams v. Gibson, 218. v. Long, 330. v. Morrison, 269. v. Pomeroy Co. (37 Oh. St. 583), 340. Wills v. Blain, 112. Willson v. Cleaveland, 87. Wilson v. Gerhardt, 267. v. Henry (35 Wis. 2J t l; 40 Id. 59J t ), 339. v. Iriumph Co. 82/94. Wiltsee v. King, 39. Winchester v. Davis Co. 306. Winters v. Hub Co. 302. Wolcott v. Johns, 255. Wolfley v. Lebanon M. Co. (4 Colo. 112), 128, 147, 148. Wood v. Aspen Co. 283. Woods v. Montevallo Co. 340. Woodside v. Ciceroni, 269, 273. Woodward v. Mitchell, 265. Woodworth v. McLean, 273. Woody v. Barnard, 95. Worthington v. Given, 307. Wright v. Ascheim, 333. v. Killian, 95. Yarwood v. Johnson, 116. Yellow Aster Co. v. Winchell, 440. York v. Davidson, 209. Yosemite Case, 12, 13. Young v. Goldsteen, 439, 442. v. Northern Co. (9 Biss. 300), 236. Yreka Co. v. Knight, 94, 318. Yunker v. Nichols (1 Colo. 551), 184. Zollars v. Evans (2 McCrary, 39), 32. GLOSSARY. GLOSSARY OF MINING TERMS. ACEQUIA. A ditch. gpaniish. ADIT. A horizontal drift or other passage used as an opening or drain to a mine ; applied to no level except one opening on the surface. Latin. ADVENTURER. A shareholder. ALLUVIUM. The sediment of streams and floods. Latin. AMALGAM. The mechanical combination of quicksilver with gold or silver. ANDESITE. A dark porphyritic lava, composed of black crystals imbedded in a mass of light colored feldspar. ANDE- SITE BRECCIA. Fragmental andesite united into a compact rock by silica and other natural cementing materials. The main eruptive rock of the Cripple Creek district. ANDESITE TUFF. Andesite in minute fragments, finer than breccia. John Wellington Finch. APEX. The top of a lode. Latin. ARASTRA. A circular mill for grinding quartz by tritu- ration between stones attached loosely to cross arms. Spanish. ARCH. A part of the gangue left standing for support. ARGENTIFEROUS. Silver bearing. Latin. ASCENSION THEORY. That referring the filling of fis- sures to matter from below. Von Gotta, 71. ASPHALT. A solid form of native bitumen, which occurs more or less pure, or mixed with inorganic or other adventitious non-bituminous matter. The name is also ap- plied, commercially and in engineering parlance, to mate- rials in general containing this form of native bitumen or any form resembling it. See BITUMEN. C. O. Baxter. ASSAY. A test of the mineral contained in a larger mass by extracting and weighing the product of a sample. See p. 3Jfl. ASSESSMENT WORK. The annual labor ($100) required to hold a claim. See p. 88. 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. GLOSSARY. 493 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. 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. 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 ; specific gravity, 9.8 ; atomic weight. 208.5 ; symbol, Bi. Found as an oxide or sulphide in ores of gold, silver, copper and other metals. Not usually dis- tinguishable 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, chloro- form, bisulphide of carbon, similar solvents and in the malthas or heavy nsphaltic oils. Natural gas, petroleum, maltha, asphalt, grahamite, gilsonite, ozokerite, etc., are bitumens. See ASPHALT. C. O. Baxter. BLACK JACK. A dark variety of zink blende. BLENDE. A sulphide of zink. BLOSSOM. Decomposed out-crop of a vein. Gossan. Iron hat. BLOW-OUT. A spreading out-crop. BONANZA. Pair weather at sea ; a large body of paying ore. Became a familiar term upon the opening of the immense ore bodies in the Comstock. Sp. BOOM DITCH. The ditch from the dam used in boom- ing. (2) A slight 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. BRATTIS. A bulkhead. BREAST. The heading of a drift, tunnel, or other hori- zontal working. BRECCIA. A conglomerate of angular fragments. 494 GLOSSARY. BRITTLE SILVER. Stephanite. A sulphide of antimony and silver containing 68.5 per cent, silver with the anti- mony variable. Sometimes contains iron, copper and arsenic ; variable in color, hardness and specific gravity. 2?. B. Lawrence. BROACHING. Trimming or straightening a working. BRONZE. An alloy of copper and tin. Brass is an alloy of copper and zink. BUDDLING. Separating ores by washing. BULLION. Uncoined gold or silver. CACHE. A place where a prospector's provisions or out- fit is buried or hidden. French. CALAMINE. An ore of zink. Lapis Calaminaris. CALAVERITE. A telluride of gold, containing 55.5 per cent, tellurium and 44.5 per cent, gold ; allied to and com- monly misdescribed as sylvanite ; sometimes distinguish- able from the latter by a yellow color and lack of crystalliza- tion. 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 carbon- ates have iron for a base. An ore of lead and silver. CEMENT. Gold-bearing gravel united and hardened into a compact mass. CHAFFEE WORK. A Colorado term for annual labor. Jerome B. Chaffee was Territorial delegate when the Mining Act of 1872 was passed. CHEEK. The side or wall of a vein. CHIMNEY. A pocket or ore body when found pipe shape, with general perpendicular position. CHLORIDES. Compounds of chlorine with other ele- ments. CHUTE, (or SHOOT.) 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 /x 425. 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 read- ily in certain definite directions. COASTER. One who picks dump, or gleans in abandoned mines for ore in sight. GLOSSARY. 495 COBBING. Ore sorting. COLLAR. The top of a shaft or winze. (2) The tim- bering of a shaft when carried above the surrounding sur- face. 