Mining Rights in Colorado, SIXTH EDITION- UNIVERSITY OF CALIFORNIA LOS ANGELES LAW LIBRARY I I Mining Rights IN COLORADO. LODEAPPUGER CLAIMS I POSSESSORY AND PATENTED, From the District Organizations to THE Present Time. STATUTES IN FULL. ^Prospecting, LandOffice, Incorporations, Forms, Decisions, Etc. R. S. MORRISON AND JACOB FILLIUS. OF THE COLORADO BAR, SIXTH EDITION, REVIBEO AND ENLARGED. DENVER: CHAIN, HARDY cfc CO. 1S,S6. r M8341 T<\ COPYRIGHT, 1887, BY R. S. MORRISON. -^,-. ^^.>^- |\r^S!TY OF SOUTHERN Ca'TORNIA LIB:1ARY e r- h MINING RIGHTS. MIMXG DISTRICT RULES. Origin ofthe Mining Districts and of the Dis- trict Rules. — Before the organizatiou of Colorado as a Territory, (February 28, 1861), the principal miueral sec- tions had been settled and a system of miners' laws estab- lished, the outlines of which have been the basis of all subsequent legislation. The country was divided into "Mining Districts," some less than a mile square and some quite extensive, which have become permanent geogranhical divisions, and take the place of townships and sections in describing the situ- ation of real estate of all kinds in the mining counties. There are at least two hundred in Clear Creek, Gilpin^ Boulder, Summit, Park and Lake, but the names of some of the less important have been dropped, and are familiar only to early settlers. Each District Adoptetl a Separate Code of Reiiulations, and elected a Recorder, who kept a record -*-^ of claims and transfers ; and usually a judge and other .\ • . \ 'SoTv:—Con(roctions—R. 5.— Revised Statutes of the Vnited f*^ States, edition of 187S. A. C. — Act of Congress. O. &'.— (ieneral Statutes of Colorado, Ed. i>f ISs;^. Af. i?.— M(iriis<>n"s Milliner Keixirts. //. O.— Copp's Land Uwiier, Ac, &c. 4 DISTRICT RULES. officers who carried out the mining rules and also enforced the decisions of the jury of miners or the miners' meeting. The written regulations usually first defined the name aud boundaries of the district; second, the number and kind of officers to be elected from time to time ; and then I)roceeded to designate what number of feet should consti- tute a claim in that district, the amount of surface allowed, the amount of work required to hold a claim, &c., and sometimes extended further, to the mode in which mining cont;-OYersies and other difficulties should be settled. These district regulations were recognized at the first session of the Territorial Legislature and by all the subse- quent Acts of Congress ; when not in conflict with statutory law, especially in cases arising out of the early discoveries, they may still be regarded as in force and occasionally im- portant. 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 curious in regard to pioneer customs. Scope of their Legislation. — This system of the miners was, of course, molded upon customs already es- tablished in California, and many of the California mining rules were identical with provisions of the Mexican law. The subdivision of a deposit into claims ; the allow- ance of an additional "claim" to the discoverer ; the stak- ing of claims; the requirement of a discovery shaft ; for- feiture for neglect to work, aud various other prominent features are found to be set forth at large in the Spanish and Mexican codes. But their day, practically, has ended and given place to uniform legislation ; and, notwithstanding their recog- nition in Acts of Congress, they seem to be always made brSTKICT IIULES. b subject to Stiito or Territorial laws, and void when iu oppo- sition thereto. From the defects of these original regulations and the want of an exact and uniform mining code, have sprung mosc of the poiiits of litigation now coiiimonlj spoken of, and for which the miners have only themselves to blame. In some districts lawyers were, by their own laws, forbid- den to reside or practice. ^nsitances nf their Form ami Contents'. — The rules of the various districts being more or less uniform iu their m«de 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. Bounfiiirii's.— This district shall he deliiiod mid bounded as follows : (^oniinencing at the head of the canyon on the Las Ani- mas River at the lower end of what is called and known as Ba- ker's Park, and thence running east to the summit of the main (lividiiiii range, and then foUoiving said range around so as to in- clude all the waters of said river, to the place of beginning.— Art. 2, Las Atiimas District. SijiP of Claims —AH claims made on lodes l)y discovery shall be 200 feet long and 50 feet wide ; all pre-emption claims 100 feet long and -'lO feet wide ; all discovery claims on patch diggings shall he 100 feet ser day ; for hard rock, such as will re- quire powder and ilrills, sixteen dollars per day. — Resolutign :;, Las Animas District. TiOilo Noticp.— That all notices on lodes be written in plain English and posted in some conspicuous place on the lode. — Res- olution 8, Las Animas District. Sheriff —It shall be the duty of the Sheriff to serve all i>apers issued by the President, and to be a General Peace Oflicer.— ^j-<. 6, Coral Distnct. DISTRICT RULES. Water. — Iii all gulches or ravines where water may be scarce, the oldest claimants shall have preference and priority ol' right to water. — Art. 5, Downieville District. Fictitious Locators. — Be it further enacted, that no claims shaU. be regarded as valid, pre-empted or recorded, in fictitious or false names, nor by persons not residents of the Territory, ex- cept the same are made in good faith.— jSec. 13, Lincoln District. Forfeiture.— Any person absenting himself from this mining region twelve months, shall forfeit liis claims, except when lliey are represented by an agent. — Sec. H, Iowa District. Old I)ebts.~No suits shall be brought in the miners' court for indebtedness contracted in any other State or Territory, Accept by consent of all the parties interested, and no execution shall be collected on a payment rendered on such indebtedness, ex- cept as hereinbefore provided.— jS^ec. 9, Banner District. Duties of Kecorder.— It shall be the duty of the Recorder safely to Iceep the Records of the District, and to record all papers upon the payment of his fees. To act as secretary at all public meetings of the District, and by virtue of liis office as Treasurer, to keep all moneys of the District paid to him, subject to the draft of tlie President ; also, to keep all vouchers, so that at any time he may be able, when called upon, to exhibit the financial con dition of the District.— C/iap. 5, Sec. 1, Orifflth District. Murder.— Any person guilty of willful murder, upon convic- lion thereof, shall be hung by the iTeck until lie is dead — Chap. 16, Sec. 1, Id. Manslaughter.— Any person guilty of Manslaughter or Homi- cide, shall be punished as a jury of twelve men may direct.— Chap. 16, Sec. 2, Id. Larceny. — If any person or persons shall be guilty of stealing any property whatever in tills District, and he ur tliey 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 sentenced to immediately restore the property stolen, and pay to the party injured all dam- ages sustained directly or indirectly in con.sequence of the tlieft,, and in case the guilty party shall not so restore and make good all the damages as aforesaid, the injured party may take suffi- cient proprrty of the ilefendaiit found in this District, to satisfy all damagi', and dispose; of it in any way he may deem proper, and tile del'oiidMiit sliall nlso l)e banished" forever from this Dist- rict, and lie 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 Iiy the I'leck until he is dead : the injured jjarty may proceed to retake liis projierty and remunerate liim.self for damage sustained as above.— ^4?-A !), Lower Union District. DISTRICT RULES. 7 Attempt to Kegiilatc Aiiuiial Ijabor. — Such reg- lations as the forogoing Resolution 3, of Las Auimas Dist- rict, are manifestly void. The United States law requires a certain amount in value of labor or improvements, and this value cannot be lessened by an arbitrary scale. They might with as much reason have fixed at once a single foot of sinking as the full equivalent of the $100 required by law. NcAV Districts.— Since the congressional mining Act of 187-2, the old district organizations are no longer pre- served and had in fact become more or less obsolete for years prior to that Act. New Districts have been formed by miners' meetings, but only to the extent of giving a name and fixing general boundaries to a locality. Any at- tempt to revive old or create new district rules would be only productive of confusion, as they are by the terms of the Congressional law (R. S. U 2319, 2324) made subserv- ient to both State and United States legislation. Their original recognition by territorial law is expressed in i^g 2677 and 239G of the General Statutes. A mining title may be proved without either district organization or proof of district rules. — Golden Fleece Co. v. Cable Co., 1 M. R., 120. Judicial Decision!? as to District Ilules. — Where in ejectment for a mining claim the plaintiff 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 defendant, he must then show the existence of the district rules and his compliance therewith before he can introduce his location or record made 'under such rules. — Sears v. Taylor, n M. R., 318. 8 . DISTRICT RULES. Courts will not enquire into the regularity of the mode by which district rales have been enacted, except upon allegation of fraud, or other like cause. — Gore v. McBruyer, 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 ofiered in evidence, — Golman v. Clements, 5 M. R., 247. A mining regulation cannot restrict the number of claims which a party may hold by purchase. — Prosser v. Parks, 4 31. R., 4.52. A district rule cannot limit the s'ize of a claim duly located before such rule was adopted. — Table 3ft. Co. v. Stranahan, 9 M. R., 465. A right to hold a claim may be forfeited by failure to comply with the district rules. St. John v. Kidd, 4 M. R., 454. But not unless the rule itself so expressly provides. — Bell V. Bed Rock Co., 1 31. R., 45. A valid district rule may exist and be proved, although not found among the other written rules of the district. — Harvey v. Ryan, AM. R., 490. A custom, reasonable in itself, and generally observed, will prevail against a written mining regulation which has fallen into disuse. — Id. The existence of a district mining law is a question of fact for the jury. — Id. CONGRESSIONAL RECOfiNITION OF MINERS' RIGHTS. liicenxe to Appropriate the Pnhlic Domain.— R. S."? 910.— No possessory iictioii between persons, in any court of the United States, for tlie recovery of iiny mining title, or for damages to any such title, shall be aftected by the fact that the paramount title to the land in wViich such mines lie is in the United States ; but each case shall be adjudged by the law of possession.— § 9, A. C, Feb. 27, 1860. . License Under Coni;ri'ssional Act of 1.S66.— ^ 1.— The mineral lands of the public domain, botli surveyed and unsur\'eyed, are hereby declared to be free and open to exploration and "occupa- tion by all citizens of the United States, and those who have de- clared their intention to l)ecome citizens, subject to such regula- tions as may be prescribed by law, and subject also to the local customs or rules of miners in the several mining districts, so far as the same may not be in conflict with the laws of the United States -4.1, A. 'C, July 20, 1861). Repealed May 10, 1872. Iiicens« Under Present Congressional Law.- R. S. ? 2319.— All valuable mineral dei)Osits in lands belonging to the United .'States, botli surveyed and unsurveyed, are hereby declared to be free and open to 'exploration and purchase, and the lands in which they are found to occuiwuion and purchase, by citizens of the United States and those who have declared their intention to Ijecome sucli, under regulations prescribed by law, and accord- ing to the local customs or rules of miners in the several mining- districts, so far as the .'fe6'2/ 11, 1870. G. L. § 1809.— All pre-emptions and locations of three thou- sand feet,' or less, on any vein, lode or ledge made since the pas- sage of the said Act of Congress, and conforming to the same, shall be good and valid.— /d. G. L. § 1810.— Nothing in this Act shall be so construed as to prejudice anv rights acquired prior to the passage of this Act. — Id. Early Liocations of 100 Feet. — The usual leugth under the district rules was 100 feet or 200 feet ; by the Act of 1861, 100 feet became the general lave, but this means strictly the length of one claim on the lode, for invariably many claims were recorded upon each side of the original, or discovery claim. This practice began while the district rules were in full force. The discoverer was restricted to his discovery claim, and generally one additional claim, but as soon as the discovery claim was recorded, any person could obtain a claim by recording 100 feet to the right or left of the dis- covery, as claim No. 1, east; No. 2, east; No. 1, west, &c., indefinitely. These claims are supposed to be at least staked oflF on the ground, but no discovery hole was required, and, in fact, in most cases, only the paper reeord was made and the claims seldom pursued further, 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 rec- ords of hundreds of such claims remain, whose owners never, perhaps, did any work upon, or ever knew the exact situation of their claims. This privilege to locate side claims was soon taken ad- vantage of by the discoverer, who procured nominal parties LENGTH OF OLD LODE CIiAIMS. 17 to record, and immediately after recording to convey their •claims to him, and as soon as the A. C. 1866 was passed, it became the universal practice, tlic custom as it already ex- isted beinj,' altered only in this: that the claims vecre no longer numbered, but were taken together as a joint loca- tion by a sujiposed association of fourteen persons, taking fifteen claims of -JOO feet each, oi 3,000 feet in all. Further, after the passage of such Act, the staking of the lode into its several chiinis was ahiiiidoned altogether: this, also, is to be observed, that before the Act each locator usually re- corded one specific claim, in which the other locators had uo interest, nor he in theirs, but after the Act, the record showed a. joint locatio'.i of undivided claims. The 1,000-Foot Act of ISO-i is barliarously word- ed, l)ut can scarcelj- be considered as lengthening a claim beyond 100 feet, as it before existed. It seems to have been directed against the practice of recording so many claims upon a single discovery, making them invalid beyond the distance of 800 feet in either direction from the centCT of the discovery hole, and this has been the construction un- der which the miners always acted. A full record under this Act would tlien consist of sixteen claims, each 100 feet in length. It may indeed be doubted whether at any time, as against an adverse ioua./!(Ze claim, such nominal side claims were by the record alone, of any validity, unless actually possessed and defiucd upon the ground in some manner; Cons. Rep. Co. v. Lebanon Co. 9 Colo. 343; Becker v. Piigh, Id. 589: Hess r. Winder, 12 M. R., 217; but the practice of the land office is to patent such claims without inquiry, if sufficient development for patent h s been done on any one of them, or on the discovery. 1 8 LENGTH OF OLD LODE CLAIMS. The 1,400-Foot Act of February 9th, 1866, was the first law whicli enlarged the length of a claim, strictly so-called, and attempted to dispense with the practice of so many persons recording nominal claims upon a single dis- covery. These 1,400 feet constituted one claim ; one person was allowed to record in his own name, and side claims were prohibited. This, in its intentions, was the best of the Territorial Acts, but immediately afterwards came the A. C, July 26, of the same year, which destroyed its practical operation. 3,000-Foot Claims, 1866 to 1872.— The Act of Congress of July 26tL, 1866, reduced a claim to the length of 200 feet, allowed an additional claim to the discoverer, and in its full operation, 3,000 feet to the discoverer and his thirteen supposed associates. Between July 26, 1866, and February 11, 1870, a serious conflict existed between the Territorial Statutes and this act^pf Congress, as to the length of lode claims. The Territorial Act prohibited locations beyond the extent of 1,400 feet ; the Act of Congress said "not more ihan" 3,000 feet should be taken. The Act of Congress was not even a permission ; it was merely a restriction or limitation, and it is by no means clear that the Legislature had no power under the Act of Congress to restrict locations to less than 3,000 feet, and so it has been ruled in the Land Office upon a similar statute of New Mexico. (Copp. 34.) This difficulty will, however* be found serious only in litigated cases, as it is the practice of the office to give a patent for the entire 3,000 feet, with- out i)ressing the question. But after February 11, 1870, and until May 10, 1872, 3,000 feet were allowed beyond doubt, the Territorial Act LENGTH OF OLD LODE CLAIMS. 19 of 1870 being made for the purpose of conforming to the Congressional law, and confirming (or attempting to con- firm) previous locations of the full limit, subject to such adverse rights as might have intervened. LENGTH OF L01>E CLAIMS AT VARIOUS DATES. To recapitulate we may say that 1. Prior to X»v. 7, 1861, the length of a lode claim was fixed by district rules. 2. Fiom Nov. 7, 18(11, to March 11, 1864, the length of a claim was 100 feet, but an indefinite number of claims could be based on a single discovery. 3. From March 11, 1864, to February 9, 1866, 100 feet was the leugth of a claim, and sixteen claims of that length could be based on a single discovery. 4. From Feb. 9, 1866, to July 26, 1366, 1.400 feet was the leugth 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, and it constitutes a single location. Under present law a claim and a location are practically synonymous terms. 20 WIDTH OF OLD LODE CLAIMS. WIDTH OF LODE CLAIMS LOCATED BEFORE MAY 10, 1872. oO-Foot Act of ISGfi.— 5 4.— On all mineral lodes or viens of gold-bearing ores, or of silver or other valuable minerals in this Territory, the owner or owners of all such deposits shall, by vir- tue of priority of discovery, be deemed and held to be the owner or owners of all spurs, otl'-shoots, dips, angles, feeders, cross or parallel veins of any character or name whatsoever, lying and being within the limits of twenty-five feet in either directio.n from, the center of said first discovered lode or vein. — Feb. 9, 1866. Indefinite Under A. C. 1866.— g 4.— No location hereafter made shall exceed two hundred feet * * * * * together witli a reasonable quantity of surface for the convenient working of the same as fixed by local rules.— ^. 0'., July 26, 1866. Repealed May 10, 1872. The district rules usually allowed a surface width of fifty feet ; sometimes more, often less. The Act of Febru- ary 9, 1866, made twenty-five feet ou each side the center of the vein the width of claim by implication only, and yet was generally construed as restricting width of claims throughout Colorado; (Copp., 201) and this was the only mention of the subject in the Territorial Statutes, prior to 1874. The A. C, 1866, allowed a "reasonable quantity" of surface, but the Territorial Statute of the same year was taken as fixing the amount as above stated, at 50 feet. Prior to the Actof Congress of 1872, the width of claims had been considered merely as a question of sufficient sur- face for couvenieut working. WIDTH OF LODE CLAIMS BETWEEN MAY 10, 1H72, AND JUNE 15, 1S74. Xotwitiistanding the fact that the A. C. May 10, 1872, allowed to lode claims in general an increased width not exceeding 600 feet, the Territorial Statute printed under DISCOVERY AND LOCATION-OLD CLAIMS. 21 the last lieadinjc, remaiiud in force until the ir)th of June, 1874, and fifty feet remained the legal width until that date. DISCOVERY AM) LOCATION OF LODES BEFOKE THE ACTS SOW IN FORCE. Shaft and Stake Kc less than iwonty-tive feet on 24 PRESENT WIDTH OF LODE CLAIM. each side of the middle of the vein at the surface, except where adverse rights existing on the tenth day of May, eighteen hun- dred and seventy-two, render such limitation necessary. The end lines of each claim shall be parallel to each other.— § 2, A: C. May 10, 1872. Present Widtli Fixed by Colorado Statute.— G. S. ? 2398.— The width of lode claims hereafter 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 centre of the veia<)r 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 the cen- ter 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.— i''e6'2/ 13, 1871. 30O 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 its power to choose between the extreme width of 600 feet and the minimum width of 50 feet, a great differ- ence of opinion resulted, citizens of the older mining coun- ties 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, which is the only instance of county legislation on the sub- ject of mines in Colorado; except an unimportant local Act concerning district records in part of La Plata county. No instance is known to the author of any attempt, in any county, to increase the width by an election held under the proviso of section 2398 ; and the constitutionality of any such proceeding, if attempted, would admit of very great doubt. Center of Vein, Center of Claim. — It will be observed that the center of the lode is made the center of •this width, both in the Congressional and State Acts; if. PRESENT WIDTH OP' LODE CLAIM. 25 therefore, a party attempt to locate more than half the extreme width on either side of his vein, the location of such excess is witliout the authority of law, even although the entire width be within the statutory limit. IiOcan«>n of Kxcessive Width.— The Surveyor- General will not issue an order for survey for patent upon a location certificate which claims more than 75 feet in the counties named, or more than 150 feet in the other counties,^ from the centre of the vein, and it is doubtful whether any court would receive such a certificate in evidence. Such mistakes are the work of surveyors wlio undertake to ]iut their lield notes into the form of a location certificate, in total ignorance of what constitutes a valid location certifi- cate. This document should be drawn by a competent attorney. Vein Approachins Side Line, Leaving E\cp.«» of Widtli on One Side. — 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 are readily com- mitted ; but the vein being the basis of location, and it having been decided that when a vein leaves the side lines of location the claim both as to veins and surface beyond that point is void, it necessarily follows, where either side line is found at any point to be more than the legal distance from the centre of the vein, that the location in such case has not been based upon a vein lying within the statutory 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., 5i2. 26 DISCOVERY AND LOCATION. DISCOVERY AND LOOATIOX UNDER LAWS NOW IN FORCE. DiscoTcry Required.— R. S. § 2320. * * * Nq location of a miiiinp; 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. g 2324.— The miners of each min- ing district may make regulations not in conflict with the laws of the United States, or with the laws of the State or Territory in Avhich the District is situated, governing the location, manner of recording, amount of work necessary to hold possession of a min- ing claim, subject to the following requirements : The location must be distinctly marked on the ground so that its boundaries can be readily traced. * * * —iSec. 5 A. C. May 10, 1872. Discovery Shaft, Notice and Stakes.- G. S., ?, 2401.— Before filing such location certificate the discoverer shall locate his claim by : i^w-s<— Sinking a discovery shaft upon the lode to the depth of at least ten feei 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— Bx marking the surface boundaries of the claim. — Feb.l.'>. 1S74. " Cornfir Posts, Center Posts.— G. S. ? 2402.— Such surface boun- daries shall be marked by six .sub.stantial 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 centre of each side line. Where it is practically impossible on account of bed-rock to sink such posts, they may be placed in a pile of stones, and where in marking the surface boundaries of a claim any one or more of such posts shall fall by right upon precip- itous ground, where the proper placing of it is impracticable or dangerous to life or limb, it shall be legal and valid to place any NoTE-The original section 6, of the Act of 1874, reads as follows : "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 center of eacli side line. Where it is practically impossible on account of l)ed-rock or precipitous ground to sink such posts, they may be placed in a pile of stones." DISCOVERY AND LOCATION. 27 such post at the iieaiost practicable point, suitably marked to designate the pniper i>\&ce.— Compiled from Acts of Feb'y 13, 1871, and Feb'y J, 1876. Open Cuts anil Tunnel nisroTfries.— G. S. j 2403.— Any open cut, eross-eul or iiuincl which slmll cut a lode at the depth often feet below the surface, shall liold such lode, the same as if a dis- covery shaft were sunk thereon, or an adit of at least ten feet in along" the lode from the point where the lode may lie in any manner discovered, shall be equivalent to a discovery shaft.— heb. 13, 1874. Time to Sink Discovery. - (i. .S. J, 2404.— The discoverer shall have sixty days from the time of uncovering or disclosing a lode to sink a "discovery shaft thereon.— /6id. Appropriation. -The doctrine of appropriation would have no application to mining and water claims on the Pa- cific Slope if the lands, before the discovery of minerals, had passed into the hands of private owners ; nor to the government itsell', if the government had chosen eitlier t» treat the miners as trespassers or to arbitrarily dispose of the lauds at public sale. Instead «f adopting any such policy, the United States for many years tacitly, and since 1866 by positive enactment, opened the lands to the explor- er aud occupant; in other words, the mineral lands were oftcred to the first appropriator. Tlie acts of appropriation as to mineral land 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 appropriation as are sutficient to carry out this incention, and finally such acts must have such publicity by record as to operate as notice to all that the lands have been actually appropriated. Tlie appropriation of a mine, the appropriation of water for mining or irrigating purposes, and the i ccupatiou of homestead land are therefore in substance the same, and differ only so far as the various subject matters differ, the criterion in eacii case being the intent of the occupant to segregate a certain portion of the public domain to his 28 DISCOVERY AND LOCATION. several use, followed by acts manifesting such intention with such publicity as is due to the rights of third parties. — Sparr&iv v. Strong, 2 M. R. 320. Gore v. McBrayer, 1 if. R. 645. The formal Acts of Appropriation in the case of lode claims are : (1) Discovery. (2) Location. (3) Eecord. Discovery. — 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 {Hurley v. Ennis, 12 M. R. 360; Erhardt v. Boaro, 4 M. R. 432 ; 113 U. S. 527); and when the location and record are made, the incep- tion of title still relates back to the date of discovery. From this fact a later record may show an older and better title th»n a record made several months earlier; Pat- terson V. Hitehcock, 5 M. R. 542. For this reason it is advis- able, although not necessary, for the location certificate to recite the date of discovery as veil as the date of location. The Vein Must be Reached. — The discovery is not complete until the vein itself is disclosed. The finding of float or loose quartz is not sufficient. There is a custom almost universally respected among miners, when any per- son has discovered indications of a lode and is diligently following up these indications, to allow thirty days in which to uncover the deposit ; but, if another person, by a shorter cut, should first actually reach the vein, it would seem that the first prospector could assert no priority; and S)ich have been the detn.sioiis. Upton v. Larkin, 6 Pac. 66 ; North Noonday Co. v. Orient Co., 9 M. R. .529 ; Overman Co. v. ■Corcoran, 1 M. R. 691. But in the case of Erhardt v. Boaro, DISCOVERY AND LOCATION. 29 11:5 U. S. ii'M, there is a dictum to the etl'eet that knowledge of mineral in the immediate vicinity would protect a pros- pector at work who had set notice and stakes. Discovery afccr Ijocati«>n. — If a location be made before discovery but it is followed by a discovery before any adverse rights intervene, there are several decisions to the ell'ect that such subsequent discovery cures the original defect and that the claim is valid. — McGinnis r. Egbert, 8 Colo. 41 ; Golden Terra Co. v. Mahler, 4 M. R. 390 ; Jupiter Co. V. Bodie Co., 4 M. R. 411 ; ZoUars v. Evans, 4 M. R. 407. LiOtle Found Oiitsiile of Discovery Shaft. — And it has been decided that althoujih 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. But to the con- trary is the case of Van Zandt v. Argentine Co., 4 M. R. 441 ; and if it be true that the sinking of the discovery within patented linos vacates the entire claim; and that the pat- enting of the discovery shaft by a hostile claim invalidates the entire claim; and if the discovery shaft be the point from which both length and width of the claim are determ- ined, the point at which the notice is to be po.sted, and where it is required in terms to show a well defined crevice, it seems inconsistent to hold that discovery elsewhere would be of any avail where there was none in the discovery shaft. By Kelocatioii Upon the Shaft Showing the Mineral afterwards discovered, this danger can be avoided where no hostile discovery has intervened. 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 30 DI6UOVERY AND LOCATION. boom ditch ; or at greater depth by a tunuel cutting the vein horizontally across its dip, or by a shaft striking it perpendicularly upon the incline. Discovery and Discovery-Shaft Distinguished. — The fact of discovery is a fact of itself, totally to be discon- nected from the idea of discovery shaft; the discovery shaft is a part of the process of location, subsequent to discovery. If a lode, for instance, be discovered in a cross-cut run to operate some other known vein, and no steps are taken to stake and record such lode, it becomes no more the property of the owner of the cross-cut 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 equiva- lent to abandonment of the inchoate right given by dis- covery. The discovery shaft need not be sunk at the point where the lode was first actually discovered. All Methods of Discovery, whether by shaft, cut, tunnel, boom-ditch or otherwise, are recognized by the Stat- ute, the only distinction being, that when discovered at the surface or in the slide there mmst be a shaft at least ten feet deep, or deeper, if necessary to show a well-defined crevice; while if disclosed in an open cut, cross-cut or tunnel, the vein must be cut and a well-defined crevice exposed, at least ten feet below the surface. Discovery by Prospecting Drill. — The discovery of a lode or deposit by either horizontal or perpendicular drilling would doubtless fulfill all the conditions of a legal discovery, and would operate to nive the party the sixty days allowed to complete a discovery shaft; but the idea that a drill-hole would be considered as the equivalent of a dis- covery shaft cannot be entertained. It would be a physical impossibility for such drill-hole to show a well-defined crev- ice, and a drill-hoie is neither a shaft, cut or other opening DISCOVERY AND LOCATION. 31 such as are enumerated amouc those things which may con- stitute 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 work- ings as shall amount to a notice to third parties. A drill- hole is not a notorious physical landmark, and could not be construed as such notice. Discovery Hold.s 60 Days. — A discovery holds the claim for the sixty day.s allotted to sink the discovery shaft. As soon as a vein is found by the prospector it is the cus- tom to place at the point of discovery a notice about as fol- lows : CONTENTION LODE. The undersigned claims .sixty days to sink rti.scovery shaft and three months to record oa this vein. July 1,1887. Jeremiah Lee, Discoverer. But if it is bona fide the intention of the discoverer to complete bis location, the absence of such notice would not be fatal. This is not the notice required when the location is made, (page 32). It is a mere warning to other prospect- ors that some one has acquired a prior right on that crev- ice. Erhardt v. Boaro, 113 U. S. 537. 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 begin to run from the date of discovery, and nothing can enlarge the time. liocation. — The location of a lode consists in defining its position and boundaries, and in doing such acts as indi- cate the intention to occupy and possess it under the li- cense of the United States. The formal parts of a location include : 1. The location notice at discovery. 2. The discovery shaft. .'5. The boundary stakes. 32 DISCOVERY AND LOCATION. Liocatioii Stake. — Although a very old custom, the requirement of the Act of 1866 as to a location stake was not generally considered imperative, but in a recent case the Supreme Court enumerate it as one of the constituent parts of a complete location. — Strepey v. Starh, 7 Colo., 618. 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 complied with by writing on a blazed tree or on a board nailed at discovery, or by legible carving, or by any other rude but honest form of notice, so that it be intelligible and open to observation; but the loose prac- tice 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. The following FORM OF NOTICE ON STAKE: The Famine Lode, discovered by Jesse White, November 1, 1886. Claim 750 feet easterly and 75U feet westerly from discovery . JESSE WHITE. fully complies with the Act, and would still be sufficient without signing at the foot and without stating the number or direction of feet claimed. 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 Pgh. Co. v. Amie Co., 17 Fed. 57; Armstrong v. Lower, 6 Colo. 393. 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."— Givillim v. Donnellan, 115, 15 U. S. 45. DISCOVERY AND LOCATION. 33 Claim Must Include Discovery Shaff. — It is self evident tliat the claim must iiichulc the discovery shaft, and proof that by change of boundaries tliey were made so as to exclude the discovery shaft is admissible to defeat sucli location. — McGinnis v. Egbert, 8 Colo. 54. Discovery Shaft Must be Ten Feet Doep.--Inthe case of the Maine and Phoenix lodes, located under the Act of 18G6, 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 1.5, 1874, it must be at least ten feet f.-om the lowest part of the surrounding surface. In all the litigation known to the writer, it has always been conceded that the depth of ten feet required must be found by taking a perpendicular measurement, not regard- ing the slope or dip of the shaft. After a shaft has been sunk ten feet the ground at the collar may cave, or the shaft may become so filled with de- bris, 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 ascertain its original bottom. In view of these facts and of the essential importance of the shaft being full ten feet deep, it is always advisable to sink it two or three feet deeper and remove all ground for cavil or con- tention. It has, however, in several cases been decided at nini prius, both in the United States Court at Denver and in the First Judicial District, that where the discovery shaft had not reached the legal depth at time of record, but had been completed to that depth afterwards and before any adverse rights had intervened, such discovery shaft was valid. 2 34 DISCOVERY AND LOCATION. Discovery Must Show Well Defined Crevice. — Besides rcachiUf^ a csrtaiu depth, a well-defined crevice must be found in the shaft. If a crevice do not show in ten feet, the shaft must go deeper; if it appear sooner, the ten feet must still be com- pleted. The crevice shows tlie lode discovered, the deptli 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 necessity 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 weie not true veins or fissures, the shaft might pass entirely through the deposit and still re- main a valid monument of occupation. Discovery Need Not Show Wall. — It has been decided in Montana (Foote v. National Co. 9 M. R. 605) that at least one wall of the lode muft be disclosed before the vein can be considered as discovered. But this decision makes the discovery dependent upon a single incident, which is not by any means the only proof of the existence of a vein. Such decision is not authority in this State ; nor should it have any weight, because wholly unsupported by reason. There are certain classes of deposits which are doubtless lodes or veins within the intent of the Act of Con- gress, which show no well-defined walls after thorough development, much less within that amount of working which is required as the basis of a record. Shaft Through Slide or Country.— Nor does it make any diff'ereuce that the shaft is started in slide or upon a stratum of country rock, if it pierce through the DISCOVEKY AXD LOCATION. 35 slide or couutry and find a crevice at a dei>tli of ten leet or more. Such a shaft fulfills all the statutory couditions. Separate Discovery Jor Kach (Maim. — I he at- tempt to locate two full claims upon one discovery shaft is a palpable fraud. It issometiiues alleged that two lodescross in the discovery shaft, but no ten-foot shaft can prove such fact if such a coincidence ever occurs. — McKinstry v. Clark, 4 Mont. ;570. * Open Cut, Adit and Tunnel Discoveries. — The Statute provides 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 Supreme Court have ruled in two cases that it need not be ten feet deep, nor any specific depth, at the breast, but that the adit must be ten feet in length along the vein. — Gray V. Truby, 6 Colo. 278. Electro Magnetic 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 rely on this construction, and no prospector should consider his discovery complete until he has ten feet in depth at the breast of his cut, or a covered adit at least ten feet in along the vein. The words cross-cut and tunnel are identical terms, except that the former is usually applied to sliort workings and the latter to those of greater length. Where the dis- 36 DISCOVERY AND LOCATION. covery is in a cross-cut or a tuuuel the locatiou notice should be posted immediately above the point where the vein is cut below, making proper allowance for the supposed dip of the vein, and the staking should then be made so as to measure the legal width and length from the location stake in the same manner as if there were a discovery shaft at the point where such location stake has been set. It does not seem that a discovery in a tunnel, even where the tunnel has been located and surveyed under the Act of Congress, will ever be construed to amount to a valid location without the posting of notice and the marking of boundaries in the same manner as in the case of surface dis- coveries. — Corning Tunnel Co. v. Pell, 4 Colo. 507. Staking Boundaries. — That the staking of the sur- face boundaries of the claim has been required upon all locations made since May 10, 1872, has been expressly decided. — Holland v. Mount Auburn Co., 9 M. B. 497; Gelcich V. Moriarty, Id. 498; Hauswirth v. Butcher, 4 3font. 299. These decisions are not made upon local Statutes, but as the con- struction of R. S., ^ 2324, above printed ; nor can we see how any other construction can be contended for. It follows^ therefore, that between May 10, 1872, and the 15th of June, 1874, surface staking along the bounds of the claim was required in all cases, notwithstanding the fact that between those dates we had no Territorial Statute on the subject. 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 maybe 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 DISCOVERY AND LOCATION. 37 arrivcine tree 'J feet in dinnieter iniiiked V., hears X. 8 degrees. West t2 feet : thence North .'n'j degrees, West T.M) feet to North-center stake and thence same course 750 feet to the place of beginning. FiDni discovery .shaft, corner No. 2 of Ajax Lode, .survey lot 7S7. hears S. 27 degrees. East 180 feet, and discovery shaft of Achilles Lode hears .10 worth of labor to each 100 feet which the owner desires to segregate and hold, leaving the remainder to forfeiture ; or when the series of claims are held in common, the full amount may be expend- ed upon any one claim, whether they were originally re- corded as joint or as several locations; but in all cases where less thau the amount required to hold the entire lode is expended, the owner, in his proof of labor, should state the work as done for the jmrpose of liolding only so many feet, designating where they lie upou the lode. AVork on Claims Located Since May lO, 1872. — I lie various extensions of time for work on old lodes did not apply to the new lodes. The period for the ANNUAL r.AHOR, 55 first work was lu-vrr cxteiidod, nor liii.s auv rlianjtu Ijcen made except tlie Act of 1880; but the chanjio made liy that Aet is both material and beuclicial. Tlie auuual period lor hibor on claims located since May 10, 1872, began on the date of location, and this date was hard tolix with exactness. It might have been the date of discovery, or any date inter- mediate 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. Kach Claim an Entirety. AVorkon Subdivided Claim. — The LlOO-foot lodes being single claims of that length and a certain amount of work being required upon the c/«j»i and the clause as to "ewh 100 feet in length along the vein" not applying to tliese new locations, it does not seem that a party, by expending any portion of the full amount, can save any fractional purtion 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 liold the claim is done by some person, and if the whole burden falls upon ©ne party, the rest of the claim becomes forfeit to such party. There is no distinction made between those who own separate feet and those who own undivided interests in the claim. The word "co-owners," used in the Act, does not appear to be used in its ordinary acceptation, as tenants in common, but to include all the owners, either in common or after they have segregated their interests; the claim seems to be treated as an individual item so far as the relations between the Government and the miner are concerned ; if, therefore, all the labor is performed by the owner of the 56 ANNUAL LABOR. 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 otber co-tenant to contribute his proportion. But this is only the apparent readiiKj 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. $30t) Work Already Done.— The fact that suf- ficient improvement ($500 worth,) has been done to author- ize application for patent, does not dispense with the neces- sity for the annual expenditure. Annual Labor atter 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 an- nual labor each year "until patented." — 5 Land Oivner, 114. Nevertheless, in such case, a party runs the risk of the con- sequences in case his Receiver's receipt should be canceled. Tiine During Which Labor Must be Cr>in- pleted. — On all lodes located before or since May 10, 1872, the year for doing the labor is cacii year of our Lord, begin- ning January 1st, and ending December 31st, always noting that since the act of 1880 no annual 'labor is required dur- ing the year the location is made. Ilallv. Hale, 8 Colo., 351. Each Annual Period an Entirety.— The owner has the whole of each year to do his $100 worth of work or ANNUAL LABOR. 57 make his $100 worth of improvements. Belk v. Meagher, 1 M. R. 522. Atkins v. Hendree, 2 M. R., 328. It therefore follows that if, for instance, he has expended $100 during the tirst month of the first year he may wait until the twelfth month of the second year before he does his second year's work. That such Is the law admits of no douht upon the reading of the Act. At the same time the disi)o.sition to take advantage of this fact leads to delays which often ultimate in allowing the whole time to pass by and the claim becomes liable to re-location. What Counts for Improvements. — Any work iovoinents required helore paten«iii}> — Tf failure to do one year's work operates, ipso facto, to defeat the loca- tion, 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 consequentlv old work and new together count as improvements on the claim for pur- poses of patenting. 