THE LIBRARY
OF
THE UNIVERSITY
OF CALIFORNIA
DAVIS
^
yu^Li
^ /CAL
/^ f^ ' FERRY BUILDING, SAN FRANCISCO
STATE OF/CAUFORNIA
DEPARTMENT OF^TURAL RESOURCES
GEORGE D. NORDENHOLT, Director
DIVISION OF MINES
WALTER W. BRADLEY
State Mineralogist
San Francisco]
BULLETIN No. 106
[August, 1939
MANNER OF LOCATING AND HOLDING
MINERAL CLA
m
CALIFORNIA
(With Forms)
By
A. H. RICKETTS
Fifth Edition
(Revised)
8tH4
printed in California state printing office
SACRAMENTO: GEORGE H. MOORE, STATE PRINTER
UBRARY
UNIVERSITY OF CAUFORfflA
DAVIS
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'N^
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CONTENTS
re
§1. Lands Open to Location •
§2. Lands Not Open to Location / 6'^
§3. Mining Locations :- 6
§4, Conflicting Locations 1
§4a. Good Faith 7
§5. Void Locations 7
§6. Essential Elements in Locating Mining Claims 7
§6a-6e. New statutory Regulations Affecting Mining Locations 7
§7. Discovery 9
§8. Locators 9
§9. Boundaries 9
§10. Tying the Claim 10
§11. Placer Locations 10
Form of Placer Location Notice (On Surveyed Land) 11
Form of Placer Location Notice (On Unsurveyed Land) 11
§12. Lode Locations 12
Form of Lode Location Notice 12
§13. Tunnel Site Locations 13
Form of Tunnel Site Location Notice 14
§14. Mill Site Locations 14
Form of Mill Site Location Notice 14
§15. Townsites 14
§16. The Posted Notice of Location 15
§17. Recorded Notice of Location 15
§18. Relocation 16
§19. Amendment of Location or Record 16
Form of Amended Location Notice 16
§20. Annual Expenditure or 'Assessment Work' 17
§20a. Contribution 18
§21. Proof of Annual Labor 18
Form of Affidavit of Annual Labor 19
§22. Resumption of Labor 19
§23. Independent Contractor 19
Form of Contract 19
§24. Patents 20
§25. Adverse Claims 20
§26. Protests 20
§27. Tenancy in Common 20
§28, Mining Partnerships 21
§29. Grubstake Contracts 21
§30. Option 22
Short Form of Option 23
§31. Leases 23
Short Form of Lease 24
Form of Notice of Nonresponsibility 24
§32. Deeds 25
Form of Deed 25
§33. Working the Claim 25
§34. Payment of Wages____ 26
§35. Fixtures 26
§36. Location Work and Assessment Work Distinguished 26
2—88084 ( 3 )
FOREWORD
(First Edition)
Among the questions most frequently asked of the staff of the State
Division of Mines, both in oral interviews and in letters received, are
those pertaining to points concerning the location of mining claims, the
rights accruing thereunder, and the maintenance of those rights. These
and other phases of the American Mining Law, both statutory and
interpreted by judicial decisions, are dealt with in detail in Bulletin
No. 98, of this Division, American Mining Law, by Mr. A. H. Ricketts,
giving also a wealth of citations and related matter.
Although the bulletin referred to is written and presented in such
language and arrangement as to be readily available and understand-
able to the layman, the engineer, and the lawyer, alike, we have found
an insatiable demand for a simple and brief outline for distribution in
an inexpensive pamphlet form. Such an outline covering the salient
features needed by the average prospector and claim owner in initiating
and maintaining his possessory rights to mineral ground, is the matter
presented herein.
Walter W. Bradley,
State Mineralogist.
San Francisco, November 27, 1931.
(Fifth Edition)
The demand for the information contained herein having exhausted
four printed editions of this summarized mining law bulletin, this
fifth edition slightly revised is now prepared. To the third edition
was added the new statutory requirement in California of so-called
'discovery' or 'location' work, and likewise the new requirement that
* grub-stake' contracts must now be in writing and recorded. These
became effective, September 15, 1935.
The further amendment, relating to 'location' work, effective Sep-
tember 19, 1939, is included in this fifth edition.
W. W. B.— August 4, 1939.
(4)
MANNER OF LOCATING AND HOLDING MINERAL CLAIMS
IN CALIFORNIA*
By A. H. RiCKETTR
of the San Francisco Bar
§ 1. Lands Open to Location.
All valuable mineral deposits in land belonging to the United
States, both surveyed and unsurveyed, and the lands in which they are
found, are free and open to exploration, occupation and purchase,
except that aliens may not obtain patent. This includes mineral land
within a national forest, the unpatented parts of a congressional grant
to a railroad company (except iron and coal), or of an unconfirmed
Mexican grant (to abide the final determination of the validity of
the grant), also land within the limits of an unpatented townsite, or
when known to be mineral at the date of the application for patent
therefor, or an unlocated or unpatented 'known lode' within the
exterior limits of a patented or unpatented placer mining claim or
mineral lands within an abandoned military or Indian reservation or
mineral lands restored to the public domain.
Land valuable for its mineral deposits is land which contains min-
erals in sufficient quantities to justify exploitation and development.
The mineral deposits may be metalliferous such as gold, silver, and
other metals, or nonmetalliferous such as alum, amber, building stone,
diamonds, gypsum and like substances; but under more or less recent
congressional legislation, popularly known as the *' Leasing Act,'' lands
known to contain coal, petroleum, oil shale, potash, phosphate, sodium
salts (except common salt, on which one claim only may be located)
can not be located nor patented under the lode or placer laws but are
obtainable under lease, subject to the regulations and control of the
Secretary of the Interior. But the possessory right to a location made
prior to the passage of that act is not disturbed by its provisions.
Under the ** Stock-raising Homestead Act" there is a severance of
the surface and mineral deposits and the latter may be located and
worked in accordance with the mineral land law, with the right to
enter and occupy so much of the surface thereof as may be required
for all purposes reasonably incident to the mining or removal of the
mineral ; first, upon securing the written consent or waiver of the home-
stead entryman or patentee; second, upon the payment of damages to
crops or other tangible improvements to the owner thereof, where agree-
ment may be had as to the amount thereof, or, third, in lieu of either of
the foregoing provisions he must execute a good and sufficient bond or
undertaking to the United States for the use and benefit of entryman
or owner of the land to secure the payment of damages to said crops
and tangible improvements as may be determined by a court upon
proceedings duly had and taken. All this seems to be giving a thing
with one hand and taking it away with the other.
* These notes are based upon "American Mining Law," by A. H. Ricketts,
State Division of Mines. Bulletin 98, 1931, and briefly outline the salient features
needed by the average prospector and claim owner in initiating and maintaining his
possessory rights to mineral ground. Price of Bulletin 98 is $3.50 postpaid, plus
11 cents sales tax.
(5)
— 6 —
§2. Lands Not Open to Location.
Land is not subject to mineral location when lying within a sub-
sisting Indian, military, naval, national park, national monument
(except Death Valley National Monument), reservoir reservation,
power site, when withdrawn from sale by authority of congress, or
by an executive order express or implied; when situated below high
tide; the bed of a navigable river; a lake bed (except Searles Lake
in San Bernardino County) ; coal or iron lands within the limits of
a congressional land grant to a railroad company, or within its rights
of way, or its indemnity limits ; land within the limits of a congressional
land grant to a state after approval of survey or certification by the
land department; land which is occupied under color of title (unless
it can be done peaceably) ; land which has passed into private owner-
ship.
§3. Mining Locations.