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 Gotta, 28. COPPER. A metallic element ; red ; fusing point 1996 deg. Fahr. Symbol Cu. At. wt. 63.6. Sp. gr. 8.9. COST-BOOK COMPANY. A system of mining partnership local to Cornwall 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. The term also is applied to rough or light timbering as distinguished from solid set work. CROSS COURSE. An intersecting vein. CROSS CUT. A level driven across the course of a vein. A short tunnel. CUT. To intersect a vein. OPEN CUT. A horizontal opening at the surface not reaching cover. CYANIDE. A compound of cyanogen with a metal. .The Cyanide Process of gold extraction is performed by passing an auriferous solution of potassium cyanide over zink shav- ings, by which the values are precipitated. Henry Lewis on Gold Mining. Thomas R. Beaumont. DEAD WORK. The developing of a mine preparatory to stoping. See p. 257. 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 plutonic action. Its rock is most commonly porphyry. It is often barren, but in 496 GLOSSARY. 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., at- tributed, geologically, to deposition from water. DIP. The line of declination of strata. Bainbridge. Yale The angle which a lode makes with the plane of the horizon. Von Cotta, 26. The departure of a vein from the perpendicular or from the horizontal. DITCH. An artificial water course, flume or canal, with or without natural channels. DIVINING ROD.. A stick of witch hazel or other like device used in prospecting for lodes. Laic v. Grant, 7 M. R. 57. DOLLAR. From the German Thaler. One hundred cents. GOLD 23.22 grains : alloy 2.58 grains ; weight 25.8 grains. Coined 1849-1889. SILVER 371% grains; alloy 41% grains:, weight 4121/2 grains. Coined 1794-1804, 1836-1838, 1840- 1873, 1878-1903. Legal tender unlimited. The Mexican dol- lar contains 377.17 grains silver and 40.62 grains alloy. Spanish dollar the same. DOWNCAST. A ventilating shaft with descending cur- rent of air. DRIFT. An underground passage driven horizontally on. or with, the vein. 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 dis- tinguished from prospecting. x FACE. Synonymous with breast. FATHOM. A space 6 feet forward and 6 feet vertical with the width of the vein. Corn. FAULT. A dislocation of strata. Bainbridge. Yale. 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 Bainbridge 2. FELDSPAR. A vitreous crystalline constituent of gran- ite, gneiss, porphyry and many other rocks. FISSURE VEIN. A fissure oi< crack in the earth across its strata, filled with mineralized matter. FLOAT. Loose quartz detached from the vein and found below it. FLOAT ORE. Masses or particles of ore detached from the vein found below it. . Sec Brown v. V/9 Co. 9 M. R. wo. GLOSSARY. 497 FLOOKAN. A soft decomposed cross-course. Corn. FLOOR. The rock underlying a horizontal vein or de- posit. FLUME. A ditch carried in frame work on or above the surface. 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 pur- poses only a short distance below the sod, generally narrow- ing as it descends. GEODE. A rounded nodule of stone containing a cavity studded with crystals or mineral matter ; the cavity in such nodule. 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 ; Sp. gr. 19.34 ; fusing point 2016 degrees Fahr. Almost invariably found native associated with a variable percentage of silver. Sym- bol Au. At. wt. 197.2. 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 plutonic 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. Amer. GRAY COPPER. Tetrahedrite. An ore containing cop- per 15 to 42 per cent., combined with iron, zink, silver, mer- cury, arsenic and antimony. It varies in color, hardness and specific gravity. GRUB STAKE. Provisioning a prospector on a bargain to share his discoveries. 498 GLOSSARY. 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 an- other. HIGH EXPLOSIVES. Those of greater detonating force than black powder. 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 in- stances 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 undeter- mined limits in no way sharply defined. Von Gotta, 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 U. S. Revised Statutes, qualifying the words "quartz or other rock," and to distinguish lode from placer claims. See p. 151. IRON HAT. (Eisen Hut.) The outcrop of a lode, it being usually colored by the decomposition of the iron. Yon Cotta, 38. JIG. A machine for concentrating ore by means of sieves. Corn. JUMP. To take forcible possession of a claim. (2) To relocate abandoned 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. 499 LEAD. A metallic element, bluish white ; fusing point 617 deg. Fahr. Symbol Pb. At. wt. 206.9. Sp. gr. 11.30. Galena and carbonates are its most common ores. LEDGE. A term in use on the Pacific slope synonymous with lode. See p. 150. 