2. Where it is Essential to Carry the Title back to Discovery.— The reMarks of the foregoing par- agraph apply also to this heading. The doctrine of relation 60 AN M UAL LABOR. always carries a title back to the first stej) in its inception, always excepting where an adverse right has intervened. As the failure of itself works no forfeiture, the continuity in this case is not broken. A location, 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 relo- cation of the defaulting claim or only incidentally took some of its ground. 3. Where a Third Party has entered lor purposes of Ke-location. — The words of the Act rela- tive to the latter class of cases are as follows : "Provided that the original "locators, their heirs, assigns, or legal representatives, have not resumed work upon the claim after failure and before such location." If this location, or rather relocation of the third party is complete before the re-entry of the original owner, of course the original owner is too late. If on the other hand, the original owner has bona fide resumed work before the attempted relocation, his original title becomes revested the moment he has completed an amount of work equivalent to that required for the previous year. But where the third party has entered, and before he completes his location, the original owner also enters and resumes work, the question remains: Is such re-entry of the owner sufficient to defeat the intervening claimant? The Act says that the owner may resume work at any time "before such location." The location of the intervenor is not complete until he has done certain 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 by Stone J., in the case of Graydoii v. Hood. In that suit the Griffith Lode was shown to be an 1861 discovery. No work had been done ANNUAL LABOR. 61 for the year IbTo. As soon us thf titiif IkkI expired, or was about to expire, the defendant entered and began to sink a new diseovery shaft. Witliin a few days after December 31st, plain till" re-entered and linished his annual work before the defendant had completed his discovery to the lawful depth: Held, that the plaintiff had saved the forfeiture by performing such labor before the defendant had comi)leted his location. The case of Gouh v. liussell, 12 31. li. (530, holds the same, in terms, without any equivocation. On the contrary, llaUett J. in the case of she Little (iinntcll Co. V. Kiinher, 1 M. li. 'y'M, iield tliat tl.e party atteni])ting to take up abandoned property has the same period of three months to complete his location, which is allowed by law to a discoverer; and PelU-on Co. i. Stiadgrass, 9 Colo. 339, is to the same effect. I have little doubt of the correctness of the latter opin- ion. " The condition of development should be attached to every mine; and courts should, as far as consistent with legal principles, maintain the construction of mining cus- toms which accomplish this end." Kitig v. Edwards, 4 M. E. 480; Russell V. Brosseau, (!•") cy Senior Claim Over-lapped by Junior Claim. — This does not transfer the title of the over-lapping portion from the senior to the junior claim, unless the junior lode makes its relocation, taking up the over-lapping ground. This it may do as specially provided in ? 2409 of the Greneral Statutes, in the clause : " If at any time the locator of auj; mining claim * * * * shall be desirous * * * of taking in any part of an over-lap- ping claim which has been abandoned, * * * such locator, or hLs assigns, may file an additional certificate," the same as provided for in other cases of relocation by the same section. Equity of the Annual Uabor Law. — The opposi- tion to the requirement of annual labor so evident when first required by the Act of 1872, has gradually yielded to a con- cession of its equity even in the case of claims located before its passage. The holder has no just right to prevent the Government disposing of such claims as he is unwilling or unable to work, to such as are ready to assume the risk and develop the deposit, the estate of the holder not being absolute, but by implied contract and general 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 Govern- ment allows the miner to hold his possessory title and after- wards perfects it by patent. Erhardt v. Boaro, 113 U. S. 527; O'Reilly v. Campbell, 116 U. S. 418 ; Kramer v. Settle, 9. M. R. 61. ANNUAL LABOR. 63 Proof of Annual Labor.— Thiit st.'ction •_Mlii, of the Geiiorul Stalutes, being section 'JO, of cliaptcr ]>XXIV. thereof, entitled "Mines," be, uiul the same is hereby amended so as to read as follows : 2410. .'^ec. 2»>. Within six months afteranyset timeorannnal period, allowed for the oerformaiiee of labor or making improve- ments, upon any lode claim or iilaeer elaim, the person on who.«e behalf sueh outlay was mudc. or some i)erson for him, may make and record in the office uf the recorder of the county wherein such claim is situate, an athdavit in sub.stauce as follows : « .Statk oi- Colorado, ) ^^ County, / -'" Before me, tue suijscriber, personally appeared who, being duly sworn, saith, that at least dollars' worth of work or iuiprovements were performed or made upon (here describe elaim or part of claim), situate in mining district, countv of , State of (Colorado, between the day of .'. .\. D and the day of A. D Such expenditure was made by or "at the exi>ense of owners of said claim, for the purpose of complying with the law and holding said claim. Jurat. {Si{/yia1yre.) And such affidavit, when so recorded, shall be prima facie evidence of the performance of such hjjor or the making of such improvements. Sec. 1. Maf\ Ml, ist<7. p. ;>1J. The above act is a re-enactment of Sec. 15 of the Act of Feb. 13, 1874, altered so as to include placer claims, and making a change in the form of affidavit, so as to state for what year the work was done. Failure to File Affidavit of Labor. — The neglect to ftle proof of labor, if the labor has in fact been done, would not leave the lode open to relocation, and the doing of. the labor can be shown by oral testimony. — McGinnis v. Egbert. 8 Colo. 41. But the precaution to file should by no means be neglected. The filing makes out the i)roof of the fact of the labor being done, which might afterwards be a diflScult matter to show. The great objection to annual labor, with the profes- sional mind, is that it throws a mining title ui)on constant proof, takes it oui of the chain of title as found recorded, and makes it depend upon the existence of facts which do 64 ANNUAL LABOR. not appear of record. This evil should be obviated as far as possible by precautions, such as are above suggested ; but, after all, the result remains, that no claim can be considered secure until a patent is obtained, and the title reduced to a record basis, and to certainty. form of affidavit of labor performed. State of Colorado, } tSummit County, j "' Before me the subscriber, personally appeared John A. M'il- loughby, who being duly sworn, saith that at least one hundred dollars worth of work or improvements were performed or made upon the Chaos Lode, situate on silver Mountain, in Avalanche Mining District, County of Summit, State of Colorado, between the tirst day of January, A. D. 188G, and the 31st day of December, A. D. 1886. Such expenditure was made by or at the expense of John A. Willoughby, owner (or one oftheownersj of said claim, for the purpose of complying with the law and holding said claim. John A. WiUoughby. Sworn and subscribed before me this fiist day of January, A. D. 1887. [seal.] Breeze, ' • Notary Public. A single affidavit may be filed for the labor on several claims. — McGinnis v. Egbert, 8 Colo. 41. And it may be filed before the year elapses. — Id. FORFEITURE TO CO-OWNER. By Failure to do Annual Labor. Notice.— R. S., § 2324.— * * * Upon the faihire of any one of several co-owner.'? to contribute his proportion of the expenditures required hereby, the co-owners who have iierformcd the labor or made the improvements may, at the expiration of the year, give such delinquent co-owner personal notice in writing or notice by publication in the nevv.spaper pub- lished nearest the claim, for at least once a week for ninety days, and if at the expiration of ninety days after such notice in writ- ing or by publication such deliiKiiient 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. a May 10,1872. FORFEITURE TO CO-OWNER. 65 Expenditures in Excess of the Statutoiy Ainoiini. — Althoiif^li one co-owuer has expended more than euoufjh to hold the claim, the delinquent co-owner to save t]prfeiture under the /Set 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 jtroportion of additional expendi- tures depends upon other grounds, and is to be enforced only by judicial proceedings, involving the question of min- ing partnership, or the expressed or im]>lied assent of the co-owner to the expenditure of the additional amount. — In re Brooks, 5 Land Owner 4. — Neuman v. Dreifursi, 9 Colo. 228; McCord v. OaMaiul Q. Co., 40 Am. R. 689. If there are Three Owners and one performs all I he Labor, and gives notice to his co-owners, and one of them pays his proportion and ofiers to pay one-half and join in the division of the forfeited claim of the third party, I apprehend the second party may refuse such proposition., the forfeiture accruing solely to him who has performed the labor. Estoppel. — Wheii 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 con- sidered a waiver of the forfeiture. Preservation ot Piool. — The presumption in law is always against forfeiture, and the jiarty who claims it must be prepared to make his proof in such case ; therefore besides recording the notice, with affidavit of publication, the party should make declaration of the facts of the case, under which he claims forfeit, verify and record the same ; not that such, of itself, would be evidence, but as furnishing notice to jiurchasers, and also a record which the land office would doubtless receive in application for patent, or upon adverse claim. — 5 Land Owner 4. 3 66 TO ENFORCE FORFEITURE. PROCEEDINGS TO ENFORCE FORFEITURE AND TO MAKE THE SAME APPEAR OF RECORD. In the first instance file the usual affidavit of labor performed, in the form given on page 64. The demand upon the delinquent must be then made ^jy service of what is commonly called the " Forfeiture Notice." If this is served in person the forfeiture is com- plete in ninety days ; if by publication, which must be in the newspaper published nearest the claim, the forfeiture, it seems, is not complete until ninety days after the last pub- lication. The following is the form of the FORFEITURE NOTICE. (a). Georgetown, Colorado, January :5, 1887. To Sam P. Rose:— » You are hereby notified that I liave expended one hundred ■dollars in labor and improvements upon the Fairfax Lode, situate on Republican Mountain, in Griffith Mining Di-strict, County of Clear Creek, State of Colorado, of which the location certificate 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 Statutes of the United States, and the amendment thereto approved January 22, 1880, concerning annual labor upon mining claims, being the amount required to hold said lode for the period ending on the 31st day of December, A. D- 1886. And if, within ninety days from the personal service of this notice, or within ninety days after tlie publication thereof, you fail or refuse to contribute your propor- tion of such expenditure as a co-owner, your interest in the claim will become the property of the subscriber l)y the terms of said section. IVm. Spruance. If the demand contained in this Forfeiture Notice is not complied with, within the prescribed period, it should he recorded after making proof of its service or puhlication, ■which can be most readily done by endorsement upon the Notice "A" as follows; TO KNI'CIRCE FOUFEITURK. 67 I'EOOF OF FOKFEITURE. (B). Where the Forfeiture I^oiice has been personally set-ved. State of Colokado, \ County of Clear Oietk.j"''- Williftm Spruatice being duly sworn snith : Tliat he served tbe within forl'eilure notice ni)on {■lain. P. Hose, the deliniiuent co-owner therein naniod, upou the ITtli day oi Maich, A. D. 1S87. at said county, by delivering to him a true eoi)y of tlie ^ame and explaining the contents thereof; and tlial said Roxe wlmlly failed to comply with tlie demand contained in said notice during the period of ninety days after said dateor atany time since hitherto. }yilliuin Upruance. Sworn and subscribed to before me this second day of July, A. D. 1887. I<^unk J. Hood, [seal.] Notary Public. The above form completes the proceeding where the notice has been personally served, hut where it has been by publication, discard the form " B," and use tbe following "C" and "D." ..}- publisher's pecof of foefeiturk. (c). STATK ok C()I.OIi.\DO, County of Clear Creek, [Copy of Notice "A" Attached.] Jesse S. Randall being duly sworn, saith, that he is publisher of the Oeorgetown Co»ri"r. a weekly newspaper published in said County, nearest to the said Fair/ax Lode Claim, and that the above" notice was iiul)lishcd in said pajier fourteen successive weeks, the first publication aiipcaring in the issue oi May 5, 18S7, and the last publication in the issue of Aufiust l, A. D. lt*}S7. Jesse iS. Randall. Sworn and subscribed to before me this fifth day of August, A, D. 1887. Frank J. Hood, [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 ; affipavit of non-payment, (d). Statf. of Colokado, \^^ Comity of Clear Creek, J "^" }Yiltiam Spruaytce, beingduly sworn, saith that Sam. P. Ro.it, the person named in the forfeiture notice attaclied to the within 68 RELOCATION OF CLAIMS. -proof of publication, wholly failed to comply with the demand contained in said notice during the period of said notice or within ninety days tliereafter. mUiam Spruance. Sworn and subscribed before me this seventh day of No%'cm- ber, A. D. 1887. Frank J. Hood, [seal.] Notary Public. These forms, "A" and "B," iu cases of personal service and "A," "C" and "D," in cases of advertisement, complete the forfeiture and place its proof in a shape where it is rec- ognized in all Land office proceedings as the equivalent of a deed from the delinquent party ; but when the forfeiture has to be proved in court, these ex parte proceedings would not be recognized except the publisher's proof, which is made evidence by statute G. S., ^ 1315. RELOCATION OF ABINDONED CLAIJUS. statutory Uoerulation of Such Rc-Location.— G. S., ? 2411.— The relocation of abandoned lode claims shall be by sinking a new discovery shaft and fixing new boundaries in the same manner as if it were the location of a new claim ; or the relocator may sink the original discovery shaft ten feet deeper than it was at the time of abandonment, and erect new or adopt the old bound- aries, renewing the posts if removed or destroyed. In either ca.se a new location stake shall be erected. In any case, whether the whole or part of an abandoned claim is taken, the location cer- tificate may state that the whole or any part of the new location Is located as abandoned property. — § 10, Feb. 13, 1874. In the relocation of abandoned claims, the party locates and records with the same particularity as in making an original location or record. It has been held that a relocation cannot be made on a blind working — a drift which had been run underground from the bottom of a shaft on an adjoining claim. — Little Gunnell Co. v. Kmher, 1 M. R. 5.36. RELOCATION OF CLAIMS. 69 The fact of improvements already on the ground does not lessen the labor n'quircd from tiie relocator; he must do at least ten feet of sinkiuj; ontiie old, or on anew discovery shaft; must erect a new stake, and unless he adopts exactly the old location, he must sink new posts, or at all events must sec that his boundaries are established on the ground. 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 expenditure; nor if it be an abanefoned KiDO or liOOO-foot claim, can it be relocated upon one shaft for more than loOO feet. It is substantially a location, the same as if no former location or record had <-ver been made. After the annual period has expired, the old claimant has still the first right ; but if he has commenced work before another party enters, he must complete the full amount r('()uired with reasonable diligence, as otherwise the claim would remain forfeit. llelocalioii of Abamlouc*! Claims by a Co- tenant. — Where the several owners of a claim have allowed the annual period to expire without doing the annual labor it is asserted that any one of them may enter upon the ground and relocate the claim in his own name, leaving out his former co-teiumts. The Statute says that after the year has expired without the labor being done, the claim "Sliall be open to relocation in the same manner as if no location of the same had ever been made." — li. S. g 2324. But these words are immediately followed by a 2>rovim which seems to make a distinction between the rightsof the old owners and the rights of strangers. It is certain that if all the owiH-rs return to the claim their title would relate buck to the origiuil discovery ; and it is also a rule of law thata tenant in common cannot rightfully do any act which 70 RELOCATION OF CLAIMS. is subversive of his co-tenant's title, and qUite as certain that if he were allowed to relocate as a stranger he must yield liis prior claim absolutely, and i)rocecd in all particulars as an entire stranger. The (luestiou, tliereforc, whether a single co-tenant can relocate at all, is involved in great doubt. It was held that he could do so in the case of Strang V. Ryan, 1 M. B. 18, but that was a case of forfeiture under district rules. 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 did not pass on the point as to whether or not the new location should be held in trust for the promisee. relo(;ation of claims not abandoned. In What Cases Owner May Kelocate.--G. S. ;; 210!i. — If at any time tlie locator of any niininK claim heretofore or hereafter located, or his assigns, shall apprehend that liis original certifi- cate was defective, erroneous, or that the requirements ol the law had not been complied with before filing, or shall be desirous of changing his surface boundaries, or of taking in any part of an over-lapping claim which has been abandoned, or i'n case tlie original certificate was made prior to the passage of this law, and he shall be desirous of securing the benefits of this Act, .such locator, or his assigns, may file an additional certificate, subject to the provisions of this Act: Provided, that such relocation does not interfere witb the existing riglits of others at tlie time of such relocation, and no such relocation or other record thereof shall preclude the claimant (jr claimants from proving any such title or titles as he or thov may have held under previous location.— g]3,ii'e6. 13, 187-1. This is one of the most important sections of the State Mining Act; it provides an escape from the consequences of the loose and careless records of many valuable claims; RELOCATION OF CLAIMS. 71 it also givc-s tlie older claims the opportunity to take tho full width allowed by tlu^ uewlaw; and further, in case a lode is found to be notcoi»tained in the orij^inal boundaries, it allows the error to be corrected. All former rights aro secured with the new privileges, and greater certainty obtained under the relocation. In a relocation under this section the name of the lode should not be changed, and the eertilicate should show that it is a relocation and of what lode. FORM OF CERTIFCATIC nK l!i:i.OC.\TTON. Know .\.i.i. .men by tiif.se presents, That J, Beta ^f. JIufj/ies, of the County of Arapahoe. State of Colorado, claim by right of relocation, fifteen hundred feet, linear and horizontal'measure- ment, on tlie Kentucku Lode, along the vein thereof, with all its dilt.-j, variations and angles, together with seventy five feet in width on each >ide of tlio middle of said vein at the surface ; and all veins, lodes, ledges and surface ground within the lines of said claim ; "oU feet on said lode running north 10 degrees east from the center of the discovery shaft, and 750 feet running south 10 degrees u'ps< from said center of discovery sliaft. Said discovery shaft being situate upon said lode, within the lines of said claim, in Silver t/i^ Mining District, County of Gws/er. State of Colorado; said claim being bounded and described as follows : Beginning at corner No. 1, {.etc.; describe as in case of original location, and conclude as follows:) Being the same lode originally located on the first day of May, A. D. ISS-l, and recorded on the first day of ,Iune, A. I), is^vf in book 7. i>age 11, in the ollice of the recorder of said ct>nnty. This further certificate of location is made without waiver of any previous rights, but to correct any error in prior location or record, to secure all abandoned overlapping claims, and to secure all the benetits of section 'lAW of the General Statutes of (Colorado. Date of relocation, ,Iune 7, ISSil. Date of certificate, June 8, issi;. Belu M. Hughes. Attest: Jcre Mahoney Same Paitioiilaiity as in Oriyiiial Location. — The discovery shaft, side and boundary posts, must be fo\ind on the ground before any second record is made, and if the relocation changes the boundaries or is made on account of any previous mistake or irregularity, the same should be rectified before recording; and if any substantial change is made in the description, it should be set forth. 72 RELOCATION OF CLAIMS. A new location stake should also be erected at the dis- covery, although possibly, neglect to erect a uew stake or notice might not be fatal, because the old stake could be considered as answering all purposes 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 of ten feet — that is, ten feet measured under the present law. In fact no change whatever upon the ground is necessary if the original location was. perfectly regular, and the only idea in relocating is to formally appropriate abandoned inter- ferances or to correct mistakes in the record. Any attempt to alter the number of feet claimed on each side would bean abuse of the intentions of the Act unless the new ground taken up continued wholly vacant. The intent of the Act is: 1st, to provide a recognized mode of relieving from the consequences of clerical and other mistakes; and 2ud, to give to old locations the benefit of the additional width allowed under the new Act. It will hardly, therefore, be construed to allow to any old location more than it could claim as an original, nor could it, without being retrospective, relieve against any intermediate adverse rights, accrued prior to the relocation. The practical result has been, that many of the old .'JOOO-foot claims have been cut down, the shorter claims increased, and the old claims widened, so as to produce a uniform size of claim in length and breadth. Amended Certificate, without lielocation.— An additional or amended location certificate may be filed on old .3000-foot claims for mere purpose of more specific description, but such claim cannot increase its width and at the .same time retain its old length. An additional or amended location certificate is also frequently filed upon new claims for the purpose of correct- RELOCATION OF CLAIMS. 73 iiif; or making more particular the orij^iiial record. This is in strictness not a relocation, l)ut an additional certificate of the original location, and while the ahove form would answer without change, the followiug is more exact in cases where no change is made in the houndaries and no error except indefinite description is to he corrcifi'd. and no overlapping ground to be taken up : AMENDED LOCATION CERTIFICATE. Know all men by these presents, That I, Maurice ^Y. Levy, of the county of Sedf/ivick. State of Kayisus, do hereby make and flic this, my amended certificate of location upon the Evolution Lode Mininpr claim, situate in i?oactnfir Fwks mining district, county of I'Ltkin, State of Colorado, claiming one hundred and fifty feet in width on each sideoftliecenterof said lode at thosur- face. and all veins, lodes and ledges within the lines of said claim, witli their dips, variations and angles ; one thousand feet on said lode running north 3:5 degrees ea«< from center of discovery shaft, and five hundred feet running so«//i 22 degrees west from said center of discovery shaft. Said lode mining claim is bounded and described as loUows, to-wit : Beginning at corner No. 1 {describe by metes and bounds with ties from surveyor's notes) being the same lode of which the (original location certificate (made bv Samuel Levy) is filed in book 17, pa.ge b\. in tlie olTice of the clerk and recorder of sai 11 M. R. 046 ; St. Louis Co. v. Kemp, Id. 673. Patent; when Voidable. — But if only irregular, er obtained by fraud, or issued to the wrong party, it is only voidable, and must, until set aside, or a trust declared there- on, bo taken as conclusive both at law and in equity. — Silver Bow Co. V. Clarke, 5 Pac. 570; Rose v. Richmond Co., 17 Nev. 26. UNITED STATKS I'ATKNT. 81 AVheii Obtained by Fraud Against the United States, as whem iiiiiu'val huul has I)een entered as agricul- tural or upou false representations, the false reprcseutatious boiug material and the rights of innocent purchasers in certain cases protected {G. S. ^ 2262), it may be set aside at the suit of the United States. This requires action by the Attorney-Cicneral, who directs the U. S. District Attor- ney to bring suit in the U. S. Circuit Court. — Bogfjs v. Merced Co., 10 M. E. 33 1. Where Issued to the AVrong Party in fraud of the right of the real owner, the suit is not to set the pateut aside, but to have it declared that the party to whom it issued holds in trust, and to compel by order of court a conveyance from him to the party to whom it should have issued. Such a suit can not be maintained ou mere priority of title, for here an adverse claim should have beeu filed, but only on the allegation of breach of trust oriu like iustauces. Irrevocable; No Second Patent. — After a patent bas issued, the Land Office has no power to cancel oi recall the same nor to issue a second patent for the same land to another party. — Moore v. Robbins, 96 U. S. 530. Canceling Iteceiver's Receipt. — But the Laud Office has the power to caucel the liecciver's receipt aud all prelimiuary proceedings, aud frequently exercises this piwer in case of irregularities in the application. INTERFERENOE OF CLAIMS. Veins Uniting on Strike or Dip.— R. S., ? 2330.— Where twcr or more veins intersect or cross eacli otlier, priority of title shall govern, and such prior location shall be entitled to all ore or mineral contained within the space of intersection ; but the subsequent location shall have the right of way through the 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.— § 14, May 10, 1872. Ob.solete Territorial Statutes. — In addition to the above Congressional Act tliere were certain Territorial Acts- passed in 1861 still retained in the last reprint of the State laws (G. S. ? 2391, 2392), but they have become practically inoperative since the Act of 1872 requiring boundaries to be staked. There was also an Act (18G1, p. 167) in force from 1861 to 1868 requiring shafts not more than fifty feet apart to be sunk in order to prove up a claim. 3Iiniiig Acts based on Erroneous Presumption as to Facts. Irregulaiity of Veins.— The cause of the principal question under this heading is the fact that the U. S. Mining Acts concerning 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 occasionally such a vein is crossed by another in a similar straight line, merely requiring the right of way to give each lode its proper claim. But in fact, a lode is rarely a straight line ; it is seldom to be traced witliout confusion, for more than a few feet; and in its course other veins are absorbed into it; and ofi-shoots INTERFEKKNCF. OF CLAIMS. 83 (not only spurs, but, pcrliuiis better developetl veins than itself) run from it in all tortuous directions; 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 dispro portioned in length and width, as vuucli intermingled, as uncertain to segregate from each other, as are the veins of the hand, or 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 assumption — these points depend upon underground developments, and not on diagrams or surface surveys. Presumption that the Survey Covers the "Vein. — But upon proof of discovery and location it is inferred that the survey lines include the apex of the vein, and this presumption throws the burden of proof on the party alleg- ing a departure. — Armstrong v. Lower, G Colo. 585. SIDE VEINS WITHIN LOCATION LINES BEFORE MAY 10, 1872. Torritorinl Act.—? 4.— On all minoriil lodes or veins of gold- bearing ores, or of silver or other valuable minerals in this Ter- ritory, the owner or owners of all such deposits shall, by virtue of priority of discovery, be deemed and lield to be the owner or owners of all spurs, ofl-shoots, dips, uncles, feeders, cross or 84 SIDE VEINS. parallel veins of any character or name whatsoever, lying and being within the limits of twenty-five (25) feet in either direction from the center of said first discovered lode or Yein.—Feb. 9, 1866. Congressional Bounty or Confirmation.— R. S., g 2328.— Appli- cations for patents for mining-claims under former laws now pending may 1)0 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 heretofore issued shall convey all the rights and privileges conferred by this Chapter where no adverse rights existed on the tenth day of Mav, eighteen hundred and seventy-two.— § 9, A. C. May 10, 1872. liimited to Single Vein. — Under the original Con- gressional Act of 1366, no vein except the first claimed was covered by the location or conveyed by the patent. The section of the Territorial Act of 186f>, above printed, 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 Territorial Legislature, in allowing to the claimant, portions of the public domain whicli he had neither discovered nor appropriated. A lode claim therefore, located before May 10, 1872, originally covered but one vein, and a patent issued before that date covered but one vein. — Blahe r. Butte Co., 9 M. iJ. 503. Eclipse Co. v. Spring, 59 Cal. 304. Side Veins Donated to Old Claims since 1872. — But by the Act of 1872, which gave to all new locations and future patents the benefit of everything between their side lines, it was added that all old locations and all patents under the old Act should have the same benefit, always saving any rights which had intervened before the passage of the Act of 18~2.—R. S. ^ 2.328. The result of this Act is, that a location proi)erly made before May 10, 1872, or a patent issued beibre that date, SIDK VEINS. 85 covers all side "vml other interfering veins practically to the same extent, and as fully as locations and patents? under the present law ; always saving the exception in the section last above cited. — Pardee v. Murray, 1 Mo7it. 234. SlUE YEINS ^VITHIN LOCATION LIXES SINCE MAY 10, 1872. Congressional Aot.— ^ 2o2J.— The locators of all raining loca- tions heretiifore made or\v]iich shall hereafter be made, « * * where no adver.-e claim exists * * * «hall have the exclusive right of possession and enjoyment of all the surface ineliuled within the lines of their locations, and of all veins, lodes, and ledges throughout their entire dejith, the toj) or apex of which lies inside of such surface-lines extended do^^llward vertically— * * * -?:!. A. C. May 10, 1>H2. Prcsnnt State Act Conforming to Above Section.— <>. S., ? 2105. —The location or location certificate of any lode claim shall be construed to include all surface ground within the surface lines thereof, and all lodes and led^res tiironRhout iheir entire depth, the toi)orapex(if which lie inside of such lines extended down- ward, vertically, with such parts of all lodes or ledges as continue by dip beyond "the side lines of the claim, but shall not include 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 anv other manner than by the dip of the lode.-e '.». Feb. i:i, Ks7t. Under the law, as it has existed since May 10, 1872 (the Territorial Act of 1871 being merely conformatory to the Act of Congress), it is clear tliat all veins whose tops or apices are within the lines of the claim go with the lode which gives the name to the claim; and the surface lines rather than identity of the veins, are made to control the extent of the claim, and to fix the boundaries between adverse parties. 86 CROSS LODES. The only possible exceptions to this general assertion are : 1. In regard to what are commonly called cross- lodes ; p. 86. 2. 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 sin- gle vein ; p. 90. 3. 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. 83. CROSS LODES. Priority of Title Controls.— R. S., ? 233G.— Where two or more veins intersect or cross each other, priority of title shall govern, and such prior location shall be entitled to all ore or mineral contained within the space of intersection ; but the subsequent location shall have the right of way through the space of inter- section for the purposes of the convenient working of the mine. * * * —^14. A. C. May 10, \S72. 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 bearing on the subject matter. The only other pertinent portion of the Act is that part of section 2322 (Sec. 3. A. 0. Marj 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 exclusive right of pos- session 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 vertically"— ***** CROSS LODES. 87 In the case of lodes located under or before the Act of 1866, a right of way is clearly granted under the two sec- tions above (luotod. 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 under the Act of May 10, 1872, the matter is complicated by the fact that all claims under that Act in Colorado have a width ranging from 50 feet to 300 feet, and tiiat all veins within such distance have been granted to the owner of the claim as fully as the vein upon which his discovery shaft is .sunk. Title lo the Space of Intersection. — The question has been often stated in this form: "Does the space of intersection, mentioned in Sec. 2336, mean the space at the actual crossing of the veins — or the space through which the cross lode runs from sideline to side line?" Hut 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 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 owning 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 ^hole distance from side line to side line, and this being decided, the n-al question remains : "To whom docs the cross vein beloiuj, 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 tlie jiower of t'ongress to 88 CROSS LODES. have, by a subsequent clause, 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? The only grant of Sec. 2.336 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 servient. 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 originally 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 locator to use or hold his grant or claim subject to a right or privilege of the junior or overlapping claimant, 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 except the mere right to drift through, leaving all ore as the property of the crossed claim. Decisions as to Rights of Cross Lodes. — In agreement with these views is the case of Pardee v. Murray, 4 Mont. 279, deciding that the prior location is entitled to all veins apexing within its lines, and that the later loca- tion of a cross vein has only the right of way across the senior claim; and that if the cross locator takes the ore, he is a trespasser. But in disagreement with them is the case CROSS LODES. 89 of Branaynn v. Didaney, 8 Colo. 408, which holds that a cross vein isexcepted out of the claim of the first locator (in this case also tlu^ holder of a patent before the cross lode was located) and that the cross lode has not onlj' the right of way but takes all the ore in its vein within the lines of the claim crossed except at the actual point of vein intersection. 'J his case was argued on behalf of the cross lode, but settled between the parties about the same time, so that no argu- ment was filed on the oi)posing side. On the ex parte argu- ment it was decided witiiout reference to the Montana c;ise and upon a purely technical rule of statutory construction, to-wit: The rule that in cases of ambiguity not otherwise soluble the latter section of an Act (i; 14) will control the operation of a prior section i,^ 3) and upon the sunposition that section 11 was a grant of the crossing vein. To the same ett'ect was tlie ruling in Hall v. Equator Co., Mining Rights, -.id Ed., 282. Anjjlc of Crosslnsr. — In speaking of the distance from the side lines to a supposed crossing of veins, the sup- position is of a vein crossing at right angles which would be the case where the strongest eciuity could be raised in favor of the owner of the cross vein ; but in fact a cross lode of such character is of rar3 occurrence. Jn general the crossing would be at nnich less angle, and the less the angle the greater the intrusion of the cross vein. .\ case can be supposed of a cross vein of greater length than from end line to end line, and in such case the cross vein would claim more than the originally located lode. — Gleeson r. Martin IVhit,: Co.,9 M. li. 111. No Kiftht to Enter to Prove Crossing. — The actual crossing of lodes is more often a matter of conjecture than proof, and upon the conjecture of a crossing a party h.'is no right to enter upon the crossed claim to prospect for 90 VEINS UNITING. liis lode or prove the crossing. The latter clause of Section 2322 contains a proviso against the use of the surface in any such case, and admitting the right of crossing to the fullest extent, it 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. YEINS UNITING ON THE DIP. Prior Location or Title.— R. S., § 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 inter section.— g 14. A. C. May 10, 1872. The above paragraph follows that part of section 2336, which says that "priority of title shall govern" in case of interference of veins on their strike. The ambiguity of the paragraph is in the word "location." This word, has its technical and its popular meaning. Its technical application is "those successive acts by Tvhich public land is appropriated." Its popular meaning makes it synonymous with the word "claim." Taken in connec- tion with the preceding paragraph we believe it to be used with the latter signification. Giving it such meaning, in all cases of interference on the dip the elder and better title will take t\w united vein. Allowing its technical meaning to control, it might happen that a lode so uniting mighc have a senior discovery and patent, and yet have a junior location. VEINS UNITING. 91 The popular mciiiiing makes the paragraph consistent with otlier sections of tlic Act, and was adoi)tc(l as tlio tme construction in the case of Unit v. Equator Cu. If the point arise between two possessory titles, the lode having the prior title (the oldest discovery properly followed up) would take the vein below the point of union. If both veins were patented, that patent which is senior by relation (p. 76) would control. If one claim were patented and the other possessory, the patented vein would be the older and better title, excepting of course, the case whcire the possessory title held a prior approved survey, and its patent had been withheld from issue by reason of the pen- dency of adverse suits, or otherwise. We are fully aware that it might often be difficult or impossible to support an adverse claim in a case of inter- ference on the dip, the fact of the union of veins not being suspected or ascertained in due time ; but a similar hard- ship exists in all cases where any proof of identity of veins is required, and it could hardly have been the intent of the Government to pass to that imrty who is most diligent to perfect his title by patent, a grant which is liable, although senior in time, to become junior in fact, as the result of unknown future developments. DEPARTURE OF VEINS FROM SIDE LINES. Statement of the Point. — That the vein, and not the surface, is the material grant of a patent to a mitiing claim has not been disputed ; nor can it be denied that it is 92 DEPARTURE FROM SIDE LINES. the iuteutiou both of the purchaser in buying and the Gov- ernment in selling to deal with the mineral deposit, the surface boing worthless, in itself, to either. And if the • case lay between the Government and the purchaser alone, this mauife5t intention might prevent any attempt to con- fins the party to an erroneous survey, giving him only value- less surface; notwithstanding the material fact that it is the patentee, and not the United States, who has chosen the lines which ])i-o3uce the mischief.- Patterson v. Hitchcock, 5 M. R. 51-2. But il is the rights of innocent third parties, holding claims beyond the located or patented side lines, which iias 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 requires no forced construction of the Acts under ordinary rules of interpretation, and had been the uniform ruling of the Judges on the circuit before its confirmation by the Supreme Court. Unifortnity of Rulings o i the P Jint. — This ques- tion, however, with singular unanimity has been set at rest by the decisions of many courts. It is now beyond contro- versy that the moment the apex of a vein leaves either side line of its survey the locator has no further claim thereto, beyond sucli point of departure. — Wolfley v. Lebanon Co., 13 M. R., ; Johnson v. Buell, 9 M. R. 502 ; The Flagstaff case (by the Supreme Court of the United States) 9 M. R. 607; The Golden Fleece case, (Nevada) 1 M. R. 120. These decisions apply equally to patented and unpat- ented claims, and iiave been universally acceded to as the only construction which would give to a mining claim the DEPARTURE FItOM SIDE LINE8. 93 same certaiuty of title which belongs to other classes of rt'ul estate which arc free from the complications of dips ami departures. Pacts 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 1.S74, upon a vein supposed to run N.-W. and S.-E. The location claiming 1500 feet ran due N.-\V. and S.-E., with <)00 feet width. Afterwards developments by its workings and on the Leonard lode, whose discovery was about 800 feet to the southwest, sliowed 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, :iih1 then filed its adverse claim, based on such relocation. Kut it w;us held that the Golden Fleece must be confined to its original location and to that part of the vein within the lines of such original location. Same Holding on Old 30-Foot Patents. — The l)atent in the Woljley case was issued under the Act of 1866, so that the decision necessarily applies t© all patents ; because the argument in favor of following the vein, under the Act of ISCiO", was much stronger than iu the case of pat- ents under the later Act. Not Color of Title. — In a later case under the same patent it was held tliat where the jjateut owner had followed his vein outside and had held it adversely for live years, that he had not even such "color of title" as would operate to allow him the benefit of the Statute of limitatious. — Leb- anon Co. V. Rogers, 8 Colo. 34. 94 VEIN WIDER THAN PATENT. YEIN WIDER THAN PATE>T. In the controversy between the Equator Lode and the Colorado Central Lode in the U. S. < ourt at Denver, the lode was admitted by both parties to be Et the point of con- flict over 100 feet wide. Each claimed under a patent conveying a surface of 50 feet, the Equator covering the southern portion of the apex and the Colorado Central, the northern. The Court held that in such a case each party could hold only to its side line, and divided the lode by extending the south side line of the Colorado Central patent vertically downward through the lode. In the case of Bullion Co. v. Eureka Co., 11 Pac. 515, the Supreme Court of Utah were divided, two Judges holding that covering a part of the apex gave a right to the dip, and the dissenting Judge following Hall v. Equator Co. LOCATION FAILING TO COVER VEIN. If the location fail to cover the vein, not only is the vein lost after it leaves the side lines, but that portion of the location which extends beyond the point where it loses the vein, has been decided to be defeasible, if not void, having no discovery-vein upon which to base any further claim, to either surface or other veins which may lie within its lin&s. — Patterson v. Hitchcock, 5 M. R. 542. This decision does not apply to patented claims; and the presumption of fact in all cases is that a location covers the vein until the contrary is affirmatively proved.