Speaking strictly, there are only two kinds of mining locations,
namely: lode and placer; which latter includes all forms of deposit
excepting veins of quartz or other rock in place. In addition, there are
statutory provisions for tunnel-site and mill-site locations, which some
courts have designated as coming within the category of ' mining ' loca-
tions. The last-mentioned claim must be located upon nonmineral
ground or it may be located or it may be ^scripped' upon lands which
are prima facie mineral but which in fact are valueless as such.
Lode and placer locations are governed by the character of the
mineral deposit sought to be appropriated. Hence, a lode location can
not legally cover a placer deposit, and vice versa. If the location is
improperly laid, the location is void and subject to adverse relocation,
provided, the relocation can be made peaceably. However, in the absence
of an adverse right an amended location will cure the error of location.
A 'known lode' within a placer claim, not separately located by the
placer claimant, nor specifically included by him within his application
for patent for the placer claim, is subject to lode location by another
if peaceably made. All blind veins within the placer location pass to
the placer claimant without extralateral right thereto. No person may
enter and prospect for such veins without the consent of the placer
claimant. There are two classes of tunnel claims: one is sometimes
known as the Hunnel site' and is run to discover blind veins not pre-
viously known to exist along the location line of the tunnel; and the
other has its portal on and is partly run outside of the boundaries of a
lode claim for the development thereof.
Mineral lands within a national forest may be located and patented
as generally provided in the federal mining law for the location of
mining claims. The rights of a locator of a valid mining claim within
such reserve are not qualified. He is entitled to the exclusive possession
and enjoyment of the surface and to the use of timber growing upon his
claim in the development thereof, against any attempt on the part of
the United States to deprive him of such use of the timber. All mining
rights of way are allowed across the national forests. State mineral
lands in California are not subject to mining location. They may be
prospected and leased under the provisions of state law.
A valid mining location can be made upon a Sunday or a holiday.
— 7 —
§4. Conflicting Locations.
The principle which governs the conflicting claims of appropriators
of mining claims and other rights on the public domain is that, other
things being equal, the prior locator prevails. A location made within
the limits of ground already appropriated is void from the beginning;
but the boundary marks of lode locations may be placed upon or across
the surface of a prior location, or intervening ground whether patented
or unpatented as mining or agricultural ground, for the purpose of
securing an extralateral right; but no right is given to the ground
within the overlap. If a locator should happen by mistake to place
some of the monuments necessary to mark out his boundaries upon
another *s claim, the location is valid so far as that portion of the ground
which was open to location.
§4a. Good Faith.
Good faith, as an element in the initiation of mining rights under
federal and state laws, is absolutely essential to the validity of such
rights, may not be dispensed with, and lack of it vitiates any attempt
to initiate such rights.
§5. Void Locations.
Some instances of void locations are these : A location based upon
a discovery which is within the boundaries of a prior claim; when
located upon the dip of the vein or lode; a lode location of a placer
deposit, or vice versa ; a placer location intended to secure a known vein
therein ; to secure the timber growing thereon ; a provisional location ; a
relocation in California by a claimant within three years after the date
of the original location after default in assessment work ; a location or
relocation based upon a breach of trust, or based upon trespass ; a loca-
tion without discovery where no attempt is made to discover the same ;
a discovery without boundaries; or, failure or neglect to comply with
the local law in making the location on the ground.
§6. Essential Elements in Locating Mining Claims.
The essential elements in locating either lode or placer claims are :
discovery of mineral, marking the boundaries, posting the notice of
location and the recording thereof. The order in which these acts are
performed is immaterial but all must be performed before the location
is complete. A locator's rights may be sustained where there is lack
of discovery, provided he is diligently and in good faith prosecuting
work for discovery.
§6a. New Statutory Regulations Affecting Lode Locations (Monuments and
'Discovery' Work).
The recent change in the law of this state governing lode locations
makes it imperative that : * * within sixty days after the location of the
claim, the locator or locators shall erect at each corner of the claim and
at the center of each end line, or the nearest accessible points thereto, a
post not less than four inches in diameter, or a stone monument at least
eighteen inches high. " ( § 2302, Public Resources Code. )
Also, (a) Within ninety days after the date of location of any
lode mining or placer claim hereafter located, the locator or locators
3—88084
— 8 —
thereof shall sink a discovery shaft upon the claim to a depth of at
least ten feet from the lowest part of the rim of the shaft at the surface,
or shall drive a tunnel, adit, or open cut upon the claim to at least
ten feet below the surface.
(b) In lieu of the discovery work required by paragraph (a) of
this section, the locator of a placer mining claim may, within ninety
davs of the date of location, excavate an open cut upon the claim,
removing from the cut not less than seven cubic yards of material.
(§ 2304, Public Resources Code.)
See § 36 for distinction between 'discovery' and * assessment' work.
§ 6b. New Statutory Regulations Affecting Placer Locations.
**0n all placer mining locations containing more than twenty
acres, * * * the locators thereof shall, within ninety days after
the date of location, perform at least one dollar 's worth of work for each
acre included in such claim. This work may all be done at one place on
the claim if so desired, and must be actual mining development work
exclusive of cabins, buildings, or other surface structures. Nothing in
this section shall be construed as a modification of the requirements of
section 2304" of the Public Resources Code.
§ 6c. New Statutory Regulations Affecting Relocations.
''The relocation of any lode or placer mining location which is
subject to relocation shall be made as an original location is required
to be made, except that the relocator may either sink a new shaft upon
the ground relocated to the depth of at least ten feet from the lowest
part of the rim of the shaft at the surface, or drive a new tunnel,
adit, or open cut upon the ground to at least ten feet below the surface ;
or the relocator may sink the original discovery shaft ten feet deeper
than it is at the time of relocation, or drive the original tunnel,
adit, or open cut upon the claim ten feet further, or, in the case of
placer mining claims, relocator may either excavate a new open cut
upon the claim, removing from the cut not less than seven cubic yards
of material, or remove from the original open cut not less than seven
additional cubic yards of material." (§ 2306, Public Resources Code.)
§ 6d. Perfecting Placer Claim Location.
"As to any placer mining claim which has been otherwise validly
located or relocated since the enactment of sections 2304 and 2306 of the
Public Resources Code and as to which claim the locator or relocator has
not performed the work thereon required by those sections for the
reason that literal compliance therewith was not feasible, the locator
or relocator may perfect his claim by excavating an open cut thereon
and removing from the cut not less than seven cubic yards of material ;
provided, that such work shall be completed wdthin ninety days after
the effective date of this section." (§ 2306.5, Public Resources Code.)
§ 6e. New Statutory Regulations Providing for Forfeiture of Location.
It is now provided that the failure or neglect of the locator to
comply with the above requirements shall render the location and all
— 9 —
thereof null and void and not subject to relocation by the same locator
for the period of three years from the date of such void location.
§7. Discovery.
The discovery should be actual, but not necessarily of present
commercial value; be situate within free territory and within the
boundaries of the location, and may be upon or underneath the surface
of the ground. The discovery is sufficient if it justifies a person of
ordinary prudence in making expenditure of labor and money with
reasonable prospect of success in developing a paying mine.
A lode location must be based upon discovery of mineralized rock
in place for, if unmineralized, the lode must be located as a placer
claim.
Only one discovery of a mineral deposit is required within a placer
location, whether it be for twenty acres or for an association claim of
one hundred and sixty acres.
A discovery can not be bisected by a side or end line to constitute
discovery in two independent locations. In the absence of an inter-
vening right, subsequent discovery will validate the location.
See also § 6a, supra,
§8. Locators.