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, 5 Pac. 816. LIFT. The space between two levels. LITTLE GIANT. A jointed iron pipe and nozzle decreas- ing in diameter with the increase of the hydraulic pressure ; used in placer mining. LOCATION. Those successive acts by which a claim is appropriated. (2) The claim itself. LODE. An aggregation of mineral matter containing ores in fissures. Von Gotta 26. A vein of metallic ore. A ledge. Corn. See p. 150. (A fault in the country which has became mineralized. A. H. Green.) MAN HOLE. An opening just large enough to permit access between two workings. MATEIX. (Of the lode.) The country rock in which the vein is found. (Of the ore.) The rock or earthy mate- rial inclosing the ore ; the vein-stone. Latin. MATTE. One of the products of matte or pyritic smelt- ing. It consists either of ferrous mono-sulphide (PeS), or of cuprous sulphide (Cu2S), with ferrous mono-sulphide in varying proportions. Franklin R. Carpenter, Ph. D. See Smelting. MERCURY. Quicksilver. A shining silver-white metal, liquid at temperature above 40 deg. Fahr. Sp. gr. 13.5. At. wt. 200. Boils at 669 deg. Fahr. Symbol Hg. METALLURGY. The art of working metals, including smelting, refining, and parting them from the ores. MICA. One of the constituents of granite. When sep- arately crystallized is found in clear laminated plates. Found in the lode as well as in the matrix of the lode. MILL-HOLE. A passage left in the stope for throwing down rock and 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 open as distinguished from an untouched deposit. (3) Underground as distinguished from superficial workings or quarries. MINER'S INCH. There is an attempted statutory defini- tion in Colorado M. A. S., Sec. 4643, which is obscure and inexact. See also 2467. Orifices constructed as this statute :>n> GLOSSARY. directs, will deliver through each square inch of opening, a quantity which varies from 1.4 to 1.7 cubic feet of water per minute. The custom among engineers is to take 1.6 cubic feet of water per minute as the equivalent of an inch. "A miner's inch is the quantity of water which will escape from a reservoir through an aperture in its side 1 inch square, whose center is 6 inches below the constant level of the water and is equivalent to 1.626 cubic feet per minute. * * * The most common illustration of the miner's inch is a hole 1 inch square through an inch board." Van Wagenen, Manual Hydraulic Mining, p. 17. MINER'S RIGHT. The license to locate, used in Aus- tralia. MOLYBDENITE. A sulphide of the metal, Molybdenum ; found in scales with metallic luster closely resembling tin foil or gray copper ; also in a granular form, showing steel blue flake crystals. Valuable and marketable when concen- trated, as an alloy for high grade steel. A. B. Frenzel. 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 tnv*n. NODULE. A small, rounded, stony concretion. OPEN CUT. A longitudinal surface working not enter- ing cover. OPERATOR. One who works a mine either as owner or lessee. ORE. The mechanical or chemical compounds of the metals with baser substances. The conventional divisions in the ore market are : DRY 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, zink, arsenic, antimony or other base metals, which prevent economical treatment by usual and available processes. W. J. Chamberlain. ORE RESERVES. The ore body where exposed ready for stoping. OUTCROP. That portion of a vein appearing at the sur- face. 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 amalgamated by tread of horses. Sp. GLOSSARY. 501 PATIO PIIOCESS. 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 de- composed material which takes its place and preserves the continuity of the ore body. 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. 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. 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 Section 2329 TJ. S. Rev. St. see p. 192. 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. POCKET. A detached ore body ; a nest of ore. POCKETY. A term applied to a 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. 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. Or. 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 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." Or. QUARRY. Any open work in rock on a plan of excavat- ing the entire mass, as distinguished from working a seam or vein by shafts or approaches under cover. QUARTZ. Silica. A constitutent of granite. The free gold of California being found in quartz, the word was ap- plied to the gangue of such lodes and so to other forms of 502 GLOSSARY. vein matter, until it is now used vaguely to mean the ore, the float, the gangue, or that part of the gangue which in- dicates 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 con taining usually about 98 per cent, silica with a small per- centage of foreign materials, principally iron. QUICKS ILVEE. See Mercury. 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 indicative of movement or flowing when in a fluid state. RIFFLE BLOCKS. Cross sections of timber set on the floor of a sluice, with irregular spaces between, in which the gold settles. American. ROB. To gut a mine ; to work for the ore in sight with- out regard to supports, reserves or any future considerations. ROCKER. See Cradle. ROOF. The stratum or rock overlying a deposit, or flat vein. The top or back of any working. ROYALTY. The dues to the lessor. RUSTY. Oxidized. Ore coated with oxide. Applies to gold w r hich will not easily amalgamate. SCALE. A loosened fragment of rock threatening to break off and fall. SCHIST. Crystalline or metamorphic rock with slaty structure ; usually carrying mica, sometimes argillaceous. SEGREGATIONS. All those aggregations of ore having irregular form but definite limits. They differ from beds and lodes by the irregularity of their form ; from impregna- tions by their definite limits. Von Gotta, 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 perpendicular sunk on, or sunk to reach, the vein. SHIFT. (1) A miner's turn or spell of work. Web- ster. 