— ^rm- itrong v. Lower, G Colo. 343. L0DE8, VEINS AND LKDGES. 95 The reason that a i)atented claim is valid to its full extent for what it docs cover is that the patent is of a "piece of land," with all the surface its linos 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 opera- tion of its grant to the entire surface or to such part of the vein as it does cover. — Gleeson v. Martin White Co., 9 M. R. 4->9. LODES, YEI>S 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 Hainbridge on mines, the text, page 2. defines them in the same sentence : "A mineral lode or vein is a flattened mass of metallic or earthy matter, differing materially from the rocks or strata in which it occurs." A note to the same suggests the use of the word "vein" a.s incorrect, when applied to such deposits as those of anthra- cite 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 only distinction in the use of the words. The word "lode" is of Cornish origin, (2 Nev.llQ): the word "vein" is of Latin derivation. In the Eureka case (9 31. R. 578) where, it is s;iid, every known definition was presented to the Court, 96 LODES, VEINS AND LEDGES. the opinion does not intimate any difference iu their mean- ing, but says: "Those Acts give no definition of the term 'lode'. They use it always in connection with the word 'vein.' " The word "ledge" came into use in California after the discovery of quartz mines, because they were generally found iu the hills above the gulches, and were often iden- tified with protruding outcrop. Connection with Context of the Statutes.— The only limitation or qualificatiou in the U. S. Mining Statutes iu connection with the words "veins or lodes," or "veins, lodes and ledges," is the expression "of quartz or other rock in place." "In Plat-e." — These words have been construed material iu cases where the vein has been found eroded or broken up — material, however, only in cases where it has been attempted to follow the claim on the dip. In Stevens V. Williams, 1 M. B. 557, where both the overlying and underlying bodies were solid, the deposit was held to be a lode "iu place." In Tabor v. Dexter, 9 31. E. (ill, where the location was on ore where the overlying rock had been eroded, the ore body remaining covered only with wash or gravel, it was held that the lode was not in place. A like ruling was made in Leadville Co. v. Fitzgerald, 4 M. R. 380. The prac- tical point iu 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 enclosing rocks to be valid as such an apex location as will give a right to the dip ; but that .such a location is valid to the side lines has not been doubted. Rieliness of Deposit not Material.— In North Noonday Co. v. Orient Co., i) M. R. 537, Sawyer, J., says: "A VEINS, I.ODKS AND I.P^DGES. 97 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, carryinj; gold, silver or other valuable mineral deposits named in the Statute. Jt 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 placee, 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 located, to entitle the miner to make a valid location includingthe vein or lode." It^ validity as a thing that may be located does not depend on what it runs. Thero Must be More than a Trace of Mineral — an ascertainiil)le quantity — but an assay of one or more ounces will suffice.— Stevens v. GUI, 1 M. R. 579. Whatever a Miner Would Follow with the expectation 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; Harrintiton v. Chambers, 1 Pac. 362. Minora! Bearinj; Zone.— A broad formation im- pregnated 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 country.— Jlf<. Diablo Co. v. CaUison, 9 M. R. GIG. Ore dis- tributed generally, though unequally, throughout the entire mass of the limestone of the mountain does not con- stitute a continuous lode such as may be followed beyond the lines of its location. — Hyman v. Wlieeler, 29 Fed. 354. Where the Continuity of the Ore Body is Broken by the Contact becoming barren for a consid- 4 98 VEINS, LODES AND LEDGES. arable distance, the legal extent of Uie vein ceases. — Stevens V. WilUams, 1 if. B. 557 ; Stevens v. Murphy, 4 M. B. 380. A vein need not be a straight line nor uniform in dip, thick- ness 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 suffi- cient where the enclosing boundaries are distinct; there need be no proof of such boundaries if the ore itself can be followed. But if the vein disappear so far or so completely that it cannot be recognized when it is again found or alleged to be found, there is no sufficient proof of contin- uity. — Iron Silver M. Co. v. Cheesman, 116 U. S. 530. Fol- lowed substantially in Hyman v. Wheeler, supra. All Deposits "in l*lace" are Lodes. — The uni- form ruling has been that all forms of mineral or mineral gangue in place, whether fissure or contact veins, or im- pregnations, or other irregular deposits should be construed to come within the expression "veins or lodes" used in the Act of Congress, and as suijh to be subject to location and patent under the act. 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 de- posit 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 underneath the adjoining ground or claims of other parties. This point will be con- sidered under the next following headings, Apex and Dip. APEX. 99 APEX. Section 2322 is the only paragraph of the Cougrcssional Act which refers to the apex of a lode in conucction with its dip. It gives to the claimant all lodes, the top or apex of which lies inside of his surface lines in these words : "The locators of all mining locations * * * * * * shall have the o.Kclusive right of possession and enjoyment of all the surface incUuled within the lines of their locations, and of all veins, lodes, and lodgos throughout their entire depth, the top or apex of which lies inside of such surface-lines extended down- ward vertically, although such veins, lodes, or ledges may so far depart from a "perpendicular in their course downward as to ex- tend outside the vertical side-lines of such surface locations." The common law grant of lands conveys the surface and whatever minerals underlie the surface within lines drawn pcrpeudlcularly downward towards the center of the earth. The above section implies a departure from this rule ; a lode location under its terras or a patent issued upon such location, being in the case of a location a conditional, in the case of a patent, an absolute grant (1) of the surface (2) of the veins whose tops or apices lie within its side lines, wherever the dip may carry them : and on the other hand other veins whose tops or apices are outside of the lines, but which dip underneath the location or patent, are excepted in favor of the proprietor of such underlying veins. That such grant is valid and capable of being enforced no one has doubted, but iu ascertaining what lodes are in- cluded and what excluded in such case in connection with the varying character of deposits, the tendency of veins at times to lose their continuity and the fact that a location seldom covers the apex of a vein from end line to eud line has caused serious litigation, and while some points have been passed upon, others remain in doubt; and such de- 1 00 APEX. cisions as have been made have not always been acquiesced in as a final and correct disposition of the points involved. Relation of the Apex to the Side Lines-— All right to follow the vein on the dip beyond the aide lines depends upon three facts : 1. That the vein have an apex. 2. That such apex be enclosed within the lines of tlie claim. 3. That such apex is substantially parallel to the side lines. Conversely it follows that if the vein be of such a class that it cannot properly be said to have an apex, or if the discovery be made on the dip and so far to one side that the side lines fail to enclose the apex, or if the side lines be laid transversely to the strike of the lode, that the side lines as well as the end lines become vertical bounding planes. Because veins and lodes are granted by the act of Con- orress together with the right to follow such as have their top or apex within and along certain lines it does not fol- low contrary to the geological fact that every vein must have an apex or that the edge or any part of the vein is made by fiction of law, its apex in law, so as to favor a con- struction acknowledged to be a departure from common law precedents. To What Oepo^irs the Apex Kii^hts Extend.— Ill the case of a true fissure vein covered by its location from end line to end line including the entire apex within its side lines, the right of its owner to follow the dip un- derneath adjoining claims has never been seriously dis- puted. The only limitation to his right would be that a location on the dip made prior t3 his own would doubtless cut off his further right to follow the dip.—Tron Silver Co. v. Murphy, 1 M. R., 555. Outcrop or Kdge of Vein Not Necessarily the Apex.— The typical or true fissure vein is a narrow zone of ore-bearing rock descending indefinitely in depth. It APEX 101 is essentially a perpendicular formation, though always, or nearly always, inclining some degrees from true ; this in- clination is called its dip. The hounding planes of such vein are called its walls. The outcrop or nearest approach of such a vein to the surface is, and always has been, prop- erly styled its apex. Such were the veins generally known an i worked on the Pacific slope at the time of the passage of the Mining Acts. To give to such veins the right to their dip was essen- tial to their full use and enjoyment. All other classes of veins are essentially horizontal in their formation. If found to approach the perpendicular such fact is a-;cidental, 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 filling 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 inapplicable to perpendicular deposits. 'Iheir uppci boundary rock is commonly and properly called the roof^rarely the wall ; and while they may have an outcrop, 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 horizon- tal formations. The term itself means the top or highest point, and has no signification when applied to horizontal deposits. If the mining acts of which we are speaking applied to coal veins it is obvious that the grant of a square mile of coal when such grant happened to be laid on the partic- ular section where the higher edge of the coal bed happened to lie, and .such edge of the bed was construed to be its apex, would give the right to work the bed UNIVERSITY OF SOUTHERN CALIFORNIA LIBRARY 102 APEX. through as many miles as the same field could be found to underlie ; if basin-shaped as some formations are there would be two so-called apexes, or a circular apex. In the case of Duggan v. Baveij, 26 N. W., 901, 2 Dak., where an eight-degree vein having its outcrop on the side of a hill was claimed throughout the entire extent by those who had their location upon tbe 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. In the Leadville cases arising upon veins of the char- acter last above described in the U. S. Circuit Court at Denver any such distinction as .above made has not been recognized. But the strict ruling ®n other points, that there shouhl 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 outcrop, have circumscribed and practically defeated most attempts to follow such veins on their dip. DIP. Dip is a proper mining term, and has a plain and im- portant signification. 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 (^ 2.322) : "All veins * * * throughout their entire depth » * • although such veins * * * may m far depart from a perpen- dicular in their course downward as to extend outside the veitical side lines of such .surface locations." DIP. 103 It has litb'io importance except (1) in connection'with the apex and (2) in connection incidentally with drainage. Whether theahove grant of tlie right to follow the dip extends to all classes of vein deposits has been considered under the preceding heading. Cubic Incidents of Lode Claims. — From the outstart it should bo kept iu view that a lode claim is a solid body of ground and not a "superficies." 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. Dippinii under Adjoiuin*? Claims. — 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, 1st— An easement to which the adjoining claim is subject, or rather, 2nd — An exception out of the estate of the ad- joining 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 iu its downward course is governed by the dip of the veins whoso 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 tiie surface. — Iron Silver Co. v. Cheesman, 116 U. S., 530. It has been decided that the right of outside veins to follow on the dip underneath a patent extends only to locations made prior to the date of the entry of such patent.— Pac(/ic Coast Co. t>. Spargo, 16 Fed., 318; 8 Saio., 015. But this decision is one of first impression and not authori- tative. 1 04 DIP. The Side oi- Auxiliary Veins, whose apices may be within the side-lines of the claim or patent have the same right to the dip as has the princiiial or discoveiy vein. — Jupiter Co. v. Bodie Co., -4 M. R., 412. Xo Apex — No Dip. — But any located or patented claim which has been so unfortunately surveyed that its vein runs practically at right angles to the sidelines, cann claim the dip beyond its side-lines. — The Flagstaff case, 9 M. R., 607 ; McCormick v. Varnes, Id., 506 ; Argentine Co. v. Terrible Co. 122 U. S. 478. Or if the side line run parallel with and along the vein so as not to cover the entire width of the vein the same result, it would seem, ought to follow. — Seepage 94. The end lines of all lode claims are required to be par- allel ; and where the lode in its descent reaches the end lines protracted, the claim ceases and the dip cannot be fol- lowed across the protraction of the end lines. — Richmond Co. V. Eureka Co., 9 if. R., 634. As to veins uniting on the dip, see page 90. The Dip in Coal 3Iines or other essentially flat deposits held under common law grants, has been consid- ered important only upon the question of drainage, but under the United States Mining Acts it practically deter- mines the underground limits of the claim in the case of true fissure veins ; and in the case of deposits it is under pretext of the dip that the locations on the outcrop have* attempted to maintain their claim to the whole bed, ex- tended laterally to an indefinite extent. — See Drainage page lOS. WALLS. 105 WALLS. Doftiinil.— In a contact vein the roof or hanging wall is the plane of the contact above ; the floor or foot wall is the plane oi the contact below. la fissure veins the walls are the plane of demarcation between the country and the gangue. Itelatiuii lo the Conn try .—It should seem almost self evident that the nature of the wall must depend upon the nature of the country rock and the nature of the mate- rial which it encloses. Between certain rocks the plane of separation would be distinct and traceable; with other rocks a dilTusion of the oxides and minerals 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 h-is become obliterated they say there is no wall. It is, therefore, manifest that the absence of one or both walls is no proof of the non- existence of a vein, they being a mere accidental circum- stAuce. And it has been so decided in the Lime Lode Case (116 U. S..5.30) and in the Durant Case (29 Fed. 354). In the former decision, after defining what constitutes a lode as "a body of mineral or mineral-bearing rock within defined boundaries" J;Iiller, J.a'ids: "In the existence of such body and to the extent of it, boundaries are implied ;" and in the latter case this language is used by Hallett, .1., "It is true that a lode must have bouudaries, but there seems to be no reason for saying that they must be such as can be seen." Broken Ground.— Natural Cleavage— It is also evident that subsequent disturbance of the vein matter would tend to destroy the continuity of the wall ; and in many classes of rock the natural cleavage is such as often 1 06 WALLS-SPURS. to be mistaken for and followed as a wall. In such ground a very little manipulation may be made to show an ap- parent wall wlicrc none, in fact, exists. Disappearance of Wall. — It is nevertheless true that where a wall has shown itself for some distance and disappears— this is an important item to be considered where the further continuity of the vein is made doubtful by reason of the simultaneous disappearance of the min- eral or an apparent change in the rock which is being fol- lowed. See page 34. Wall or Side of Working. — It is also to be ob- served that the term "wall" is often used with reference to the actual side of a drift, shaft or other working without reference to its association with the vein : and finding min- eral by "cutting through the wall" is spoken of as if it im- plied no contradiction of terms. SPURS. The word spurs is not found in any of the Acts of Con- gress nor in the patents issued under them. It is a danger- ous term, because it has no definite meaning. That which when first discovered may be called a spur, may prove to be a better developed vein than the lode from which it strikes oflT. But the terra found its way into the Territorial Act of 1866, and is seen in most records ; when properly applied it signifies a feeder to, or ofi-slioot from, a lode. As such it is part and parcel of the lode, at least as far as the side lines of the claim, and if it extended much further, it could hardly be called a spur. 8PURS.-ANGLES AND VARIATIONS. 107 A spur is defined (Biinbridgo p. 2, note) as "A lateral branch from tlio iniiii lead, not returning to it but losing itself in the sui-rounding soil." A discovery shaft upon a spur ought not to hold against a discovery upon a lode, bocausea spur properly so called, is not supposed to show the statutory "well-defined crevice." Ore bodies formed oft from the fissure do not form sepa- rate veins. — Tombstone M. Co. v. Way Up Co., 1 Ariz. 426. ANGLES AND VARIATIONS. Use in Statute.s and Conveyancing. — In Section 4, A. C, 186S, the words "angles and variations" were used and under that Act a lode was patented with its "angles and variations." Thoy are neither law terms nor techni- cal mining expressions, but are supposed to cover the di- gressions of a lode from a straight line, and might be ex- tended to "faults." In arguing the important question arising upon patents under the old law when the vein left the side lines, these words were strongly urged as indicating the intention to pass the vein as the essential grant of the patent. Their use in records and conveyances has become a mere form. Irrr'fjular Survey .s with Uiinenea.7 —Whenever any person or per- sons a.e engaged "in bringing water into any jjortion of tlie mines they shall have the right of way secured to them, and may pass over any elaiin, road, ditch, or other structure; pro- Hdi-d, the water" be guarded so as not to interfere with prior rights. — i\o)>. 7, 1861. Congressional Uceognition of Kiisoments. -R. S., § 2339. — Whenever, by jirioiily of posscs>i()n, rights to the use of water for mining, agricultural, nianufucturing, or other purposes, have vested and accrued, and the same are recogidzed and acknowl- edged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and i)rotected in the same; and the right of way for the constructiKU of ditches and canals for the purposes lierein specilicd is acknowledged and contirnied; but whenever any person, in the cnnstruction of any ditch or canal, injures or damages tlie jiossession of any settler on the jiublic domain, the |iarty committing such injury or damage shall be Jiable to the party injurt'd for such injury or damage.— g 'J. A. C, Julyli't, LSIJC. Kxcp|»ti'il ill raleiir.— R. S., g 2140.- All patents granted, or pre-emption or homesteads allowed, shall be subject to any vested and accrued water-rights, or rights to ditches and reser- voirs used in connection with such water-rights, as may have been aetT1S. Hiiiilin;; (Jii.irtz.— G. S. 'i 'IZ'n —Every miner shall have the right of way across any and ail claims for the jmrpose of hauling quartz froni his claim.— iN'of. 7, lcS61. State Power to Re^'ulate Kaseinents.— R. S. ? 2338.— As a condition of sale, in the absence of necessary legishition by Con- gress, the local legislature of any State or Territory may provide rules for working mines, involving easements, drainage, and other necessary means to their complete development ; and those conditions shall be fully expressed in the patent.— g 5. A. C. July 2G, 18C0. Hichways.— R. S. g 2477.— The right of way for the construc- tion of highways over public lands, not reserved for publie uses, is hereby granted.— g 8. ^4 C. Jidy 20, 188G. How Fstabli-shed. — A trail or tramway may be estab- lished by consent of owner over located or patented land without deed or other writings. — G. S. ^ 2407 See page 109. Or such au easement may in certain cases become valid by estoppel. — Yunlcer v. Nichols, 8 M. R., 164. Over the unoccupied public domain, roads may be established without any license or formality, under the operation of the above section of the Act of Congress (2477) and under the State statute all locations are attempted to be made subject to a right of way for hauling quartz. Whether patented or only taken by location, a public highway or other easement cannot, against the consent of the owners, be laid out, except after condemnation and payment of damages. — Titcomb v. Kirk, 5 M. R., 10. Not Divested by Patent — A mineral patent does not divest a valid highway already on the ground when patent was applied for. — Copp's M. L., 89. And when construed in connection with the Act of Congress and the power of the State to regulate easements it would iseem that the patent would be subject to any valid DUMP. 1 1 5 Bubsistinpc caaRTncntaffectiDg the ground prior to the appli- cation. Sucli an casement saves itself and needs not to be protected by filing an adverse claim. — Rockwell v. Graham, 10 Pac, 284 ; 9 Colo. 36. DUMP. IJight to Dump. — There is no statute on the subject of dumping; and the right to dump, as of necessity or by custom, across lower claims, has never been brought under the adjudication of the Court of last resort in any of the mining States, to the writer's knowledge; but in the case of Equator Co. v. Marshall Co., U. S. C. Ct., an action brought to restrain the dumping across a claim lying below on the mountain slope, it was held, as of course, that it was no case for injunction, unless where work was being prevented, shafts filled, life endangered or other gross and continuing injury, and the remedy, if any, was to be enforced by action at law. In a later suit in the same Court between the same parties it was held that when continuous dumping had been carried on by owners and lessees, without proof or attempt at proof, as to the injury done by each party, that only nominal damages could be recovered against an owner, the owners not being 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 manage- ment of the mine, the jury found for the defendant. — Little Schnijlkill Co. v. Richards, 10 M. R., 661. In the case of careless or wanton injury to improve- ments the upper claim is of course liable; but the right to dump over unimproved and valueless surface ground is I I 6 PLACERS. doubtless such an easement as may be allowed by State statute (R. S. ? 2338) or proved as a District custom. A Dump is Heal Kstate 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 Cum. Bench, N. S., 717. PLACERS. Open to l.ociilion and Patent.— R. S. g 2:3211.— Claims usually called "placers," including all forms of deposit, excepting veins of quartz, or other roclc in place, shall be subject to entry and patent, under like circumstances and conditions, and upon simi- lar 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 i)UbUc lands.— ^ 12. ..-l. C. July 'J, 1870.. Size of Cliiini.— R. S. § 2330.— Legal subdivisions of forty acres may be subdivided into ten-acre tracts ; and two or more persons, or associations of persons, having contiguous claims of any size, although such claims may be less than ten acres each, may make joint entry thereof; but no location of a placer claim made after the ninth day of July, eighteen hundred and seventy, shall exceed one hundred and sixty acres for any one person or association of persons, which location shall conform to the United States survey.s ; and nothing in tnis section contained shall defeat or impair any bona-fide pre-emption or homestead claim upon agricultural lands, or authorize the sale of the im- provements of any bona-fide settler to any purchaser.— ./Z>iti. Twenty AcFPS to One Locator.— R. S. ? 2o.31.— Where placer- claims are upon surveyed lands, and conform to legal subdivis- ions,no further survey "or jHat shall be required, and all placer-min- ing claims located after the tentli day of May, eighteen hundred and seventv-two, .shall conform as near is practicable with the United States system of public-land surveys, and the rectangular subdivisions of such s\irveys, and no such location shall include more than twenty acres for each individual claimant ; but where placer-claims cannot be conformed to legal subdivisions, survey and plat shall be made as on unsurvej'ed lands ; and where by the segregation of mineral land in any legal subdivision a quan- tity of agricultural land less than forty acres remains, such frac- tional portion of agricultural land may be entered by any party qualified by law. for homestead or pre-emption purposes.-^ 10. A. O. Mai/iO, 1872. PLACE RK. 117 Location nnd Iioratinn Cerlillcali'. — Notici' nnd StakeR. — G. S. gi23K'j. — The discoverer of ii placer elaini shnll, within thirty days from Iho date of discovery, record his chiim in the office of the Uccordcr of the county in wliicii said claim is situ- ated, by a Location Certificate, wiiich shall contain: First, the name of the claim, designating it as a jilacer claim ; second, the name of the locator ; third, the date of location ; fourth, the num- ber 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 tiling 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 number of acres or feet claimed ; second, by marking the surface boundaries with sub- stantial posts, and sunk into the ground, to-wit : one at each an- gle of the claim. * ♦Note.— liiled with Secretary of State, March 12, 1879, and came a law under Sec. 11, Art 4, State Const. Ijeais'atlon (."oiicerniiij:' filacers. — Placer claims were not covered by the original Mining Act of 18G6. The Act of 1870 brought them within congressional recognition and made them open to patent. There was no Colorado statute applying specially to this class of claims prior to 1879; 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. What Consritiiios ii Pl.acpr. — As commonly and properly understood a liacer claim means a location in which gold is found loose in the debris and not in the vein or in place: it includes gulch claims, cement diggings, old channels, drift diggings, etc., but the Land Office construc- tion of the U. S. Mining Acts is to the effect that any de- posit of any kind of recognized mineral, which is not in place is intended by the law to be a placer, and may he located and patented as such. They ruled that salines were placers {Copp M. L. 321); subsequently made a dis- tinction that deposits of salt could be located, but not salt J I 8 PLACERS. springs ; {Id. 321, 324) and finally held that no form of salt land could be entered as a placer. — (13 L. 0. 53). Borax beds have been specially held patentable as placers, and the general instructions direct that soda, sulphur, alum and asphaltum may be so treated. — (9 L. 0. 210.) Oil. — Quarries. — Oil land may be located and patented as a placer, (9 L. 0. 51 ; 10 /.. 0. 307). A deposit of building stone, that is to say, a Quarry, is a Placer as the Laud Office construes the law (11 L. 0. 213) ; also kaolin or fire clay, (9 L. 0. 165 ; 10 L. 0. 83.) Size of Claim that maybe Tjocatetl. — 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 to the number of its incorporators ; an association of persons may lo;ate a claim in common not exceeding 20 acres to each individual in the association, and not exceeding ICO acres to the entire association. It requires 8 bona fide locators to lawfully claim 160 acres. The names of nominal parties are often used to locate placer ground and such nominal association is not questioned in land office proceedings, but its validity may well be doubted when contested in court. Size of Claim that may be Patented.— In the case of Smelling Co. v. Kemp, 11 M. R., 673, followed by Tucker v. Maaser, 113 TJ. S., 203, the Supreme Court of the United States decided that there is no limit to the number of placer locations which may be united in one claim and patented upon one application. Such practice has been fol- lowed by the Land Office so that any number of contiguous acres made up of several 160-acre locations may be patented as one claim. The Supreme Court state in their opinion that there is a distinction between a "location" and a I'LACEIIS. I I 9 "claim:" that where sundry locations have been made and conveyed to one purchaser they become not his "claims" but his "chiiin." TJiis first decision having been followed as a settled point in the subsequent case, the rea- son for the decision, however unsatisfactory, becomes im- material. No liimitation to Placer Kiitry— "Claim" and "Local ion." — In direct opposition to all precedent policy with regard to the disposition of thG,public lands, but ap- parently consistent with the forced construction given to tko word ''claim" in the above cited cases, the Land Office holds not only that a placer claim may consist of any number of adjoining locations, but that the $500 improve- ments required by law means so much improvements on such entire claim and need not be found on each location or on each 160 acres. — (12 L. 0. 288 ; Inre Good Return M. Co.,' Id. 214.) There is nothing to i)revi'nt the patenting in one application on .ioOO expenditure of as much placer ground as an applicant can afford to i)ay for at the government price.— (7 L. 0., 4). The abuses possible under this holding are manifest. Conformation to U.S. Sectional Sulclivisions. — The Act speaks of making survey for the placer claim conform as near as possible with the rectangular subdivi- sions of the public lands, but under the practice this pro- vision has been almost wholly disregarded, except on subdivided sections. — 10 L. 0., 338. Area in Feet oi- Acres. — By the following table the number of feet necessary to include any desired number of acres when in the shape of a square or parallelogram may be ascertained. ^ 1 20 PLACERS. Claim 660 x 330 feet contains 5 acres. 500x500 " " 5.73 " " 6G0 X 660 '• " 10 " 1320 X 660 " " 20 " " 800 X 1089 " " 20 " 933\ X 933^ '• " 20 " 1320 X 1320 " " 40 " • 2610 X 2640 " "160 43560 square feet equal 1 acre. A square 208.71* feet n length and width makes one acre. I'lacei-s, h«w Ijooaced.— The State Act of 1879 brings placer claims substantially to the same status as lode claims as to mode of location, but only thirty days are allowed in which to complete the location and make the record. Of course no discovery shaft is required, but the statute implies that mineral shall have been found before the right to locate upon tlie same as a placer claim accrues. The i)rocedure in the location of a placer claim is as follows : Presuming that free gold or some other valuable de- posit is known to exist on the ground, the claimant, if he desires the benefit of the 30 days allowed to the discoverer, should place a notice conspicuously as follows : FORM OF PRELIMINARY NOTICE. Nellie Moore Placer Claim. The undersigned claims 20 acres for placer mining purposes with 30 days from date to complete location and record. June 9, 1886. William Sabine. We do not consider that the above notice is essential in all cases, but it is customary. If the claimant was the actual first discoverer of the mineral it might not be re- quired ; 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 ia- tended for a discoverft- without some such notice. PLACERS. I r | Proceeding to complete tlio location the claimant must post upon the claim the statutory notice (paj/e 117) which may be in form as follows : FORM OF LOCATION NOTICE. Nellie Moore Placer Claim. The undersigned claims JO acrex for placer mining pur- poses, as staked on this ground. Date of discovery, June 'J, 188C. William Sahine. SECOND FORM. Nellie Moore FUicer Claim. The undersigned claims 13J0 feet in length along the gulch by 660 feet in breadth, for placer mining purjioses, as staked on this ground. Discovered Jm/.c 9, 188C. William Sabine. Name. — Dates. — The statute requires the claim to be named, although snch had not been theretofore the general custom. It will be noted tliat the notice on the stake must contain the date of cZiscower^/, while the record must contain the date of locatiofi. 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. Ac- curacy 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 according to the terms of the statute. We advise the same as in ca.se of lode claim. [See page 46.] Record. — The notice being erected and the ground surveyed 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 Mk.n uv Thkse Presknts. that I. WiUinm Sabine, of the County of Conejos, State of Col"rado, claim, by right of discovery and location, the NeUin MiX)re placer claim, containing 1 22 PLACERS. twenty acres (or 1320 foet in length by 660 feet In width), situate in Confijos Mining District, County of Comjos, State of CoU/rado, bounded and describert as follows, towit :— Bcsinning at stake at corner No. 1, etc.; (Mre i/iseri description, ginin.g a beannq to each /ine, and tying one or more corners to a gnveritment corner, tvell-known natural object or permanerit monunurd, etc.) Date or Location, June 9, 1886. Date of Certificate, June 10, 1886. William Sabine. riACER CONTAINING LODE. Claim Intcrsccteil by Lorle.-R. S. §2.333.— Where the same person, association, or corporation is in possession of a placer- claim, and also a vein or lode included within the boundaries thereof, application shall be made for a patent for the placer- claim, with the .statement that it includes such vein or lode, and in such case a patent shall issue for the placer-claim, subject to the provisions of this chapter, including such vein or Inde, 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 re- mainder of the placer-claim, or any placer-claim not embracing any vein or lode-claim, shall be paid for at the rate of t \vo doUara and fifty cents per acre, togetlier with all costs of proceedings ; and where a vein or lode, such as is described in section twenty- three hundred and twenty, is known to exist within the bound- aries of a placer-claim, an application for a patent for such placer-claim which does not include an application for the vein or lode-claim shall be construed as a conclusive declaration that the claimant of the placer-claim has no right of possession of the vein or lode claim ; but where the existence of a vein or lode in a placer-claim is not known, a patent for the placer-claim shall convey all valuable mineral and other deposits within the bouudaries thereof.— Sec. 11. May 10, 1872. Known Lodes Excluded. — An application for pa- tent to a placer claim is not supposed to include any known lodo running througli it, unless such lode is owned by tbe applicant and especially designated in the application, but it covers any after-discovered lode. A placer and lode claim not contiguous, the lode not being within the lines of the placer, cannot be embraced in the same application for patent. — G L. 0. 102. PLACERS. 123 What are Known Lodes. — Where a lode within the placer lines has been discovered, located and recorded, and has kept itfl hibor up to the time of the phiccr applica- tion, it is clear that such is a "kuowu lode" beyond any possible danger of construction. But where lod( s, tliough known, have not been consid- ered worth locating, or after location have been abandoned, or where they have been known as matter of common knowledge to be within the lines, as in the case of outcrops not known to be worth working — these points admit of more or less controversy. In the case of Reynolds v. The Iron Silver M. Co., 116 U. S., C87, the Court ruled that the lode in or underlying 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 liiu s iiilo the deposit. ANNUAL LABOR ON PLACERS. Void Attempted Stat^ Rejruiation of AnnnnI Labor.— G. S. g 23SC.— On each phu'cr claim of one hundred and sixty acres or more, hcrotot'ore or hereafter located, and until a patent has been issued therefor, not less than one hundred dollars' worth of labor shall be performed or improvements made by the first day of August, lb"'.', and by the first day of August of each year there- after. On all placer claims containing less than one hundred and sixty acres, the expenditure during each year shall be such proportion of one hundred didlarsasthe number of acres bears to one lumdred and sixty. On all placer claims containing less than twenty acres, the expenditure during each year shall not bo less than twelve dollars ; but when two or more claims lie con- tiguous, and are owned by the same person, the expenditure hereby required for each claim may be made on any one claim ; and upon a failure to comply with these conditions, the claim or elnims upon which such failure occurred shall be open to relo- cation in the same manner as if no location of the same had ever been made: i^rcwtried, that the original locators,their,heirs, assigns. I 24 ANNUAL liAnOR ON PLACERS. or legal representatives, have not resumed work upon the claim after failure aud before such location: Provided, the aforesaid expenditures maybe made in building or repairing ditches to eonduct water upon sucli ground, or in making other mining improvements neocssary for the working of such claim.— Sec. 2, Mar. 12, 1879. Forfeiture by Co-Owner in Plaocr.— Upon the failure of any one of several co-owners to contribute his proportion of the ex- penditures required hereby, the co-owners who have performed the labor or made the improvements may. at tlie expiration of the year, to-wit : the first of August, lcS79, for the locations here- tofore made, and one year from the date of locations hereafter made, give such delinquent co-owner personal notice in writing, or, if he be a non-resident of the State, a notice by publication in the newspaper published nearest the claim, for at least once a V, eek for ninety days, and mailing him a copy of such newspaper, if his address be known, and if, at the expn-ation of ninety days after such notice in writing, or after the first publication of such notice, such delinquent should fail or refuse to contribute his proportionof the expenditure required by this section, his inter- est in the claim shall become the property of his co-owners who have made the required expenditures.— Id. The above section 2386, so far as it fixes a time for annual labor on placer claims dilTercut from that supposed to be fixed by the Congressional law, has been declared inopera tive. — Sweet v. Wehher, 7 Col. 450. It would seem to be superfluous also in its declaration as to what annual labor consists of. Forfeidn-e. — The above printed section having been declared invalid as to the amount of labor on placers wou'd seem to be equally so in its atteript to change the Con- gressional act as to time in which to efiect forfeiture. It also fixes a special and different period for the an- nual labor ; and a special and different time for its notice to go into effect. All its main provisions being thus invalid) it is doubtful whether any part of the section remains of any force whatever. The forms of affidavit, notice and proof of forfeiture given for lode claims (p; 04-68) will apply with obvious alterations to placers. TAILINGS. 125 Jiidicinl Rulings as to Ijabor on Placers. — The roperty 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 damages that may arise therefrom.—^ 9. Nov. 7, 1861. The relation of one claim to another where both are situate in the same gulch or on the same water-flow is sought to be regulated by the above section jiassed in 1861, which fixes in terms a matter of long continued dispute in California. The two early cases in the California Reports, E.imond v. Chew.o M. /J. 175 and Log2»).sy?«a?2!a, do hereby declare and publish as a legal notice to all the world that I have a valid right to the occu- pation, possession and enjoyment of all and .singular that tract or parcel of land not exceeding five acres, situate, lying and being in Crystal Hill Mining District, in the County oi Saguache, in the State'of Colorado, bounded and described as follows, to-wit : The Buckhorn mill site, Beginninf/ at corner No. 1 from v)hich,etc., (description continued) to the place of beginning, together with all and singular the hereditaments and appurtenances thereunto belonging or in anvwise appertaining. Witness my hand and seal this 22d day of September in the year of our Lord one thou- sand eight hundred and eighty -seven. Richard J. Malone. [Seal.] For form of acknowldument seepage 113. A name is not essential to a mill site, but it is conve- nient and preferable to style it by a name. MILL SITES. 129 Post Location Notice on claim similar to form on page 121. Location and record should be accompanied or fol- lowed by substantial occupancy or valid improvements. By the U. S. liiiw lli^y are liiuitod to five acres, but by the district regulations were sometimes restricted to much less extent. Tliov caiinoi lawfully be located on mineral land (4 L. 0. 3) and if so located may be contested by proceedings in the Laud 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.— J»/o«/e MuUhi Mill Site, 7 L. 0. 4. But the presumption that land on which a lode claim end liueabut.^, is necessarily mineral, may be rebutted by proof.— 7 L. 0. 179; 8 Id. 188. Two Classe.s of Mill Sites.- The latter clause of Sec. 2337 sitpra, provides for patenting of land actually occu- pied by a mill, but the former and more iuiportaut poition of the section provides a means of procuring surface area to cover such ground as may be used in any manner incidental to the mine. The $300 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 milling pur- poses. Proofof Improvements.— The early practice of the Land Oflice was to patent a mill site when applied for in connection with a lode, without proof of either use or im- provements. This practice was taken advantage of to pat- ent building lots, and all sorts of claims as mill sites, but 5 130 MINING UNDER SUKFACE IMPROVEMENTS. the Department now requires proof uot ouly that it is non- mineral land, but that it is used for milling purposes or in connection with the mine, as for instance, for dumping pur- poses or as holding the plant or surface appurtenances of a mine. The cabins, boarding houses, etc., always necessary in operating a mine, are a sufficient mining use under this ruling. 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. Li re Ontario S. M. Co., 13 L. 0. 159. When patent is applied for upon a mill site alone it seems clear under the Act that it is confined to instances where a mill or reduction works actually exist upon the ground, or are in course of construction. Adverse and Protest. — When a mill site application conflicts with a prior claim of another to the ground for like purposes it may be adversed ; or it may adverse or bo adversed by a lode or placer, or where in conflict with a mineral claim it may be defeated by a protest and proof of being located on mineral land. — 9 L. 0. 71. MINING UNDER SURFACE IMPROYEMENTS. G. S. ? 2.'?88.— No person shall have the right to mine under any building or other improvement unless he shall first secure the parties owning the same against all damages, except by priority of right.— Nov. 7, 1861. G. S. 'i 2108.— When the right to mine is in any case separate from the ownership or right of occupancy to the surface, the owner or rightful occupant of the surface may demand satisfac- tory security from the miner, and if it be refused may enjoin such miner from working until such security is given. The order for injunction shall fix the amount of bond.