A location may be made without regard to the age, sex, residence,
or citizenship of the locator. A corporation may locate to the same
extent as an individual. There is no limit to the number of independent
lode or placer locations which may be made by either a natural or arti-
ficial person, but each location must be based upon discovery therein.
A dummy locator is one who joins in the location of an association
placer mining claim in the interest of another person or of a corporation
for the purpose of permitting such person or corporation to acquire
more land than is allowed him or it by law. Such a location contem-
plates a fraud upon the government and is good only, say, as to twenty
acres, but such a location can possibly only be attacked where the gov-
ernment is either actually or constructively a party as in an * adverse
suit. '
Association locators not implicated in such fraud may select and
hold their proportionate share of the location — that is, twenty acres
each. An association placer mining location is not invalidated by an
agreement made after the location and discovery of mineral, giving one
person or a corporation an interest in excess of twenty acres.
The right to locate a mill site is limited to the proprietor of a
noncontiguous vein or lode claim, or the owner of a quartz mill or
reduction works, not owning a mine in connection therewith.
A location made by an alien is not void but is voidable.
Colocators are tenants in common ; they are not * mining partners '
unless they unite in working the claim.
Subsequent locators, having knowledge of the previous location,
can not avail themselves of defects in the prior and subsisting location.
§9. Boundaries.
The location must be distinctly marked upon the ground so that
its boundaries can be readily traced. These marks may be placed upon
— 10 —
or off the claim and be put upon adjoining patented or unpatented
ground but with no right to the ground within the overlap. The
boundaries of unpatented claims may be shifted or the location floated,
provided, the rights of others are not affected thereby.
The federal mining law is silent as to the character or position of
the boundary marks of a lode claim; but the new (1935) Calif ornian
statute provides for both character and position of the boundary
marks and imposes the penalty of forfeiture of the location if not
observed but that if a placer location is taken by legal subdivisions it
need not be staked nor monumented. A mill site should be located in
the same manner as a placer claim without, of course, * discovery. '
Under the provisions cf the state law, the boundary lines of a
tunnel location must be delijieated by stakes or monuments placed along
the lines at an interval of not more than six hundred feet from its face
to its terminus of three thousand feet therefrom.
There is no hard and fast rule as to the number and position of
monuments of lode claims or placer locations upon unsurveyed
lands that will comply with the federal mining law; but the bound-
aries must be distinctly marked. The conformation and condition
of the ground located and the character and extent of the markings
must ultimately determine the sufficiency of the demarcation. Prop-
erly, a location should be so marked by the locator that one monument
can readily be seen from the other. This may necessitate the blazing
of trees along the line of the location, the cutting away of brush or the
digging up of the ground in a way to indicate the lines so that the
boundaries can be readily traced. In addition to the foregoing, a stake
or monument may be placed at each corner of the surface of the claim,
designating which corner it is with reference to the points of the com-
pass, and also containing the name of the claim or an intelligible
abbreviation thereof.
The courts are not in unison as to what will constitute sufficient
marking of a location but safety invites the procedure above set forth
in addition to the local statutory requirements.
§ 10. Tying the Claim.
It is essential that the posted notice and the record of the location
contain a description of the claim located by reference to some natural
object or permanent monument as will identify the claim. Speaking
generally, any object or monument that will serve to identify the loca-
tion will be sufficient, but the locator should select the most prominent
object or monument possible under the circumstances. Stakes driven
into the ground are the most certain means of identification of mining
claims when there are no permanent monuments or natural objects
other than rocks or neighboring hills. The reference to such monu-
ments or objects required by the mining law applies only when such
reference can be made.
The reference made by the locator to the tie line is not, and is not
intended to be, as accurate and correct as if made by a competent sur-
veyor, but it should identify the location with reasonable certainty.
§11. Placer Locations.
The maximum size of a placer location is twenty acres for an
individual and one hundred sixty acres for an association of not less
>- 11 —
than eight persons, or if the association is composed of a less number,
twenty acres for each individual therein.
A placer claim upon surveyed or unsurveyed public land must be
located upon the ground in such shape and position as to conform as
nearly as reasonably practicable to the lines of the public survey.
This means that if the location is laid upon unsurveyed lands such
location, if reasonably practicable, should have east-and-west and north-
and-south bounding lines, should be rectangular, if practicable, and in
compact form.
When the placer deposit lies within a canyon, gulch, or an unnavi-
gable stream, the placer location may exclude land not useful for mining
purposes if conformity of location with subdivisional lines is unreason-
able.
Because of the recent (1935 and 1939) state legislation affecting
placer locations, it now is necessary that certain additional location
acts be performed. (See § 6a, § 6b and § 6d, supra.)
Tailings deposited upon public land initiate no right to dump
thereon ; but such land may be located as a placer mining claim by the
producer or another or by the producer as a mill site, for dumping
purposes, or it may be *scripped.' If the tailings are allowed to
flow upon the land of another, he is entitled to them. If the tailings
are deposited so as to injure the land of another, without his consent,
the latter may recover damages or injunctive relief may be granted.
The smallest legal subdivision recognized and provided for by the
federal mining law is ten acres, which must be square in form.
The Californian mining law provides that the location of a placer
location shall be made
"by posting thereon, upon a tree, rock in place, stone, post or monument a notice of
location, containing the name of the claim, name of locator, or locators, date of
location, number of feet or acreage claimed, such a description of the claim by refer-
ence to some natural object or permanent monument as will identify the claim
located, and by marking the boundaries so that they may be readily traced ; provided,
that where the United States survey has been extended over the land embraced in the
location the claim may be taken by legal subdivisions and no other reference than
those of said survey shall be required and the boundaries of a claim so located and
described need not be staked or monumented. The description by legal subdivisions
shall be deemed the equivalent of marking." Civ. Code § 1426c. (§ 2303 Public Res.
Code).
Within thirty days after the posting of the notice of location, a
true copy thereof should be recorded in the office of the local county
recorder.
Form of Placer Location Notice (on Surveyed Land)
Notice is hereby given that the undersigned has this day of ,
19 , located a placer mining claim situate on public surveyed land in
Mining District, County of , State of California, described as follows: The
of section _1 , in township __, range , M. D. M., containing
acres.
This claim shall be known as the placer mining claim.
, Locator.
Note: (No witnesses required.)
Form of Placer Location Notice (on Unsurveyed Land)
Notice is hereby given that I, , have this day of , 19 — ,
located on public unsurveyed lands in the Mining District, County of ,
— 12 —
State of California, a placer claim described as follows: Beginning at a {tree, rock
in place, stone, post or monument) upon which is posted the notice of location, run-
ning thence {north) six hundred and sixty feet to a post marked , thence {east)
thirteen hundred and twenty feet to a post marked , thence {south) six hun-
dred and sixty feet to a post marked , thence {west) thirteen hundred and
twenty feet to place of beginning.
All of said posts are at least four inches in diameter and set at least one foot
in the ground and surrounded by a mound of stones, and containing twenty acres.
This location is situated about {feet) distant from {name some natural object
or permanent monument) .
The name of this claim is .
, Locator.
Note: {No witnesses required.)
§ 12. Lode Locations.
Theoretically, a lode location should be in the form of a parallelo-
gram, having side lines fifteen hundred feet along the course or strike
of the vein or lode with parallel end lines running three hundred feet
on each side of the middle of the vein or lode at the surface. But a
lode location of less size and of different or any shape is valid; for
instance, it may be in the form of a horseshoe or of an isosceles triangle ;
but such locations carry no extralateral rights. The side lines need not
be equidistant from the middle of the vein at the surface and the end
lines need not be straight nor of equal length ; but its end lines must
be parallel with each other or the location carries no extralateral right.