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 hour are known as one shift. In large mines there are usually three, styled the day, night and graveyard shifts. Ben). C. Catren, Jr. GLOSSARY. 503 SILICA. In chemistry it means Silicon dioxide. Form- ula, Si.O-2. 1* is ordinary quartz. Between ore buyers and sellers everything not soluble in nitric and hydrochloric acids is counted as "silica" a determination often mani- festly unjust to the seller. FranJclin R. Carpenter, Ph. D. SILVER. A metallic element ; the whitest of the metals ; Sp. gr. 10.53 ; fusing point 1873 degrees ; symbol Ag ; At. wt. 107.93. One oz. pure silver coined in IT. 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. 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 disloca- tion 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 "pyritic smelting." FranJclin R. Carpenter, 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 luster. SPILING. Timbering used in quicksand or loose ground where lathes are driven behind timbers and kept flush with the heading. SPUR. A branch or off-shoot from a larger vein. STAMPS. Machine for crushing ores by vertical stroke. STOPE. 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 under- hand stoping. 504 GLOSSARY. 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 hori- zontal line. Von Cotta 19. Synonymous with trend and course. STULLS. Cross timbers at the foot of a stope. .SUBLIMATION THEORY. That which refers the filling of fissures to material deposited from ascending steam, or by condensation from a gaseous condition. SULPHIDE. The chemical union of sulphur with a metal. SULPHUR. A non-metallic element. Sp. gr. 205. Sym- bol 8. At. wt. 32.06. Yellow, fusible, brittle, insoluble ; except Oxygen, the most common base combining ele- ment in metallic ores, such as Pyrites. As a com- mercial product most commonly mined from old volcanic craters. Greatest production, Sicily. Largest deposits in U. S., Louisiana ; Black Rock, Utah : Mineral county, Colo- rado. T. 8. 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 or lower end of a sluice, or washed from any sort of placer working. TELLURIUM. A silver white, brittle substance, generally classed among metals ; usually combined with gold, silver, lead and copper. Sp. gr. 6.65. At. wt. 127.6. Symbol Te. TIN. A soft, malleable, white metal. Sp. gr. 7.2. Fus- ing point 442 deg. Fahr. At. wt. 119. Symbol 8n. 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 pos- session or title as lessees. TROUBLE. A fault. TUNDRA. The moss, or scrub-covered, regions of the Arctic. TUNGSTEN. (Wolfram.) A hard, heavy, grayish white metal, that fuses with great difficulty. Sp. gr. 17.6. At. wt. 184. Its ores are Scheelite, Huebnerite and Wolframite, all of heavy specific gravity. Wolframite is similar to iron in GLOSSARY. 505 appearance, but when scratched shows reddish brown. Hueb- nerite shows reddish brown, straight and fan-shaped crys- tals. Matrix of both, usually white quartz or buff-colored quartzite. A. B. Frensel. TUNNEL. A horizontal excavation starting at the sur- face 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. A metallic element usually found as an oxide UaOs. Bright lemon yellow. Frequently associated with Vanadium and then called Carnotite, UgOg, VjOs. Pitch Blende is a black oxide of Uranium, of heavy specific gravity, without luster. A. B. Frensel. VANADIUM. Found as oxide VgOs. Frequently asso- ciated witft Uranium as "Carnotite." Largest known de- posit is in a bed of Jurassic Sandstone, San Miguel county, Colorado, carrying about three per cent. Its presence gives dark green shade to the rock. Valuable as an alloy to harden steel. A. B. Frenzel. VEINS. Aggregations of mineral matter in fissures of rocks. Von Gotta 26; Bainbriclge 2. The word vein has a broader scope than lode, including non-metallic beds. See p. 150. It is also applied, in working, to smaller seams threading the greater deposit. Sec Vend and Veto. VENA. A small vein or the branches of the veta, or main vein. Span. VETA. A main vein. Span. VUG. 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 p. 17$. WHEAL. A pit or hole in the ground. A mine. The names of most mines in Cornwall are preceded by the word Wheat. Old form Huel. Corn. 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 con- necting two levels. ZINK. A metallic element : bluish white ; fusing point 773 deg Fahr. ; generally found as a sulphide (blende) or as a carbonate (calamine). At. wt. 65.4. Sp. gr. 8.9. Sym- bol Zn. 506 INDEX. INDEX. Abandonment, Page 84. Of Possessory Claim, 13. Of Ditch, 183. Conditional, 86. Relocation .after, 112. Of Tunnel, 232. Pleading, 8.7, 102. Abstract of Title In Examining Title, 274. On Application for Patent, 398 On Adverse Claim, 434. Accidents, 322. Acknowledgment, 249. By Individual, 242. By Wife, 248. By Corporation, 249, 303. By Attorney in Fact, 250. To Contracts, 255. To Articles of Incorporation, 289. Acreage Of Lode Claim, 411. Of Placer, 202. Government Price, 411. Adverse Claim, 431. See Forms. Ejectment. By Known Lode, 205. By Mill Site, 217. By Tunnel Site, 232. By Aliens, 281. Ejectment, Supporting, 314. By Whom Verified, 435. By Co-owner, 436. Amendment of, 438. What Should Adverse, 439. Proceedings After Determination, 450. INDEX. 