— g 13. Feb. 13, 1874. SEVKRANCE. 13 1 A miner has no right to work within the enclosure sur- roandinf; a dweUint; house corral and other improvements of aaotlier. — Burdf/ev. ruderwood. 4 M. R. (>1S. SETERINCE. Separation of Surface ami 3Iineral Estate. — The ownership of the minerals may ho vested in one while the owuershij) of tho surface is in another. 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 separated, 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 if. R. -^oS ; Wonier v. Watson 14 M. R. 21 Amer. R. 55; Marvin v. Brewster Co. 13 M. R. 40 ; 14 Amer. R. 322. But tho 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 minerals from the surfoce, either from the nature of the claim or from the language of patents confirming the claim. Pateiit«;ti Claims Generally.— As to patented Claims it has been the policj' 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, altliough 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 con- 132 SEVERANCE. firmatory patent of the United States conveyed the soil, and everything under the soil, and that if the Government had intended to reserve the royal metals, as the Mexican Eepublic had done, it should have been so expressly stated in the patent. — Moore v. Sniaw, 12 M. R. 418. Patented Lode Claims. — As the Patents to Lode Claims contain no reservations which would indicate a sever- ance, therefore none exists, and we do not know that the contrary has ever been claimed. Patented Placer-^. — As t» Placer Claim Patents, they convey not only the placer deposits and the surface, but also all veins except those known to exist when the patent issued which are especially excepted. Patented 3Iill-Siies. — As to Mill-Site Patents, it is required that such claims be located on non-mineral land. But they contain under the form now in use a reservation saving to the proprietor of any vein or lode the right to enter for the purpose of extracting the ore should such vein or lode "penetrate, intersect, pass through or dip into the premises hereby granted." This, beyond question, gives the right to follow a lode under them on the dip ; but no reservation greater than this seems to be authorized by the Act of Congress ; a valid lode claim overlying the ground could have protected its rights by an adverse ; and the question remains singularly open as to whether or not a mill site supposed at the time of entry to be non-mineral conveys such veins as may be found to go tlirough it on the strike — with general rales of construction in favor of the proposition that it carries them. Patented A.sricHltural Claims. — As to Patented Agricultural Claims obtained in good faith, not at the time of entry known to be mineral land, minerals afterwards dis- covered certainly belong to the Patentee ; but where land SEVEUANCE. 133 has been entered as flgriciiltural u])on wliich mineral loca- tions existed, in dufiauce of the rijihtsof mineral claimants, such patents could be set aside as against the mineral claim- ants ; and it was held in the case of Gold Hill Co. v. Ish, 11 M. R. 03."), that such a Patent was absolutely void as to the land covered by the mining claim. A patent, however, howsoever procured, usually oper- ates to pass title, and in such case the holder should be de- clared a trustee for the use of the owner of the mine. See p. 81. Salmon v. S;/mond.i, 30 Cal. 302. School Ijnncls. — School Sections Ki and 36, known to contain minerals at the time of the admission of Colorado as a State, ( August 1, 1876) under the Act for admission approved March 3, IST.l, did not pass to the State. — 6 L. 0. 152 ; 4 L. 0. GO ; 6 L. 0. 43. Where such mineral character was discovered prior to survey they remained the pronerty of the United States, and claims may be located upon them. — 5 L. 0. 178; Hey- denfeldt v. Daney Co., 13 M. R. 201. Put where their min- eral character has been discovered since the date of admis- sion aforesaid, and since the time they were surveyed, they have become the property of the State and are controlled by the Act of the last session. — Acts of 18S7, page 328. By Act approved April 2, 1834, (L. 0. 29) the State is reimbursed for school sections lost to the State by reason of their mineral character. Pateiitod I own Sites. — In this case there is an ex- press severance of the minerals. The holder of the lot takes no title to any located claims. Tlie lot is subject to entry to get the mines of gold or silver which it may con- tain. --K. S. i 2386, 2392. The surface and the subjacent strata are rarely owned by separate parties, in this State, except where gold has 134 SEVERANCE. been discovered in towns entered under the Town Site Acts. The Town Patent, where valid mining locations have been made on such discoveries, does not grant the minerals, and the ground is open to location as mining claims, subject to the right of the surface proprietor. If the mine waslocatcd after the occupation by the lot-owner of the surface, but be- fore the entry of the town site for patent, the mines and sur- face are then separate estates, each to be enjoyed under the various ap])licatioi]s of the maxim: "sic utere tuo ut alienum non laedas.'''-llie Smoke House Lode Case, 12 Fac. 858. King v Thomas, Id. 865. Uiipatentetl CJaiins. — Alodcclaim 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 Co., 9 Jlf. J2. 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 Congressional 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 deposits within its lines both above and below the vein. Bui an unpatented placer claim covers no lodes, and a lode claim may be located across it. An unpatented mill- site, town site or ranch claim, does not include either veins or deposits of gold or silver. TUNNEL SITES. Rpcord.— G. S. ? 23S0.— 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 interefetcd therein.— JVw. 7 1801. ' TUNNEL SITE. 135 2.")0.Fool Trovision. Kiffht of Wnj to Tunnel — Ci. 8. 52:«)0.— Any person or persons engaiiod in workiiif; ii tnniicl, within the jiroVisions of this chapter, shall bo entitled to two Imndred and fifty feet cnch way from said tunnel, on each lode so discovered ; Provided, they do not interfere with any vested rights. Tf it shall appear that claims have been staked off and re- corded prior to the record of said tnimel, on the line thereof, so that the reqtiircd ntnnber of feet cannot be taken near said tun- nel, they may be taken upon any part thereof where the same may be "found vacant; and persons working said tunnel shall have the right of way through all lodes which may lie in its course.— Ibid. IJne of Tnnnel. Xogloct to Work for Six Moiillis.— R. S. ? 232.'>.— Where a funnel is run for the development of a vein or lode, or for the discovery of mines, the owners of such tunnel shall have the right of possession of all veins or lodes within three thousand feel from the face of such tunnel on the line thereof, not previously known to exist, discovered in such tunnel, to the same extent as if discovered from the surface; and locations on (he line of such tunnel of veins or lodes not appearing on the sur- face, made by other parties after the commencement of the tun- nel, and while the same is being prosecuted with reasonable dili- gence, shall be invalid ; but failure to prosecute the work on the tunnel for six months shall be considered as an abandonment of the right to all undiscovered veins on the line of such tunnel. — g 4 A. 0. May 10, J872. Inoperative State Tunnel L/aw. — A section similar to Section 2.390, above printed, was found in the Territorial Corporation Law, but was repealed when the present Cor- poration Law was adopted ; it gave 250 feet on each side of the tunnel to all territorial corporations organized for tun- nel purpose. Wo regard this Section 2390 as inoperative, if not wholly obsolete, except as to the grant of a right of way in its last three lines. It was passed in 1861, long before any Congressional attempt to regulate the subject, and could not now be practically enforced. Liine of Tiinnel. — The principal contention on the Tunnel Law of Congress has always been as to the extent of the line of the tunnel therein mentioned. The Land Office, as early as 1872, ruled that it included only "the width 136 TUNNEL SITE. thereof and no more." (5 L. 0. 130.) The point arose in the case of The Corning Tunnel Co. v. Pell, in Boulder County, and has been decided by the Supreme Court.— 4 Colo., 517. 14 M. R. They adopted the Land Office construction. The facta in the case were as follows: The Slide Lode applied for patent, and was adversed by the Corning Tunnel Co. The Slide Lode had been discovered after the location of the Tunnel Site, and while it was being diligently prose- cuted in front of the tunnel, but not on its line, as above defined ; it had not been cut in the tunnel at the time of suit brought. But the Court based its decision upon a full con- struction of the Act, construing the same upon both its language and the general scope of the Mining Acts. That such would be the final construction of the Act had already been generally acquiesced in by the profession. The result is that as to the lodes not already cut by the tunnel, tunnel sites hold practically no claim whatever under the Congressional Act. liOfles cut ill a tunnel must be staked and recorded exactly as in the case of lodes discovei'ed at the surface, ex- cept that no discovery shaft is required — the discovery in the tunnel taking its place — and the location stake should bo set on the surface at a point midway between side lines and above the discovery in the tunnel. Such location notice should state tlie fact that the lode was discovered in the tunnel and the number of feet in from the mouth. In fix- ing the surface line approximate calculations should be made for the dip. There have been no adjudications that we know of upon the exact form of tunnel locations, but atten- tion to these suggestions would certainly make a valid tun- nel 'ode location. TUNNEL SITE. .137 Liii of Tunnel Si to. — Any party riinuiiig a tun- nel would jirobably hold the tuuuel itself (). e., the bore as far as actually ruu), without any record whatever, (8 L. 0. 71.) This is done every day in the ca.se 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 tile tunnel discovery, is as valid ui)on an unrecorded as up- on a recorded tunnel — its title having by such independent location become a matter wholly aitart from the tunnel location. A party has no right without license to start a tunnel within the lines of a claim belonging to another. LOC.VTIOX CERTIFICATE OF TUKNEL. To ALL Whom These Presents May Concern : Know ye that I, Vanxar E SMlbrand, ofthe County of Pueblo, State of Colorado, do hereby declare and publish as a losral notice to all the world that 1 have a valid riijht to the occupation, possession and enjoy- ment of the CV'torow Tunnel and Tunnel Site, situate in Foiaom Mining District, County of Garfield, State of Colorado, described as follows, to-wit : Month of tiunicl situate on the Eastern slope of fianc/elfj Jlountain, (tix tunnel moutli by metes, course and di-!- tance) ; course of tunnel, north 20 degrees, cast 3,000 feet, lineal and horizontal measurement to stake set at end of course. And I claim for line of timnel a width of four feet on each side ofthe center line of said course, and the right to all lodes which may be discovered in the due prosecutioa of said tunnel within 7jo"foetof each side ofthe center of said line. I also claim a square tract of land iiO feet on each side ofthe mouth of tunnel and lying immediately below the mouth of tunnel, as staked upon the ground for dumping ymrposes. Witness my hand and seal this eleventh day of .January, A. D. 18S8. VaSS-VR E. STOLLBKANn. For form of acknowledgment see page 113. TUNNEL NOTICE. (To beposUd at the moulh.) Tho Onlorow Tunnel, located January 11. 188S, by V^issar E- Stollbrand; course, north 20 degrees east, ;i,000 feet ; dinnp, 500 feet square, as staked. Vassau K. SToLLintANo. 138 TUNNEL SITE. AbancUmnicni . — A tunnel may, like any other kind *f claim, be abandoned ; but neglect to work does not oper- ate to effect an abaudonmcut ; such neglect only operates to deprive it of tunnel rights along its line. (5 L. 0. 34.) The fact that no labor has been done for many years is evidence of abandonment, but not conclusive. As before stated, (page 51) abandonment is a question of fact, and in the case of tunnels is wholly independent of the annual labor. Patent. Adverse Claims. — There is no provision of law for patenting a tunnel site. But it may maintain an adverse clairu for the protection of its line and tunnel rights. (8 L. 0. 88 ; 173.) A lode located on a tunnel dis- co fery adverses of course on its own merits as a lode loca- tion. The L;ind Office, in the decision above cited, held that a tunnel must adverse to protect its tunnel rights ; but we appreheud that a patent granted across the line of a tunnel would not affect the rights of such tunnel so far at least as its easement or right of passage, which is its principal prac- tical value, is concerned. But it is safer to either adverse or procure a deed from the applicant for the right or terri- tory clouded by the application. Annual Labor by Tunnel--That Section two thousand three hundred and twenty-four of the Revised Statutes be, and the same is hereby, amended so that where a person or company lias 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 company shall not be required to perform work on the surface of said lode or lodes in order to hold the same as required by said Act.— g 1 . Feb. 11, 1875. Tlie annual labor of .$103 on each claim may be per- formed under the above section by work done on a tunnel, cutting, or which is driven to cut, such claims. — 2 L. 0. 39 ; 5 L. 0.5; Id. 34. TAXATION. 139 The Patent Expenditures of S'jOO may also bcmado on such tunnel. (-1 L. 0- G7.) A party may patent one lode on tho hue of his tunnel for each ioOO of labor spent in driving tho tunnel. TAXATION. FULL TKXT OF ACT OF 1887. Minos Pprlnrcd Taxiihle.— Sec. 1. All mines and mining prop- erty of the class heretororc exempted by the Constitution of the State ot Colorado, shall hereafter be assessed and taxed, and the taxes levied enforced by sale ofthc property taxed, in default of payment, in the same manner as is now or may be provided by law, in the case of other classesoftaxablc real estate. Description.— Sec. 2. The number of the survey lot or the name of the lode or claim, and the name of the mining district, shall be sufficient description for purposes of taxation and assess- ment of mining property. Basis of Assossnimt.— Sec. 3. All mines and mining claims, and possessory rights therein, producing mineral during the year, exceeding in vahie the sum of one thousand dollars (SI, 000), shall be asses.sed by the as;-essor for the purposes of taxation and reve- nue, as follows, viz.: Theasscssor shall compute and ascertain the gross proceeds in dollars and cents derived from the mine and miniiig claim, to be valued during the preceding fiscal year ; Hieh mine or mining claim shall be valued for revcinie purposes at a sum not exceeding one (il'th of the sum thus ascertained, and said mine or mining claim shall be assessed anroperty thereto attached prior to the issuance of a patent. — g 13 A. C. July U, 1870. Patent althoagh relieving claims from adverse rights, does not relieve from liens already attached against the property. On the otlier hand, the patented title enures to the benefit of the lien holder. —Copp. 83. Judgments are liens for six years from date of entry where the Transcript of Judgment has been duly filed. — Code, j/ 232. But execution should issue within one year. G. S. ^ 1S35. 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. See Mixer's Liex : Exa.mination of Title. MIXER.S' LIEN. In What Oases Allowpd— ScTcriil Clninis Worked Tojretlier— Work Unrler Lessees.— G. S. § 2137.— The provi.«ions of this act shall apply to all per.>3. WatPr Riffhts and Easempiits Incluilod.— G. S. ? 2139.— Said lien 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 lien attaches.— § 9. Id. A miner whose wages or contract money is in default, secures a lien by filing witli the County Recorder a state- ment substantially as follows : FORM OF LIEN STATEMENT. Know all jien by these presents, That I, Alexander Oullett do hereby give notice of my intention to hold and claim a lien upon all the following described property to-wit: The Thomas a Kempis Lode Mining Claim in Huh}/ Mining District, County of Gunnison, State of Colorado, of which i)roperty Jo/ut L. Routt and Joseph Watson are the reputed owners. Said lien is claimed for work and labor done by me upon said lode (or materials fur- nished, by me to said lode for the working and development of the same and used therein) for said owners and at their special instance and request between the first day of .luly, A. D. 1887 and the first day of December. A. D. 1887, both dates inclusive upon the following ab.stract of indebtedness: Whole amount of debt $742.0 Whole amount of credit 441.00 Balance due- the claimant. . . S301.00 Witness my hand this second day of .January, A. D. 18 88. Alexandek Gullett. State GF Coi^ORADo, | County of Gunnison, \ ' Before me, the subscriber, V. F. Axtell, a Notary Public in and for said County, ijersonally appeared Alexander GiUlett, 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, information and belief of atTiant. * Sworn and subscribed before me this Ind day of January A. D. 1888. V. F. AXTELL, Notary Public. [Seal.] MINERS' MEN. 143 Time to I'ilo.— The above statement must be filed within 60 days after quitting;, when tlie work is done for the owner; within forty days when done under a con- tractor. When the claimant is a sub-contractor, strike out "for said owners and at their special instance and request" and insert " at the special instance and rcquestof Daniel Roberts, a contractor under said owners." Six Months to Sue. — An action must be commenced to enforce the lien within six months after filing the state- ment or the lieu is lost. A Sub-Coiitracioi" may stay money coming to his principal under the terms of G. S. ^ 2142 by warning in ad- vance, filed with the Recorder. Where mines are worked as a group the whole are con- sidered as one mine for lien purposes. A lieu, it seems, may be filed for any balance however small. A miner has no .Statutory lien upon the ore. A party working under lessees has no lien. A party engaged in hauling ore from the mines to the quartz mill has no lien on the mine.— Barnard v. McKensie, 9 M. B. 403. A mining foreman or superintendent has a lien.— Pal- mer v. UncasM. Co., 70 Cal. Gil. Fieo Smallhonse v. Kentmhj M. Go. 9 M. R. :iSS ; RaraAcis Co. v. Bouscher, 9 Colo. 3S5. Lion of ."Purveyor or Civil Kngineor.— G. S., ?, 2138.— The pro- visions of this act shall apply to surveyors, civil and mining en- gineers doing any woik of surveying "or platting' of anv minc« mining claims, lodes or mineral deposits, and tlicv shall hrf^e like lien and claim as other persons under the provisions of thi^ act.— g 8. Mar. 2, 1883. 144 CONVEYANCE. Tha following form is adapted from the Statute to the case of surveyor's lieu : FORM OF STATEMENT FOE SUEVEYOE'S LIEN. Kn'ow all men by these presents, That, I, Albert E. Chase do hereby give notice of my intention to hold and claim a lien upon all tho following described property to-wit : The !St. Fran- cis (le 6'a/e.v Lode Mining Claim in Queims Mimng District, Coun- ty of Clear Creek, State of Colorado, of which properly J. Frank Snodr/rnss is the reputed owner. Sai't lien is claimed for work and labor done by me in surveying and 5 l.ittinjr said lode, at the special instance and rey the said party of the second part, the receipt whereof is hereby acknowledged, hath remised, released and quit-claimed, and by these presents doth remise, release and quit-claim unto the said party of the second p:irt, his heirs and assigns, all the following desc^ribed real estate, situate in The Cun- solidalpfl Ten Mile Mining District, County of .S'MoinnV, .'^tatc of Coloiado, to-wit : The I)e diofo Lode Mining Claim, situate on the wc-'t slope of Sheep Mountain. l.'M) feet in length and ITiO feet in width. Together with all and singular the lodes and veins with- in the lines of said claim, and the dips, spurs, mines, minerals, easements, mining li.vlurcs, improvements, rights, privileges and app\irtenances thereunto in anywise belonging. To have and to hold the lands, tenements and hereditaments hereby conveyed unto the said r>arty of the second part, his heirs and "assigns, for- ever. In witness whereof the said party of the first part hath hereunto set his band and seal. James M. Daily. [Seal.] 148 CONVEYANCE. Lot Patented or Entered for Patent. — Use the same form, addingto the descriptiou after the word "chiim," ''knovm as survey lot No. ." Jf the quit-claim be a mere release the operative words are, as above used "remise, release and quit-claim ;" but if it be intended to pass any after acquired title, add the words "sell and convey," after the word " quit-claim." — G. S. ? 201. Short Form of Deed.— By act of 1887 (Sess. Laws p. 226) short forms of warranty and quit-claim deeds are introduced. The implied warranty which the vendor in ignorance of its nature is made liable for by this statutory form, is totally inapplicable to mining claims whether pat- ented 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 war- ranty the moment the instrument is delivered. What is conveyed by the so called short form of quit claim deed, it is impossible to say. The entire set of forms should be dis- carded in the mining counties. Where used for conveying other classes of realty they are almost equally treacherous Acknowleflgincnts,— In the State are taken before any Notary Public, Supreme, District or County Judge, Clerk of Supreme. District or U.S. Circuit Court, or County Recorder, whether the lands lie in his county or elsewhere; before a Justice of the Peace of the county where the claim is situate, or before a Justice in another county with the addition of a certificate from the Recorder as to his signa- ture, &c.—Acts of 1887, p. 2.30. C. S. \ 211. convb:yance. 149 Beyond tlie State they slioiild lie taken l)efore a Cotn- missioncr of Deeds, or Clerk of a Court of Record; if be- fore any other officer, special certificates are required wliicli are almost invariably found defective. — Id. In any foreign country tliey should be taken in open court and certified by a Judge of the Court under its seal ; or, before a Maj-or of a city under the corporate seal ; or be- fore a Consul under the seal of his Consulate. — Id. For form of Acknowledgment by an individual see page 146. The following are correct forms in the case of corporations and deeds executed under Power of Attorney. by coepokatiox. State of Colorado, i La Plata Ooxxniy, ^^■ I. Solon IV. Pinqrey, a Notary Publicin and for said county, do hereby cenit'y tUiit John Glenn. President of the Coldstrcnn Mining (;omi)any, who is personally known to me to bo such President, and the same person who as such President, atlixed the corporate name and seal of sn id Company to the above In- denture, personally appeared before me this day and acknowl- edged 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 band and Notarial Seal this flrsl dav of M(ty A. D. isss. Solon W. Pinguey, [Seal.] Notary Public. by attokxey in fact. State and District of Colorado, k Arapahoe Oonnly, ) I, Williiim A. WUlard, Clerk of the Circuit Court of the United States, in said District, do hereby certify that Ana t<\ Midil'iu(/h, -Vitorney in Fact, of the within named /. N. Large, who is personally known to me to be such .\ttorney in Fact, and the same person within descrioed as such Attorney in Fact, and who alTixed the name and seal of his said principal to the witliin Indenture, personally appeared before methisda> and acknowl- edged the .said Ind''nlure to be the free and voluntary act and deed of the said /. JV. /,«;-yt' for the uses and purposes therein set forth. Witness mv hand and the Seal of said Court, this firxt day of May \ I). 188«. William A. Willakd, [Seal.] Clerk of Court. 150 CONVEYANCE. Agreements for Deed, — Are usually in the shape of a Title Bojid, time being made of the essence of the con- tract in every form in use ; but an executory contract in any other form under seal, is of equal validity. — G. S. § 215-217. A Title Bond should always express a part of the consideration as paid or contain some covenant by the ven- dee, as for instance to develop t'.e property — to avoid the possibility of its being held void for want of mutuality. Naked Title Bonds have been ruled in this State to ba mere options and therefore without consideration and re- vocable. Smith V. Reynolds, 2 M. B. 237 ; Finerty v. Frits, 1 M. R. 437. But where the holder of the bond pays a part of the consideration or agrees to develop the property or in any other aianuer gives a valid consideration the agree- ment is valid, and when recorded binds tiie property. TITLK BOND. Know all men by these presents. That T, Dennis Sulli- van, of the CowUy of Arapahoe. Slate of Colorado, am held and firmly bound unto David F. Day of the County of Oiira.ij in said State in the penal .sum of Forty Thousand Dollars to be paid to the said David F. Dai), his heirs, executors, administrators or as- signs ; 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 July, in the year of our Lord one thousand eiglit lunidrcd and ch^hxy-seven. WiiKREAs, the above bounden Obligor /ialhir> in manner aforesaid, and expressly withni the time lim- ited as aforesaid, time being of the essence of this contract as to 8uch payment or deposit, shall make, execute, ackno\vledi;e and deliver at Ins own cost and charges, good and sullicient Deed or Deedsof Genera/ Tr((crf/7i/.y to the said David F. Dii]i, his heirs and assigns or to such person, persons or company as he shall nominate, conveying said premises with good and perfect title, free from incumbrance, then this Obligation to be void, otherwise to remain in full force and virtue. DENNts Sullivan. [Seal.] In consideration for the option expressed in this Obligation I agree to expend the sum of SI. 000 therein mentioned upon the within described property within three months from the date of this Bond. Witness mv hand and seal this /ourt/i day of Julii A. D. 18.S7. " David F. Day. [Seal.] WORKIN'G CO.VTRACT SALE. For and in consideration of the sum of S500 to me in hand paid by liabtrl Barboar, tlie receipt whereof is hereby acknowl- edged," I, CVia.v. //. Uorrin, do hereby agree to place said Robprt Jiitrboiir in full and sole possession and control of the Fair De- ceiver Lode Mining Claim, situate, etc. : with authority to work and prosjiect the same as he sees fit for the term of sixljj da,i/.rqp Ji. Tyler, of Haatinqs, Slate of Kebras- kti, lessee or tenant, witiiesseth, that the s-aid lessor, for and in consideration oftlie royalties, covenants and agreements here- inafter reservt d, and hy the .^^aid lessee to be paid, kept and per- formed, hnth granted, demised, and let and by these presents doth grant, demise and let unto the said lessee, all the following described mine and mining properly, situate in iTriffith Mining iJistriet, County of Clear Creek, State of Colorado, tow it .• The Duiiderbcry Lode ilining Claim, Hurvey Lot JS'o. 172, together with the appurt'^riiances. To have and to hold unto the said lessee for the term of o)ie j/ear from date hereof, expiring at noon on the olst day of May, A. D.'l^S'J. unless sooner forfeited or deter- mined 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 : To enter upon said mine, or jiremises, and work the same mine-fashion, in manner necessary to good and economical min- ing, so as to take out the greatest amount of ore possible, with due regard to the development and j^reservation of the same as a workable mine, and to the special covenants hereinafter re- served. To work and mine said premises as aforesaid steadily and continuou.sly from the date of this lease ; and that any failure to work said premises w'ith at least two persons employed under- ground, for the total number of ten days, may be considered a violation of this covenant. To well and sufflciently timber said mine at all points where proper, in accordance with good mining; and to repair all old timbering wherever it may become necessary. To allow said lessor and his agents from time to time, to en- ter upon and into all parts of said mine for purposes of inspec- tion. To not assign- this lease or any interest thereunder, 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 prem- ises, or any part thereof, under any pretense whatever. To occupy and hold all cross or parallel lodes, spurs or min- eral deposits of any kind which may be discovered by the said lessee, or any jierson under him, in any manner, within seiwi^j/- rtir feet of tlie center line of said lode, as the property of said lessor with privilege to said lessee of working the same as parcel of said demised premises. To keep at all times the drifts, shafts, tunnels and other work- ings thoroughly drained and clear of loose rock and rubbish, unless prevented by extraordinary mining casualty. 156 LICENSE To do no underhand stopiiig, and to make all shafts 7 feet long by 4 feet wide in the clear, and all drifts 7 feet high by 4 feet wide in the clear. To deliver to said lessor, as royalty, 25 per cent, of all ore to be extracted from said prcrnises, of liKe assay to that retained by said lessee, delivered at .sow mrU. in. Georgetown, in mid County, as soon as mined, withont deduction orcharge whatever, except lessor's proportion for packing. Provided, ulivays, that no roy- alty aha// hi; requiri'd Tipon ore extracted in sirtkinri shafts. To deliver to said lessor the said premises, vvith the appur- tenances and all improvements in good order and condition, with all drilts. shafts, tunnels and other passages thoroughly clear of loose rock and rubbish, and drained, and the mine rpady for im- mediate continued working (accidents not arising from negli- gence alone excusing) without demand or further notice, on the said :3lst diy of May A. 1). 18t59, at noon, or at any time pre- vious, upon demand for forfeiture. And finally, that upon violation of any covenant or cove- nants hereinbefore reserved, the term of this lease shall, at the option of the said lessor, ex]>ire, and the same and said premises, with the appurtenances, shall become forfeit to .'^aid lessor ; and said lessor or his agent may thereupon, after demand of posses- sion in writing, enter upon said premises and dispo.sscss all per- sons 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 person'^ found in occupation may be proceeded against as guilty of unlawful detainer. hach and every clau.se and covenant of this Indenture shall extend to the heirs, executors, administrators and lawful assigns of all parties thereto. In witness whereof, the .said parties have liercunto .set their hands and seals. William A. Hamill. rseal.T George B Tyler, [Seal.] For Acknowledgment, if desired, see p 146. LICENSE. Instead of a lease a license may be granted. The dis- tinctions between a lease and a license are technical but important. They are not usual in this country, and on ac- count of being revocable at the option of the owner, must obviously operate unfairly against the working party. A license usually, is not exclusive, and invests the licensee with no property in tlie mineral until severed. PROHPECTKNG CONTRACT. 157 Although a license may be revoked at any time, the owner cannot arbitrarily oust the licensee without com- pensation for expenditures made. It has been lately held in California that a lease which did not bind the lessee to work was a mere license : Wheeler ^. West 11 Pac. 871. The holding is an extreme one and ought not to become in conscience a precedent for the ex- press obligation to work is not one of the distinctions be- tween lease and license. PROSPECTING CONTRACT. Much litigation has grown out of contracts of this kind owing to the loose manner in which they are generally un- dertaken and the strong inducement to shirk their obliga- tions when a rich discovery has been made. — Murley v. En- nis, 12 JI. R. 3G0. Johnstone v. Robinson, Id. 396. The following form covers all the legal points neces- sary to be guarded in this class of contracts : FOEM OP PROSPECTING CONTE.\CT. In consideration of provisions advanced to me by John L. DrmncUon and of his agreement tosupply me from time to time, as I may reasonably demand them, with tools, grub and mining outfit generally, and the sum of fifty doUais in hand paid, I a^ree to prospect for lodes and deposits in Costilia County, Colorado, and to locate all discoveries which I may consider worth the ex- l)enditure, and record the same in the joint names of said outfit- ter and myself, and in our names only, as equal owners. My time and labor shall stand against money, provisions, etc , as aforesaid All expenses of survey and record sliall be paid by the outfitter, and! a^ree to make no debts on account of this agreement Work done on claims after record and before the expiration of this contract shall be consi'G lOllPOKATIONS, DOMESTIC. Any three or more persons arc authorizcil to file tlicir certificate of incorporation under the general Incorporation Act (G. S. g 237-365), for purposes of mining or construc- tion of ditches or Qumes; and to run tunnels. For fee on filing seep. 178. The term of existence of such corporations cannot ex- ceed twenty years. (G. S. ? 238.) Any such Company may issue stock in payment for mines, such stock to bo treated as paid up stock. (G. S. § 251 and 321.) No personal liability is imposed upon stockholders for debts, except to the extent of unpaid stock held by them. (G. S. ^247 and 258.) But in certain cases, trustees or officers may become liable for violation of the provisions of the cori)oration Act for failure to make and record au annual report (G. S. 252), and declaring fraudulent dividends. (G. S. ? 253. ARTICLES OF INCOKPORA.TION; MINING COMPANY. Wni'REAs, Genrrje P. Gardner, Charles D. Peck and Henry Dcrxt, of the (lounty of Hinsdale, State of Colorado, liavc a.«sori- atcd themselves tofiether for p\irposes of infioriioration under the General Incorporation Acts of the State of (>)lorftdo. they do tlieiefore make, siijn and acknowledjie these Dnplicate Certifi- cates in writinp;, which wlion filed, shall constitute the Articles of Incorporation of The Flat Silver Mining Company. Artici.eI.— The name of said company shall be "The i^'to/ Silver Mining Company. Artici.e 2.— fhe objects for whicli said company l.s created arc to acquire and operate mines of silver-bearing ore in said County of Ilinsdiile, aud to do all things incident to the general object of mining. Akticlf. 3.— The term of existcncc^of s^id Company shall be twenty year.s. 170 MINING CORPORATIONS, DOMESTIC. Article 4.— The capital stock of said Company shall be One Million Dollars, divided into ten thousand shares of one hun- dred dollars each. Article 5. — The number of Directors of said Company shall be three, and the names of those who shall manage the affairs of the Company for the first year of its existence are Oeorge F, Gardner, Charks D. Peck and Henry Deist. Article 6.— The principal office of said Company shall be kept at Lake City, in said County, and the principal business of said Company shall be carried on in said Connty of Hinsdale. Article 7.— The stock of said Company shall be non-assess- able. 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 aftairs of the Company, not inconsistent with the laws of this State, for the purpose of carrying on all kinds of business within tlie objects and purposes of such Com- pany. In witness whereof, the said incorporators have hereunto set their hands and seals this first day of January. A. D. 1887. George V. Gardner, [Seal. Ch.vrlek D. Beck, [Seal Henry Derst. [Seal. St.*.te of Color a do \ County of Hinsda'e, j I, George W. Frfinklin, a Notary Public in and for said County, do hereljy certify that George F. Gardner. Charles D. Peck and Henry Df^rsi who arc personally known to me to be the same persons described in, and who executed the within Duplicate Articles of Incorporation, appeared before me this day and personally acknowledged that they signed, sealed and de- livered the same as their free and voluntary act and deed. Witness my hand and Notarial Seal this first day of Janu- ar>', A. D. 1887. George W. Franklin, Notary Publie. [Seal.] The first seven articles iu the above form contain all the statutory requirements. Article 8 in regard to the by- laws, is necessary if it is intended that the directors instead of the stockholders shall make tlie by-laws. (G. S. § 243.) One of said duplicates is to be filed with the Recorder of the proper county, and one with the Secretary of State, and if the business is to be carried on in more than one county, the word duplicate shouhl not be used, as there MINING CORPORATIONS, DOMESTIC. |7I must bo an original for each county as well ai for the Sec- retary of State. The proper proof of corporate existence is by certified copy from the oflioe of the Secretary of State. The Chapter concerning corporations provides for assess- ments upon shares, where by the charter the stock is made assessable, and the Statute requires that whether the stock shall bo assessable or non-assessable shall be stated in the above Articles; and each certificate of stock "shall have plainly printed on the face tliereof ihe word 'assessable' or 'non-assessable,' as the case may be." Where it is desired to transact part of the business out of the State, the certificate should so state. F\)rin: Article 9— .V part of the business of said Company- shall be carried on in /iokley. County of Luzerne. Commonwealth of Pfnn-if/liianii. and the principal office of said Company out of the State shall be at said BcvUy, at which office meetings of Directors may be held. The number of Directors or Trustees must be not less than three, and not more than nine. OBGANIZATION MEETING. Record of first meeting of the Board of Directors of The Fiat Silvtr Mining Compaixy, at Lake City, Colorado, January 7, 1887. At a meeting of the persons named in the articles of said Company, there being present Q o. F. Gardner, Charles D. Peck and Henry Deist: On motion George F. Gardner was elected Chairman, and Charlex D. Peck, Secretary pro tern. On motion the articles of incorporation as filed in the oflSce of the Secretary of State and in the office of the Countv Clerk of Hinsdale county, were accepted as the articles of "incorpora- tion, or charter of said company. On ballot taken G'orge F. Gardner was elected President of the Company. Chirlea D.Peek was elected Vice-President. Henry Dsrst was elected Treasurer, Willinm R >wan was elected Secre- tary, and BenJ, B. Lawrence was elected Superintendent. On motion the following By-Laws were adopted : 1 72 MINING CORPORATIONS, DOMESTIC. ■•"BY-LAWS. I— OFFICEKS. The officers of this Company shall consist of a President, Vice-President, Secretary, Treasurer and Superintendent, who shall be chosen by the Directors at their first meeting following the annual meeting of the Stockholders in each year. Tliey shaii be elected from the Board of Directors, except tlie Secretary and Superintendent, who may or may not be Directors. Said oificers shall hold tlieir respective ottices until their succes-sors are ap- pointed and enter upon tlie duties of tlieir offices. A majority of the Board of Directors must be residents ol Colorado. Vacancies among the Directors may be tilled at any meeting of the Board of Directors, by ballot. II— DUTIES OF OFFICERS. Prexiden'.— It shall be the duty of the President to preside at all meetings of the Directors, and to sign all bonds, deeds, agree- ments or other instruments in writing, made or entered into by or on behalf of the corporation ; to sign all certificates of stock, and all orders for money on the Treasurer, and in general, per- form all acts incident to his office. Vice- Prexident.— It shall be the duty of the Vice-President to perform all such functions as belong to the office of the Presi- dent, in the absence of the IMesident. Secretary.— The Secretary shall give due notice of all meetings of stockholders, and of the lioard of Directors ; shall prepare and keep proper books of record and of account for the business of the Company, and such other books as the Directors may pre- .scribe. He shall countersign and register all certificates of stock, and otlicr documents requiring the signature of the Presi- dent, attaching tlie corporate seal of the Company to all instru- ments requring seal, and perform all such other duties as are in- cident to Ills office A suitable compensation, to be determined by the Directors, shall be allowed the Secretary for his services, lie shall be the custodian of the corporate seal. Treasurer. — The Treasurer shall be the custodian of the funds until the same be disposed of by order of the Board of Directors. He sliall give bond satisfactory to the Board of Direc- tors, for the faithful performance of liis duties. No money shall be paid out by tlie Treasurer e.xco()t on the order of the President or Superintendent, countersigned by the Secretary. Svpermtendent —Tlie Superintendent shall have control of the working and developing of the Company's mining property; shall report to the Board of Directors for their approval, all con- *NoTE.— The above By I^aws will bo found, in general, suffi- cient; but each ]5y-La\v sliould be reviewed and such changes made as may be needed to cover special plans of the incorpora- tors. MINING CORPORATIONS, DOMESTIC. 173 templatcd work, and after such approval, shall have full power to contract saiil work. .Ml expenses incurred by the Superinten- dent in the working and inanasement of the Company's prop- erty sliall he Ijorne Ity the Company. A suitable compensation, to be determined by the iioard of iJirectors, shall be allowod him for his services. Ill— BOARD OF DIRECTORS. The Hoard of Directors shall consist of three members, always including the President, Vice President and Treasurer. It shall be the duty of the Hoard to exerci-e a general supervis- ion over the aflairs of the Comimuy ; to receive and pass upon the reports of the Secretary, Treasurer and Superintendent; to audit all bills and accounts against the Company, and direct the Secretary in coirespondeucc. The Board of Directors shall cause its officers to make a full exhibit of their several ake (Mtv, at ten "o'clock a, .m , on the second Tuesday in .lanuary, A.t) lhS7. and on the same Tuesday of each succeeding year. If omitted, the Directors shall hold over until theirsucccssors are appointed. Special meetings may be called by the Moard of Directors, or by one-tenth in amount of all thestoek field In addition to anv published no- tice reiiuircd by law, printed notice to each stockholder shall bo mailed at least thirty days previous to each meeting (except adjourned meetings) and the object of the same stated. Stock- holders may be represented by proxies, which must be exhibited for inspection to the meeting, before being allowed to vote. V — certificates of shares. The subscribers to the capital stock of this Companv shall be entitled to certiliciites of their shares, duly signed by tlie Presi- dent and countersigned by the Secretary. The certificates of stock shall be numbered and registered as they are issued. Transfersof stock shall only be made on the books of the Com- pany, either in person or by attorney, and the posse.ssion of stock shall not be regarded as evidence of ownership of the same, un- less it appears upon the stock books (if the Companv that said certificate was issued or duly transferred to the holder of the same. 174 MINING CORPORATIONS, DOMESTIC. VI.— DEBTS. No debt shall be contracted against the Company except by order of the Board of Directors. VII.— DIVIDENDS. Dividends shall be made not in excess of the net earnings of the Company at the close of every fiscal year, which .shall be on the thirty-first day of December of every year ; or oftener as the Board of Directors may .see fit . VIII. — CORPORATE SEAL. This Company adopts as its corporate seal, the device de- scribed as follows : A pick and shovel crossed, surrounded by the name of the Company. IX .