If the side lines be across, instead of along the vein, they become the
end lines and the location end lines become the side lines of the location
as laid upon the ground; and the extralateral right is diminished
accordingly. The presumption is that a lode extends to the entire
length of the location, but nonmineral land within a placer location
may be eliminated by the land department. A valid lode location
includes the exclusive right of possession and enjoyment of the surface
within its lines and of all veins or lodes having a top or apex within
its lines. A location upon the dip of a vein or lode is invalid.
To be valid there must be a strict compliance with the local law
providing for the manner of locating lode claims, including the new
statutory requirement covering * discovery' work and marking of
boundaries. (See § 6a and § 6e, supra.)
FoBM OP Lode Location Notice
Notice is hereby given that I, , do hereby locate and claim {fifteen)
hundred linear feet of this vein or lode, together with surface ground extending
{three) hundred feet in width on each side of the middle of said vein or lode and
described as follows: Commencing at a post {or stone monument) where this
notice is posted, which post {or stone monument) is at the point of discovery on
said vein or lode and on the center line of this location, I hereby claim {six)
hundred feet extending in a {southwesterly) direction along the course of said vein
from said point of discovery to post {or stcne monument) at center of the {south-
erly) end line of this claim, and {nine) hundred feet in a {northeasterly) direction
also extending from said point of discovery to a post {or stone monument) at center
of the {northerly) end line of this location. The general course of the vein or lode
is {northeasterly) and {southwesterly) as near as can be determined from present
developments. The {northerly) end center post {or stone monument) is situated
about feet from {name some natural object or permanent monument) and
thence this claim extends {three) hundred feet {northwesterly) to the {northwest)
13 —
corner; thence {southwesterly) {fifteen) hundred feet to the (southwest) corner;
thence {southeasterly) {six) hundred feet to the {southeast) comer; thence {north-
easterly) {fifteen) hundred feet to the {northeast) corner; thence {three) hundred
feet {northicesterly) to the {northerly) end center post {or stone monument), the
place of beginning.
That there has been erected at each corner of this claim, or the nearest point
thereto, a post {or stone monument) marking such corner.
The name of this claim is and it is situated in Mining District,
County of , State of California.
, Locator.
Date
Note: {No witnesses required.)
{The post must he not less than four inches in diameter and the stone
monument must he at least eighteen inches high.)
This diagrram is intended to give a general ideal plan of location.
Corner Post, or
Stone Monument
Corner Post, or
Stone Monument
OO 4;
•d <D
Discovery Monument
1000 feet O
500 ft :>►
Discovery Shaft
•d <D
c c
ma
-»
Corner Post, or Comer Post, or
Stone Monument Stone Monument
§13. Tunnel Site Locations.
In California the State law prescribes the manner of locating a
tunnel site.
A discovery of mineral is not essential to create a tunnel right nor
to maintain possession thereof. A failure to work the tunnel site for
six months is considered an abandonment of the right to all undis-
covered veins on the line of the tunnel. The line of the tunnel is the
width thereof. The tunnel site must be located upon unappropriated
public land and by diligently prosecuting work thereon its claimant
has the right of possession of all veins or lodes within three thousand
feet from its face on the line thereof, not previously known to exist,
discovered in such tunnel, the same as if discovered from the surface.
When the discovery is made the tunnel site owner is called upon to
make a location on the surface of the ground containing the vein and
thus create a mining claim. Such vein may be located fifteen hundred
feet on either side of the tunnel or in such proportion thereof on either
side as may be desired. The right to such vein dates by relation back to
the time of the location of the tunnel. Surface mining claims located
by another person subsequent to the commencement of the construction
of the tunnel are taken and held subject to any rights of the tunnel
owner thereafter developed. The tunnel site may be utilized for
— 14 —
development purposes and the work may be credited as assessment work
upon claims which are in fact benefited by it. A tunnel site can not be
patented.
Form of Tunnel Site Location Notice
Notice is hereby given that I, , have this day of , 19—,
located a tunnel site to be known as the tunnel claim, situate in
Mining District, County of , State of California, and described as follows:
Commencing at this notice of location which is posted at the face or point of com-
mencement of this tunnel and situate about feet from a {blazed tree)
inches in diameter, marked (or some other natural object or permanent
monument). The boundary lines of said tunnel site are marked by {stakes or monvr
ments) placed along said lines at an interval of not more than six hundred feet from
the face or point of commencement of the tunnel to the terminus of three thousand
feet therefrom.
, Locator.
Note: {No witnesses required.)
§14. Mill Site Locations.
The proprietor of a vein or lode claim or the owner of a quartz
mill or reduction works may locate not more than five acres of non-
mineral land not adjacent to a lode claim as a mill site in the same
manner as the state law provides for the locating of placer claims.
There is no certain form required for a mill site, but it may be noted
here that seven hundred and twenty-six feet by three hundred feet
contains ^vq acres.
A separate mill site is not, necessarily, complemental to each lode
location. If the lode location is forfeited or abandoned, the right to
the mill site is lost. There is no specific time within which a mill site
shall commence to be used as such but the land must be used in good
faith in connection with the ostensible purpose for which it was located.
It may be located for dumping purposes. It may be located within a
forest reserve but not within the limits of a railroad grant. Subsequent
mineral discovery within the mill site does not affect the title thereto.
No annual expenditure is necessary on a mill site nor is any
statutory expenditure required thereon when patent is applied for in
conjunction with a lode claim, as the expenditure on such claim is
sufficient.
FoEM OF Mill Site Location Notice
Notice is hereby given that I, , proprietor of that certain vein or lode
claim known as the mining claim {or the owner of that certain quartz mill
or reduction works known as the ) has this day of , 19 ,
located five acres of nonmineral land to be known as the mill site, situate
in Mining District, County of , State of California, and described as
follows: Commencing at a point from which {name natural object or permanent
monument) bears , feet; thence {south) seven hundred and twenty-six feet;
thence {west) three hundred feet; thence (north) seven hundred and twenty-six
feet; thence (east) three hundred feet to the point of beginning.
The name of this mill site is
, Locator.
Note: (No witnesses required.)
§ 15. Townsites.
No title can be acquired under a townsite entry to any vein of gold,
silver, cinnabar, copper, or lead, nor to any valid mining claim or pos-
session, held under existing laws.
— 15 —
A valid mining claim, therefore, is not affected where it was known
prior to the townsite patent that a mineral vein existed where the dis-
covery was made. Differently stated : land held as a valid and subsist-
ing mining claim at the time of the issuance of the townsite patent, does
not pass under such patent, nor l<5 the title or right of possession of the
location at all affected thereby.
Mineral land within a patented townsite can not be located.
There is no conflict between a lode or a placer patent and a town-
site patent, and there can be none.
A mill site has been held to be a mining claim within the purview
of the townsite act.
§ 16. The Posted Notice of Location.
The state mining law provides that the locator of a lode claim shall
post a notice of such location at the point of discovery which notice
must contain : First, the name of the lode or claim ; second, the name
of the locator or locators; third, the number of linear feet claimed in
length along the course of the vein, each way from the point of dis-
covery, with the width on each side of the center of the claim, and the
general course of the vein or lode, as near as may be ; fourth, the date
of location ; fifth, such a description of the claim by reference to some
natural object or permanent monument, as will identify the claim
located.
Within thirty days after posting the notice of location a true copy
of the same should be recorded in the office of the proper county
recorder.
The posting of the notice upon the claim elsewhere than at the point
of discovery may invalidate the location.