507 Adverse Claim Continued. Annual Labor Pending, 451. Statute Concerning, 2326, 467. Land Office Rules, 361. Form of, 432. Complaint Supporting, 443. Answer in, 445. Certificate of Suit, 441. Effect of Failure to Assert, 128, 130. Waiver of, 448. Affidavit- Of Annual Labor, 104. Of Citizenship, 399. In Land District, 412. By Agent, 413, 435. Agent Location by, 57. Lease by, 266. Adverse by, 435. Of Foreign Corporations, 302. To Procure Patent, 412. Agricultural Lands, 220, 225, 472, 473. Alaska, 456, 474. District Rules, 8. Location of Claim in, 60, 201. Tide Lands in, 458. Timber in, 478. Act of 1900, 457. Aliens, 281. Amendment Of Location or Record, 121, 165. Angles, 49, 176. Annual Labor, 88. On Group Claims, 94. Proof of, 103. By Tunnel, 233. On Old Lodes, 89. Equity of the Law Requiring,, 101. On Placers, 106. 508 INDEX. * Annual Labor Continued. Pending Patent, 92, 451. After Entry, 92. Certificate in Lieu of, 105. Time to Perform, 92. District Rules, 7, 89, 95. Pending Adverse, 451. Pleading, 87, 102. Soldiers' Claims, 16. Roads and Trails as, 187. Apex, 156. Stakes Must Cover, 49. Survey Presumed to Include, 137. No Apex, No Dip, 173. Conveyance of Fraction of, 246. Statute, Section 2322, 463. Application for Patent, 382. See Forms. Land Office Rules, 351. Surveys for, 369. Circular to Applicants. 378. Adjoining Claims, 395. By Agent, 412. By Corporation, 414. On Surveyed Lands, 422. For Mill Site, 414. Proof of Nonabandonment, 401. Cancellation of Entry, 407. By Trustee, 428. Without Record Title, 429. Conflicting, 131, 429. Statute, 466. Appropriation, 28, 29. Of Water, 180. Arizona, Location of Claim in, 61, 198 Assay, 341. Association of Persons, 17, 195. Attorney in Fact Acknowledgment by, 250. Power to Apply for Patent, 413. INDEX. 509 Boundaries Staking, 46. Surveys of Mining Claims, 369. Monuments Control, 56. Immaterial Calls, 75. Building Stone, 191, 193. Bureau of Mines, 340. By-Laws, 291. California, Location of Claims in, 61, 201. Children, Employment of, 313. Citizenship Land Office Rules, 359. Form of Proof, 399. Statute, 463. Of Corporation, 359, 401. Pleading and Proof of, 283. Proof by Witnesses, 401. Claim. See Possessory Claim, Lode. Acreage of Lode, 411. Acreage of Placer, 202. Length, 17-21. Width, 21-25. Side Claims, 17. Divided into Lodes and Placers, 192. Possessory, 12-14. Right to Swing, 38, 121. Fractions, 58. Coal Lands, 475. Coal Mines Drainage, 178. Penal Regulations of, 313. Colorado, Location of Claim in, 25, 59, 191. Commissioner of Mines, 340. Condemnation, 185, 188. Contract Mining Sale, 250, 256. To Sell and Buy, 254. 510 INDEX. Contract Continued. Prospecting, 270. To Sink Shaft, 273. Conveyance, 241. Before Record, 124. Of Water Rights, 183. Agreements for, 250. In Examining Title, 275. Form of Warranty, 241. Form of Quit Claim, 243. Subdividing Lode, 246. Acknowledgment, 249, 250, 255. Escrow, 255. Mining Deed, 244. Witnesses, 248. Short Form Deed, 245. Wife's Signature, 248, 276. Corporation, 286. Location by, 57. Foreign, 302. Citizenship of, 359, 401. Filing Fees, 298. Form of Articles, 288, 290, 297. First Meeting, 291. By-Laws, 291. Reports, 294. Smelting and Sampling Companies, 298. Ditch Company, 297. License Tax, 299. Acknowledgments by, 249. Application for Patent by, 414. Costs, 444. Crevice, 42. Crimes, 310. Cross Lodes, 138. In Conveyance, 247. Courses, 39, 54, 56. Custom, see District Rules. INDEX. 511 Damages In Trespass, 320. For Negligence, 322. Measure of, 320. For Dumping, 209. On Condemning Ditch, 185. Dead Work, 257. Deed. See Conveyance. Departure from Side Lines, 146, 161, 162. Deposits In Place, 151, 155. Richness of, 152. Deputy Surveyor, 363, 369, 370. Description, 72. Defective, 73. In Conveyance, 245. Wrong in Patent, 136. Descriptive Report, 419. Diagram of Lode, 49, 51, 71. Showing Excessive Width, 25. Showing Apex, 162, 166, 169. Of Official Survey, 386. Dip, 171. Of Deposits or Contacts, 158. Veins Uniting on, 142. Right to Follow, 157. Veins Cut on, 164. Plat Showing, 166, 169. Degrees of, 172. Discovery on, 163. Discovery, 27. On Old Lodes, 25. After Location, 32. Where Made, 34. Methods of, 35. Under Present Law, 27. In Open Cut, 28, 44. In Tunnel, 28, 44, 46. 512 INDEX. D i sco ve ry Continued. Gives Title, 29. When Complete, 30. By Drill Hole, 35. Time It Holds Claim, 35. On a Spur, 176. Location Without, 315. Outside of Discovery Shaft, 33. Secret Underground, 45. On Placers, 194, 195. Discovery Shaft And Discovery Distinguished, 32. Statute Requiring, 25. Must Be 10 Feet Deep, 27, 41. Must Show Crevice, 42. Must Be on Public Domain, 39. On Town Site, 39. Patent Over, 39. Claim Must Include, 40. Sale of, 40. Time to Sink, 28. Where Sunk, 34. In Slide or Country, 43. Walls in, 43. For Each Claim, 44. District Rules, 3. Affecting Labor, 7, 89. Ditches, 179. Abandonment of, 87. Location Notice, 181. Location Certificate, 182. Do Not Pass as Appurtenances, 183. Condemnation Proceedings, 185. Ditch Company, 297. Dower, 248. Drainage, 178. INDEX. 