—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 oflSicers elected, the organization of the corporation is com- plete, and the minutes proceed to note business as it may be transacted. Reports and Certificate'* Required. — After pay- ment of the last installment of capital stock the President and a majority of the Board of Directors are privileged to file a certificate in the office of the Secretary of State, as follows : certificate of stock paid in. State of Colorado, * County of Hinsdale, P**' The undersigned, Geo. F. Gardner, President, and Charles D. Peck, and Henry Derst^ Directors, constituting a majority of the Directors of The FM Silver Mining Company, do hereby certify, in accordance with .Section 248 of the General Statutes of said State that the amount of the Capital Stock of said Company, as fixed and limited by their Articles of Incorporation, is S1,000,0(KJ, and that the whole amount of said stock has been paid in. Witness our hands this Uh day of February, A. D 1837. Geo. F. Gardner, President. Charles D. Peck, Director. Henry Derst, Director. MINING CORPOUATIONS, DOMESTIC. 175 Btatk of CoLonADo, I County of Hinsdale, J Geo. F. Gardner, Ciarles D, Peck and Henri/ Demi being duly Bworn, sjiy that they arc the officers named in the foregoing certificate, and constitute a majority of the IJoard of Directors of Baid Company ; tluit they have lieard said Certificate read and know the contents thereof, and that the matters and things therein stated are correct and true. Geo. F. Gardner. Charles D. Peck. Henry Dei'-st. Sworn and subscribed before me this ith day of Fe'truary, A. D. 18a7. Gko. W. Franklin, N. P. [Seal.] A copy of said certificate is also to be filed ia the Re- corder's office of each county where business is done. The filing of such certificate is not compulsory, but if filed relieves from any pcrsou.xl liability in case of failure to file the annual certificate found in the next form. The annual certificate is required from every company in form substantiallj' as follows : annual certificate. State of Colorado, ) County of Hinsdale, j Know all I\Ien by Tiiesk Present.s, That the amount of the Capital Stock of The Fiat 6Vvcr Mininy Company, a corporation orgiiuizcd inider the laws of said State, is Sl.OOO.OlK), of which amount S<)r)U,(i(t(i has been paid in. The amount of the existing debts is S40,000. (Tnsert schedule of items.) Witness the Cor- porate name and Seal of said Company, at the hand of Geo. F. Gardner its President, this fir.'it day of February, A. D. 1887. [seal.] The Fiat Silver Mining Company, Geo. F. Gardner, President. State of Colorado, ) County of Hinsdale. J Oeorfje F. Gardner being duly sworn saith, that he is Preti- dent of the above-named Company ; that he has heard read the foregoing Certificate and knows the contents thereof, and that the matters and things therein stated are correct and true. Geo. F. Gakunek. Sworn and subscribed before me this 1st day of February A. D. 1887. George W. Fkankhn, N. P. [seal.] Such report should bo filed within 60 days from the first day of January. G. S. ? 252. 176 FOREIGN CORPORATIONS. In either form, where the stock ]ias been paid up by purchase of the mine, the certificate must so state. — G. S. The Secretary may verify it instead of the President, but the President alone, it seems, can sign it. It is filed in the Recorder's oflice only. Neglect of filing imposes per- sonal liability on the Directors. ARTICLES OF ASSOCIATION; DITCH COMPANY. Preamble— Same as page 1G9. 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 the Roaring Fork of the Grand, tapping such stream at a point about one-cjuarter mile above the Jones Ranch, and about one hundred yards below Eagle Cliff; and fifty feet N. E. from lone pine tree blazed D 1)., 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. Article 7— The stock of said Company shall be asses.'^able, upon majority vote at stockholders' meeting, as required by law. Articles 3, 4, 5, C, 8 and 'J and acknowledgment, same form as on page 170. The stream tapped, head of ditch, line of ditch and intended use of water must always be stated. Any surplus water they are compelled to keep for sale, at rates fixed by County Commissioners. FOREIGN CORPORATIONS. By Sections 2G0-263 of the General Statutes in force since 1877, corporations organized or chartered outside the State of Colorado are placed under exact and peculiar re- strictions. They are required before they are permitted "to do any business in this State," to make and file duplicate cer- tificates, signed by the President and Secretary, duly acknowledged, of which the following is a correct form : FOREIGN CORPORATIONS. 177 State of Nkw York, • County of ^'ew York \^- Know ALL Mr.N hv Tukse Trksknts, That the Rcmnnetizf.d Sili-er Min no C"Tnp/in>/," a corporation organized under the laws of said State, doth lierel)y designate that the "i)rincipal phicc where the business of such corporation shall bo carried on in the State of C(»lorado," is iSid'cr Cliff, in the County of Custer, Btate of Colorado, and that Jcxie )Vfn'r, residing at said princi- pal iilace of business, is the authorized agent of said Company, upon whom process may be served. Witness the Corporate Name ftiid Seal of said Company, and the signatures of its President an^ Secretary, this first day 6i Jul}/, A. L). 1.S88. Remonetized Silver Mining Company, [Seal.) Huste/l Sar/e. President. Cyrus ^Y. Field, Secretary. Statk of New York, | County of New York.^'^- . I, Herbert E. Dickson (19o Uroadway), Commissioner of Deeds of the State of Colorado, duly (!ommissioned and sworn, in and for said County, do hereby certify that Russell Sne/e, Presi- dent, and C.iiruH * Field, Secretary of the within named corpora- tion, 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 volunta- vr act and deed of said corporation. Witness mv hand and offi- cial Seal this 1st day of July, A. D. 1SS8. 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. G. S. Section 260, requiring the above certificates has been construed as mandatory, and it is intimated that the acciuisition of real estate is doing business within the meaning of the section ; but it does not prevent the com- pany resisting a trespass by maintaining suit at law. — Utley V. Clark Gardner Co., 4 M. R. 3!) ; In re Comstoch, 3 Saiv., 223. But 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 before adverse rights have accrued, the final compliance would doubtless be considered as having a retroactive cflect in a manner analogous to the case of naturalization. See p. 1G7. 178 FOREIGN CORPORATIONS. The same section G. S. ? 260, declares that all foreign corporations shall be " subject to all the liabilities, restric- tions and duties which are or may be imposed upon corpo- rations of like character organized under the General Laws of this State and shall have no other or greater powers ; " forbids the purchase or holding of real estate by foreign corporations except as provided for in such Act and pro- hibits any mortgage or other preference to foreign to the exclusion of domestic creditors, postponing any such mort- gage until all domestic debts at tie date of its record shall have been paid. Foreign corporations are further required (G. S. ? 261) to file a copy of their charter in the office of the Secretary of the State of Colorado, or if " incorporated by certificate under any general incorporation law a copy of such certifi- cate and of such general incorporation law duly certified and authorized 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 per- sonally responsible, on all contracts made while the com- pany remains in default. — (G. S. ^ 262.) Fill lis Fee. — By Act of April 4, 1887, (Sess. Laws p. 406) each foreign (the same as domestic) corporation, upon filing its Articles as above mentioned in the office of the Secretary of State, is required to pay a fee or tax for the use of the State of $10 for the first $100,000 of its capital stock and ten cents for each additional $1,000 of stock. Donaesiic Charter Preferable. — The provisions of the above sections, together with the fact that a foreign INDIAN RESERVATION. 179 corporation is liable to attachment as a uon-resident in any case where a defendant, and where a plaintiflf must file special security for costs, renders a domestic organization preferable in most cases. Ooinestic Orgiiiiizatioii by Non-Residents. — The Corporation Law of Colorado does not in terms require the organizing associates to be citizens or residents ; but a domestic organization composed entirely or substantially of non-residents would be practically a foreign corporation, and its validity might be seriously questioned. In any case, however, where the acknowledgment is made out of the State it should be taken before a Commissioner of Deeds or before a Clerk of a Court of Record ( not a Deputy Clerk ), because when taken before a Notary Public the acknowl- edgment is invariably defective, if not void. INDIAN RESERVATION. An Indian reservation is not a part of the public do- main open to exploration or occupation, and a valid mining location cannot be maile upon it. An attempted location made before the extinguishment of the Indian title must yield to one made after its purchase. Kendall v. San Juan M. Co. 9 Colo. 349. But in Noonan v. Caledonia M. Co. 121 U. S. 393 the Su- preme Court of the United States have ruled that on the ces- sion of the reservation the claim becomes valid. A claim within the Reservation cannot bo patented. Copp M. L. 2")3. And the location of scrip thereon is void. V. S. V. Carpenter, 111 U. S. 317. 180 ORE BUYERS. POLICE REGULATIONS UrOxN ORE BUYERS. By Act of February 7, 1877, found in section 2506 of the General Statutes, every company or individual "en- gaged in the business of milliug, sampling, concentrating, reducing, shipping or purchasing ores in the State of Colo- rado," is required to keep a book in which shall be entered at the time of" the delivery of each lot of ore— "Ftrst—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 packtraiu delivering such ore. Third— The weight or amount of every such lot of ore. Fourth— The name and location of the mine or claim from which it shall be stated that the same has been mined or pro- cured. Fifth— The date of delivery of any and all lots or parcels of ore." 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 fail- ure 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 violence, contrary to the provisions of the jumping act. G. S. ^ 2414. PENAL PROVISIONS. Fraudulent flold Pnst Scales.— G. S. g 886.— If any person shall knowingly have, keep or use any false or fraudulent scales or weights for weighing gold or gold dust or any other article or commodity, every such person so offending shall, on conviction, be (hied not exceeding live liundred dollars, or imprisoned in the county jail not exceeding six months.— iVou. 5, 1861. PENAL PROVISIONS. 181 FrnnilulPiit Mill Sciilos.— G. S. ? 2.")11.— Any person, associa- tion or corporation, or the agent of any person, as>-ociaiion or corporation cnsiiKcd in tlie business ol" milling, sampling, con- centrating, reducing, shipping or purchashiiig ores, as aforesaid, who shall keep or use any false or fra\idulent scales or weiglits for weighing ore, or who shall keep or u^e any false or fraudulent as.say scales or weights for a.scertaining the assay value of ore, knowing them to be false, every person so oUending shall be deemed guilty of a misdemeanor, and on conviction thereof >hall be fined in a sum not exceeding one thousand ddOO) dollars, nor less than one hundred (100) dollars, or inii)risf,ninent not more than one year, or both, at llie discretion of the Court.— Feb. 7, 1»77. Debaspd Gold Dust.— Sections 779 and 780 make it pen,al to knowingly have or pass debased gold dust. In People V. Page, 1 Ida., 102, the defendant was convicted on indictment for having in possession instruments for nian- nfacturing bogus gold dust. In People v. Sloper, 1 Ida., 1.'58, aud People v. Page, Id., ISO, the oflense of uttering such material is discussed. Fraiidulfnt Uinlervalimlion of Opps.— G. S. g2r)I2.— Any per- son, corporation or as-ociaiion, or tlic agent of any person, corporation or as-ociation engaged in the milling, sampling, concentrating, n-ducing, shipping or purchasing of ores in this State, who shall, in any manner, knowingly alter or change the true value of any ores delivered to hiin or them so as to deprive the seller of the residt of the correct value of the same, or who shall substitute other ores for that delivered to him or them, or who shall is>ue any bill of sale orccrtilicate of purchase that does not exactly and truthfully state the actual weiglit, assay value and total amount paid for any lot or lots of ore THirchased, or who. by any secret understanding or agreement with another shall is-ueii bill of sale or eertilicate of purc^hase that does not truth- fully and correctly set forth the weight, assay value, and total amount jiaid for any lot or lots of ore purchased by him or them, shall be deemed guilty of a misdemeanor, and" on conviction thereof shall l>e fined iii a sum not exceeding oire thousand (pKiQ) dollars, nor less than one hundred (100) dollars, or imprison- ment not more than one year, or both, at the discretion of the CoMTt.—Feb. 7, 1877. There is also a section (887) against a mill refusing to turn over the proceeds of gold quartz under the old system of custom work. Sailing Orp.— G S. ? S97.— That every person who shall min- gle or cause to be mingled with any samjile of gold or silver bear- ing ore, any valuable metal or substance whatever that will in- 182 PENAL PROVISIONS. crease or in any way change the value of said ore, with the in- tent to deceive, cheat or defraud any person or persons, shall, on conviction thereof, be punished by "a fine not less than five hun- dred nor more than one thousand dollars, or by confinement in the penitentiary for a term not Ics.s than one nor more than four- teen years, or by both such fine and imprisonment. — Feb. 12, 1874. At the April Term, 1873, of the District Court of Clear Creek County, a couvictlon was had before Hon. James B. Bclford. Judge, for salting ore (mixing silver filings with the mill sample) under an indictment for obtaining money under false pretenses, which offense is now, however, spe- cially provided for in the above Section 897. Ore Stftalinj; by Lessees.— G S. g 2.')1,3 —If any person, les.see, 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, remoTe orconceal the ore or mineral from any mine, lode, ledge or de- posit, 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 conviction shall be punished as for grand larceny.— /-Vi;. 7, 1877. This section does not apply to ore stealing by strangers, or to what at common law would be considered larceny, ia any case where )io privity exists between the parties. Itj constitutionality Wiis doubted under certain technical clauses of the constitution, but it has been declared valid in Clare v. People, 9 Colo. 122. Trespass, not Larceny. —The taking of ore by sever- ing 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. Berrymm , Id. 199 ; State v. Burt, Id. 190. Tbis distinction, which is supposed to be technical, is in some of the cases referred to as unsubstantial and inde- fensible, although its force as decided law is not questioned ; on the contrary, it is a distinction ucce.ssary to check the PENAL PROVISIONS. 183: constant tendency to seek a criminal remedy where the civil remedy is ample, and in ainiost all cases of such sev- erance a felonious intent is wholly wanting. RcmoTlnir Location Marks.— C! S. g 'JIO.— That if any person or persons shall wilfully and ninliciously deface, remove, pull down, injuic or dc.stiov any location f^take, side post, corner- post, land mark or moninuont, or any other legal land boinidary monument in this Slate, designating, or intending to designate, the location, boundary or name of any mining claim, lixle or vein of mineral, or the name of the discoverer, or diitc of discov- ery thereof, the person or persons so otfending shall be guilty of a misdemeanor, and on conviction thereof shall be fmed not more than one thousand dollars, or imprisoned not more than oneyear.atthediscretion of the Court ; Provided, That this Act shall not apply to abandoned property.— Feb. 0, Ib'C. Malicious Mischief. — An act of similar nature con- cerning the removing of shait-coverings, timbering, etc., is found in the Session Laws of 1885, p. 276. .Ininpin:; Claims by St<>ulth or Violence— G, S. J 2414. — In all cases when two or more persons shall associate themselves together for the purpose of obtaining the possession of any lode, gulcli or pltioer claim, then in the actual v>osses.sion of another, by force and violence or threats of violence, or by stealth, and Bhall proi^eed to carry out such purpose by making threats against the party or parties in po.ssession, or who shall enter upon such lode or mining claim for the purpose aforesaid, or who shall enter upon or into any lode, guleh, placer claim, quartz mill, or other mining property, or not being upon such property, but within hearii\g of the same, shall make any threats, or iniike use of any language, signs or gestures calculated to intimidate any person or iiersons at work on saios- sessiou alone — as is the rule in a contest where individuals only are interested. (Sears v. Taylor, U M. R., 318.) Al- though possession may become iucideutly a material issue in the case. See adverse claim. Possession, How Proved. — A person who has pur- chased a mining chum, 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 tho boundary stakes and marks thereof, is not merely in the constructive possession of sucli claim hy virtue of mining laws, bat is in the actual possession of the whole claim; such possession is a posaessio pedis, extending to the boundary lines of the chiim.— North Noonday Co. v. Orient Co., 9 M. R., 531. 186 FORCIBLE I^TRY. Actual occupation of a part of the claim under papers calliug for the entire tract by metes and bounds, gives con- structive possession of the entire tract. — Harris v. Equator Co., 12 M. R., 178; Attwood v. Fricol,2 M.E.,30o; Hesav Winder, 12 M. B., 217. Possession is a question of lav? ; the witness must tes- tify to facts, and it is for the Court to say whether these facts amount to possession. — Thistle v. Frostherg, Co., 10 Md., 129. But the uniform holding of the United States Court, at Denver, has been that the question as to possession may be asked directly, leaving it to the cross-examination to bring out whether the facts stated amount to possession, and this is the more sensible practice. Presunn>tioii ol Location. — Where a plaintiff has been in actual possession of his claim for the full period of the Statute of Limitations (five years) a presumption may be indulged as against a wrong doer at least, that bis loca- tion was regularly made, without putting him to proof of its successive steps. Harris v. Equator Co., supra. Second Trial. — After the firet trial the losing party may pay the costs before the first daj' of the next term and take a second tria'. — Code, ^ 272. And if the second trial result in favor of the party who lost the first case a third trial will be granted on like terms. FORCIBLE ENTRY. The acts concerning forcible entry and unlawful de- tainer (1835, p. 224 ; 1887, p. 270) apply to possessory as well as other claims, but those acts are so involved, so abrupt and cruel in their attempt to substitute haste for delibera- tion, that they result in driving to appeals aud in the end to more lengthy and costly litigation than where ejectment ATTACHMENT. TRESPA^S.-DAMAGES 187 is resorted to in the first instance. Especially is this the case where the action is commenced before a justice of the peace before whom proteciliiiKS are so vexatious, oppressive, and attended with so much heavier costs than such as accrue in Courts of Record, tliat it is rarely advisa- ble to seek the remedy for any wrong, in any form of action before them. ATTACHMENT. TRESPASS. In 1872 an Act was passed, repeated in Sec. 119 of the Code of 1877, allowing mines and the ore extracted from the- same to be attached in cases of alleged trespass ; that is to say, where the same property was claimed by adverse par- tics. Its abuse, enabling any party who was able to furnish bonds, to cripple the means of the opposite party, led to its- repeal in 1879. Damages in trespass may now be recovered in the same action in which the title is tried, or by separate action. Section 272 of the present Code purports to forbid allowance of improvements as offset to damages. Ml'lASURE OF DAMAGES. For Ore Taken. — Tlie true measure of damages de- pends upon circumstances 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., 40G; In re United Merthyr Co., 10 M. R. 153; Ege v. KiUe, Id. 212. In a case of trespass by extracting ore, decided bj- the Supreme Court of Nevada, all the authorities are collected and the rule laid down that the cost of mining should bo 188 ACTIONS BASED ON NEGLIGENCE. deducted from the value of the ore in all cases, where neither fraud nor culpable negligence constituted any element of the ca.se.— Waters v. Stevenson, 10 ill. R., 240; 29 Am. Rep., 293. And the decisions at nisi prius in Colorado, as far as the writer's knowledge extends, have adopted the same rule, the arbitrary clause in the Code above cited being in such context and so worded that it does not prevent deduction of cost of getting the ore, an 1 covers no case except an action for mesne profits, strictly so-called. It is further debatable how far a legislature may inter- fere with the question of the measure of damages, which is strictly a judicial matter. Ill Mit-csliaiieous Casts.— For the measure of dam- ages on refusal to accept deed, see Gilpin M. Co. v. Dralce, 8 Colo., 586. On breach of contract to lease: Chambers v. Brown, 28 A'. W. Rep., 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. Collinson, 9 M. R., 37. ACTIONS B.iSEI) ON NEGLIGENCE, ACCI- DENTS, ETC. The same rule governs the liabilities of owners, lessees .and contractors in case of accident to employes, as controls in other cases where the relation of master and servant exists and necjligencc is the foundation of the action. Mc Andrews v. Burns, 39 N. J. L., 117. Perry v Ricketts, 55 111., 234 ; 9 M. R., 687. Hull V. Johnson, ;j IT. and C, 589 ; 9 M. K, 684. Quincy Co. v. Hood, 77 111., 69; 12 M. E., 148. .Slrahlendorfv. Rosenthal, 30 Wise, 675; 10 M. R, 676. REPLEVIN. 189 The mine owucr must look to the proper support of his gangways and to the timbering and to the machinery :il)ove. Qn'incy Co. v. Hood, 12 M. R. 148; Slrahlendorf v. Rosenthal, 10 If. R. G7fi; Ardesco Co. v. Gilson, 10 M. R. 6G9. He is liable for accidents resulting from experiment- ing with new and untried explosives. Smithv. Oxford Co., 2 M. R. 208. He is responsible when the accident can be traced directly to his own fault or the fault of his partner. Mel- lorsv. Sharv, D M. R. 678. And in many cases where traceable to the fault of the Superintendent or foreman. Contributory Negligence. Co-Employee. — But the mine owner, as a general rule, is not liable when the accident was in whole or in ])art attributable to the negli- t;once of the party injured or to the carelessness of a fellow workman not occupying a directing or superior position to the party injured. Kevernv. Prov. Co. 70 Cal. 392; Ardesco Co. V. Gilson, 10 M. R. 609 ; Berea Co. v. Kraft, Id., 16 / Trihaij v. Brooklyn Co., 11 Pac, 612. REPLEVIN. Ore Taken Under Claim of Title. — Where a party is in possession of a mine under a bona fide claim of title, t!ic party out of possession cannot maintain replevin, or an action under the Code in the nature of replevin, for the ore taken from the same ; because the trial of the right of prop- erty in the ore in such case would necessarily involve the trial of the title to real estate. Brown v. Caldwell, 12 M. R. 674; Mather V. Trinity Church, 14 M. R.; Harlan v. Harlan, 1"> Pa. St. 507; Anderson v. Harper, 34 III. 436; Page v. Fowler, 23 Cal. 605; Smithv. Idaho Q. M. Co. 11 Pnc. 878. Defendant cauuot re-replevy ore. — Morris v. DeWitt, 12 M. R. 680. 190 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 ex- tent addressed to the discretion of the Court, but the exer- cise of this discretion does not imply the total absence of principles applicable to this class of cases. The ground for the application of injunctive relief 18 that the property may be preserved pend- ing litigation for the Hltimate use of the rightful owner and may not in the meanwhile be destroyed by a tres- passer. But the pendency of litigation is not of itself suf- ficient; the complainant must go farther and show that his case is based upon substantial facts, and that there is a probability of a decision in his favor when the 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 de- fendant as the conversion of some of the ore is to a rightful complainant. — Capner v. Flemington Co., 7 M. R. 263; Claver- ingv. Clavering, 14 M. E. — ; Irwin v. Davidson, 7 M. R. 237. Bond.— The fact of a bond being filed for the relief of the defendant, if injured, is a protection to him only in theory. A bond is seldom available to the ultimate vindi- cation of the right ; it is no lien ; the measure of damages is vexed and unsettled, and the security is rarely accessible by the time judgment is obtained. liaches. — Further, to entitle him to this relief the complainant must not have been guilty of unreasonable INJUNCTION. 19J I delay nor have iiUowctl the defendant to liavo proceeded without objection to expend money in good faith upon th© property. Purrotl V. Palmer, 3 M. & K., G32. Real del Monte Co., v. Pond Co. 7 M. R. 452. Emma Mine case, Id. 493. Field V. Beaumout, Id. 257. Mammoth Co.'s Appeal, Id. 4G0. The solvency or instdvency of the defendant, as well as many other circumstances applicable to particular cases, may be taken into account, but is not a controlling consideration when the case is otherwise clear. Lochwood V. Lunsford, 7 M. E. 532. Hamilton v. Ely, 4 Gill., 34. Sierra Co. v. Sears, 7 M. R. 549. Moore v. Ferrel, Id., 281. Irwin V. Davidson, Id., 237. Burnett v. Whiteside, Id., 407. Title in Is$iue. — In cases where a determination of the legal title is necessary to finally determine the rights of the parties the complaint should be framed to procure an issue of that sort; or a previous suit must be pending which will result in determining the title; or a seperate action must be brought for such purpose. In the United States Courts where law and equity distinctions are strictly maintained, separate issues must alwajs 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. V. 8. V. Parrott, Id., 335. Grey v. Northumberland, Id., 250. Old Telegraph Co. v. Central Co., Id., 555. Hall V. Equator Co., U. 8. C. Ct., Denver— 192 INJUNCTION. and such has been the common practice in this last cited Court. Pioservatioii of the l'roi>eity. — The gist of the case and the founcation of equity jurisdiction is to save the property from destruction, 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., 281. I^ess V. Winder. 34 C'al., 270. West Point Co. v. Reymert, 7 M. R., 528. U. S. V. Gear, 3 How., 132 ; 14 M. R. Chapman v. Toy Long, 1 M. R.. 497. Case Sufficient (o Wariant Injunction.— To reduce the matter to terms it may be stated as a proposition, supported by the weight of authority, that a temporary injunction, pending suit to try title, will issue as of right, to restrain the working of a mine, upon a case which shows, after hearing on bill, answer and testimony,: 1. That the complainant has the legal title or the elder and better possessory title : or at least such a. showing of title as would, if proved as staled in the bill, support the verdict of a jury in an action of cjictnient ; and where the defense suggested in the answer does not .show a recovery by plaintiff impossible as a proposition of law ; and the aflidavits or depositions being con- fcidered the weight of evidence 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 con- siderable quantity as to threaten irreparable injury. Ilenshaw v. Clark, 14 Cal, 160 ; 14 M. R., Ilicks V. Compton, IS Cal, 206. More V. Massini, 7 M. R., 455. Magnet Co. v. Page, 7 M. R., 540. Lockivood V. Lunsford. Id.. 532. Anderson v. Harvey, Id.. 291. Erhardt v. Boaro, 113 17. S., 537. INJUNCTION. 193 2. That the hill was brought without needless delay, and that the defendiuit lias not been allowed or eneourased to exiKjnd large sums of money upon the property, which it was in the power of the complainant to prevent. Envest v. Vivien, 8 M. R. 205. Parroit v. Palmer, and other cases above cited. And as matters more particularly addressed to the dis- cretion of the eourt are the insolvency of defendant, threats of violence and danjrer of personal collisions, the fact of reckless mining vsrithout regard to the permanent preserva- tion of the mine, etc. The above propositions are made upon the supposition of an application fi^r injunction after notice, appearance and answer. But courts will not enjoin m cases charged w'th doubt or where, on the plaintiff's showing, final relief would not be granted. International Co. v. Miles, 22 Fed., 659; Gold Tel. Co. V. Commercial Tel. Co., Id. 838. As a rule in equity pleadings where the defendant denies the allegations of the bill in terms, the writ will not issue ; but where the bill is supported by affidavits, and is filed to restrain irreparable mischief by the working of a mine, and the bill, answer and supporting affidavits being considered together the case appears as stated — for the preservation of the subject matter of 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. Noticf. — The usual period of notice to defendant is six days, but the Statute merely requires a notice " in pro- portion to the urgency of the case." ( Code, § 148.) And 7 194 . INJUNCTION. ■where the defendant prays further time to answer, it is nsual, on slight showing, to grant a restraining order or preliminary writ. In many States the writ of injunction issues at once upon complainant's showing, and the issue comes before the court upon motion to dissolve. In this State a reasonable notice is required to be given before the writ can issue which allows the defendant opportunity to file his answer ; so that tlie argument is heard usually upon the original • motion for an injunction and not upon the motion to^ dissolve. FORM OF INJUNCTION NOTICE. State OF Colorado", ) County of Lake, J " In the District Court of said County. John McCombt, Plninliff, v. Frank M. Taylor and John Harvey, Defendants.— ln]\n\ci\oi\. To the above named defendants : You and each of you will take notice that the said Plaintiff will apply to Hon. Luther M. Goddard, Judge oi said Court, at the Court House in lied Cliff, County of Eagle, in said State, at the hour of 2 (.'clock P. M., on the 8th day of July, A. D. ]88«, or as soon thereafter asCounKcl can be heaid, when and where you may attend as you see tit -for a Writ of Injunction to restrain and enjoin you and each of you, your agents, attorneys, lessees, sub- lessees," employees, and all persons under or in privity with you, from working, mining, extracting or carrying away ore from the Fair Deceiver I.ofle Mining Claim, situate on Carbonate Hill, in California IMining District, in said Comity of Lake, and for other relief; and that Plaintifi' will support the application by the Complaint, Allidavits, Maps and Documentary Evidence. Frank M. Owers, Leadville, July 2, 1888. Attorney for Plaintiff. 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 removal or sale of the ore but the granting of such a writ without notice •would be in violation of the spirit of the law. INJUNCTION. 195 Practice, on Hoariiis. — The notice having been served theconiphiinunt presents his bill or conipliiint to the Court or Judge at chambers. The Section of the Code al- lowing a hearing before filing the bill having been greatly abused, waspiiri)oselj' 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 sus- tained, the defendant is not in a position to ask for time to answer over. The complainant with his bill, and the defendant with his answer, may file affidavits in support of the bill and answer respectively, and this is usually advisable. The answer being presented, and denying fully the merits of the bill, the court may either hear the case on bill and answer with their supporting affidavits, or refer the matter to a master or referee to take depositions. Vci'iflcation. — Both bill and answer should be veri- fied — and the answer must be sworn to even where the oath of defendant is waived by the proper clause to that effect ia 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. 3Iantlatory Writ. — Section 159 of the Code provides that where possession of a mine is taken by violence or during intervals of labor, a mandatory writ restoring pos- session shall issue. This Act, passed orij;inally in 1874, has been found effective to accomplish the object intended and the forcible dispossession of parties working amine is now almost unheard of. 196 INJUNCTION. A hearing under this Act goes only to the matter of the unlawful dispossession of the i)laintiff and the writ leaves the parties to their legal rights on all other questions a& thougli no such writ had issued." An injunction mandatory in effect and implying affirm- ative acts from the defendant or the surrender of possession of premises is an unusual sort of relief, to be granted with great caution, but is not without precedent, even as the result of an interlocutorv decree, and without the aid of any such statute. — Cole Co. v. Virginia Co., 7 M. B., 516. 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, except the fact and manner of dispossession, and lor this object it has been held valid and not unconstitutional by all, or nearly all, the Judges at Nisi Prius, and has remedied one of the greatest evils ever complained of in the mining counties. The Federal Court of this district, shortly after the admission of the State, declined to accept jurisdiction under this Act. But under the principle laid down in the late case of Aspen M. Co. v. Eucker, 28 Fed., 222, as to U. S. Courts exercising equity jiowers 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 a direction is, of course, void as it directs judgment without day in court or trial. But the other provisions of the Section are not hurt by this isolated pro- vision ; they refer merely to the division of time between the parties for taking testimony and for a speedy adjudica- INSPF.CTION AND SURVEY. 197 tion and forbid the use of such a writ jn favcjr of a party who procured his own possession by violation of the spirit of the Act. In framinj; bills under this Act it is not advisable to pray any relief further than the preliminary writ and the restoration of possession. At least five days' notice of aiiplicatiou must be given ; the form on page 194 is sufticient to the words " Writ of Injunction," after wliich conclude as follows: Ilavins the force and effeet of a writ of Restitution, restor- ing plaintiff to the possession of the Futaiitij Lode Mining Chiim, situate in Grand I^Lii.d Mining District, County of JiouUler, and for a Temporary Injunction restraining the workins of said chiim in accoidanco with the terms of Section 159 of the Code, and that pliiintittwill support the ai)plication by the complaint and afUdavits. W>n. M. Maunire, Denver, July '2, 18SS. Attorney for Plaintiff". County Courts are forbidden by Statute to interfere with the enjoyment, working or possession of a mining claim. G. S. i 487. INSPECTION AND SURVEY. Under Section 3G4, of the Code, either" party after suit is commenced, is allowed the privilege of a survey and in- spection of the premises, held by the adverse party, after demand and refusal, and after certain awkward and useless notices and affidavits, the section cited being probably the most complete instance of involved and turgid composition ever tound on a statute book. After analysis of its clauses and throwing out such por- tions as must be discaided in order to give grammatical sense to the paragraph, it seems that the procedure is as follows : 198 INSPECTION AND SURVEY. 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 con- sent 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 inspection; stating the demand made and the refusal and praying an order for survey and inspection. 4. The Court or Judge then fixes a time and place for hearing this petition and orders notice thereof to be served at least three days before the hearing. 5. On the day set the petition is argued and may be aided or resisted by affidavits. fi. The Court or Judge, if satisfied tliat the ''facta stated in the petition are true," makes the order. Three inspectors are alh^wed to accompany the Survey ors; an interference with them is made contempt and che costs are taxed against the losing party. This right of inspection always existed, in courts of equity at least, and has been frequently exercised. Ennor v. Banoell, 12 M. E. 101. Lonsdale v. Cur wen, 7 Id. 69.'}. Atfy-Gen.v. Chambers, 1:2 Beav. 159. Thornhoronqh v. f^avage Co. 7 M. R. 667. Dwidale v. Robertson, M. R. . Lewis V. Marsh. 8 Id. 14. Bennitt v Whitehouse, Id. 17. Stockbridge Co. v. Cone Works, 6 Id. 317 . STATUTE OF LIMITATIONS. I9^ Section 2413 of the General Statutes on the same sub- ject, exists on the statute books unrepealed, but the Code section being of later date controls its operation. Tlierc is also a special provision for survey in Drainage eases.— G. S. ? 2420. STATUTE OF LIMITATIONS. Section 2332, of the Unitec" States Statutes, expressly recognizes possession of a mining claim during the period fixed by the State Act as sufficient to establish a right thereto.— 420 Mining Co. v. Bullion Co, 1 M. E. 114. Prior to the act of Feb. 13, 1874 (G. S. § 2186-2189). ■which prescribes the period of five years as the limitation to actions of ejectment for mining claims and other classes of real estate, no express limitation existed. The continuous working of a mine, or even its working during successive seasons with intervening seasons during which the mine is left idle according to the custom of the country, is as complete an adverse possession as could be gained by agricultural operations or other acts of possession. —Stephenson v. Wilson, 13 M. R. 408 ; Wilson v. Henry, 1 M. B. 152; 157; 420 M. Co. v. Bullion Co., 11 M. R. G08. In the case of Harris v. Equator Co. cited p. 186, it was intimated in the opinion ot the Court, Hallett,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 pre- sumption, at least against a wrung doer, that he held under a valid location, without proof of the various acts of loca- tion, and such must from the nature of things be the ultimate decision of all courts upon this point. 200 COMMISSIONER OF MINES. 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 Fac. 865. The limitation to tlie actions of replevin and trespass is six years.— (G. S. § 2163.) The limitation to prosecutions for misdemeanors under the penal provisions, is eighteen months, and for felonies three years. — (G. S. ^ 975.) Adverse pos.scssion of water for the statutory period gives title. — Cox v. Clough, 70 Cal. 345. To m^ike adverse possession available there must be : 1. The occupation or use of the land, and 2, a claim and color of title. The Colorado Supreme Court has ruled that a party following a patented vein beyond its side lines has not sufficient color of title to maintain such defense. — Leba- non Co. V. Rogers, 8 Colo. 34. COMMISSIONER OF MINES. By Art. 16, Sec. 1 of the Constitution, the above en- titled office is established. Chapter 15 of the General Laws, passed in 1877, defined its duties and provided for the appointment of a person to fill the office, but by the refusal of the Legislature to make any provision for salary or expenses, the chapter referred to became a dead letter, was repealed at the session of 1881, and has not been re-enacted. ASSAYS, ASSAY OFFICES. 201 ASSAYS, ASSAY OFFICES. An assay is the test of the value of a specimen or quan- tity of ore by the extraction of tlie amount of silver, gold or other metal, contained in a minute 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 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 sissays 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 tlie assay shows only the contents of that portion of ore that has been assayed, its importance lies in its acceptance as indicating the contents of other ore of which the portion assayed was a '"simple." The intent of an assay is to show the true value of the ore and if it is so taken as not to show such value, proof of assays otherwise taken may be given in evidence. Phipps V. Unity, 18 Nev. 13.3 ; 15 M. E. — . Between ore-buyer and ore-seller ore is usually sampled by the former under supervision of the latter; this sample (pulverised ) is divided into portions — one for the buyer, one for the seller, and one to be kept for reference in case of diflference between the other two. The third division is often omitted. After division, each portion is in itself a sample. Both buyer and seller have a control assay ( assay in duplicate ) made of their respective samples, the assay of the seller being also a control assay in regard to the assay of the buyer. The results of carefully made assays of a sample should not differ more thau one per cent., nor should samples of 202 SCHOOL OF MINES. the same ore differ more than two per cent. In case of excessive variation in assays, one or both samples are as- sayed by a third party, as referee for accuracy of assay. In case of excessive variation of samples and failure of third sample to conform to either of the first two, ore is usually resampled. Under the Territorial Statutes were created certain oflBcial Assay Offices. They amounted to nothing more than to confer a public title on a party carrying on a private trade and were abolished by the act creating the office of Commissioner of Mines. Assays and analyses that may be called official can now only be had from the State School of Mines, at Golden.— (G. S. ^ 3113.) SCHOOL OF MINES. The General Assembly may provide that the Sciences of Mining and MetaUiirgy be taught in one or more of the institu- tions of learning under the patronage of the Utale.— Const. Art. 16. § 4. Under the above provision, the " School of Mines," at Golden, being such an institution (Const. Art. 9, ^ 5) is spe- cially incorporated under Chapter 93 of the General Statutes. An annual tax of one-fifth of one mill on all taxable property is assessed for its support. — G. S. ^ 3108. Its de- clared object is to furnish "such instruction as is provided for in like technical schools of a high grade," and it ia authorized to confer degrees. — G. S. § 3102. Note.— Its present Faculty consists of Regis CMuvenet, President, Chemistry; Arthur Lixkes, Geology; Mafjnun G ThLseng, Engineering; I'aul Mci/er, .Mathematics; Oeo. C. Tildtn, Ass&y- ing; Henj. /i. md/ler, I'k. D., MetaUurgy. The course inchtdes four years of three terms each. A one year's course in assaying (without a degree) is also given. LAND DISTRICTS. 203 LAND DISTRICTS. There arc ten Land Districts in Colorado with offices at Denver, Central City, Lake City, Leadvillc, Pueblo, Del Norte, Durango, Gunnison, Gleuwood Springs and Lamar. At each land Ollice is a Eegistor and a Receiver all the offices acting in connection with the otlice of the Survej'or General at Denver. The subdivisions known as " Mineral Districts " have been abolished. The "Mining Districts" retain their use as local designations in Laud Office practice the same as in conveyanciug. The boundaries of the several Laud Districts are as follows: IJenver Land DiRtrlct.— Beginning at the east boundary line of the state, at a point on the second correction line south, thence west along said second correction line, tothe line between ranges 70 and 71 west ; thence north along said range line to the dividing line between Boulder and Larimer Counties, being the south line of township 4 N. ; tht-nce west to the top of the Front range, and following the continental divide and Park range to a point on line between ranges 83 and SI west ; thence north to the north boundary of the btate ; thence east and south, following the State boundary line to the place of beginning. It includes Arapahoe, Weld, Logan and Washington counties and parts of Larimer, Elbert, Boulder, Jefferson and Douglas. Central City Land Plstrict.