Miners use various devices to protect the posted notice from
destruction by the elements, such as covering it with glass, or folding
it in a box and placing the box in a conspicuous place, or putting the
notice upon a mound of rocks, folding it and partially covering it with
rocks, or putting the notice in a tin can.
Subsequent wrongful destruction of a location notice when once
posted will not divest the interest of the locators, even that of a
colocator who may be unaware of the location.
§ 17. Recorded Notice of Location.
Under the mining law of California all notices of location should
be recorded within thirty days of the posting of the notice of location
upon the claim. The recorded notice must be a true copy of the posted
notice. It is not necessary that the record show that the location is so
marked that the boundaries can be readily traced.
The description of the location as appears from the record thereof
or in the patent is binding upon the locator or patentee except that if
it varies from the markings actually upon the ground the latter prevail,
although they may include less ground than called for by the record.
Under the provisions of Califomian law the identity of the location
upon the ground may be established by incorporating into the record
the field notes and certificate of a survey thereof made by a United
States mineral surveyor or by a state licensed surveyor.
— 16 — ^
§18. Relocation.
A subsequent location of a forfeited or abandoned mining claim is
a relocation and not an original nor amended location. It is made in
the same manner and is subject to the same conditions as an original
location. It is void if it embraces a valid and subsisting claim. A
valid relocation on the ground of forfeiture can not be made until after
the expiration of the assessment year; i. e., after 12 o'clock noon on
July 1 ; but an abandonment of the claim within that period gives the
right of immediate relocation. All improvements which are attached
to or become a part of the realty pass to the relocator. A location in
California made subsequent to the act of 1908 can not be relocated by
the original locator, to avoid forfeiture, within three years after the
date of the original location. The location rights, however, may be
preserved by a resumption of labor within that time, in the absence of
an intervening right. There can be no provisional relocations; that is
to say, the validity of the relocation can not be made to depend on
whether or not the mine owner failed to do the annual work subse-
quently or may abandon his claim. A mining claim is not subject to
relocation for failure to perform the assessment work if such work has
been resumed after the expiration of the year and before any valid
relocation is attempted. A person, holding confidential relations with
the owner of a mining claim, for example, a lessee or optionee, who in
violation of a contract or in breach of the trust attempts to relocate
the claim in his own name, will be held as a trustee for the rightful
owner and he will secure no advantage by such act. A relocation by a
cotenant inures to the benefit of his cotenants and he can not by record-
ing in his own name prejudice their rights nor forfeit his own undivided
interest thereby. A relocator or other person may attack the verity of
the recorded affidavit of labor and show its falsity.
See also § 6c, supra.
§ 19. Amendment of Location or Record.
The office of an amended location is to cure defects or supply
omissions in the original location or in the posted notice or the record.
It may serve to change the boundaries or the name of the claim or add
the names of additional locators. It may include additional territory
if without prejudice to the rights of others. It does not require addi-
tional discovery in the added ground, physical possession nor additional
expenditure. It works no forfeiture of previously acquired rights not
inconsistent with the amendment. It relates back to the date of the
original notice where no adverse rights have intervened. It must be
based upon a preexisting but not necessarily perfect location. It can
not be made to exclude the name of a colocator without his knowledge
and consent. It can not be made by a person who has parted with his
title. There is no limit as to the time within which it may be posted
or recorded.
Form of Amended Location Notice
Know all men by these presents, that , the undersigned, has this
day of , 19__, amended, located, and claimed and by these presents does
amend, locate, and claim by right of discovery and amended location in compliance
with section 1426h of the Civil Code of California (fifteen) hundred linear feet of
the lode, vein, ledge, or deposit along the vein together with (three) hundred
feet on each side of the middle of the said vein at the surface situate in
— 17 --
Mining District, County of , State of California, and described as follows:
Beginning at comer No. 1, whence {name some natural object or permanent monu-
ment) is distant feet; thence (northeasterly) (fifteen) hundred feet to
corner No. 2; thence (southeasterly) (three) hundred feet to comer No. 3; thence
(southwesterly) (fifteen) hundred feet to comer No. 4; thence (northwesterly)
(three) hundred feet to point of beginning. This being the same lode originally
located on the day of , , and recorded on the day of ,
, in Book , page of records in the oflSce of county
recorder of said County. This further and amended notice of location is
made without waiver of any previously acquired rights, but for the purpose of
correcting any errors or defects or omissions in the original location, description, or
record and to secure all the benefits of said section of said Civil Code.
, Locator.
§20. Annual Expenditure or 'Assessment Work.'
Annual expenditure consists of labor done or improvements made
upon both lode and placer claims and must be worth at least one hun-
dred dollars. It must be done or made before twelve o 'clock noon of the
first day of July of each year subsequent to the location year until
patent or the receiver's final receipt has issued to the mine claimant
(unless congress has declared a moratorium for that particular year,
which must be consulted as each moratorium may, and usually does,
vary in detail or unless the location was made prior to govern-
mental withdrawal or the Leasing Act. Within withdrawn areas
neither assessment work nor patent is necessary to preserve the pos-
sessory right of the claimant; and he holds his claim in perpetuity
unless he loses his rights by abandonment) . If not so made, and there
is no resumption of labor the claim is subject to adverse relocation.
Assessment work may be done either underground or upon the
surface, upon or off the claim itself, if of benefit or value to it. Any
work done for the purpose of discovering minerals is * improvements '
within the spirit of the statute. Any building, machinery, roadway,
or other improvement used in connection with, and essential to the prac-
tical development of the claim will enter into and form a part of the
expenditure for improvements. Under some circumstances the services
of a watchman may be counted as annual expenditure. In determining
the amount of work done on a claim for the purpose of representation,
the test is as to the reasonable value of said work, not what was paid
for it nor what the contract price was, but it depends entirely upon
whether or not said work was worth the sum of one hundred dollars.
Labor may be done or improvements made upon or at a distance
from any one of the locations comprising a group of claims when of
benefit and value to the entire group. Any location within the group not
so benefited may become subject to forfeiture. The expenditure must
equal in the aggregate the amount required on all the locations. The test
of sufficiency is whether the expenditure tends to facilitate the develop-
ment or actually promotes or directly tends to promote the extraction
of mineral from or improve the property or be necessary for its care
or the protection of the mining works thereon or pertaining thereto.
The amount of the annual expenditure upon a placer claim is the
same whether for twenty acres or on an association claim of one hun-
dred and sixty acres ; viz., one hundred dollars.
A certain number of days work at a certain sum a day, or work
of a certain character or extent do not constitute the requisite expendi-
ture under the mining laws.
— 18 -~
Labor done or improvements made may be sufficient to hold the
claim although not in fact paid for or when gratuitously performed;
but payment for work not done will not suffice.
The annual expenditure may be made by the locator, his heirs,
assigns or legal representatives, or by some one in privity therewith,
or by one who has an equitable or beneficial interest. A stockholder in
a corporation claiming the property, or a receiver appointed by a court
are within the rule; but labor done or improvements made by a tres-
passer or stranger to the title will not inure to the benefit of the
claimant.
Annual expenditure is not required upon a mill site nor upon a
tunnel site; but failure to prosecute the work on the tunnel for six
months shall be considered as an abandonment of the right to all
undiscovered veins on the line of such tunnel. Yet the work on it may
count as annual labor on claims which it is so run as to cut and develop ;
or be applied as patent expenditure.
Wrongful adverse possession of a mining claim excuses the right-
ful owner or locator from doing the assessment work required by law,
during the time of such adverse possession.
See § 36 for distinction between 'assessment' and * discovery' work.
§20a. Contribution.