513 Dump, 188. Location of, 210. For Tailings, 211. For Tunnel, 229. Easements, 179, 186. Ejectment, 314. Supporting Adverse, 441. Proper Court, 440. Certificate of Suit, 441. Form of Complaint, 443. Form of Answer, 445. Verdict in, 447, 449. Eminent Domain. See Condemnation. End Lines On Prior Claims, 47. Parallel, 160, 173. Converging, 161. Plat Showing, 166. Relation to the Strike, 166. One Set for All Veins, 166. Following Lode Beyond, 167. Entry, 407. Annual Labor After, 92. Death of Applicant, 428. After Adverse, 450. Of Area Not in Dispute, 449. Escrow, 255. Estoppel, 108. Examination of Title, 273. Excluded Areas, 132, 374, 388, 407. Extensions, 84. 'Fault, 153. Feeders, 175. Fees Of Surveyor General, 381. In Land Office, 403. Of Secretary of State, 298. 17 514 INDEX. Fiduciary Relations, 117. Fixtures, 266. Float Ore, Location on, 31. Forcible Dispossession, 312, 334. Forcible Entry, 319. Foreign Corporations, 302. Forfeiture, 107. See Abandonment. Parties Essential to, 96. Relocation Before Complete, 98, 101. To Co-Owner, 107. Notice, 109. Form of Proof, 109. Of Placers, 106. Forms Acknowledgment By Individual, 242. By Corporation, 249, 303. By Attorney in Pact, 250. To Articles of Incorporation, 289. Agreement to sell, 251-254. Amended Location Certificate, 119, 121. Annual Labor Affidavit, 104. Annual Report of Corporation, 295. Articles of Incorporation, 288, 290, 297, 298. Assessment, 300. By-Laws, 291. Certificate of Stock Paid, 294. Contract to Sell and to Buy, 254. Designation of Agency, 302. Ditch Incorporation, 297. Ditch Location Certificate, 182. Dump Location Notice, 229. Ejectment, Complaint and Answer, 443-445. Escrow, 255. Forfeiture Notices, 109, 110. Foreign Corporation Certificate, 302. Injunction Notice, 331, 335. Lease, 258. Lease and Option, 263. INDEX. 515 Forms Continued. Liens, Clerk's Certificate of, 279. Lode Notice, 36, 38. Lode Location Certificate, 72. Mill Returns, 262. Mill Site Location Notice, 213. Mill Site Location Certificate, 213. Miner's Lien, 237. Notice to Ore Buyers, 309. Notice of Leased Mine, 240. Organization Meeting, 291. Placer Notices, 196, 197. Placer Location Certificate, 198. Placer Lease, 263. Prospector's Notice, 36. Prospecting Contract, 270. Protest, 454. Quit Claim Deed, 243. Relocation Certificate, 119, 121. Resolution to Assess, 300. Sale Subject to Examination, 253. Surveyor's Lien, 239. Title Bond, 251. Tunnel Location Notice, 229. Tunnel Location Certificate, 227. Warranty Deed, 241. Working Contract Sale, 252. Forms in Application for Patent A. Request for Official Survey, 382. B. Order for Survey, 383. C. Preliminary Plat, 385. D. Field Notes, 387. E. Approval of Survey, 391. F. The Final Plat, 391. ' G. Surveyor General's Approval of Survey and Certificate of Improvements, 392. H. Approved Field Notes, 392. I. Surveyor General's Certificate to Tran- script, 393. K. Notice of Application, 394. L. Proof of Posting, 395. 516 INDEX. Forms in Application for Patent Continued. M. Application, 396. N. Abstract of Title, 398. 0.. Proof of Citizenship, 399. P. Publisher's Contract, 402. Q. Publication Notice, 402. R. Proof of Notice Remaining Posted, 405. 8. Proof of Publication, 405. T. Proof of Sums Paid, 40G. U. Application to Purchase, 406. V. Register's Certificate of Posting, 408. W. Register's Final Certificate of Entry, 409.. X. Affidavit of Lost Receiver's Receipt, 410. Y. Power of Attorney, 413. Mill-Site Z. Non-Mineral Affidavit, 414. AA. Affidavit of Use for Mining Purposes, 415. Placer BB. Proof of No Veins, 418. GC. Descriptive Report, 419. DD-GG. Exhibits to Descriptive Report, 420- 421. Forms in Adverse Claim HH. The Adverse, 432 JJ. Certificate of Suit, 441. KK. Complaint Supporting, 443. I/I/. Answer, 445. MM-NN. Verdicts, 447. Fraud, Patent Obtained by, 134. Sale Induced by, 256. Glossary of Mining Terms, 492. Gold Dust, 310. Group Claims Apex Rights of, 165. Annual Labor on, 94 Patenting, 425. $500 Improvements, 426. INDEX. 517 Highways, 186. Holidays, 438. Homestead, 201, 473. Idaho, Location of Claim in, 61, 199. Improvements. See Land Office Rules. $500 Worth, 92, 427. What Counts as, 93, 94, 427. By Tunnel, 233. On Mill Site, 415. Completed Pending Application, 427. On Adverse, 434. Indian Reservation, 305. Injunction, 326. Against Tailings, 209. Against Ore Buyers, 309. Inspection and Survey, 273, 336. Inspector of Mines, 340. Interference of Claims, 136. Internal Revenue, 250. Irrigation, 185. Jumping Act, 312, 334. Known Lodes Excluded from Placer, 203. What Are, 203. Not Recorded, 204. Adverse by, 205, 425. Proof of, 206. Width of, 207. Land Office Rules, 344. Abstract of Title, [Rule 42.] Adjoining Claims, Call for, [10.] Adverse Claim, [78-88.] Affidavit, Who May Take, [69.] Affidavit, Out of District, [70.] 518 INDEX. Land Office Rules Continued. Agricultural and Mineral Contests, [101-111.] Alaska, [112, 113.] Annual Labor, [12-15, 55.] Application for Patent, [34-57.] Area and Conflicts, [38, 44, 149, 153.] Diagram of Claim, [37, 161.] Entry, [52.] Proof of $500 Improvements, [25, 48-50.] Lost Records, [43.] Newspaper, [45-47, 89.] Notice, [46.] Numbering Surveys, [36, 72.] Official Survey, [34, 35.] General Provis- ions, [115-169.] Posting Plat, [39, 40, 51, 73.] Proof of Sums Paid, [52.] Publisher's Contract, [45.] Statement of Claimant, [41.] Building Stone, [20, 114.] Certificates of No Suit, [76, 88.] Chain of Title Broken, [74, 75.] Citizenship, Proof of, [66-70.] Deputy Surveyors, [89-98, 115-121, 128.] Descriptive Report on Placer, [167.] Errors in Surveys, [162-166.] Fees and Charges, [89-98, 120, 122.] Forest Reserves, [114.] Forfeiture, [15.] Hearing to Determine Character of Land, [99- 111.] Improvements, [156-160.] Location, [4-11.]' Lode Claims, Length, [4.] Width, [5.] Size, [6.] In Placer, [26, 151.] Mill Sites, [61-65, 150.] Oil Claims, [21.] Old Lodes, Status of, [2.] INDEX. 