— Following the west boundary line of the Denver Land District, from a point where the range line (SS-M) crosses the divide on the boundary line between Grand and Routt Counties, along the Park range. Continental divide, Front range, the dividing line between Larimer and Boulder Comities, and the line between ranges 70 and 71 west, to wheie the latter intersects the second correction line; thence west tothe dividing line between Jefferson and Park <'ounties ; thence north, following the county line to the first correction line south , thence west along said correction line to the S. W . corner of township .i south, range 8.' west; thence north along the line separating ranges 82 and «3 west to the first correction north, thence west to the s. W. corner of township 5 north, range 83 west, thence north along the liue separating ranges 83 aud 84 yie^, to ihe place of begiuniug. 204 LAND DISTRICTS. It includes Gilpin, Clear Creek and Grand counties, and parts of Summit, Eagle, Jefferson and Eoutt. LpadTillfl Land District.— Bounded on the north by the Central Citv Land District, on the east by the west boundary of Jefferson countv to the S. \V. corner of lownshiy) 10 south, range 71 west. Thence east to the northeast corner of township 11 south, ran^e 71 west. Thence south to the S. E. corner of town- ship I.") south, range 71 west. Thence west to the N. \V. corner of township 51 north, range 11 east of N. >1. P. M. Tlience south to the N. E. corner of township 49 north, range 10 east. Thence west to the N. W. corner of township 49 north, range 10 east. Thence south to tlie S. W. corner of township 49 north, range 10 east. Thence west to the middle of township 49 north, range 6 east on 12th corr. line north. Thence north through the middle of said township to its north boundary. Thence west to the S. W. corner of township .W north, range 6 east. Thence north to the N. W. corner of said township. Thence west to the middle of town.ship 51 north, range 5 east. Thence north to the third correction line south. Thence west to the middle of township 15 south, range 81 west. Thence north through the middle of townships 15. 14 and 13 .south in range 81 west, to the north boundary of township 13 south, range 81 west. Thence west to the S. W. corner of town- ship 12 south, range 81 west. Thence north to the divide, where Chaffee and Pitkin counties join. Thence westerly alon§ the divide and .soutli boundary of Pitkin county to where the divide inter.sccts the south boundary of township 11 .south, range 86 west. Thence east to tlie 8. E. corner of towjiship U south, range 83 west. Thence north along the line separating ranges 82 and 83 west, to the intersection with the 1st correction line south. It includes Park, Lake and Cliaffee counties, and parts of Fremont, Jefferson, El Paso, Gunnison, Pitkin and Eagle. Dfil Xorte Land District.— Beginning at the N. E. corner of township 48 nortli, range 8 east N. M. P. M.; thence south to the S. E. corner of said township; thence east to the N. E. corner of township 47 north, range 10 east; thence south to the S. E. corner of said township; thence east to the N. E. corner of township 40 north, range 11 east; thence south to the .S. E. corner of said township; thence east to the N. K. corner of township 45 north, range 12 east; thence south to the S. W. corner of township 27 south, range 73 west of (ith P. M. ; thence east to the N. B. corner of township 28 south, range 70 west; thence south between ranges 69 and 70 west to the south boundary of the State; thence west to where the range line between ranges 2 and 3 east of N. M. P. M. intersects the .State boundary; thence north along .said range line to the intersection of tlie 9th correction line north; thence north- west along the .San Juan mountains' ridge to the S. \V. corner of township 39 north, range 1 east; thence north along the N. M. LAND DISTRICTS. 205 P. M. to tlie Intersection with the llth correction line north; thence ea'^t to the S. W corner of townsliip 45 north, range 3 east; tliencc north to the N. W. corner of sairl townsliip ; thence east to the S. W. corner of town-liin 4r> north, range 4 east; thence nortli to the N'. W. corner of said township; thence east to the S. W. corner of townsliip 47 north, range •"> east; th(!nce nortli to tlio N. W. (-orner of saiil township; thence east to the K. W. corner of township 4S north, range "east: tlience north to the X. W. corner of said township; thence cast to the phice of beginning. It includes Conejos countj', and parts of Rio Grande, Saguache, Costilla, Archuleta, Huerfano, Custer aud Fre- mont. I.aVp Citr Laml District.— Beginning at a point on the west boundary of the State where the line between townships 4fi and 47 north intersects said boutidary in range 20 west of N. M. P. M., thence cast to the X E corner oV township ir> north, ranged west, thence south to the S. W. corner of township 45 north, range 1 west ; thence east to the N M. P. M.; thence south along said P. M. to the intersection with the i^an .fuau mountains; thence northwesterly along the ridge of said iiountains to the S. W. corner of township 41 north, range (> west; thence north to the N K. corner o( township 42 north, range 7 west; thence west to the western boundary of the Stnte; thence north along said State boundary to the" point of beginning. It includes parts of Hinsdale, San Juan, Ouray, Guani- 8on, Montvose, Saguache and San Miguel counties. Hiirnnsro T.anil Histrict.— la bounded on the north by Lake City Land District, on the cast by the Del Norte Land District, and on the south and west by the State boundaries. It includes La Plata aud Dolores counties, parts of Saa Miguel, Sau Juan, Hinsdale, Rio Grande and Archuleta counties. flarfloM Tianrt District.— Is bounded on the west and north by the State boundaries, on the east by the Denver. Central City and Ijeadville. Land Districts, to the .S. K. corner of township 11 south, range S:? west; thence west to the S. W. corner of township 11 south, range '.)() west; thence west to corr. line south; thence east to S. E. corner of township 10 south, range 'J7 west; tlience north to the N. K. corjier of township 9 south, range 97 west; thence ■west to the boundary of the State. It includes Garfield county and parts of Eagle, Pitkin, Gunnison, Routt, Delta, Larimer and Mesa. 206 LAND OFFICE RULES. Onnnison Land District.— Bounded on the north by Garfield and Leadville Land Districts, on the east by the Leadville and Del Norte Land Districts, on the south by the Lalce City Laud District, on the west by the west boundary of the State. It includes parts of Gunnison, Mesa, Delta, Montrose, Oaray and Saguache counties. Bent Land District —Bounded on the north by the 2d cor- rection line south, on the east and south by the boundaries of the State, and on the west by the meridian line separating ranges 52 and 53 west of the 6th P. M. It takes iu parts of Las Animas, Bent and Elberfi Counties. Pueblo Land District.— Bounded on the north by the Den- ver Land District, on the west by the Leadville and Del Nort© Land Districts, on the .south by the State boundary, on the east by the Bent Land District. It includes Pueblo County, and parts of El Paso, Bent, Las Animas. Custer and Fremont Counties. For changes in Land Districts since the above "form" was set (Feb. 1888) see Appendix. LAND OFFICE RULES, REVISED OCTOBER 31, 1881. (With Amendments to January 1, 1888.) ISSUED BY THE GENEBAL LAND OFFICE. Hineral Lands Open to Exploration, Occupation and Pnr- eliane.— 1.— It will be perceived that by the foregoing* provisions of law the mineral lands in the public domain, surveyed or unsurveved, are open to exploration, occupation and purchase by all citizens of the United .States and all those who have declared their intention to become such. Status of Lode-C'Iainis Located Prior to May 10, 1872.-2 — By an examination of the several sections of the Revised Statutes it will be seen that ihe slattts of lode claims located previous to- the 10th May, 1872, is not changed with regard to their extent along the lode or ividth of surface, ♦Note.— In the Land Office Circular these instructions are preceded by a copy of the Congressional Law. LAND OFFICE RULES. 207 *Si(le Veins, Addilinnnl Clrnnt of.— 3. — Mining rights ac- quired under such previous loratlitus arc, liowevor, enlarged by said Revised Statutes iiitl)e lollowing respect, viz: Tlic locators of all such jirevidusly taken veins or lodes, their heirs and assigns, so long as they comply with the laws of Congress and ■with the State, Territorial or local regulations not in conflict therewith, governing mining claims, are invested with the ex- clnsive possessory right of all the Burfaee included within the lines of their locations, and of al! veins, Indes or ledges through- out their entire depth, the to)) or apex of which lies inside of 8U('h snrface-litics extended downward vertically, although such veins, lodes or ledges may so far depart from a jierpendicular in their course downward as to extend outside the vertical side- lines of such locationsat the surface, it being expressly provided, however, that the right of possession to such outsidi; parts of Raid veins or ledges shall be confined to such portions thereof as lie between veriical planes drawn downward as afiresaid, throuch the end lines of their locations so continued in their own direction that such jilanes will intersect such exterior parts of such veins, lodes or ledges; no right being granted, however, to the claimant of such outside portion of a vein or ledge to enter upon the surface location of another claimant. Idem.— 4.— 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 cloimed on Mnji W.\iu'l,o.w\ that where such other vein or ledge was so adversely claimed at that date, the right of the paUy .so adversely claiming is iu uo way impaired by tlie pro- visions of the Kevised Statutes. Annual Labor on Old Locations.— .5.— In order to hold the possessory title to a mining claim located prior to May 10, 1,S72, and for "which a patent liiis not been issued, the law requires that ten dollars shall be expended annnlly iu labor or improve- ments on each claim of one hundred feet on the course of the vein or lode until a patent shall have been issued therefor; but ■where a number of such claims are held in common upon the same vein or lode, the aggregate expenditure that would be necessary to hold all the claims, at the rate of ten dollars per hundred feet, may be made upon any one claim ; a failure to comi)ly with this requirement in any one year, subjecting the claim "upon whicli such failure occurred torelocation Ijy other parties, the same as if no previous location thereof hiid ever been made, unless the claimants under the original location shall have resumed work thereon after such failure and before such relocation. The first annual expenditure upon claims of this clas.s should have been performed subsequent to May 10, 3872, and prior to January 1, 1875. From and after January 1, 187.'), the reciuired amount must be exiiendcd auwmlhj until patent issues. Hy decision of the honorable Secretary of the Interior, dated March 4, 1879, such annual expenditures are not xequired subsequent to entry, the date of issuing the patent cer- tificate being the date contemplated by statute. 208 LAND OFFICE RULES. Forfeilure.— 6.— Upon the failure of any one of several co- owners of a vein, lode or ledge, which has not been entered, t» contribute his proportion (if the expenditures necessary to hold Ihe claim or claims so held in ownership in common, the co-own- ers who have performed the labor, or made the improvements, as required by said Kevised Statutes, may, at ihe expiration of the year, give such delinquent co-owner 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 daysaftersuch notice in writing, or upon the expiration of one hundred and eighty days after the first newspaper imblication of notice, the delinquent co-owner shall have tailed to contribute his proportion to meet such ex- penditures or improvements, his interest in the claim by law passes to his co-owners, who have made the expenditures or improvements as aforesaid. Where a claimant alleges owner- ship of a forleited interest under the foregoing provision, the sworn statement of the ])ublisher as to the facts of jaiblication, giving dates and a printed coi)y of the notice published should be furnished, and the claimant must swear that the delinquent co-owner failed to contribute his proper proportion within the period hxed by the Statute. Patents for Lodes or Veins heretofore issned.— 7.— Eight.'? under jiatents for veins or lodes heretofore granted under previous legislation of Congress, are enlarged ljy the Kevised Statutes .so as to invest the patentee, his heirs or assigns, with title to all veins, lodes or ledges, throughout their entire depth, the top or apex of whicli lies within the end and side boundary lines of his claim on the surlace, as patented, extended downward ver- tically, although such veins, lodes or ledges may so far depart from a jierpendicular in their course duwuward as to extend outside the vertical side-lines of the claim at the surface. The right of possession to such outside parts of such veins or ledges to be confined to such i)ortions thereof, as lie between vertical planes drawn downward through the end-lines oi the claims at the surlace, so contiinied in their own direction that such planea will intersect such exterior parts of such veins or ledges, it being expressly provided, however, that all veins, lodes or ledges, the top or apex of which lies inside such surface locations, other than the one named in the patent, which were adverseit/ claimed on the lOlh May, 1872, are excluded from such conveyance by patent. 8.— AppMoiUions for Patents for Mining Claims pendinpr at the date of the Act of May lU, 1872, may be i)rosecuted to final decisi .11 in tlie (ieneral Land Ollice, and where no adverse rights are affected thereby, patents will be issued in pursuance of the provisions of the Kevised Statutes. Manner of Looatins Claims on Veins or Lodes after May 10, 1872.— y.— From and after the lOlh May, 1872, any person who LAND OFFICE RULES. 209 is a citizen of the United States or who liasdeeliircd his intention to become n citizen, may locate, record and hold a miniiitc claim of ft/tein liujidrccl linear feet along the course of any mineral vein or lode subject to location; or an association of i)erson.s, severally t extend beyond tliree hundred feet on «7/ie7- side of the middle of the vein at the surface, or such dis- tance as is allowed by local laws. For example : -100 feet cannot be taken on one side and .00 feet on the other. If, however, 300 feet on each side are allnwed, and by reason of prior claims but 100 feet can be taken on the one side, the locator will iiot be restricted to less than .'iOO feet on the other side ; and when the locatur does not determine by exploration where the middle of the vein at the surface is, his discovery §haft must be assumed to mark such point. Sizp »f Claim.— n.— By the foregoing it will be perceived that no lode-claim located after the 10th May, 1872, can exceed a parallelogram fifteen hnnlred feet in lengtli by six hundred feet m width, but whether surface ground of that width can be taken depends ui)on the local regulations or Stale or Territorial laws in force in the several mining districts ; and that lo such local regulations or State or Territorial laws shall limit a vein or lode claim to less than fificen hundred feet along the course thereof, whether the location is made by one or more persons, nor can surface rights be limited to less than fifty feet in width, unless adverse claims existing on the 10th day of May, 1871?, render such lateral limitation necessary. nistrict IJiilPs.—li?.— It is provided by the Revised .statutes that the miners of each district may make rules and regulations not in conflict with the laws of the"United States, or of the State or Territory in which such districts are respectively situated, governing the location, manner of recording, and amount of work necessary to hold ]>ossession of a claim. They liki'wise re- quire that the location shall be so distinctly marked on the ground that its boundaries may be readily traced. This is a very 210 LAND OFFICE RULES. important matter, and locators cannot exercise too much care ia -defining!; their locations at the outset, inasmuch as the law re- quires that all records of mining locations made subsequent to Way 10, i.s''2, sliall contain the name or names of the locators, the date of tile location, and such a description of the cMm or c oiiii.s located by reference to some natural object or permanent monument, as will identify the claim. No Ifpford Roforp Discovpry,— 18.— The Statutes provide that nolodcch'im .shall be recorded until after the discovery of a vein or lode within the limits of tlie claim located, the object of which provision is evidently to prevent tue appropriation of presumed mineral ground for speculative purposes, to the ex- clusion of /;rma7ic/e prospectors before sutlicient work has been done to determine whether a vein or lode really exists. liOration. Notice.— 14.— The claimant should therefore, prior to locating his claim, unless the vein can be traced upon the sur- tace, sink a shaft, or run a tunnel or drift, to a sutlicient depth therein to discover and develop a mineral-bearing vein, lode or crevice ; should determine, if possible, the general cour.se 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 iind distance as nearly as practicable from tbe 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. j)roininent buttes, liills &c , which may be in the immed- iate vicinity, and whiCh will serve to perpetuate and fix the^ocu* of the claim, and render it susceptible of identification from the description thereof given in the record of locations in the dis- irict, and should be duly recorded. Adjoinin? Claims. Staklnpr.— 15.— In addition to the fore- going 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 sliould fix a post, stake or board, upon which should be designated the name of tlie lode, the name or names •of the locators the niunber f)f feet claimed, and in which direc- tion Irom the point of discovery ; it being essential that the loca- tion notice tiled for record, inaddition to the foregoing descrip- tion, should state whether the entire claim of fifteen hundred feet is taken on one side of the point of discovery, or whether it is partly upon one and partly upon the other side thereof, and in the latter case how many feet are claimed upon each side of euch discovery point. Rocord — IG. — Within a reasonable time, say twenty days After the location shall have been marked on the ground, or LAND OFFICE RULES. 211 such timo as is allowed by the local laws, notice thereof, ac- curately (li's<'ril)iiiK the claim in manner aforesaid, ^llollld ba tiled for record with (he [iroper recorder of llie district, who will thereupon issue the usual eertilicate of location. Animal Labor on Npw Locutions.— 17.— In order to hold tho pos.scs.sory right to a liication luade .^iiice May Id, 1.S72, not less than one hnudred dollars' wortli of labor must be performed, or improvi'ments made thereon annually until entry shall have been made. Under the provisions if the act of Congress, ap- j)rovud .lanuary 2-, l^!■0, tlie lirst ann\ial e.xnenditure becomes due and must be jicrformed during the ealenciar year succeeding that in which the hiealion was made. E.xpenditure made or labor perfu'incd prior to llie lirst day of January succeeding the dale of location will noi be considered as a part of, or ai>i)lie(I upon, tlie first annual e.xpenditure required bylaw. Failure to make the e.xiienditure or perfcjrm the labor required will subject the claim to relocation by any oilier uarty having ihe necessary qualifications, uidess the original locator, Ins heirs, assigns or le^al representatives, have resumed work thereou after such failure and before such relocaiion, 18. — Tho Exppndifiirps Rcqiiirpd upon Mining Claims may be made from the surface or in running a tunnel for the develop- ment ot such claims, the Actof February 11, 1«7.t, providing that where a person or company has, or may, run a tuiuiel for the puri)0se of developing a lode or lodes owiu-d by said person or company, the money so e.xi)endi d in said tunnel shall be taken and considered as expended on said lod« or lodes, and such per- son or couipany shall not be requited to perform work ou the surface of said lode or lodes in order to hold the same. 19. — Tho Importance of attpndin:; to fliesfl Details in the matter of location, labi)r and expenditure will be the more read- ily perceived when it is unn the surface, made by other parties after the commencement of the tiuincl, and while the same is being pro-ccuted with reasonable diligence, shall be invalid; t)Ut failure to prosecute the work on the tiuuiel for six months shall be considered as an abandonment of the right to alL uudiiicovered veins or lodes on the line of said tuiniel. 212 LAND OFFICE RULES. I.iiip of Tnnnol Protocted.— 21.— The effect of this is simply to give tlie proprietors of a miiiiiis; tunnel run in f^oort faith the possessory riglit to fifteen hundred feet of any blind lodes cut, discovered or intersected by such tunnel, which were not pre- viously known to exist, within tliree thousand feet from the face or point of commencement of sucli tunnel, and to prohibit other parlies, after the commencement of the tunnel, from prospecting for and making locations of lodes on tlie line thereof and within said distance of three thousand feet, unless such lodes appear upon the surface or were previously known to exist. 22.— The term "face," as used in said section, is constraed 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. Tunnel Nolice .and Stakes.— 2^.— To avail tliemselves of the benefits of this provision of law, the proprietors of a mining tunnel will be required, at the time they enter cover as aforesaid, to give proper notice of their tunnel location, by erecting a sub- stantial post, bo'inl or monument at the face or point of com- mencement 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 lieight and width thereof, and the course and distance from such face or point of commencement to some permanent well known object in the vicinity by which to fix and determine the locus in manner heretofore set forth applicable to locations of veins or lodes, and at the time of post- ing 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 %vill •define and govern as to the specific boundaries within which prospecting for lodes not previously known to exist is prohibited while work on the tunnel is being prosecuted with reasonable diligence. Iteconl of Tunnel.— 2i.— At the time of posting notice and marking out the lines of the tunnel as aforesaid, a full and cor- rect 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 decla- ration of the owners, claimants, or jirojectors of such tunnel, setting forth the facts in the case ; stating the amount expended by themselves and their predecessors in interest in prosecuting work thereon ; the extent of the work performed ; and that it is bona fide their intention to prosecute work on the tunnel so located and deseribed, with reasonable dilligence, for the devel- opment of a vein or lode, or for the discovery of mines, or both, .as the case may be. LAND OFFICE RULES. 213 This notice of location must be duly recorded, and, with tho said sworn statement attached, kept on the recorder's files for future reference. '25. — By a compliaiioe with the foregoinsf iiiiich npcrtloss dilll- culfjr will lie tiviiiilfd, and the way for the adjustment of legal riglits aclication for the period of si.xty days, in a newspaper published nearest to the claim ; and will post a copy of such notice iti his ollice for the same period. In all cases sixty days must intervene between the tirst and the last insertion of the notice in such newspaper. When the notice is published in a weekli/ ncwspauerten consecutive insertions are necessary ; when in a dailf/ newspaper the notice must appear in each issue for the required period. Notice Must be Full.— 35.— The notices so published and posted must be as full and complete as pcssible. and embrace all the data given in the notice posted upon the claim. SG.—foo much cnrp cannot bo cxcrcisoil in tbo preparation of these notices, inasmuch as upon thuir accuracy and complete- nes.s will depend, in a great measure, the regularity and validity of the whole proceedings. Surveyor General's Certificate of §500. ImproTenicnts.— 37.— The claimant, either at the time of filing these. papers with the register, or at any time during the sixty days' publication, ia required to file a certificate of the Surveyor General that not less than five hundred dollars' worth of labor has been expended or improvements made upon the claitn by the applicant or his jcrantors ; that the plat tiled bv the claimant is correct ; that tho field notes ot the survey, as tiled, furnish such an acrnrata description of the claim as will, if incorporated into a patent, serve to fully identifv the premises, and that such reference is made therein to natiiral objects or permanent monuments as will perpetuate and fix the locus thereof. Idem —38.— It will be the more convenient way to have this certificate indorsed bv the Surveyor General, both upon the plat and field notes of surVcy filed by the claimant as aforesaid. 216 LAND OFFICE RULES. Proof of Plat Kpiiiainins Posted.— 39— After the sixty day-s"^ period of new.spaper jmbliciit ion has expired the claimant will tile his affidavit, showing that the plat and notice atoresaid remained cons^picuously posted upon the claim sought to be pat- ented during said s-ixty days' iiublicatiou, giving the dates. Entry. StBfrmeiit of Sums Paid.— 10.— Upon the filing of this nffliavitthe register will, if no adverse claim was filed in his office during the ^sixty (-r construction of the law these ten-acre lots in mining districts should be considered and dealt with, to all intents and f>urposes, as legal s\ibdivisions, and that an apjdicant having a epal claim which conforms lo one or more of these ten acre lots, cither adjoining or corneriiig, may make entry thereof, after tho usual proceedings, without further survey or plat. Mode of Entry of Such Lots.— 57.— In ca.ses of this kind, how- ever, the notice given of the application must be very specific and accurate in description, and as the forty-acre tracts may bo •subdivided into ten-acre lots, either in the f()rm of s luaresof 'ten by ten chains, or of iiarallelograms five by twenty chains, so long as tho lines are parallel and at right angles with" the lines of the public surveys, it will be necessary that the notice and applica- tion state specifically what ten-acre lots are sought to be patent- ed, in addi'.ion to the other data required in the notice. Description —.58.— Where the ten acre sub-division is in the form of a sijuare, it mav be described, lor instance, as the "S. E. \i of the y W. 14 of N. W. 14." or, if in the form of a parallel- ogram as aforesaid, it mav be described as the '■ W. % of the VV. ^i of the .s. W. M of the N W. Y^, (or the N. V, of the S. y, of tho N. E. l^ of the S. E. ) of section . township , range ," as the case may be ; but, in addition to this description of the land, the notice must give all the other dalnilxixX, is re- quired in a mineral application, by which parties may be put on inquiry as to the premises sought to be patented. The proof sub- mitted with applications for claims of this kind must show clearly the character and the exter.t of tho improvements upon tlie premises. Inasmuch as the Surveyor General has no duty to perform in connection with the entry of a Placer flaim of legal sub divisiotis, 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. Lode in Placer.— 59.— Applicants for patent to a placer claim, ■who are also in possession of a known vein or lode included thereiii. must state in their application that the y^lacer includes such vein or lode. TIic published and posted notices must also include such statement ; and the vein or lode mu-st be .surveyed and marked upon the nlat : the field notes and plat giving the area of the lode claim or claims and the area of tlie i>laccr separately. If veins or lodes lying within a jilacer location are owned by other parties, the fact should be distinctly stated in the applica- tion for patent, and in all the notices. It should be remembered 220 LAND OFFICE RULES. that an application which omits to inchifle an application for a known vein or lode therein, must be construed ivs a conclusive declaration that the applicant has no right of possession to the vein or lode. Where there is no ki.own lode or vein, the fact must appear by the affidavit of claimant and one or more wit- nesses. 60. — When an adverse cljiini is '' '1 to a placer application, the proceediuKs arc the same as i.i lue case of vein or lode claims, already described. QUANTITY OF PLACER GROUND SUl-IK'T TO LOCATION. ({iiiintily of Placer (iroiind *ul).!ct to Location. — 01. — By sec- tion t;;;;.ii it is declared that no location of a jdaeer claim made after July i), 1870, shall exceed one h.undred and sixty acres for any one person or a.ssociation of persons, which location shall conform to the United States surveys. fonfornialion to Piiltlic Surveys —02. — Section 'J331 provides that all ])lacer mining claims located after May 10, 1872, shall conform as nearly as practicable with the United States system of jjulilic surveys and the subdivisions of such surveys, and n a such locations shall include more than twenty acres for each individual claimant. Limit to Size of Location. — 03. — The foregoing provisions of law are construed to mean that after the 9th day of July, 1870, no location of a i)lacer claim can be made to exceed one hundred and sixty acres, whatever may be the number of locators asso- ciated together, or whatever the local regulations of the district may allow; and that from and after May 10, 1872, no location made l)y an individual can exceed twenty acres, and no location made by an as.sociation ot individuals can exceed one hundred and sixty acres, which location of one hundred and sixty acres cannot be made Vjy a less number than eight bona fide locators; and no local laws or mining regulations can restrict a placer location to less than twenty acres, although the locator is not compelled to take .so much. IIow Located —64. — The regulations hereinbefore given as to- the manner of marking locations on the ground, and placing the same on record, must be ob.served in the case of placer locations, so far as the same are applicable ; the law requiring, however, that where placer claims are upon surveyed public lands the locations must hereafter be made to conform to legal sub-divis- ions thereof as near as practicable. Proof of Possession. — 65— With regard to the proofs neces- sary to establish the possessory right to a placer claim, section 2.3.32 provides that "where such person or association, they and their grantors, have held and worked their claims for a period equal to the time prescribed by the statute of limita- LAND OFFICE RULES. 22 1 tions for niiniiipr clnims of the Slate or Territory wliero the saiuc mny bo situiite'l, evii)Osition to his po.ssession, or liti- gation wiih regard to his claim, and, if so, when the .'Jamc ceased ; whether such cessation was caused by compromise or by judicial decree, and any additional facts within the claim aiit's knowledge having a direct bearing upon his possession and bona fides which he may desire to submit in support of his claim. fertiflfate of No Snit.—fAS.— There should likewise be filed a certificate, under seal of the court having jurisdiction of raining cases within the judicial district embracing the claim, that no suit or action ol any character whatever involving the right of possession to any portion of the claim applied for is pending, and that there has beenno litigation before said court atlecting 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 decidediu favor of the claimant. DIsintprpstfd Proof— CO.— The claimant should support his narrative of fi.cts relative to his possession, occui>ancy and im- provements by corroborative testimony of any disinterested per- son or persons ol credibility who may be cognizant of the facts in the case and are capable of testifying understandiugly iu the premises. Full Proofs.— 70.— It will be to the advantage of claimants to make their proofs as full and complete as practicable. 222 LAND OFFICE RULES. MILL SITES. Two Classes— 71.— Section 2337 provides that "where non- mineral land not eoiitiguou« to the vein or lode i.s used or occu- pied by the proprietor of such vein or lode for mining or millin| purpose B, such iion-Mdjncent surface ground may be embraced and included in a'l application for a patent for such vein or lode, and the same may be patented therewith, subject to the same preliminarv reiinirements as to survey and nntiee as are applica- ble to veins or hides; but no location hereafter made of such non adiacent land -hall exceed five acres, and payment for the same must be made at the same rate as fixed by this ehapter for the sup rficies of the lode. The owner of a qnariz mill or reduc- tion works, not owning a mine in connection therewith, may also receive a patent for his mill site, as provided ia this section." 72— To avail thomselTesof this proTision of law, parties hold- ing the pos.sessory right to a vein or lode, and to a piece of non- mineral laud not contiguous thereto, for mining or milling pur- poses, not exceeding the quantity allowed for .such purpose by secti >n 23H7 United .States Revised Statutes, or prior laws, under which the land was appropriated, the proprietors of such vein or lode mav file in the proper land office their application for a patent, under oath, in manner already set forth herein, which application, together with the plat and field notes, may include, embrace, and describe, in addition to the vein or lode, such non- contiguous mill sit'", and after due proceedings as to notice, &c., a patent will be issued conveying the same as one claim. Lots " \" and "B "—73 --In making the survey in a case of this kind, the lode claim .should be described in the i)lat and field notes as "Lot No. 37. A." and the mill site as 'Lot No. 37 H," or whatever may be its appropriate numerical designation ; the course a' d distance from a corner of a mill site to a corner of the lode claim to be in ariably given in such plat and fieM notes, and a copy of the plat and notice of anplication for patent must be conspiciiouslv posted apon he 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 certificate need be issued for the mill site, but the whole area of both lode and mill site will be embraced in one entry, the price being five dollars for each acre and fractional part of au acre embraced by such lode and mill site claim. Mill Site Withont Lode.— 74.— In case the owner of a quartz mill or reduction works is not the owner or claimant of a vein or lode, the la^v permits him to make application therefor in the Fame manner prescribed herein for mining claims, and after due notice and p^oceeding^. in the ab-ence of a valid adverse filing, to enter and receive a patent for his mill site at said price per acre. LAND OFFICE RULES. 223 Proof of Non-Mineral Character and of Use by Applicant. — 75. — 111 every ciise there must lie sutisfuctory i)r()()t' that tlie land claimed lis 11 mill .--ite is not iniii'Tiil in cliuriieter, also sliowing how iiml in wliat maimer .Miid mill .-ite is iisetl or oceu|iie(l by Bftlil claimant for miiiiiiK or milliiiK purposes, whieli proof may, where the matter is luiiiiiostioiied, con.sist of the sworn statement of the claimant, supponed hy that of one or more disinterested persons capable from acnuaiiitaiice \yith the laud to testify un- aerstandingly. * , FiTo Acre Limit.— 70.— The law exprcs.sly limits mill site locations made from and after its passage to Jive acres 77.- The Keijisters and Receivers will preserre an nnbroken eonsecatire series of uumbcr.s for all mineral entries. CITIZENSHIP. Proof of filizensbip of Minine Clainnnts.— 78.— The proof neces-sary to establi-h tlie citizenship of applica' ts for mining patents must be made ill the following manner : In case of an incor|)orated company, a certified co|>y of tlieir charter or certif- icate of incorporation must be tiled. In case of an as.sociation of per.sons unincorporated, the affidavit of iheir duly autliorized agent, made upon his own kiio\vled-re, or upon inlbrmalioii and belief, .setting forth the residence of eacii person forming such association, must be submitted. This alhdavit must lie accom- paniert by a power of attorney from Ilie (larties fornii> gsuch as.so ciatioii, authorizing the jjerson who makes the affidavit of citi- zenship to act for them in the matter of theii application for patent. 79. — In case of an indivitlual or an association of individuals who do not api)ear by their duly authorized agent, you will re- quire the affidavit of each applicant, showing whether he is a native or uaturaliiicd citizen, when and where Doru, and his resi- dence. Pil.— Incasean applicant lias declared his intention to become a citizen, or has been naturalized, his allidavit must show the date, i>laee and the court before which he declared his intention or froTii which his certificate of citizenship issued, and present residence. * For form of Affidavit under rule 75 see application fob. PATENT. 224 LAND OFFICE RULES. Who May Tak.i Amdayit.-Sl.— The affidavit of the claim- ant as to citizenshi|)may be taken before the register or receiver, or any other officer authorized to administer oaths *. If citi- zensh"ip is established by the testimony of disinterested persons, sueli, testimony may be taken at any place before any person autliorizcd to administer oaths, and whose official character is duly verified, MINERAL DEPUTIES— FEES AND CHARGES. Newspaper Charges.— 82.— Section 233t provides for the ap- pointment of surveyors of mineral claims, authorizes the Com- missioner of the General Land Office to establish the rates to be cliarged for surveys and for newspaper publications, prescribes the fees allowed to the local officers for receiving and acting up- on applications for mining patents and for adverse claims there- to, &c. Under this authority of law the following rates have been established as the maxunum charges for newspaper publications in mining cases : a Where a daily newspaper is designated the charge shall not exceed seven d()Ilars for each ten lines of space occupied, and where a weekly Tiewspaper is designated as the medium of publication, five dolhirs for tlie same space will be allowed. Bucli 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 abbreviated as to curtail the description essential to a perfect notice, and the said rates established upon the understanding that they are to be in the usual body-type used for advertisements. b For the publication of citations in contests or hearings in- volving the character of lands, the charges shall not exceed eight dollars for five publications in weekly newspapers, or ten dollars for publications in daily newspapers for thirty days. Deputy Surreyors.— 83 — The surveyors general of the sev- eral districts will, in pursuance of said law, appoint in each land district as many cnmiififent deputies for the survey of mining claims as may .seek such appointment ; it being distinctly under- stood that all expenses of these notices and .surveys are to be borne by the mining claimants and not by the United States : the system of making deposits inv mineral surveys, as required by previous instructions, being hereby revoked as regards field %vork: the claimant having the option of employing any deputy surveyor within such district to do his work in the field. * See note ante p. 223. LAND OFFICE RULES. 225 Payment of Surveyor (Jeneral.— 81.— With reRard to the plutliti;/ of the cliiiin ana otlitr dfflcc-uork in the Surveyor Gen cral's oftirc, that officer will make iin e.'itimate of the co^t there- of, which amount the claimant will deposit with any as.sistant United .'States Treasurer, or designated depo.s- itory, in lavor of the United States Treasurer, to be passed to ttic credit of the fund created by " individual depositors for surveys of the public lands." and file with the Surveyor General duplicate certihcates of such deposit in the usual manner. One Deputy to a District.— 8-').— The sur^•eyors general will endeavor to appoint de])uty mineral surveyors so that one or more may be located in each mining di.strict for the greater conven- encc of miners. i Oath. Duties of Deputies.— 8G.—Tlie usual oaths will be required of these deputies and their assistants as to the correct- ness of each survey executed by them. The duty of the deputy mineral surveyor ceases when he has executed the survey and returned the tield-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 sup- port of an application for patent, or otherwise jierform the duties of an attorney before the land-office in connection with a mining claim. The surveyors-general and local land-officers are expected to report any infringement of this regulation to this office. Statement of rharjjes.- 87. — The law requires that each ap- plicant shall file with the register and receiver a sworn statement of all charges and fees paid by him for publication of notice and for survey ; together with all fees and money paid the register and receiver, whicli sworn statement is required to be transmitted to this office, for the information of the Commissioner. Exorbitant Charpes.— 88. — Should it appear that excessive or exorbitant charges have been made by any surveyor or any jiublisher, prompt action will be taken with the view of correct- ing the abuse. 89.— The fees payable to the register and receiver for filing and acting upon applications for mineral land jiatents 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 ad- verse claim. Leg:al Tender.— 90.— All fees or charges under this law may be paid in United States currency. 8 226 LAND OFFICE RULES. Monthly Report to General Land Office.— 91.— The register and receiver will, at the close of each month, forward to this office an abstract of mining applications filed, and a register of receipts, accompanied with an abstract of mineral lands .sold, and an abstract of adverse claims filed. Accounts of Land Officer. — 92.— 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 quar- terly account, chaiging up in the disbursing account the sums to which the register and receiver may be respectively entitled as fees and commissions, with limitations in regard to the legal maximum. HEARIKGS TO ESTABLISH THE CHARACTER OF LANDS. Hearine: Before Nearest Officer.— 93.— In every case where it becomes necessary under the law and existing instructions of this office that a hearing be held and testimony taken for the purpose of ascertaining the mineral or agricultural character of land, the local officers are directed to cause the evidence to be taken before a duly qualified officer whose oflice is located near- est the land in dispute, the distance to be computed by ordinary routes of travel. Whenever the local office comes within this rule, the hear- ing will be held before the register and receiver. It is intended to cause these hearings to be held, as far as practicable, in such manner as to aftbrd the least inconvenience to persons interested. Should it appear, therefore, by written stipulation of all the parties that this purpose will best be sub- served by the designation of any particular officer authorized to administer oaths within the land district in which the land in controversy is situated, the instructions herein may be departed from in accordance with such stipulation. Such deviation may also be allowed where the officer who would, otherwise, be des- ignated is an interested party, or where, for other good reason, his selection would be improper. When the evidence is taken before an ofHcer other than the register and receiver, the record should be sealed up, the title of the case indorsed on the envelope, and the whole returned by mail or express to the register and receiver. On the 27th April, 1880, in accordance with the directions of the Secretary of the Interior this office revoked the withdrawals theretofore made, upon general information, that vast tracts of public laud were mineral in character, and instructed the local officers, in the absence of a specific allegation of the mineral character of land to allow applications for agricultural entry thereof, upon due proof. LAND OFFICE RULES. 