Persons who acquire undivided interests in a mining claim by
location or otherwise are known as cotenants or coowriers, and any one
or more who fail to contribute the proportionate share of the assess-
ment expenditure may be ''advertised out" by the remaining party or
parties. This may be done by personal service, in writing, or by
publication in a newspaper published nearest the claim for at least
once a week for ninety days and if at the expiration of ninety days
after such notice in writing or one hundred and eighty days from the
first day of such publication such delinquent or delinquents should fail
or refuse to contribute his proportion of the expenditure required by
law, his interest in the claim shall become the property of his coowners
who have made the required expenditures and given said notice. The
Californian law provides for the giving of such notice for contribution
and the manner of establishing the same of record in the office of the
local county recorder, and also of the fact of payment or nonpayment,
as the case may be.
Annual assessment work may be applied to patent expenditure.
§21. Proof of Annual Labor.
The Californian mining law provides for the making, recording
and legal effect of affidavits of annual expenditure. Within thirty
days after the time limited for performing labor or making improve-
ments upon a mining claim — that is, 12 o'clock noon of July first — the
mine owner or some one in his behalf may make and have recorded by
the local county recorder an affidavit setting forth the value of the
labor and improvements made, the name of the claim or claims, and
the name of the owner or claimant of such claim at whose expense the
same was made or performed. If this affidavit is filed before or within
the said time, it presents prima facie evidence of the facts prop-
erly therein stated ; but not otherwise. If filed after said thirty
— 19 --
days, it has no legal effect. This affidavit does not prevent other proof
by the claimant nor attack by his adversary. Neither the failure to
record the affidavit nor a mistake therein will work a forfeiture of the
location. Its due filing tends to prevent an adverse relocation.
Form of Affidavit of Annual Labor
State of California) ^^
County of )
, being first duly sworn, deposes and says, that at least (one) hundred
dollars worth of labor was performed {or improvements made) between 12 o'clock
noon of the first day of July, 19__, and 12 o'clock noon of the first day of July,
19 , upon the mining claim situate in the Mining District, County
of , State of California. Such expenditure was made by or at the expense
of , the owner of said claim, for the purpose of complying with the federal
and Californian mining laws pertaining to annual assessment work.
Subscribed and sworn to before me this day of , 19__. ,
Notary Public in and for the County of , State of California.
My commission expires
§22. Resumption of Labor.
A mine claimant who has failed to do the annual labor during the
statutory assessment year may resume work at any time thereafter, in
the absence of an intervening right.
To *' resume work'* is to begin work in good faith and diligently
prosecute the same to completion before a valid adverse relocation, and
thereafter the rights of the mine claimant are precisely what they were
before the default.
Work is not resumed by the mere purchase of material or the mere
bringing of the same upon the claim.
The Federal Leasing Act of 1920 did not have the effect of extin-
guishing the right of the locator under the mining act to save his claim
under the original location by resuming work at any time after failure
to perform the annual assessment labor in the absence of adverse reloca-
tion or intervening right.
§23. Independent Contractor.
Where the mine owner retains the right to direct the mode and
manner in which the assessment work shall be done for an agreed per
diem, the relation of master and servant exists and the employer is
liable in damages for injuries which may be sustained by his employee
while he is engaged in such employment. But, if work is done under
a contract, such as to excavate a tunnel of certain dimensions for an
agreed number of lineal feet, or to sink a shaft of a certain size to a
certain depth, for an agreed amount, and the mine owner has no right
of control as to the mode of doing the work contracted for, the party so
doing such work is an independent contractor, and he, and not the
mine owner, is liable for such injuries.
Form of Contract
The terms of the agreement made this day of , 19 — , between
, party of the first part, and , party of the second part, are as follows,
viz: That the said party of the second part shall excavate or run lineal
feet of tunnel work within the mining claim situate in the Mining
District, County of and State of California, commencing at a point to wit:
feet (southwest) and feet (west) from the (east end center monu-
— 20 --
ment of said claim) for the agreed sum or price of dollars per lineal feet;
said tunnel to be feet in width and feet in height, in the clear, and
to be timbered where necessary. Payment therefor by said party of the first part
shall be made in full within days after the full completion of said work.
Work upon said tunnel under this contract shall commence within days from
the date hereof and the same shall be fully completed in proper and minerlike
manner by said party of the second part on or before the thirtieth day of June next
thereafter ensuing ; said party of the second part to hold said party of the first part
harmless as against all and every lien of laborers, miners, and mechanics, and for
materials furnished.
In witness whereof the said parties hereto have hereunto, and to its duplicate,
set their hands the day and year first above written.
§24. Patents.
A patent is not essential to the enjoyment of a mining claim.
There is no restriction as to the time when it shall be applied for nor as
to its use or sale. It confers no greater mining rights than those
obtained by a valid location. It, however, establishes the exterior
boundaries of the claim, that discovery has been made, and dispenses
with the performance of annual labor. A patent is not always conclu-
sive of the title, as, for one thing, it may, possibly, be shown that the
patentee is an undisclosed trustee.
Lode, and placer locations upon unsurveyed lands, must be officially
surveyed for patent. No survey is required for placer locations laid
in conformity with legal subdivisions.
§25. Adverse Claims.
When a patent is applied for, the owner of a prior conflicting
location must duly institute adverse proceedings ; otherwise, he will be
treated in law as having voluntarily waived his prior and superior
rights, and his adversary will secure a patent covering his location or a
part thereof. The adverse must be filed in the local land office within
the sixty-day publication of the application for patent and followed by
suit in a court of competent jurisdiction within thirty days thereafter
and be diligently prosecuted to final judgment. No equitable title nor
existing lien is disturbed by the issuance of the patent.
§26. Protests.
A protest may be filed at any time by any person before patent
actually issues. The protest may be directed against the patenting of
the claim as applied for upon any ground tending to show that the
applicant has failed to comply in any matter essential to a valid entry
under the patent proceedings ; as for instance, that no mineral has been
disclosed within the claim applied for, that the necessary expenditure
of five hundred dollars has not been made by the proper party; or it
may be filed by a cotenant excluded from the application for patent.
A protest never can take the place of an adverse.
§27. Tenancy in Common.
A tenancy in common arises from the joint location of or ownership
in a mining claim and consists of undivided interests therein. The
parties thereto are not mining partners unless they work the mine
— 21 —
together by agreement. A cotenant who does not exclude his cotenants,
may work the mine in the usual way and extract ore therefrom without
being chargeable with waste or liable to the other cotenants for damages,
and an injunction will not be granted at their instance to prevent the
working of the mine.
The operating cotenant works the property at his own expense;
he alone must sustain any loss which results from his working the
property and he alone is responsible for the debts thereby contracted;
he must account to the nonparticipating cotenants for their pro rata
share in the net results.
The title of a cotenant may be divested after due notice, to con-
tribute his proportion of the annual expenditure, or by the actual
adverse possession for the statutory period of the other cotenants, or
some of them, evidenced by ouster, or by obtaining a patent from the
government in their own names unless the excluded cotenant brings
suit to enforce the trust when not barred by laches, the statute of
limitations or the rights of third parties without notice. Hence, such
excluded cotenant need neither file an 'adverse* nor a protest against
such application for patent. A cotenant becomes a trustee for his
cotenants when he relocates the claim or permits its relocation by a
third person with whom he is in collusion, or obtains a patent in his
own name.
A cotenant may maintain an action for the recovery of the claim
without joining his cotenants. A cotenant may sell or encumber his
undivided interest at pleasure but he can not sell, lease, or encumber
a specific part of the common land.
See, also, § 33.
§28. Mining Partnerships.