519 Land Office Rules Continued. Placer Claims, Location and Patenting of, [19- 30, 58-60.] Possessory Right by Limitation, [74-77.] Protest, [53.] Railroad Selections, [102.] Record, [13, 18.] Salines, [31-33.] School Lands, [20.] Side Veins, [2, 3.] Stakes and Corners, [10, 143-14(5.] Ties, [9, 36, 135-142, 147, 158.] Timber, [114.] Trustee, Entry by, [54.] Tunnels, [16-18.] Larceny, 311. Lease, 257. Form of, 258, 264. By Agent, 266. And Option, 263. Assignment of, 267. Miner's Lien, 240. Ore Mined by Trespass, 321. Non-Assessable Interest in, 267. Ledge, 150 Length of Lode Claim Before May 10, 1872, 17. At Various Dates, 19. Since May 10, 1872, 20. How Distributed, 20. Excessive, 21. License, 268. Of the United States, 10. To Construct Ditch, 184. Liens, 235. How Affected by Patent, 235. Miner's, 236. Covenant Against in Lease, 260. Certificate of, 279. 520 INDEX. Liens Continued. Surveyor's, 239. In Examination of Title,^278. Limitations, 338. Location, 27-59. Definition of, 37. Statutory Requirements of Various States, 59- 67. Formal Parts of, 37. Of Old Lodes, 25. Of New Lodes, 27. Of Placers, 196. Of Tailings Claim, 211. Diagram of, 49, 51, 71. Not Covering Vein, 49, 148. Without Discovery, 32, 315. Excessive, 21. Possession Without, 78, 82, 315. One or Both Parties in Default, 79, 81. Presumption of, 318. Land Office Rules, 344. Without Surveyor, 50. Of Tunnel Site, 226. Of Lodes Cut in Tunnel, 229. Across the Strike, 58. Conflicting, 247. Location Certificate, 67-84. Statutory Requirements, 59-67. Form of Lode, 72. As Proof of Location, 318. Parol Proof of, 75. Test of Sufficiency, 76. Amended, 119, 121. Where Voidable Only, 123. Form of Ditch, 182. Form of Placer, 198. Form of Mill Site, 213. Form of Tunnel, 227. In Examining Title, 275. Verification of, 77. INDEX. 521 Location Monument, 372. Location Notice Statutes Requiring, 27, 59-67. On Lode, 36, 38. On Ditch, 181. On Placer, 196. Location Stake, 37. Notice on, 36, 38. Removal of, 311. Lode, Defined, 150. Length of Old Claims, 17. Present Length, 20. Width, 21-25. Discovery and Location, 25-59. Size or Value, 33. Uniting on Dip, 142. Wider than Claim, 150. Proof of Continuity, 153, 155. Side Veins, 144, 145. "In Place," 151, 155. Test of Value, 152. ' Record, 67. Diagram, 49, 51, 71. Interferences, 136. Within Placer, 202. Cross, 138. Located Over Placer or Mill Site, 225. , Cut in Tunnel, 229. Cubic Incidents of, 172. And Placers Distinguished, 417. Group of, in Patent, 425. Lodes, Veins and Ledges, 150. Malicious Mischief, 312. Mandatory Writ, 334. Married Women, 248, 276. Measure of Damages, 320. Mexican Grant, 284. Mill Returns, 262. 522 INDEX. Mill Site, 212. Application for Patent on, 414. Separate Application, 217. Must Be Non-Mineral, 215, 220. Location Certificate, 213. Patented, 220. Land Office Rules, 358. Non-Mineral Affidavit, 414. Statute, Section 2337, 472. Mineral Land, Comparative Value, 153, 215. Conclusiveness of Patent, 133. Mineral Value, 152, 194. Miner's Lien, 236. Covenant Against, in Lease, 260. Miner's Rights, 10. Miner's Title Recognition of, 10. Nature of Estate, 12, 126. Mining Claim. See Claim, Possessory Claim, Lode. Mining Districts, 3. Mining Lease. See Lease. Minors, 57, 111, 313. Montana, Location of Claim in, 62, 199. Monuments, 53, 72. See Land Office Rules. Naturalization, 282. Negligence, 322. Nevada, Location of Claim in, 63, 200. New Mexico, Location of Claim in, 64, 201. Newspaper, In Application for Patent, 402. In Forfeiture, 108. Non-Contiguous Tracts, 416. North Dakota, Location of Claim in, 64, 201. Notice- Lode Location, 36, 38. Placer Location, 196. INDEX. 523 Notice Continued. Renewing, 37. Changing Names on, 124. On Underground Discoveries, 45. Injunction, 331, 335. Of Forfeiture, 109. To Ore Buyer, 309. Oil Land, as Placer, 192, 469. Oil Wells, 313. Open Cut, Discovery in, 28, 44. Option, 251, 263. Ore Buyers, 307. Ore Contracts, 306. Ore Salting, 310. Ore Stealing, 311. Oregon, Location of Claim in, 65, 201. Overlapping Claims, 115, 132, 138, 141. Annual Labor on, 100. Partnership, 266. Patent, 125. Application for, 382. Land Office Rules, 351. Not Divest Highway, 187. Lodes Dipping Under, 221. In Examination of Title, 278. To Assignee, 428. Suit to Cancel, 134, 338. Pay Ore, In Discovery, 33. Penal Provisions, 310. Philippine Islands, 459. Placer, 190. As a Lode Claim, 134. Appropriation of Water, 180. What Constitutes, 192. 524 INDEX. Placer Continued. Location Certificate, 198. Location Notice, 196. Size of, 195. Location on Surveyed Land, 197. Lease of, 263. Association to Locate, 195. Statutes of IT. S. and Colorado, 190. Statutes of Other States, 198-201. Lodes Within, 202, 423, 424. Annual Labor on, 106. Application for Patent, 202, 417. Width of Lode in, 207. Forfeiture of, 106. What Patent Covers, 219. Reservation of Lodes, 223. Joinder of, in Application, 425. Land Office Rules, 348, 357, 377. Application for Patent on Surveyed Lands, 422. Pleading Of Suit Brought, 315. Abandonment, 87. Forfeiture, 102. Possession Without Record, 78. During Location Period, 82. Defective Record Aided by, 83. As Notice, 280. Without Location, 315. How Proved, 317. In Ejectment, 314. Possessory Claim, 10, 12. Abondonment, 13, 85. Vested Estate and Freehold, 12, 13. Power of Attorney, 413. Proof Of Citizenship, 399. Of Labor, 103, 104. Of Forfeiture, 108, 109. Of No Known Lodes, 418. INDEX. 