227 Hereafter the only tracts of public land that will be with- held from entry as aprriciiUural land on account of its mineral character will be such as are returned by the surveyor general as mineral ; and even the presumption which is supported by such return may be overcome by testimony taken at a regular hearing. 91.— Hearings to dotprminp tlio character of land as practic- ally di8tiii(;uiNhed, are of two kinds: 1st. Where lands which are sought to be entered and pat- ented as agricultural are alleged by affidavit to be mineral, or when sougnt as mineral their non-mineral character is alleged. The proceedings relative to this class are in the nature of a contest between two or more known parties, and the testimony may be taken on personal notice of at least ten days, duly served on all parties, or, if they cannot be found, then by publication, for thirty days in a newspaper of general circulation, to be desig- nated by the register of the land othce as published nearest to the land in controversy. If publication is made in a weekly newspaper, the notice must be inserted in five consecutive weekly issues thereof. 2d. \\'hen .lands are returned as mineral by the Surveyor General. When such lands arc sought to be entered as agricultural, notice must be given by publication for thirty days, as afore- said. Notice — How OiTen and How Proved.— 95.— All notices must describe the land, give the name and address of the claimant, the character of his claim, and the time, place, and purpose of the hearing. Proof of service of notice, when personal, must consist of cither acknowledgment of service indorsed on the citation, (which is always desirable.) or the affidavit of the party serving the same, giving date, place, and manner of service, indorsed as aforesaid. Proof of publication must be the affidavit of the publisher of the newspaper, stating the period of publication, giving dates, stating whether in a daily or weekly issue, and a copy of the no- tice so pubUshed must be attached to, and form a part of the affidavit. Proof of posting on the claim must be made by the affidavits of two or more persons who state when and where the notice was posted; that it remained so posted during the prescribed period, giving dates, and a copy of the notice so posted must be attached to, and made a part of, the affidavits. 228 LAND OFFICE RULES. Proof of notice is indispensable to the regularity of proceed- ings, and must accompany the record in every case. The expense of notice must in every case be paid by the parties thereto. 9f>.— At the hearin&r there must be filed the affidavit of the publisher of the paper that the said notice was published for the required time, stating when and for how long such publication was made, a printed copy thereof to be attached and made a part of the affidavit. Examination of Witnesses.— 97.— At the hearing the claim- ants and witnesses will be thoroughly examined with regard to the character of the land : whether the same has been thorough- ly 7jrospected ; whether or not there exists within the tractor tracts claimed any lode or vein of quartz or other rock in place, bearing gold, silver, cinnabar, lead, tin or copper, or other valu- able deposit which has ever been claimed, located, recorded, or worked ; whether such work is entirely, abandoned, or whether occasionally resuiaed; if such lode does exist, by whom claimed under what designation, and in which subdivision of the land it lies ; whether any placer mine or mines exist upon the land ; if so, what is the character thereof— whether of the shallow surface description, or of the deep cement, blue lead, or gravel deposits ; to what extent mining is carried on when water can be obtained, and what the facilities are for obtaining water for mining pur- poses ; upon what particular ten-acre tubdivisions mining has been done, and at what time the land was abandoned for mining purposes, if abandoned at all. 98.— The testimony should also show the agricultural capac- ities of the land, what kind of crops are raised thereon, and the value thereof ; the number of acres actually cultivated for crops of cereals or vegetables, and within which particular ten-acre sub-division such crops are rai.sed; also which of these sub-divis- ions embrace his improvements, giving in detail the extent and value of his improvements, such as house, barn, vineyard, orch- ard, fencing, etc. Contest Between Sfttlers and Miners —99.— It is thought that bona fide .settlers upon lands really agricultural will be able to show, by a clear, logical, and succinct chain of evidence, that their claims are founded upon law and justice ; while parties who have made little or no permanent agricultural improve- ments, and who only seek title for speculative purposes, on account of the mineral deposits known to themselves to be contained in the land, will be defeated in their intentions. 100. — The testimony should be as full and complete as possi- ble; and, in addition to the leading points indicated above, everything of importance bearing upon the question of the character of the land should be elicited at the hearing. LAND OFFICE RULES. 229 101. — Wherp the testimony Is taken before an oflUcer who does uot nse a seal, other than the register ami receiver, the official character of such ofllcer must be attested by a clerk of a court of record, and the testimony transmitted to ilic rcRister and re- ceiver, who will thereupon examine and forward the same to this offlce, with their joint opinion as to the character of the land as shown by the testimony. Division Contested. Ground Survey.— 102.— When the case comes before this office, such an award of the land will be made as the law and the facts may justify; and in cases where a survey is necessary to set apart the mineral from the agricultural land in any forty-acre tract, the neee.ssary instructions will be issued to enable the agricultural claimant, at Ma own expense, to have the work done, at his option, either by United States deputy, county, or other local surveyor ; the survey in such cjvse may be executed in such manner as will segregate the portion of land actually containing thv mine, and used as surface ground for the convenient working thereof, from the remainder of the tract, which remainder will be patented to the agriculturist to whom the same may have been awarded, subject, however, to the con- dition that the land may be entered upon by the proprietor of any vein orlode for which a patent has been issued by the United States for the purpose of extracting and removing the ore from the same, where found to penetrate or intersect the land so pat- ented as agricultural, as stiitulated by the mining act. Proof of Snrvey. .\nidiiTlts, Before Whom Taken.— 103.— Such survey when executed must be properly sworn to by the Burvcyor, either before a notary public, ofllcer of a court of rec- ord, or before the register or receiver, the deponent's character and credibility to be properly certified to by the officer adminis- tering the oath. Plattlne Same.— 104.— Upon the tiling of the plat and field notes of such survej , duly sworn to as aforesaid, you will trans- mit the same to the surveyor general for his verification and approval ; who, if he finds the work correctly performed, will properly mark out the same upon the original township plat in his office, and furni.sh authenticated copies of such plat and description both to the proper local land offlce and to this office, to be affixed to the duplicate and triplicate township plats re- spectively. Segrejfation of Agricniturnl Claim.— 105.— In cases where a portion of a forty-acre tract is awarded to an agricultural claim- ant and he causes the segregation thereof from the mineral por- tion, as aforesaid, sucli agricultural portion will not be given a numerical designation as in the case of surveyed mineral claims. but will sinii>ly be described as the " Fractional quarter of the quarter of section , in township , of range , meridan, containing acres, the same being e.xclusivc of the land adjudged to be mineral in said forty-acre tract." 230 LAND OFFICE RULES. 106.— The surveyor must correctly compute the area of such agriculiural portion, which coinputatioQ will be verified by the surveyor general. Order for Entry.— 107. — After the authenticated plat and field notes of the survey have been received from the surveyor general, this otlicc will issue the necessary order for the entry of the land, and in issuing the receiver's receipt and register's pat- ent ceriificatc you will invariably be governed by the description of the land given in the order from this office. Costs.- 108.— The fees for taking testimony and reducing the same to writing in these cases will have to be defrayed by the parties in interest. Where such testimony is taken before any other officer than the register and receiver, the register and receiver will be entitled to no fees. Land Partly Mineral.- 109.— If, upon a review of the testi- mony at this office, a ten-acre tract should be found to be prop- erly mineral in character, that fact will be no bar to the execu- tion of the settler's legal right to the remaining rian-mineTal portion of his claim, if contiguous. Protection Against Mineral Entry of Non-Mineral Land. — 110.— No fear need be entertained that miners will be permitted to make entries of tracts ostensibly as mining claims, which are not mineral, simply for the purpose of obtaining possession and defrauding settlers out of their valuable agricultural improve- ments; it being almost an impossibility for such a fraud to be consummated under the laws and regulations applicable to obtaining patents for mining claims. Proceedings if Land Awarded to be Mineral. — 111.— 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. A miner is compelled by law to give sixty days publication of notice, and posting of diagrams and notices, as a preliminary step; and then, before he can enter the land, he must show that the land yields mineral; that lie is entitled to the possessory right thereto in virtue of compliance with local customs or rules of miners, or by virtue of the statute of limita- tions; that lie or his grantors have expended, in actual labor and improvements, an amount of not less than five hundred dollars thereon, and that the claim is one in regard to which there is no controversy or opposing claim. After all the.se proofs are met, he la entitled to have a survey made at his own cost where a survey is required, after which he can enter and pay for the land embraced by his claim. 112. — Blank forms for proofs in mineral cases are not fur- nished by the General Land Office. Approved, N. C. McFARLAND, Commissioner, S. J. KIRKWOOD, Secretary. The rules published in 1881 have been amended from time to time but never since formally revised. SURTEYOR GENERAL'S RULES. The following constitute the circular of the office now (March 1888) in force_ originally published in 1886. Their directions as far as applicable should be followed when sur- veys are made by professional surveyors in other cases as well as upon oflicial surveys. If the location survey has been carefully and correctly made the official survey, though it must still be made in the field, requires little additional labor. INSTRUCTIONS TO U. S. DEPUTY MINERAL SURVEYORS, FOR THE DISTRICT OF COLORADO— GENERAL RULES. 1 —All oflicial coiuinunicfttions must be addressed to the SnrTeyor (Jeneral. You will always refer to the date and sub- ject matter of the letter to which you reply, and wlieu a mineral claim in the subject of correspondence, you will give the name, ownership and survey number. SurTcyor's Record.— 2. — You should keep a complete record of each survey made by you, and tlie facts coming to your knowl- edge at the time, as well as copies of all your field notes, reports and oflicial correspondence, in order that such evidence may be readily produced when called for at any future time. Alterations and Erasures.— 3.— Field notes and other reports must be written in a clear and legible hand, and upon the proper blanks furnished by this otflce. No cut sheets, interliixeations or erasures will be allowed ; and no abbreviations or symbols must be used, except such as are indicated in the specimen field notes. Order Necessary. — 4,— No return by you will be recognized as official unless made in pursuance of a special order from this oflace. Claimant only. Liable for Cliar(?es.-5.— The claimant is required in all cases, to make satisfactory arrangements with you for the payment for your services and those of your assistants in making the survey, "as the United States will not beheld respons- ible for the payment of the same. You will call the attention of applicants for mineral survey orders to the requirements of the circular of this date in the ap#cndix. 232 SURVEYOR GENERAL'S RULES. Removal.— 6.— You will promptly notify this office of any change in your postoffice address. Upon permanent removal from the State, you are expected to resign your appointment. NOT TO ACT AS ATTORNEY. 7. — You are preclude* from acting, either directly or indi- rectly, as iittoriicy in mineral claims. Your duty in any particu- lar case ceases wlien yon have executed the survey and returned the field notes and preliminary plat, with your report to the Surveyor General. You 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 before the land office in connection with a mining claim. You are not permitted to combine tlie duties of surveyor and notary public in the .«ame case by administering oaths to the parties in interest. In short, you mu.st have absolutely nothing to do with the case except in your official capacity as surveyor. You will make no survey of a mineral claim in which you hold an interest. THE FIELD WORK. Snryey Must be Actual.— 8.— The survey made and reported must, in every case, be an actual survey on the ground in full detail, made by yon in person after the receipt of the order, and without reference to any knowledge you may have previously acquired by reason of having made the location survey or other- wise, and must show the actual facts existing at the time. If the season of the year, or any otlier cause, renders such personal examination impossible, you will postpone the survey, and under no circumstances rely upon the statements or surveys of other parties, or upon a foriner examination by yourself. The term survey in these instructions applies not only to the usual field work, but also to the examinations required for the preparation of your affidavits of five hundred dollars expendi. ture, descriptive reports on placer claims and all other reports _ SURVEY AND LOCATION. Survey Must Conform to Location.— 9.— The survey must be made in strict coiiforniity with, or be embraced within, the lines of the record of location upon which the order is based. If the survey and location arc identical, that fact must be clearly and distinctly stated in your field notes If not identical, a bearing and distance must be given from each established corner of the .survey to the corresponding corner of the location. The lines of the location, as found upon the ground, must be laid down upon the preliminary plat in such manner as to contrast and show iheir relation to the lines of the survey. Old IJocords.— 10.— If the record of location has been made prior to the passage of the mining act of May 10, 1872, and is not sufficiently definite and certain to enable you to make a correct survey therefrom, you arc rcquirc^il, after reasonable notice in PURVEYOR, GENERAL'S RULES. 233 writing, to bo served personally or through the Unitorl States mail oil the applicant for survey and adjoining ulainiants, whose residence or postof'fice address you may know, or can a«''.erlaiii by the exercise of reasonable diligence, to take testimony of neighljoriiig claimants and otlier oersons who are familiar with the boundaries tliereof as originally located and asserted by the locators of the claim, and after having ascertained l)y such testi- mony the boundaries as originally established, you will make a survey in accordance therewith, and transmit full and correct returns of the survey, accompanied by the copy of the record of location, the testimony, and a copy of the notice served on the claimant and adjoining proprietors, certifying tliereon when, in what manner, and on whom service was made. Disputed llouiidaries.— II.— If the location has been made subsequent to the jiassage of the mining act of May 10, 1872, and the law has been coiuulied witli in the manner of marking the location on the ground and recording the same, and any question should arise in the execution of the survey as to the identity of monuments, marks or boundaries whicli caiuiot be determined by a reference to the record, yon are required to take testimony in the manner hereinbefoi-c prescribed for surv^eys of claims located i>rior to May 10, l.s7'2, and having thus ascertained the true and correct boiuidaries originally esiablished, marked and recorded, you will make the survey accordingly. Corners Not to Be Chanupd.— 12.— In accordance with the principle that courses and distances inust give way when in conflict with (i.xed objects and monuments, vou 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 ditlerence from the location hv slight, it may be explained in the field notes, but if there should be a wide dis- crepancy, you will report the facts to this office and await further iusiructlons. INSTRUMENT. 13 —All mineral .sur^'oys must be made with a sor.An tran- sit, or other instnunent operating independently of tlie magnetic needle, and all courses must be" referred to the true meridian It is deemed best that a solar transit should be used under all circumstances. The variation sliould be noted at each corner of the survey. CONNKOTIONS. I'l.— Coiineet corner No 1 of your survey by course and dis- tance with some corner of tlie public survey or a United States locatilaeer or lode, for mining purposes * (d) The proximity of centers of trade or residence. (c) The proximity of well-known systems of lode deposits or of individual lodes. (/) The use or adaptability of the claim for placer mining, and whether water has been brought upon it in sufBeient quan- tity 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 tnie situation of all mines, salt licks, salt springs, and mill seats, which come to your knowledge; or report that none exist on the claim, as the facts may warrant. ( i ) Said report must be made under oath , and duly corrob- orated by one or more disinterested persons. Special Order For — 44.— Descriptive reports upon placer claims taken by legal sub-divisions are authorized only by special order, and must contain a description of the claim in addition to the foregoing requirements. SURVEYOR GENERAL'S RULES. 239 PRELIMINARY PLAT. 45.— You will file with your fieUl notes a preliminary plat on drawing paper or tracing "muslin, protractca on a scale of two hundred feet to an inch, on which you will note accurately all the topographical features and details of the survey in con- formity with the specimen plat herewith. Pencil sketches will not be accepted. REPORT. 46.— You will also submit with your return of sun'cy a report upon the following matters incident to the survey, but not re- quired to be embraced in the field notes. Efttablishing the Meridian. — 17.— If the meridian from which your courses were deflected was established by other means than by the solar apparatus attached to your transit, you will .state in detail your observations and calculations for the establishment ot Buch meridiim. Trlaiigulatidus.- 48.— If any of the lines of the survey were determined by triangulation or traverse, you will give in full detail the fulculations whereby you arrived at the results re- ported in your field notes. You will also submit your calculations of areas of placer and mill-site claims or other irregular tracts. Errors in Prior Surveys.— 40.— You will mention in your report the discovery of any material errors in prior official sur- veys, giving the extent of the same. ERRORS. 50.— Whenever a survey has been reported in error, the dep- uty surveyor who made it "will be required to promptly make a thorough examination, ui)on the i)remises, and report the re- .sult under oath to this office. In case he finds his survey in error, he will report in detail all discrepancies with the original survey, and submit any explanation he may have to offer as to the cause. If, on the contrary, he should report his survey cor- rect, a joint survey will be ordered to settle the diflerences with the surveyor who reported the error. JOINT SURVEY. 51. — A joint survey must be made within ten days after the date of order, unless satisfactory reasons are submitted, under oath, for a postponement. 52. — The field work must in every sense of the term be a joint and not a separate survey, and the observations and meas- urements taken with the same instrument and chain, previously tested and agreed upon. 240 SURVEYOR GENERAL'S RULES 53.— The deputy 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, atler being duly signed and sworn to by both parties, must be transmitted to this office. 51.— The sur?eyor found in error will be required to pay all expenses of the joint survey and preliminary examinations incident thereto, including ten dollars per day to the surveyor whose work is proved to be substantially correct. ,"55. — Your field work must be accurately and properly per- formed, and your returns made in conformity with the fore- going instructions. Errors in the survey must be corrected at your own expense, and if the time required in the examina- tion of your returns is increased by reason of your neglect or carelessness you will be required to make an additional deposit for office work. You will be held to a strict accountability for the faithful discharge of your duties, and will be required to observe fully the requirements and regulations in force as to making mineral surveys. If found incompetent as a Surveyor, careless in the discharge of your duties, or guilty of a violation of said regulations, your appointment will be promptly revoked. 56.— All former instructions inconsistent with the foregoing are hereby recalled. In connection with these rules are given certain forms for the Surveyor's return, all of which are printed under "Application for Patent." (p. 244.) SURVEYOR GENERAL'S CIRCULAR. The office has, for the information of parties desiring to patent their claims, issued the following circular, under date of May 1, 1886: To Applicants for Mineral Survey Orders in tJie District of Colorado: Your attention is directed to the following requirements in the conductof your business with this office, the .same being based upon the United .'States mining laws and circular and special instructions from the Hon. the Commissioner of the General Land Office. 1. All applications for survey orders, descriptive reports 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. SURVEYOR GENERAL'S CIRCULAR. 241 2. Each application should contain (a) The name of the claimant in full, and as it is desired to appear in the applicaiion for patent. (6) The name of the claim. (c) The names of the land and mining district in which the claim is located. 3. Yon 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 having charpe of the records of the mining locations in the county where the claim is situate. 4. The deputy mineral survewr is re(iuired to survey the claim in strict conformity with the location upon which the order of survey is based. You are, therefore, advised before filing your api)lication to see that your location has been made in compliance witli law and regulations, and that it properly describes the claim for which patent is sought. See General Land Office circular, dated November 20, ISTi.—^ifickel, 562.) 5. Par. 84, General Land Offlce Circular, dated October 31, 188L 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 anv 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 surveys of the public lands,' and tih: with tin- Surveyor Genera! duplicate certificates of .such deposit in the usual manner." G. The following is the estimated cost of platting and other oflBce work in connection with the survey of mineral claims : Lode claim S30.00 Placer claim 30.00 Mill-site claim 30.00 Mill-site included in one survey with lode claim 15.00 Each lode claim included in the survey of a placer claim 15.00 Several lode or placer locations included in one survey, each location 30,00 Descriptive report on placer claim taken by legal sub-divisions 5.00 7. Should the office work, in any case, amount to more than the above estimate, an additional "deposit will be required. 242 SURVEYOR GENERALS CIRCULAR. 8. In districts where there is no United States depository, you should deposit with the nearest assistant United States treasurer, or depository, and in all cases immediately forward the original certificate lo the Secretary of the Treasury and the duplicate to this office, retaining the triplicate for your own use and security. Under no circumstanees will the deposit be made by the Surveyor General. 9. An application for an amended survey order mast be accompanied with a statement setting forth fully the reasons for the proposed amendment and all the material facts in the matter. 10. An application fo^the survey of a claim already sur- veyed must be accompanied with a certificate (rom the register of the land otflce that application for patent ba.sed upon such prior survey is not pending;. 11. — Upon discovery of any error or defect in an order, you are requested to return it to this office for correction or amend- ment. 12.— Rescinded. 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 priority of action in all its stages in the office of the Surveyor General, in- cluding the deliver^ thereof, over any other survey of the same ground or any portion thereof." "When the survey first authorized is not returned within a reasonable period, and tue applicant for a conflicting survey makes affidavit that he believes (stating the reasons for hLs be- lief), that such first applicant has abandoned his purpose of hav- ing a survey made, or is deferring it for vexatious purposes, to-wit, to postpone the subse(iuent applicant, the Surveyor Gen- eral shall give notice of such charges to such first applicant, and call upin him for an explanation under oath of the delay. He shall also require the deputy mineral surveyor to make a full statement in writing, explanatory of the delay ; and if the Sur- veyor General shall conclude that good and sufficient reasons for such delay do not exist, he shall authorize the applicant for the conflicting survey to proceed with the same ; otherwi.se, the order of proceeding shall not be changed." "Whenever an applicant for a survey shall have reason to suppose that a conflicting claimant will also apply for a survey for j)atent, he may give a notice in writing to the Surveyor Gen- eral, particularly describing such conflicting claim, and file a SURVEYOR GENERAL'S CIRCULAR. 243 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. Your attention is directed to the first three paragraphs of General Land Office circular dated December 4, 1884, viz.: "1. The rights granted to locators under section 2322, Re- vised Statutes, are restricted to such locations on veins, lodes or ledges as mav be 'situated on the public domain: In applica- tions for lode" claims where the survey conflicts with a prior valid lode claim or entry, and the ground in conflict is excluded, the applicant not onlv has no right to the excluded ground, but he has no right to that portion of any vein or lode the top or apex of which lies within such excluded ground, unless his location was prior to Mav 10, 1872. Ills right to the lode claimed termin- ates where the lode, in its ownward course or strike, intersects the exterior boundary of such excluded ground and passes within it." "2. The end-line of his survey should not, therefore, be established beyond such intersection, unless it should be neces- sary so to do for the purpose of including ground held and claimed under a location which was made upon public land and valid at the time it was made. To include such ground (which may possibly embrace other lodes) the end-line of the survey may be established wuthln the conflicting survey, but the line must be so run as not to extend any further into the conflicting survey than may be necessary to make such end-line parallel to the other end line, and at the same time embrace the ground so held and claimed. The useless practice in such cases of extend- ing both the side lines of a survey into the conflicting survey and establishing an end-line wholly within it, beyond a point neces- sary under the rule just stated, will be discontinued." "3. These instructions will be obser\-ed by Surveyors Gen- eral in all cases where surveys have not been approved by them prior to receipt thereof." 15. You have the option of employing any U. S. deputy mineral surveyor in the district to execute the order of survey, and must mafco satisfactory arrangements wiih such surveyor for the payment for his services and those of his assistants in making the survey, as the United States will not be held respon- sible for the payment of the same. The duty of the deputy surveyor in anv particular case ceases when he has executed the survey and returned the same to this office. He is not allowed to prepare 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. 16. You are advised of your right of appeal to the Hon. Commissioner of the General Land Office from the approval or 244 SURVEYOR GENERAL'S CIRCULAR. disapproval of the survey of your claim- The appeal must be in writing or in print, and should set forth in brief and clear terms the Bpecitic points of exception to the ruling appealed from. 1* APPLICATION FOR PATENT. The following pages are intended to contain the forms • of application and proceedings to obtain Patent in the order of time in v\rhich the several papers should be made and filed. The Official Survey. — A citizen of the United States, or one who has declared his intention to become such, or a corporation 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 OEDEE FOE SURVEY. 2 ■■ Denver, February 1, 1888. To the U. S. Surveyor General, District of Colorado, Denver. Sir:— You are requested to issue an order for an official survey of the mining claim of Jesse White, upon the Bear Lode, located in Alpine Mining District, Lake County, Lead- ville Land District, Colorado. I herewith transmit certified copy of the location certificate of said claim, and have deposited for office fees 3* on same $30.00 l*._For many valuable suggestions upon points covered by this book, especially in this chapter, I am under obligations to A. E. Chase, Esq., Deputy U. S. Mineral Surveyor, Georgetown; Richard Harvey, Esq., Ilegistcr U. S. Land Office, Central; and Hon. Oney Carstarphen, Surveyor General. 2*.— The forms f jr placer and mill-site applications are sub- stantially the same, 3*._For costs in Surveyor General's office. See Su/es6and 7 page 241. APPLICATION FOR PATENT. 245 to the credit of the Treasurer of the United States, at the Denver National Bank ( U. S. Depository) with request that duplicate certificate be forwarded to you. Send order to WUliam lij/rd Page, U. 8. Dep. Min. Sur., at Leadville, Colonulo. Yours, respectfully, JESSE WHITE, Claimant. By GEORGE JI. KOHN, Attorney. Post Office address (of Claimant) Silver Cliff, Colorado. Post Office address (of .\ttoruey) 17 Claylon Block, Denver. The payment mentioned in the application is not by draft to the Surveyor General but by deposit in a bauk recognized as a United States Depository. Upon payment to such bauk the claimant receives triplicate certificates of deposit, of which he mails the Original to the Secretary of the Treasury at Washington; the Duplicate he mails with the letter (A) to the Surveyor-General ; (or the bank for- wards it) and the Triplicate he retains. This certificate is a mere receipt for money and has no further value, except where the application is withdrawn, in which case, provided no office work has been done, the money will be allowed to apply on another slirvey. In reply to the Application (A) the Surveyor mails to the attorney for the applicant the (B.) ORDER FOR SURVEY OF MINERAL CLAIM. DEPARTMENT OF THE INTERIOR, I Office ok U. S. Surveyok-Geneual. s Denver, Colo., February 2, 1888. To any U.S Deputy Mineral Surveyor in the District of Colorado. Sir:— You are hereby directed to sur\'ey the claim of Jesse White, upon the li'dr Lode, in Alpine Mining District, Lake Countv, Colorado. This survey will be designated "gurv-ey No 5,555, Leadville Land District," and most be made in strict con- formity with the location certificate (or amended location cerlifl- cate) dated June 28, 1885. ONEY CARSTARPHEN. U. S. Surveyor-General for Colorado. 246 APPLICATION FOR PATENT. The numbers of the survey lots were formerly consec- utive to each mineral district, but since the abolition of mineral districts they are eonsecutive throughout the State, beginning with No. 4,501, with which number the new series was commenced November 30, 1886. This order of survey " B " being received, is delivered to such Deputy U. S. Surveyor as the applicant may prefer which deputy must proceed in person to the premises, make an actual survey, and mark each post with the No. of the survey and the No. 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 enclosed in "A" must be certified by the recorder. The Deputy, in making his official survey, must follow the original lines as called for in such copy. The Surveyor-General will not allow a serious depart- ure from the lines called for in the Location Certificate, with- out insisting upon the filing of an amended or re-location certificate in the office of the recorder of the proper county, and the deposit of a certified copy of such amended record in the Surveyor-General's office, and when such certified copy has been filed an amended order of survey issues and if it takes in any new ground the number of the survey lot is post- poned to all the mimbers which have intervened. An additional fee of $2.50 is charged for the amended order; besides the cost of additional labor, if any, imposed on the Surveyor- General's office. Or if the certificate be indefinite, or if the end lines are not parallel, or if not properly tied, or if the certificate APPLICATION FOR PATENT. 247 be without date or otherwise irregular, it will be returned for amendment. Care in the first instance will obviate delays on such grounds. For form of amended location certificate see pages 71 and 73. 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 practicallj' it is made wherever it may be sup- posed to cover the vein, or wherever vacant ground can be found to include in the survey. In almost all cases of early locations ( and in many recent ones ) it is advisable to make a formal re-location before asking for order of survey. This may save time in the surveyor's office and prevent fatal results in resisting adverse claims. For instructions as to manner of making survey on the ground, see " Surveyor-General' s Rules; " also page 43. • The survey being complete the deputy makes and for- wards to the Surveyor-General a diagram of the lode giving its corners, courses, distances, ties, adjoiners and improve- ments 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, bat under present practice the 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. 248 APPLICATION FOR PATENT. Survey No. 5,555 LeadvUle Land District. DIAGRAM. Surveyed February 8-0. 188S, by William Byrd Page, U. S. Deputy Mineral Surveyor. Along with this diagram, or preliminary plat "C," the deputy forwards to the Surveyor-General his ( D.) FIELD NOTES, the following form heing arranged to illustrate the more ordinary complications : Survey No. 5,555. LeadvUle Land District. FIELD NOTES Of the survey of the claim of Jesse White, upon the Bear Lode, in Alpine Mining District, Lake County, Colorado. Surveyed by William Byrd Page, U. S. Deputy Mineral Surveyor. Survey begun February 8, 1888, and completed February 9, 1888. Address of Claimant : JESSE WHITE, Silver VUff, Oolorado. Feet. SURVEY NO. 5,555. — BEAR LODE. Beginning at Cor. No. 1. Identical witn 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 ssss whence The W. 14 cor. Sec. 2'2, T. 11 S. R. 81 W. of the 6th Prill t i\ jilMeridian, bears S. 79° 34' W. 1378.2 ft. APPLICATION FOR PATENT. 249 C!or. No. 1, Gottenburg lode (unsurveycd), Neals Mattsoii, claimant, bears S. 40° 29' W. 187.G7 ft. A pine 12 ins. dia., blazed and marked B. T. ^aar, bears S. 7° 25' E. 22 ft. Mount Ouray bears N. 11° E. Hiawatha Peak bears N. 47° 45' W. Thence S. 2-1° 4.5' W. Va. 15° 12' E. I'il2. To trail, course N. W. and S. E. 1365.28 To Cor. 2. A granite stone 25x9x6 ins., set 18 ins. in the ground chiseled 55*55 whence Cor. No. 2 of the location bears S. 24° 45' W. 134.72ft. Cor. No. 1, Sur. No. 2560, Carnarvon Lode, David Davis et al., claimants, bears S. 3° 28' E. 11G.6 ft. North end of bridge over Columbine creek bears S. 65° 15' E. 650 ft. Thence N. 65° 15' W. Va. 15° 20' E. 152. Intersect line 4-1, Sur. No. 2560, at N. 38° 52' W. 231.2 ft. from Cor. No. 1. 300. To Cor. No. 3. A cross at corner point, and 55V5 chiseled on a granite rock in place, 20xlLs6 ft. above the general level, whence Cor. No. 3 of the location bears S. 24° 45' W. 134.72 ft. A .spruce 16 in.s. dia., blazed and marked B. T. gs'sB bears S. 58° W. 18 ft. Thence N. 24° 45' E. Va. 15° 20' E. 73.4 Intersect line 4-1 Sur. No. 2,560 at N. 38° 52' W. 396.4 ft. from Cor. No. 1. 237. To trail, course N. W. and S. E. 10C0.9 Intersect line 2-3, Gottenburg lode, at N. 25° 56' W. 76.26 ft. from Cor. No. 2. 1365.28 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 66*55 whence 250 APPLICATION FOR PATENT. A cross chiseled on rock in place, marked B. R. bbVw bears N. 28° W E. 68.9 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. *1. AREA. Total area of JSearlode 9,403 acres Less area in conflict with Sur. No. 2,560 124 acre Gottenburg lode 1.363 " 1.487 acres Net area Bear lode 7.916 acres LOCATION. This claim is located in the W, % Sec. 22, T. 11 S. R. 81 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 The discovery shaft of the Bear lode, 6x3 ft., 10 ft. deep in earth and rock, which bears from Cor. No. 2 N. 6° 42' W. 287.5 ft. Value $80. An incline 7x5 ft., 45 ft. deep in coarse gravel and rock, timbered, cour.se N. .58° 15' W., dip 62°, the mouth of which bears from Cor. No. 2 N. 15° 37' E. 908 ft. Value »550. A log shaft -house 14 ft. square, over the discovery shaft. Value «100. Two-thirds interest in an adit 6.5x5 ft., runnings due west 835 ft., timbered, the mouth of which bears from Cor. No. 2 N. 61° 15' E. 920 ft. *1. Adjoining claimants are mentioned as they are reached in the notes, as they ambit the claim. APPLICATION FOR PATENT. 25 r This ariit is in course of construction for the development of the Bear lode and also for the Carnarvon lode, Survey No. 2,560, David Davis et al., claimants, the reniaiiiinK one-third interest therein having already been included in the estimate of five hundred dollars expenditure upon the latter claim. Total value of adit, 813,000. A drift 6.5 x 1 ft. on the Bear lode, beginning at a point in adit .STO ft. from the mouth, and running N. 20° 20' E. 195 ft., thence N. 51° 15' E. 40 ft. to breast. Value S2,800. I ftirther certify that no portion of the improvements claimed have been included in the estimate of five hundred dollars expenditure upon any other claim. OTHER IMPROVEMENTS. A log cabin 35x23 ft., the S. W. corner of which bears from Cor. No. 3 N . 30° 44' E. 496 ft. Said cabin belongs to Jesse White, the claimant. An adit 6x4 ft., running N. 70° 50' W. 100ft., the mouth of which boars from Cor. No. 1 S. 58° 12' W. 323 ft., belonging to Neals Mattson, claimant of the Gottenburg lode. INSTRUMENT. The survey was made with a Young & Sons mountain tran- sit No. ;'322, with Smith's solar attachment. The courses were deflected from the true meridian as determined by solar ob- servations. The distances were measured with a 50 ft. steel tape. MEMORANDA AS TO CHAINMEN, AC. PART OF "D." List of the names of individuals employed to assist in run- ning, measuring and marking the lines and corners described in the foregoing field notes of the survey of the claim of Jesse While upon the Bear lode, in Alpine Mining District, io/te County, Colorado. Jp. J. Bancroft, ) ruunp™.- W. A. Jayne. ] witnesses. AFFIDAVIT OF CHAINMEN OR OTHER HELPERS. PART OF "D." We hereby certify that we assisted Wm. Byrd Page, U. S. Deputy Mineral Surveyor, in surveying the exterior boundaries ana marking the corners of the claim of Jesse White upon the Bear lode, in Alpme Mining District, Lake County, Colorado, and that said survey has been in all respects, to the best of our 252 APPLICATION FOR PATENT. kQowledge and belief, well and faithfully surveyed and the boundary monuments planted according to the instructions furnished by the Surveyor General. F- J. Bancroft, W. A. Jayne. Subscribed and sworn to by the above named persons be- fore me, this 10th day of February, 1888. Appleton J. Ide, [Seal.] Notary Public. AFFIDAVIT OF DF.PUTY. PART OF "D." I, William Byrd Page, U. S. Deputy Mineral Surveyor, do solemnly swear that in pursuance of an order from Oney Car- starphen. Surveyor General of the public lands in the State of Colorado, bearing date the 2d day of February, 1888, and in strict conformity with the laws of the United States, and instructions furnished by said Surveyor General, I have faithfully surveyed the claim of J^esse Ty/(i0 and the claim of Neals Mattson on the Gottenburg lode) in con- sideration of which facts, and in conformity with the pro- visions of Ctianter Six of Title Thirty-two of the Revised Statutes of the United States, ap|ilication "is hereby made for and in behalf of said Jesse White for a 7)atent from the United States for the said Bear Lode Mining Claim, vein, lode or deposit and tho surface ground so offlcially surveyed and platted. Jesse White. Subscribed and sworn to before me this fifth day of March, A. D. 1888, and I hereby certify that I consider the above depo- nent a credible and reliable person, and the foregoing afiidavit, to which was attached the field notes of survey of the Bear Lode . Mining Claim, was read and examined by him before his signa- ture was athxed thereto and the oath made by him. [SEAL.] Daniel Sayer, Notary Piiblic. 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 has been held void ah initio. 9 L. 0. 114. This applicatioo M is attached to the transcript H. This transcript H is 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. — Proof of non-abandonment. Q. — The publisher's agreement. E. — The publication notice— which with those already referred to, completes the first set of papers, to- wit : (X.) ABSTRACT OF TITLE. STATE OF COLORADO, i County of Z^Ae. I I, Edward Dale, Clerk and ex officio Recorderof said County, do hereby certify that the foregoing is a true, full and correct abstract of the title to the Bear Lode therein described, as the same appears of record in said office. 260 APPLICATION FOR PATENT. and shows all location certificates, deeds or other instruments appearing of record purporting to convey or afTect the same. Witness my hand and the seal of said County, this lith day ofMarcfiA D. 1888. [COUNTY SEAL.] EDWARD DALE, Recorder. It should contain a memorandum of the location certif- icate, including any amended location certificates, and the usual memoranda of the deeds and other instruments ap- pearing cf record in his ofiicc, and should be brought up to and include the date of the application. The abstract often contains a copy of the location cer- tificate, and in such case the recorder's certificate should be A'aried to state that it contains a true copy thereof; but the better practice is to mail with the application papers a certi- fied copy of the location certificate (or certificates if there be more than one), separately, and after the filing of the "appli- cation papers" but during the period of publication to send the abstract proper, which in such case will contain only the memorandum of the location certificate with names, •dates, etc., in the same manner as the memoranda of the iseparate 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, and during the period of publication as before advised, should forward an abstract containing a memoranduni of such location certificate certified as follows : STATE OF COLORADO, I County of Lake. j ' ' , , ^ . I, Edward Dale, Clerk and ex-omcio Recorder f)f said County do hereby certify that the foregoing is a full true and correct abstract of the title to the Bear Lode there- in 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 afi'ect the .same except the certificate of location therein referred to. Witness my hand, etc., as above. APPLICATION FOR PATENT. 