To constitute a mining partnership, two or more parties must be
associated together in the ownership or possession of a mining claim in
some way and actually engage in working the same.
The partnership is not dissolved by the death of a partner nor by
the sale of a partnership interest. The purchaser, from the date of
his purchase, becomes a member of the partnership. The partners are
in the relation of trustees for each other. The property worked and
the business of the partnership may be controlled by a majority of the
members of the partnership acting for the best interest of all concerned.
Each partner is jointly liable for the debts of the firm.
As previously suggested, the property worked is not necessarily
property owned by the partnership, if it be so, it is subject to the lien
of each member of the firm for debt due to himself or to the creditors
of the firm. One mining partner may sue his copartner for an
accounting. A partner may properly sell his interest at a greater
price than that received by the other partners.
§29. Grubstake Contracts.
A grubstake contract is an agreement, in writing, and recorded in
the office of the county recorder of the county in which said instrument
is made. It must be duly acknowledged before a notary public or other
person competent to take acknowledgment. It is prima facie evidence
in all courts of this state in all cases wherein the title to mining loca-
— 22 —
tions and other locations under the mining laws of this state are in dis-
pute.
A grubstake, or prospecting contract, as it is sometimes called, is
where one of the parties thereto, called the outfitter, is to furnish the
other, called the prospector, supplies, money or both, to and while the
other is prospecting for and obtaining mineral land, by location, for
their joint advantage or in such proportion as may be agreed upon.
It is the duty of the prospector to use reasonable diligence and make
reasonable exertions in seeking mineral deposits, and within a reason-
able time make proper location covering discovery. It does not consti-
tute a * mining partnership* unless the parties thereto actually engage
in the joint working of the property; otherwise, they are tenants in
common.
All locations made during the existence of the contract inure to
the benefit of each of the parties thereto, whether made in the name of
only one of them, or in the name of a third person, at the instigation of
either. Where a prospector conceals locations made in his own name,
or for him, individually, he holds the title thus acquired, or the property
for which it is exchanged or the price for which it is sold as a trustee
in bad faith for the use and benefit of the outfitter, and will be com-
pelled to make restitution.
It is essential to a right in mining property acquired under a
grubstake contract that such property should be acquired by means of
the grubstake furnished and pursuant to such contract.
The contract must be founded upon an adequate consideration,
and be just and reasonable ; that is, it must not be a hard bargain on
the prospector.
§30. Option.
An option is a right acquired by contract to accept or reject a
present offer within a limited time. It may be coupled with a lease.
Time is of the essence of the contract, whether so therein expressed
or not. It must be based upon a sufficient consideration ; otherwise, it
may be withdrawn at any time before acceptance. A consideration of
one dollar, in the absence of fraud or bad faith, or the making of
expenditures upon the property, as for instance, the performance of
the annual assessment work thereon, is a sufficient consideration. After
acceptance by the optionee, the parties are mutually bound and the
option may be specifically enforced. An option usually is accompanied
by the duly executed deed of the optioner, which is placed in escrow
to be delivered to the optionee upon his performance of the conditions
of the option, or to be returned to the maker in the event of default;
in the meantime the title to the property remains in the grantor and
subject to claims against him. The deed when delivered will relate
back to the date of the escrow agreement and cut oif any intervening
rights or equities acquired by a third party who had notice of the terms
and conditions of the escrow. Hence, the option should be recorded
by its holder. At the time the escrow is made, and as a part thereof
the option holder properly should execute a quitclaim of the property
to the optioner to be delivered to him upon cfefault of the optionee or
to the latter upon full compliance with the terms of the option. This
— 23 —
is to clear the record title to the property, if there be no conveyance
under the terms of the option.
Delivery of the deed by the escrow holder, contrary to instruction,
confers no title, particularly as against those who take with notice.
Short Form of Option
In consideration of the sum of dollars, to me in hand paid, I, the
undersigned, will sell to my certain mining claim known as situate
in Mining District, County of and State of for the sum
of dollars, at any time within months from date, payable as follows,
to wit: .
Upon full payment made I will convey said mining claim to said optionee by
a good and sufficient deed.
The right of entry and possession of said premises is hereby given to said
optionee together with the right to extract ore therefrom, but with no right thereto
or removal thereof, unless and until this option be consummated according to its
terms.
All work done upon said mining claim by said optionee shall be done in a
minerlike manner and at the sole cost and expense of the optionee. Actual work
upon said premises to commence on and to proceed with reasonable diligence
unless prevented by strikes, the elements, unavoidable accidents or other causes
beyond the control of the optionee.
The optionee shall keep said premises free and clear of all costs, liens and
encumbrances done, made or suffered by him — and see that the notice of non-
responsibility which may be posted by the optioner upon said premises to protect
the same from such liens, is kept in place.
The optionee hereby agrees to carry workmen's compensation insurance in a
responsible company, said policy to be placed in force immediately upon the com-
mencement of said work.
The optionee shall and will quietly and peaceably quit and surrender said
premises and any ore extracted by him therefrom upon the termination of this
option from any legal cause.
Upon the failure to make any payments herein provided for upon said purchase
price of said premises at the time herein specified for the same to be made, the
right of the optionee shall immediately cease and determine and the payments
theretofore made by him shall immediately become the property of the optioner,
and the optionee hereby waives all claim thereto.
All machinery and improvements pl^^ced upon said premises by the optionee
may be removed by him within days after the termination of this option.
Witness my hand this day of
§31. Leases.
Each mining lease has its own peculiar details. The form of words
used is of no consequence. It is the intention of the parties, as expressed
in the instrument, and not its form that determines whether it is a lease
or a license or a contract for labor. If the contract gives exclusive pos-
session it is a lease; if it merely confers the privilege of occupation,
under the owner, it is a license ; if it fixes a rule for compensation for
services rendered, as, for instance, a share of the profits realized in
working the mine, it is a contract for labor. A lease is sometimes
coupled with an option to purchase the property leased, in which case
they are separate instruments and the option may outlive the lease.
Time is always of the essence of both documents whether so expressly
stated or not. Where there is any doubt or uncertainty as to the mean-
ing of covenants in such a lease they are construed strongly against
the lessor and in favor of the lessee. A covenant to work the property
continuously means continuous to the end of the term. A mere cove-
nant to work the property is not tantamount to a covenant to work
— 24 —
continuously. If the payment of royalty is provided for, the lessee
is bound to proceed with his mining operations with reasonable dili-
gence. The lease is subject to abandonment or forfeiture. A location
may be made and leased on the same day. No lease should be for a
longer period than twenty-five years. If it be for a period of one year,
or less, it need not be in writing. Where there is no agreement in the
lease against subletting, the lessee has the right to sublease all or por-
tions of the land for the purpose specified in the lease. A stipulation
as to the removal of machinery or other improvements placed by the
lessee is controlling. The term * gross proceeds* means the entire pro-
ceeds of the ore mined, less the cost of sampling, freight, and treat-
ment of the ores.
Short Form of Lease
This agreement of lease made and entered into this day of ,
19 , by and between and Witnesseth : That the lessor for and in
consideration of dollars, cash in hand paid, receipt of which is hereby
acknowledged, and of the covenants and agreements hereinafter contained on the
part of the lessee to be paid, kept and performed, does grant, convey, demise, and let
exclusively unto the said lessee that certain tract of land situate in Mining
District, County of , State of California, described as follows:
(Insert description)
for the sole purpose of exploring, operating and mining precious and other minerals
and to sell the products t"hereof and to pay to the lessee a royalty of per cent
of the gross proceeds within ten days after each clean up.