525 Prospecting Contract, 270. Protest, 452. Publication To Enforce Forfeiture, 110. In Patent Application, 402. Certificate of, 405. Period of, 403. Public Domain Occupation of, 10. Paramount Title in, 12. Segregation of Claims, 128. Quarry, as Placer, 193. Quartz, in Discovery, 33. Quit Claim Deed, 243. Real Estate, 13. Dump Is, 189. Receiver's Receipt, 136, 409. Cancellation of, 407. Affidavit of Loss, 410. Record, 67. Time to Record, 68. Of Location Notice as Certificate, 69. Definition of, 70. Description in, 72. Possession Without Record, 78, 82. Statute Requiring, 68. Priority, 78. Relation Doctrine of, 97, 122, 129, 143. Water Rights, 184. Relocation, 112. Upon New Discovery Shaft, 34. Before Year Expires, 101. Of Abandoned Claims, 112.' Instead of Annual Labor, 114. Non-Abandoned Claims, 118. After Patent Applied for, 115. 526 INDEX. Relocation Continued. By Co-Owner, 115. By the Owners, 118. Form of Certificate, 119, 121. After Loss of Discovery Shaft, 120. Replevin, 325. Reservation See Severance. In Placer Patents, 201. In Town Site Patents, 222. In Patents Generally, 224. Indian, 305. Military, 475. Government, Right of Way on, 187. Of Minerals by Deed, 248. Right of Way, 186. To Cross Lodes, 138. To Oil Pipe Lines, 474. Roads, 186. Rock in Place, 151, 155. Royalty, 258-261, 264, 265. Rules for Official Survey, 371. Salines, 193, 350. Sampling and Smelting Companies, 297, 307. Notice to, 309. Scales, False, 310. School Claims, 15. School Lands, 221. School of Mines, 343. Seepage, Show of Mineral by, 153. Severance, 218. Side Lines Departure of Vein from, 146, 161, 162. Relation of Apex to, 161. Side Veins, 144, 145. End Lines Control, 166. Dip Rights of, 173. INDEX. 527 Slip, 175. Soldiers' Claims, 15. South Dakota, Location of Claim in, 65, 201. Spurs, 175. Stakes Statute Requiring.. 27. Center and Corner Posts, 27, 49. On Prior Claim, 47, 77. Time to Set, 48. On Cross Cut Discoveries, 45. Must Cover Apex, 49. Marks on, 51. On Precipitous Ground, 55. Maintaining, 56. Overlapping, 77. On Placer, 197. Removal of, 311. Size of, 55. Stamps, 250, 298. Statutes- Repealed Acts of Congress, 460. Text of Acts of Congress, 462. Timber. Act, 477. Coal Lands, 475. Placer Act, 190, 202. 1,500-Foot Act, 20. Stock See Corporations. Paid in Lands, 287. Certificate of Paid Up, 294. - Assessment of, 290, 299. Stockholders, 287. Stone, Building, 191, 193. Strikes, 313. Sunday, 59, 438. Surface Acreage of, 202. Mining Under Improvements, 218. Severance, 218. 528 INDEX. Surface Continued. Separate Ownership of, and Minerals, 218. Right to Tunnel Under, 230. Survey For Patent, 371, 382. For Adverse, 434. For Location, 50. With Inspection, 336. On Examination of Title, 278. Land Office Rules for, 369. Presumed to Cover Vein, 137. Overlapping, 138. Apex Leaving, 161, 162. Irregular, 177. Surveyor's Lien, 239. Surveyor General's Circular, As to Fees, 381. Table of Cases Cited, 479. Tailings, 208. Abandonment of, 87. The Debris Cases, 211. Taxes, 234. Tenants in Common, Non- Joinder of, 319. Collusion With Third Parties, 57. Relocation by, 115. Rights of, in Patent, 111. Lease by, 266. Tide Lands, 455, 458. Ties, 52, 53. See Land Office Rules. To Discovery Shaft, 72. On Placer, 197. Timber, 312, 477. Time To Perfect Location, 48. To Adverse, 437. To Record, 69. Essence of Contract, 252. INDEX. 529 Title- Abstract of, in Examining Title, 274. Abstract of, in Land Office, 398, 434. After Acquired, 277. Possessory, 10, 12. Patented, 125. After Entry, 126. Color of, 148. In Third Party, 318. In Neither Party, 449. Title Bond, 251. Town Sites, 222. Trails, 186. Tramways, 187. Trespass, 320. Rights Initiated by, 83, 197. Relocator, no Trespasser, 101, 113. By Surface Owner, 218. Not Larceny, 311. Measure of Damages, 320. Tunnel Sites, 225. Diverse Ownership in, 95. Discovery in Tunnel, 28, 44. Record of, 226. Location Certificate, 227. Location Notice, 229. Abandonment of, 232. Companies, 287. Annual Labor in, 233. Land Office Rules, 347. Utah, Location of Claim in, 66, 201. Variations, 176. Vein See Lode. Irregularity of, 137. Ventilation, 313. Verdict, in Adverse Suit, 447, 449. Verification, of Location Certificate, 77. 530 INDEX. Vertical Planes Right to Vein Within, 167. Walls, 174. In Discovery, 43. Warranty Deed, 241. Conveys After Acquired Title, 277. Washington, Location of Claim in, 66, 200. Water. See Ditches, Appropriation, Drainage. Weights and Measures, 310. Width of Lode Claims, 21, 22. Witnesses, to Deeds, 248. Working Contracts, 273. Wyoming Location of Claim in, 67, 201. Position of Discovery Shaft, 24. Zone, Mineral Bearing, 154. We desire to express obligations for courteous suggestions and information as to the local law and custom in their respective States, to the following attorneys: D. D. Williams, Boise, Idaho; Cullen, Day & Cullen, Helena, Montana; Corlett Downey, Laramie, Wyoming; Willis B. Herr, Seattle, Wash- ington; C. C. Dey, Salt Lake City, Utah; A. Burrows, Grass Valley, California, and to Horace F. Clark, of Washington, D. C., for points in Land Office prac tice. M. & DE S. Denver, April 6, 1903. 24 >2 (905 'N&K, L