The lessee agrees to keep said premises free and clear of all costs, liens and
encumbrances done, made or suffered by permit, the lessor to place and maintain in
a conspicuous place upon said premises such notice as shall be lawfully necessary
to protect the lessor against such claims.
All machinery and improvements placed upon said premises by the lessee
may be removed by him within days after the termination of this lease.
The lessee hereby agrees to carry a workmen's compensation policy in a
responsible company ; said policy to be placed in force upon the commencement of
said work.
It is agreed that this lease shall remain in force for a term of years
from this date.
Witness our hands the day and year first above written.
Form op Notice of Nonresponsibility for Labor or Materials Furnished
Notice is hereby given to all persons, that the undersigned is the owner
of mine (or mining claims) hereinafter described, with all the improvements
thereon. That said mine (or mining claims) now is in the possession of and is
being worked and operated by , pursuant to a contract (or option to purchase,
or lease) made and executed by the undersigned in favor of said , dated
19 , said contract (or option to purchase, or lease) to be in force up
to and including 19
The undersigned is not working nor operating said mine (or mining claims),
nor any portion thereof, and does not intend to work or operate said mine (or
mining claims), nor any part thereof, nor purchase any supplies or materials there-
for, during the life of said contract (or option to purchase, or lease) with said
The name of said mine (or mining claims) is and is situate, lying and
being in Mining District, County of , State of California. The notice
of location of said mine (or mining claims) being duly recorded in Book ,
at page , of the records of said county in the office of the county
recorder of said county to which said record reference is hereby made for a more
particular description of said mine (or mining claims).
In witness whereof, the said has hereunto set his hand this
day of , 19
— 25 —
State of California) ^^
CJounty of j
, being first duly sworn, according to law, deposes and says: That he
is the owner of the premises particularly mentioned and described in the foregoing
Notice of Nonresponsibility for Labor or Materials Furnished. That he has read
the same and knows the contents thereof. That the same is true of his own
knowledge. Subscribed and sworn to before me this day of , 19
Notary Public in and for the County of
State of California.
My commission expires .
Note. — This notice must be posted in a conspicuous place upon the property
within ten days after the owner (or person having or claiming interest therein) has
obtained knowledge of construction, alteration or repair work or labor upon such
property and file for record a verified copy of said notice in the office of the proper
county recorder. The foregoing verification may be made by any one having knowl-
edge of the facts, on behalf of the owner or person for whose protection the notice
is given.
§32. Deeds.
A mining claim can be transferred only by operation of law or by
a deed in writing; but a discoverer of mineral may transfer his right
of location by parol. A mining claim which has a known descriptive
name may be sufficiently described by such name, coupled with a proper
reference to the record, or if patented, to the survey number. That a
claim is known by several names and only one of them is given in the
deed is immaterial. Minerals may be granted without the surface, or
vice versa. Where there is a severance, the owner of the mineral has
a right to occupy so much of the surface as is reasonably necessary for
mining purposes. No attesting witnesses to the execution of a deed are
required. If the title to an unpatented claim stands alone in the name
of one spouse, it is not essential to the title that the other spouse should
join in the execution of the deed.
A quitclaim deed is sufficient to pass the title, if clear.
Form of Deed
I, , grant {or quitclaim) to , that certain mining claim situate
in the Mining District, County of , State of California, and being the
mining claim, and more fully described in volume , page , of the
records of {quartz claims) records of said county {or being Mineral Survey No ).
Witness my hand this {insert day) of {insert month) ^ 19 .
§33. Working the Claim.
To *work* a mining claim is to do something toward making it
productive, such as developing or extracting an orebody after it is dis-
covered.
A mine owner is entitled to work his mining claim in a lawful
manner; but no manner can be considered lawful which precludes
another from the enjoyment of his rights, if his work in fact injures
the property of another, be he ever so cautious or careful to avoid
injurious consequences. (For instance, allowing his tailings to flow
upon another's land without his consent.) In such case, the trespasser
not only loses his title to the tailings but is liable for damages besides.
^ _ 26 —
The word * shift* means a set of workmen who work in turn with
other shifts, as a night shift. It means, also, a day's work.
See, also, § 27.
§ 34. Payment of Wages.
Every person, firm or corporation engaged in the business of
extracting, or of extracting and refining or reducing metals or minerals
other than petroleum, other than parties having a free and unencum-
bered title to the fee of the property being worked, and also other than
mining partnerships in respect to the members of the partnerships,
must, before commencing work in any period for which a single pay-
ment of wages is made, have on hand either physically or by deposit
with a bank or trust company, in the county where such property is
located, or, if there is no bank or trust company in the county, then
in the bank or trust company nearest the property, cash or readily
salable securities of a market value equivalent to such cash, in a suffi-
cient amount to make the payment of wages of every person employed
on the mining property, or in connection therewith, for such period.
A violation of this act constitutes a misdemeanor.
See, also, § 23.
§ 35. Fixtures.
A * fixture* is an article which may or may not actually be affixed
to the mine. In this state sluice boxes, flumes, hose, pipes, railway
tracks, blacksmith shops, mills, and all other machinery or tools used
in working, or developing a mine are deemed to be affiixed to the mine.
See also § 18.
§ 36. Location Work and Assessment Work Distinguished.
Confusion of thought has arisen among mining locators as to the
effect of the provision of the recently enacted state mining law relating
to 'location' or 'discovery' work upon both lode and placer mining
claims as effecting the federal requirement of annual assessment work
upon such locations. There is no conflict between the two laws nor is
the one merged with the other. Hence, a location of either lode or
placer is null and void unless such location work is duly performed;
and the possessory right to an unpatented location can not be main-
tained without due performance of the annual assessment work.
In other words, the state statute places an additional burden upon
the mining locator, on claims filed on and after September 15, 1935.
88084 7-40 2M
STATE OF CALIFORNIA
DEPARTMENT OF NATURAL RESOURCES
DIVISION OF MINES
CORDIALLY INVITES YOU TO VISIT
ITS VARIOUS DEPARTMENTS MAINTAINED
FOR THE PURPOSE OF FURTHERING
THE DEVELOPMENT OF THE
MINERAL RESOURCES OF CALI-
FORNIA
At the service of the public are the scientific
reference library and reading room, the general
information bureau, the laboratory for the free
determination of mineral samples found in the
State, and the largest museum of mineral speci-
mens on the Pacific Coast. The time and atten-
tion of the State Mineralogist, as well as that of
his technical staff, are also at your disposal.
Office hours: 9 a.m. to 5 p.m. daily.
Saturday, 9 a.m. to 12 m.
(Except July and August, 8 a.m. to 4 p.m.)
WALTER W. BRADLEY,
State Mineralogist.
Third floor, Ferry Building, San Francisco, Cal.
Branch Offices: State Building, Los Angeles;
State Office Building, Sacramento; Chamber of
Commerce, Redding.
THIS BOOK IS DUE ON THE LAST DATE
STAMPED BELOW
AN INITIAL FINE OF 25 CENTS
WILL BE ASSESSED FOR FAILURE TO RETURN THIS BOOK
ON THE DATE DUE. THE PENALTY WILL INCREASE TO
50 CENTS ON THE FOURTH DAY AND TO $1.00 ON THE
SEVENTH DAY OVERDUE.
m
UCD UBRhRV
DUE OCT 2 1970
OCT 2
RECD
Book Slip-30m-8, '54 (621084)458
2223iiL
Cq^ ^f , Depfr.. of naturalL Ci
i
TN2li
resources, piv. of
Al
PHYSICAL
SCIENCES
LIBRARY
C3
LIBRARY
UinVERSITY OF CALJFOMU
DAVIS
122361