26 1 The abstract sliould show title in the applicant. Rule 32, p. 214. If it show title in several co-owners all such co-owners should Join as applicants. If it show that there were co-owuers who had been forfeited out for non- performance of annual labor, this is considered equivalent to an abstract showing transfer by deed from them to the applicant. A break in the chain of title behind a re-loca- tion nsade in the usual form to take up abandoned claims may be disregarded.— Gold Dirt Lode. 10 L. O. 119. Where names of co-tenants are inadvertently omitted in the application they have been allowed to be supplied and the patent issued to all.— In re J. Q. S. Lode 10 L. 0. 206 ; but this is irregular. When a co-owner for any cause is not joined he may adverse.— 10 L. O. 20G. (0.) PROOF OF CITIZENSHIP. STATE OF COLOU.VDO, I County of Lake. I ' Je.<>se ^'71(76 being first duly sworn ac- cording to law, deposes and says that he is the applicant for patent for the Bear L(xlc I^Iining Clahii. situate in Alpine Mining District, County of Dike, State of Colorado* ; that he is a native l)orn citizen of the United States, born in the County of State of Sew York, in tlic year and is now a resident of miver Cliff, State of Colorado. Jesse While. Subscribed and sworn to before me this Vllh day of March, 1S88. „ . „^ fSeal 1 Frank Shnw, Notary Public. When the ajiplicant is not a native citizen, the form after the* will proceed : That he is a naturalized citizen of the United States : took out bis final naturalization papers in the Circuit f^ourt of the United Slates at Denver, Colorado, on ih^ first day of May. 1S80, and is now a resident of Kokomo, State of Colorado. If the applicant has not taken out his final papers, it will proceed : 262 APPLICATION FOR PATENT. 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 jiisi day of May, 1880, and is now a resident of Cheyenne, Temtory of Wyoming. If the applicant claims under his father's naturalization, it will proceed : That he is a naturalized citizen of the United States, horn 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 thathis father took out his final papers and became a naturalized citizen of the United States* during the minority of afliant, whereby affiant became a naturalized citizen under the terms of Section 217 i of the Revised Statutes of the United States, and is now a resident of Aspen, County of Fitkin, State of Colorado. Or, if the applicant be a native Mexican, born prior to February 2, 1848, it will proceed : " That he is a citizen of the United States, born prior to the second day of February, A. D. 1848, in that part of the Repub- lic of Mexico which was ceded to the United States by the treaty of that date, known as the treaty of Guadaloupe Hidalgo, and that he elected to become a citizen of the United States under said treaty, and has ever since resided within the United States of America, and is now a resident of Conejos, County of Conejos, State of Colorado." Serving in the Army or Navy does not complete citi- zenship of itself. Soldiers must comply with Section 2166 and Sailors with Section 2174 of the Eevised Statutes. It was formerly necessary to attach a copy of the natu- ralization papers to the afiidavit, but this is no longer re- quired. Sickel 492. 3 L. O. 68. Citizenship of Corporation. — A corporation must file a copy of its charter or articles of association, certified to by the Secretary of State of Colorado, whether it be a Domestic corporation or a corporation of some other State uoing business in this State. *NoTE. State when and where and in what court, in com- pliance with Rule 80, page 223. APPLICATION FOR PATENT. 263 "Where there are several applicants each makes his owu atlidavit of citizeuship. Affidavit, where made.— By Act of April 26, 1882, the affidavit of citizenship, where the applicant resides out- side of the Land District, may be made anywhere in the United States, before^ a)iy Notary or Clerk of Court of Re- cord where the applicant may reside or happen to be found. Proof by two "Witnesses. — When the atlidavit of the applicant cannot be procured the Land office will allow proof of his cftizensbip by the affidavits of two disinterested witnesses. Etile 81, p. 224. (P.) PROOF OF NON-ABANDONMENT, By circular of tlie General Land Office of JIarch 24, 1887, it was ruled that the Register should require upon each application satisfactoiy proof of compliance with the annual labor law.— K. S. ? 2324. The circular is obscure and no specific form to apply to all cases can be piTpared from it but the following form will cover all the ordinary cases. It should be made by the applicant or his agent corroborated by two disinterested witnesses. STATE OF COLORADO, ( _. County of Lake ( Before me, the subscriber, a Xotary Public in and for said County, personally appeared je?.?e White, who, being duly sworn, saith that he is the applicant for patent upon the TJfi'tr Lode Mining Claim in Alpine Mining District, Comity of Lake, State of Colorado, Survey Lot No oSni ; that he is the "owner of said claim and has not abandoned the same and that 1* he has performed at least one hundred dollars worth of 1* Or, that he resumed work on the 2wd day of January, A. D. 1S8S, with the bona tide intention of completing one hun- dred dollars worth of labor or improvements during the current year. 264 APPLICATION FOR PATENT. labor upon said claim during the year 1887, and that said labor consisted of sin/cjn.o'^/tc discovery shaft from a depth often to a depth of twenty-two feet- Jesse White. Sworn and subscribed before me this 2nd day of March, A . D. 18S8. Appleton J. Ide, [Seal.l Notary Public. STATE OF COLORADO, I „„ County of Lake r''' Before me, the subscriber, personally appeared John MeCombe and Charles T Limbert/, who being duly sworn say that they reside in LeadviUe, in said County, are citizens of the United States, and are familiar with the jBeto-Lode Survey Lot No. 55.55 described in the foregoing affidavit of Jcs.se White; that they have no interest in the application for patent upon said lode, and are familiar with the facts stated in said affidavit, and know of their own knowledge that the work there- in mentioned Avas done as therein stated. John McCombe, I wifnesseo Chas. T. Limberg, s witnesses. Subscribed and sworn to before me this 2nd day of March, A. D. 188.S, and I hereby certify that the foregoing affidavit was read to (or by) the above named John MoCombe and Chas. T. iim'jcrg' previous to their names being subscribed thereto, and that deponents are credible witnesses to whom full faith and credit should be given. Appleton J. Ide, [Seal.] Notary Public. (Q.) PUBLISHERS C0NTRA.CT. We, the undersigned. Publishers and Proprietors of the LeadviUe Herald- Democrat, a weekly newspaper, published in LeadviUe. Lake County, State of Colorado, liercby agree to publish a notice dated U. S. Land Office, LeadviUe, Colo., March 1, 1888, required by act of Congress, ai>proved May 10th, 1872, of the intention of Je.ss« White to apply for a patent for his claim on XhaBear Lode, situated in Alpine Mining District, County of Lake, State aforesaid, and to hold the said Jesse White alone responsible for the amount of our t)i]l for publishing the same And it is hereby expressly stipulated &i\<^ agreed, that no claim shall be made against the government of the United States,^ or its officers or agents, for such publication. Witness our hands this fourth day of March, A. D. 1888. C. C. Davis & Co. Ill what Newspaper. — he notice must be published in a newspaper to be by the Register designated as published nearest to the claim. (E. S. ^ 2325..) When there are two APPLICATION FOR PATENT. 265 or more iu the nearest town cither may be designated. Cameron v. Seaman, 13 M. R. 584; 10 L. 0.:37(i. And the practice of tlie Register, where two or more local papers in the same town are published, is to designate that one which the at- torney may suggest. The distance is to be calculated not by an air line, but by the most usually traveled route. The notice must be continued iu the same paper and cannot be shifted from the daily to the weekly edition. 3 L. 0. 18. What Conslitutes a Newspaper. — It must be a i"ep- utable newspaper of general circulation. 10 L. 0. 360; 376. The Register has a discretion in deciding what constitutes such a newspaper. 8 L. 0. 156 : 3 L. 0. 36. Manner and Period of Publication.— The notice E must be published for 61 days iu a daily, or 10 consecu- tive times in a weekly paper, and while the notice is going througli its newspaper publication, it also stands posted on the claim, and tacked to the bulletin of the Land Office. Each of these methods of publication is mandatory and essential. (R.) PUBLICATIOX NOTICE. This is verbatim the same as K, and amounts to a fourth copy of K except that it is not signed by the appli- cant but is forwarded in blank to the land office where it receives the application number, is signed by the Register and returned by him to the attorney for claimant or direct to the printer. It should contain at the foot a memorandum of the date of the first and last publication. First Set or "Application" Papers.— The above mentioned papers, constituting the following list, to-wit : 266 APPLICATION FOR PATENT. F. — The final plat — one copy, H. — The approved field notes, K. — The copy intended for posting in land office, K. — Second copy with L proof of posting attached, M. — Application for patent, N. — Abstract of title, (See p. 259.) O. — Proof of citizenship, P. — Proof of non-abandonment, Q. — Publisher's agree oient, E. — Publication notice — which complete the first set of papers commonly called the "application papers," are all forwarded at one time by the attorney to the local land office. Upon receipt of the application papers, accompanied by the filing fee of ten dollars, the Eegister gives the papers an application number, makes a record 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 E headed with the appli- cation number, or sends it direct to the proper paper for publication. The return of the publication notice to the attorney or paper is an implied approval of the publisher's contract and a sufficient designation of that paper. EECAPITULATION. It'may be convenient to review the proceedings at this point. The papers A to I, inclusive, have performed their office. A, the request for survey ; C, the preliminary plat ; D, the field notes, and F, the final plat, remain with the Sur- veyor General. APPLICATION FOR PATENT. 267 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 pa- pers. 1 he transcript H (the approved field notes), has been attached to the application M, and both mailed to the local laud oflice. One copy of the plat F, has been forwarded by the Sur- veyor General to the local laud office to be kept on file ; one copy has been posted on the claim, and one copy for- warded to tte 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 posting; one has been posted in the land office, and one, R, remains to be pub- lished or is beiug published. •L, the prisoi of posting; M, the application; P, the proof of non-abandonment, and Q, the publisher's agreement, have been filed in the land office. 11, the publication notice, has been forwarded to the designated newspaper. N, the abstract,and O, the proof of citizenship, have been filed, or if not, may be filed at any time pending the pub- lication. The Second Set, or "Pinal Entry" Papers, which remain to be filed after the publicitiou is complete, con- sist of — S. Proof of continuous posting. T. Proof of publication. U. Proof of sums paid. v. Application to purchase, to-wit : 268 APPLICATION FOR PATENT. SECOND SET OR FINAL ENTRY PAPERS. When the period of publication is complete, proof of the notice having remained on the claim and of the publica- tion are made as follows : (S.) rROOF THAT PLAT AND NOTICE REMAINED POSTED ON CLAIM DURING TIME OF PUBLICATION. STATE OF COLORADO, \ „„ County of Lake. }""■ Jesse White being lirst duly sworn ac- cording to law, deposes and says, that he is the claimant of the Bear Lode Mining Claim. Alpine Mining District, Lake County, State of Colorado, the official plat of which premises together with the notice of his intention to apply for a patent therefor was posted thereon, on the secwid day of March, A. D. 1888 as fully set forth and described in the affidavit of Emilio D. DeSoto a.nd Fred O. Keeney dated the second day of March, A. D. 1888, which aflBdavit was duly filed in the office of the Register, at Leadville in this case ; and that the plat and notice so mentioned and described, remained continuously and conspicuously posted upon said mining claim from the second day of March, A. J '. 1888 until and including the fourth day of May. A. D. 1888, including the sixty-three days' period during which notice of said aiiplica- tion for patent was published in the newspaper. Jesse White. Subscrited and sworn to before me, this lOth day of May, A. D. 1888, and I hereby certify that the foregoing affidavit was read to the said Jesse' White previous to his name being sub- scribed thereto. ,^ ^ ,^ re. 1 T Appletan J. Jde, [Seal.] Notary Public. This affida-vit of continuous posting must be made by a paity to the application or by the agent when the entire application is made under a power. — 1 L. O. 178 ; 6 L. O. 92. APPLICATION FOR PATENT. 269 (T.) CERTIFICATE OF PUBLICATION. (Copy of publication notice cut from paper ami pasted here.) The publisher's re- ceipted bill is commonly attached to this blank . 1,0 0. Davis, do certify that I am one of the proprietors of the LeadvUle Jle raid- Dem- ocrat, a newspaper published in LeadvUle, in tin; County of i,fjA:e and State of Colorado, and that the "annexed notice was published in said ijapcr once each and every week for ten consecutive weeks, the tirst publication beine: on the tnd day of March, A. D. 1«?H and the last putilication being on the Ath day of May, A. D. 1S88. 0. G. Davis. Subscribed and sworn to before me this \Oth day of May A. D. 18*8. Chas. H. Roxe, [Seal.] Notary Public. Together with these proofs of publication and posting the claimant forwards, under one of the instructions of the Department, the following : (U.) PROOF OF SUMS PAID. STATE OF COLORADO, 1 _ Counl\ of Lake. j""' Jfsse "tv/ii7e having been first duly sworn according to law, depo>es and savs that he is a citizen of the United States, over the age of twenty-one years ; that he is the applicant for patent to l')iiO feet upon the Bcur Lode, in Alpine Mining Diftriet, Lake County, Colorado; tliat in the prosecution of such application he has paid the following sums of money, viz : For office work in the Surveyor-General's oflBce, To Wm. Byrd Page, Deputy Sur\-eyor, for surveying and platting To Register and Receiver, for filing application in Land Office, To C. C Davis A Co.. publishers of the LeadviUe Herald- Democrat, for publication of notice of application. To the Receiver ot the local Land Office, for land, 30 50 10 20 40 .Tesse White. S150 Subscribed and sworn to before me this 10th day of May, 1888. Appleton J. Ide, [Seal.] Notary Tublic. 270 APPLICATION FOR PATENT. These are the official costs only; it does not include At- torney's fees, Notary's charges, nor cost of Abstract. The total expense of patenting one lode, without mill site, varies from $140 to 5=250. The filing of this paper, U, completes thepre-requisites of entry and payment except the formal application to pur- chase "V" and the Eegister's proofs "W" and "X," (V.) APPLICATION TO PURCHASE. To the Register and Receiver United Stales Land Office at Leadville, Col'irado. The undersigned, claimant under the provisions of the Re- vised Statutes of the United States, Chapter Six, Title Thirty-two and legislation supplemental thereto, hercbj' applies to purchase that Mining Claim known as the Bear Lode, located in the West Half of Section 22, in Township Xo. 11 S., Range No. SI, West of the ('ith principal meridian, designated us Lot No. 55'i5, said Lot No. 5555 extending 1500 feet in length along stid Bear vein or lode, but expressly excepting and excluding irom this application all that portion of the ground embraced in mi ing claim or sur- vey designated as Lot No. 25^0, the Carnarvon Lode, and the claim of Neals Mattson 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 7.916 acres in the Alpine Mining District, in the County of Lake and State of Colorado, as shown by the survey thereof, and hereby agree to pay therefor /or/y dollars, being the legal price thereof. Dated Leadville, May 10, 1888. Jesse White. I, Thomas W. Burchinel, Register of the Land Office at Leadville. Colorado, do hereby certify that the aforesaid Mining Claim or Lot No. 5555 as applied for above, is subject to entry by the above-named applicant; the area of said Lode Mining claim being 7.916 acres, and the legal price thereof forty dollars. Thos. W. Burchinel, May 12, 1888 Register. "V" does not need to be verified. Kegister's Proof Completes Application. — Upon receipt of the final entry papers (S-V) accompanied by the purchase money (all other papers being regular) the Eegis- ter makes his certificate that tlie notice K remained posted APPLICATION FOR PATENT. 271 on his Imlletin during the period that its duplicates were being posted on tlic claim and published and makes his final certificate of entry. (W.) register's ceetipicate of posting notice foe SIXTY DAYS. [AUacTied to Bulletin copy of K.] UNITED STATES LAND OFFICE, At Leadville, Colorado, May 12. 1888. I hereby certify that the official plat of the Bear lode, desi|j- nated by the Surveyor General as lot No. 5555, was filed in this office on the Xxt day of March, A. D. 1888. and that a notice, of which the attached notice is a copy, of the intention of Jesse White to apv>lv for a patniit for the miiiinp; claim or premises em- braced bv said plat, and descri' ed in the tield-notes of survey thereof tiled in sain application, was posted conspicuously in this oftice on the 'Ind dav of March, A. D. 1888, and remained so post- ed until the 4/;j day of it/a^, IS'^H, being the full period of sixty consecniive days during the period of put)lieation as required by law ; and that said plat remained in this office during that time^ subject to examination, and that no adverse claim thereto has been tiled. Thox. W.Burchrnel, Register. It is important that this Bulletin Notice, K, sliould have been promptly posted. The Land Office hold that it is es- sential that the two notices, to-wit : by newspaper and by the bulletin should be concurrent, and in a case where the HuUetin was not posted till the 3d day of advertise- ment they allowed an adverse on the 63d day, holding that the double and cotemporaneons publication was not until such day complete. The Bulletin need not be posted tiS days, but the newspaper notice does not begin io run until the Bulletin is posted. In re Great Western Lode, 14 L. 0. 27. 272 APPLICATION FOR PATENT. (X.) register's final certificate op entry. Mineral Entry No. 2,000. ) UNITED STATES LAND OFFICE Lot No. 5555. i At Leadvillt, Colorado, May 12, 1888. It is hereby certified that in pursuance of the provisions of the Revised Statutes of the United States, Chapter Six, Title Thirty-two and legislation supplemental thereto, Jesse White, Avhose post-office address is Silver Cliff, Colorado, on this day 6th principal meridian, designs 5555 extending 1500 feet in length along said Bear vein or lode, expressly excepting *1 and excluding from said purchase all that portion of the ground embraced in mining claim or survey desig- nated as Lot No. 2560, Carnarvon Lode ; aUio the claim of Neals Mattson, on the Gotlenburg Lode, and also all that portion of any vein or lode the top or apex of which lies inside of said excluded ground ; said lode mining claim, as entered, embracing 7.916 acres in the Alpine Mining District in the county of Lake 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 aollars. Now, therefore, be it known that upon the presentation of this Certificate to the Commissioner of the General Land Office, to- gether 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 Jesse White if all be found regular. Thomas W. Burchinel, Register. The Eeceiver files his, the original Eeceiver's Receipt, with the papers and delivers or sends a duplicate to the claimant, and all the preliminary proceedings are now com- plete. Receiver's Receipt. — This Receiver's Receipt should be kept by the claimant until notice from the local Land *NoTE.— Excluded Surveys.— After the receipt of this circu- lar at the local land office, all applications for mineral patents, applications to purchase. Register's final certificates of entry and Receiver's receipts must not only describe the ground claimed, but must state specifically what conflict or conflicts with other surveys, lots or claims are excluded, giving the number of each conflicting survey or lot. The published and posted notices must contain the same information. Circular qf Dec. i ,l8Si. 11 L. O. 2%. APPLICATION P'OR PATENT. 273 Office that Patent has arrived at sucli local Land OfSce, as its surrender is required l)efore the Patent is delivered. If mislaid, proof of loss must be made (Y.) AFFIDAVIT OF LOST RECEIVER'S RECEIPT. STATE OF COLOUADO, t„ County of Oilpin. I ' "" lu the (Jentral City Loud District, Colorado. Before me the subscriber, Register of said Land Ofl'ico, per- sonally appeared John liest, who bein>,' duly sworn snith that he is the *applieant for patent on the Brelau Lode Mining Claim Survey, Lot No. .iOOO in Grcdory Mining District, County of Gd- pin, State of Colorado, and the same person who as sneh ap- plicant made entry of said survey lot in the said i^and Otlice on •or about the yi«< day ol' Juiw, X. 1). 1887. i hat on the date of said entry he received the Duplicate Receiver's Receipt therefor. That said l)\iplicatc Receiver's Receipt is lost or mislaid. That ■deponent has made diligent search among his papers and cannot find the same, and cannot 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 ami 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 Re- ceipt upon this his affidavit of loss. John Best. Sworn and subscribed before me thiseigTUh day of January A. D. 1S88. Richard Harvey, Register. If the title has been transferred insert between the ••■ * "Owner by purchase of the Jirelm Lode, etc., (description) That he pureha.sed the same since the same was entered 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 inipiin,- of ihe attorney and surveyor employed in the ap|«lication 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 minis- terial. The pai)ers 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 Washingtou, and the Patent issues in due course usually arriving within two 274 APPLICATION FOR PATENT. years, the Department being behind in its office work ; but this is upou the supposition that all the preliminary steps have been regular, and that the land was in fact open to entry — if material errors or defects are discovered after the Eeceiver's Receipt issues it may be, and often is, recalled and cancelled, and if land entered as agri- cultural is shown to be mineral at any time before patent issues, the same result follows. — Scogin v. Culver, 7. L. 0. 23. Corrections and Additional I'roofs. — The entire series of papers are reviewed at Washington and if irreg- ularities, such as errors in survey, insufficient proof of im- provements, errors in affidavits, etc., are discovered, the local Land Office is notified from the General Land Office, and (unless the mistake is a fatal one) the claimant or his attorney is, by letter from the local Land Office, notified to supply the defect by further affidavit or certificate, as the case may be. Government Price $5 per acre. — T he Application papers (p. 265) 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 Colo- rado being 1.300 feet long by 300 feet broad, such claim con- tains 10 and 33-100 acres; the fractional acre being 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. Acreage of Lode Claims. — In computing this acre- age, all interfering surveys which have been deducted, are excluded. The payment is based on the amount of clear surface ground covered by the survey, all prior official sur- veys being excejjted. APPLICATION FOR PATENT. 275 Claim 1500 x 300 feet contains 10.33 acres. " 1.500 X 150 " " 5.1« " " 3000 X 50 " " 3.44 " " 1400 X 50 " " 1.60 " " 1600 X 50 " " 1.83 " Affidavits.— AVhere 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 (T) where the paper "nearest the claim" happens to be a, newspaper in another Land District. Another exception is the affidavit of citizenship. Adverse claims may be verified in certain cases beyond the Land District. See p. 295. Before What Officer —They may be made before a Notary Public or any officer authorized to administer oaths . Among such officers are the Eegister and Receiver of the proper district. . Where allowed outside the district they should be taken before a Xotary or'the Clerk of a court of record. In all cases seal should be attached, and the Notary should add after his signature, "My commission expires Feb. 29, ]892." A ts of 18S7, i). 391. Affidavits, wlien tliere are Several Applicants. — Where the application is joint, any one co-owner may make all the affidavitareiiuired, on behalf of his co-owners as well as on his own behalf, <>xcept the affidavits of citizen- ship. See p. 263. Joint Owners. — When a claim is owned in common, it is extremely convenient and especially advisable where it is owned in unequal interests, to have a quit-claim exe- cuted by the others to one of their number, placing the title, for the time being, in his name, the grantors securing themselves by title bond or otherwise. Application by Agent. Amendniont to It. S. i, ilJi.S.— ***Where the claimant for a patent is not a resident of or within the land district wlierein the vein, lode, ledge, or deposit sought to be pat- 276 APPLICATION, FOR PATENT. entcd is located, the application for patent and the affidavits re- quired to be made in this section by the claimant for such patent maybe made by his, her, or its authorized agent, where said agent is convers'ant witli the facts sought to be established by said affidavits : *** A. 0. Jan. 22, 1880. It does not seem that under the above aet a resident owner can apply at all by agent — unless at least temporarily absent. 7 L. O. 20. And the fact of absence should be re- cited in the power of attorney. In other words he cannot delegate the power, while ho 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 o'f attorney, which is recorded, and a cei'tified copy is filed in the land office either separately or attached to the abstract. In the lattei case it should be separately certified. (Z.) FORM OP POWER OF ATTORNEY. Know all Men by these Presents, That I, Henry E Loane, of Bal imore. State of Micryhmd, a citizen of the United States, do hereby constitute and appoint Benjamin B. Lawrence, of Idaho Sx>rinijs, County of Clear Crtek, State of Coloi-ado, my Attorney in Fact, for me, and in my name, to make application for patent of the United States, in the proper Land Otflce, upon the Horrid Drayo > Lode Mining (Uaim, 1,500 feet in length by 150 feet in width, situate on KcpuUican Mountain, in (Tri/^iZ/i Mining District, County of Clear Creek. State of Colorado, find 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 api)licution, 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, 1 authorize him to employ counsel and take all measures necessary to defend against said Adverse ('laim or suit in support thereof, either in the Land Office or in judicial proceedings, and in such judicial proceedings, to execute any bonds or other paj)ers, and verify all proceedings, to and includ- ing Appeal or Writ f)f Error. Witness my hand and seal, ihis first day of July, A. D. 1888. Henry E. Loane. [Seal.] Acknowledge according to form on page 146 and record, ut mpra. APPLICATION FOR PATENT. 277 The Deputy Surveyor cannot accept such power nor act directly or indirectly as agent. Eide 80, p. 225. Ill each affidavit signed by agent should be in- serted, by wny of precaution, the following clause: "Affiant further saith that the said claimant is not a resi- dent of the Land District in which said claim is situate, but resides at Tallahawe, State o{ Florida, and tliat affiant is the duly authorized agent of said claimant, and is 'conversant with the facts sought to be established by said affidavit.' " Where a Corr.oration applies all papers are signed by the President, or other officer designated as stated in the next paragraph : but more usually, (and advisably) it exe- cutes the form "Z" to some resident person as agent. See p. 262. Where it does not adopt the latter plan the Land OfHce practice requires proof that the officer purporting to act for the company was authorized to make the application. Such proof may consist of a copy of the resolution of the Board of Directors instructing some designated officer to apply for Patent to the claim or claims mentioned, certified by the secretary under the corporate seal. Mill .*iite Application. — Where a millsite is applied for separately it must be upon land occupied by mill or re- duction works (p. 129). 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. 128). Applications for mill sites alone are rare, they being usually applied for in connection with a lode. (AA) NON-MINERAf, AFFIDAVIT. STATE OF COLORADO, ^ County or Clear Creek. \ ""-• Frank J. Marshall, and Andreir F. Curtis, each of lawful age and residents of 6Vor^cto!Wi, 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 278 APPLICATION FOR PATENT. he is well acquainted with the Annie mill site claim of James Boyd, situate in Qu£ens Mining District, in said County, upon which said Jamen Boyd has applied for patent of the United States, and knows the" character of s-aid described land, having frequently been actually upon the same ; that his knowledge of said laiidis 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 no portion of .said land is claimed for mining pur- pose - under the local customs or rules of miners or otherwise ; that BO portion of .said land is worked for minerals during any part of the year by any person or persons ; that said land is es.sen- tially non-mineral land, and 'hat he has no interest whatever in said claim or in said application for patent. Fnmk J. Marslmll, Andrew F. Curtis. Verification as in Form CC. The claiarant also files his own affidavit to the same efl'ect. Mule 75, p. 223. Wherg a mill site is applied for in connection with a lode a second affidavit substantially according to the follow- ing form is required. 13 L. O. 159. ( BB.) PROOF OF MILL SITE USED FOR MINING (OK MILLING) PURPOSES. STATE OF COLORADO, ")„„ County of Garfield. J *'^' Before me the subscriber, a Notary Public in and for said County, personally api)Cared C. N. (yveig, (claimant), and Harnj Evaw< and James W. Hoss (witnesses), who being duly sworn, say e tch for himself and noi one for the other, that he is a citizen of the Uniied States and resides in said Coun- ty. That he is familiar with the Gaf/Ml Mill site. Survey Lot No. 66B6 B, for which the said O. N. Oreig has apr)lied for Patent in the United Stales Land Office at GIsnwond Sprimis, Colorado. That the ground embraced in said survey is used or occupied by said claimant for mirdng purposes, to-wit: as a dumjj for the Qiififerm/dn Lode, and contains an ore house used in the working Qfsaid lhn WardeU applicant for United States Patent therefor; that for many years lie has resided near to, and is well acquainted with the chiracter of said laud, having frequently passed over the same; that hislvtiowledge of said land is such as to enable him to testify uuderstandingly in regard tliereto, and that there is not, to his knowledge, wiiliiu the limits tliereof, 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. Jofin WardeU, Wm. J Chamberlain. Wm. Hotia. Subscribed and sworn to before me, this first day of May, A. D. 1888; and I hereby certify that the foregoing afiidavit was read to the above named Willinm J. Chamberlain and William Hoag, previous to their namis being subscribed thereto, and that deponents are reputable persons, to whom full faith and credit should be given. Mulford Van HDcenbergh, [seal.] Notary Public. The Placer Claimant must join in the foregoing affida- vit or file a similar one. R. 59 p. 220. APPLICATION FOR PATENT. 283 APPLICATION FOR PATENT ON SUEVEYEI> LANDS. The language of the Congressional Act as to this class of claims is obscure, but it seems that where a placer deposit is found on surveyed lands, discovery, locati(tn and record must be made exactly as in the case of discovery on un- surveyed public domain except that instead of a description by metes and bounds the location certificate should describe it as the nerth-eint quarter of section 3 Tp. 10 d'C. using one name for each 20 acres and not claiming more than 160 acres by one record. It is advisable to give it a name as in other cases. Although already surveyed it should be staked, mark- ing the stakes with the name of the claim and number of the corner to indicate the appropriation, replacing the gov- ernment stakes if not there found, but we are not prepared to say that this staking is essential. The location aLd record being complete, in applying for patent the Surveyor General's office does not require any request for survey, the ground being already surveyed ; nor copy of the location certificate, because the reference to the governmental sub- division is sufficient. The form A is therefore dispensed with and in its stead the following printed blank is in use : ( DD.) APPLICATION FOR ORDER FOE DESCRIPTIVE REPORT ON PLACER. GEoncETowN, Colo., May 1, 1888. United States Surveyor-General, Denver, Colorado. Sir:— I hereby make application for an order to be issued to Allx'rt A>C7i((.'^ VV.; 30 leet from corner No. 4 a ditch H^vi feet long, 2 feet wide and 18 inches deep, course north easterly, the head of which bears N. 3'' E. 120 feet from corner No O." A shaft :ixO feet, H) leet deep, which bears from corner No. 1. N. 2^ \V. 75 feet, and a drift :5x() feet, 18 feet deep which bears from corner No. 4, N. ^7° E. 420 feet. (rf' This claim is located about three miles in a south- easterly direction frum the town of May.sville, and one mile west •of Clear Creek Junction. (e) The liaker and .Swansea lodes located about three miles in a northerly ilirection from this claim are the nearest well known lode claims. No lode has ever been discovered upon this claim or in the immediate vieiniiy. (/) This claim is well adapted for placer mining purposes. Water has bvcn t.ronght from Heaver Creek to work the lower portion of the claim, and it can be brought from a point in the same creek about }-^ of a mile above to work the whojc claim. (g) The works or expenditutes upon this claim, placed thereon bv the claimant an° E. 120 feet from corner No. 0. Course northeasterlv to the open cut mentioned above. Value S125,(!0. A .shaft 3x0 feet, 10 feet deep, which bears from corner No. 4, N. 2° W. 75 feet. V,iltij:5ii. (h) There are no salt-licks, saltsprings, mines nor mill seats upon this claim. I, A. E. Chnne. U.S. Deputy Mineral Siu-veyor, do solemnly swear that in pursuance of an order from Oney' Cur-starphen, Sur- veyor (ieneral of the public lands in the State of Colorado, bear- ing date the li ^ ,7 Jesse S. Randall, rggal.] Notary Public. OFFICE U. S. SURVEYOR GENERAL, COLORADO. Denver, Ma7j 6, 1888. The foregoing descriptive report on the claim of George W. Hall upon the Hyena Placer, in Spanish Bar Mining District, CUar Cree><- County, Colorado, having been critically examined, is found to conform to the requirements of the circular from the General office, approved September 23, 1882. Oney Carstarphen, U. S. Surveyor General for Colorado. The descriptive report having been received the Sur- veyor General returns his transcript of the same to the claimant or his attorney. The attorney then makes out his notices, K, which (without any plat) describe the land by its governmental subdivisions. These notices are posted in the Land Office and on the claim, and advertised, and the claimant proceeds in all further particulars the same as in application for patent on unsurveyed lands. There seem to be no variations in the pro- cedure, except such as are necessarily implied, from the fact that the Government survey is adopted, and a partic- ular quarter section or other series of subdivisions has he- come the claim and no order for survey, plat or field notes are required ; and excepting further the Descriptive Eeport and non-mineral affidavit required on all Placer applica- cations.. The transcript of the Descriptive Eeport, after he has made use of it for the preparation of his notices K, the attorney forwards to the local Land Office with the first set of papers. APPLICATION FOR PATENT. 287 Joinder of Several Lode Locations or Several Placers as one Claim. — In the case of the S'. Louis Co. V. Kemp, decided in 18S1 (101 U- S. (iUo ; 11 M. K. 673), a Placer had been piiteuted in excess of IGO acres. The Su- preme Court sustained the patent, and in support of their decision asserted tliat a miner's claim miRht consist of s6veral locations; that several contiguous locations beinR purchased hj- one niau became his claim. They S6y : "Such is the general understanding of miners and the meaning they attach to the term."' Even what seem to us the erroneous impressions of our court of last resort command respect, and its decisions are none the less law, even though they compel us to accept new meanings to the words of our language. In fact where claims under district rules were limited to 100 feet square or other small dimensions, it has been very com- mon to buy up many such claims and record them as one lo- cation. The interpretation was, nevertheless, strictly with- in the province and range of judicial construction ; and as to Placers the Congressional section is not clear as to what constitutes the limit of a claim. But the decision in no event applies to lodes. As to them the statute itself. Section 2320, limits and defines a lode claim in terms. The Land Office overlooking these distinctions and following the fore- going decision without reference to them, in regulating the practice in ap|>lying for patent, has ruled that any number of mining locations, lode or placer, which touch, consti- tute one claim and may be patented under one application and upon one set of $500 improvements. 12 L. 0. 214, 264, 288. Such has become the u?ual practice, and it will stand until the abuses under it lead to either a reconsideration of it or to statutory amendments. See p. 118. 288 APPLICATION FOR PATENT. In the Central City Land District as many as 31 claims have been thus united in one application and when they run parallel, a cross location lying at right angles is made to unite them so as to comply with the ruling that they must be contiguous or touch. If $500 improvements are sufficient to patent any num- ber of contiguous claims we do not know why $100 in labor should not be sufficient for annual labor on the entire group ; but the Laud Office halts here with a distinction, and in the non-abandonment affidavit M requires proof of labor done on or for each claim, or resumed, for the entire gioup. The courts have not yet to our knowledge passed upon this class of applications, nor do we assume that they could do so upon the trial of an ordinary adverse claim, but we have no hesitation in pronouncing them illegal, in the case of lode groups. Nevertheless, if perfected by patent (at least in the case of placers) the patent would doubtless be upheld until set aside by direct proceedings for that pur- pose. Where several lodes are thus applied for, they receive only one survey-lot number, but the corners of all are num- bered consecutively: i. e., if the first named lode has four corners, the first corner of the second lode will be No. 5, etc. Where there is a placer with lode or lodes, the lode corners are numbered after those of the placer. IMPROVEMENTS. What Constitutes Improvements.— Under-ground workings, cross-cuts or tunnels (on or off the ground, pro- vided they are held by applicant for its benefit, and are 6ona^de intended to cut it) buildings, roads, flumes, fixed machinery, &c., or the result of any other bona fide expend- itures, constitute improvements. APPLICATION POR PATENT. 289 Excepting labor which leaves no trace of itself, such as hoisting water, whatever counts for annual labor will count for the $500 improvements. See p. 57. Untlivido*! intei-rsis in tunnels, etc., held in com- mon with parties who are not applicants are allowed to count as parcel of the necessary $500 improvements. Purchased Iinproveinents. — Abandoned Im- provements. — Old improvements on the ground may be purchased from the rightful owners, and so enure to the benefit of the applicant. The deed conveying them should be a quit claim of all vendor's interest in the claim under the name by which patent is sought, and of all improve- ments thereon, &c., and where abandoned property is re- located or jumped, the old improvements do uot count without such purchase. The Department in a circular has intimated that they could not even be purchased {Copp, M. L. 259,) but this is uot an adjudication, and we do not con- sider it to be law. Amonjj placer improvements cannot be counted dwelling houses or other structures uot associated with mini'jg. Iaipr(ivemen(8 Comi>leicd Pendiiia; Applica- tion. — It is not e-ssential that the .$500 worth of improve- ments should exist on the ground at the time of the survey. They may be completed at any time during the period of publication. In such cases the Surveyor General endorses diagram "F" with a certificate not containing the latter part of "G.'" The Deputy in his field notes describes such improvements as may exist, and adds, iu substance: " 1 hese improvements are not worth $500, it being the intention of claimant to complete the necessary amount during the sixty days publication." When ( ompleted the Deputy sends a special affidavit to the Surveyor General, who files it and forwards his certificate to the Land Office. 10 290 APPLICATION FOR PATENT. The General Land Office has ruled that the Surveyor General's certificate of $500 improvements is a statutory requirement [R. S. J 2325) and must be filed strictly within the period of publication. 12 L. 0. 130. 3Iill Site Improvements. — Seep. 279. On application for several Claims. — Seep. 287. Where the Ai>plicaiit Dies hefore Entry. — On fil- ing proof of decease the papers are perfected either by an heir or the executor or administrator, and patent issues to "the heirs of" the applicant. AVhen he dies after entry the patent issues in the name of the deceased. 11 L. 0. 100. Application by Trustee. — Any party applying to make entry as trustee must disclose full.y the nature of the trust and the name of the cestui que trust ; and such trustee, as well as the beneficiaries, must furnish satisfactory proof of citizenship; and the names of beneficiaries, as well as that of the trustee, must be inserted in the final certificate of entry. Bale 3, L. 0. Cii tular June 8, 1883. Patent to Assignees. — On bringing up Abstract to date the Land Oflice have issued patents to purchasers from the entry-man. But as the deed carries the patented title this is not necessary ; nor is it regular. The Land Office cannot be presumed to follow title after entry, and might by such procedure issue it to a party not entitled in equity to take it. Application Without Record Title. — Where the title is old and complicated a party may without filing ab- stract, supply the same by affidavits under R. S. ? 2332, as explained by Land Office Eules 65-70 {p. 220), that he has worked and possessed the claim for the limitation period of five years, (p. 199). APPLICATION FOR PATENT. 291 Possessory title to a lode claim held and worked for a period ecjual to the time iireseribed by the statute of limitations for miiiiiiK claims of the State or Territory where tlie same may be situated, may. in the absence of any adverse claim, be estab- lishepeared in the Leutinlle Ilentld-Dcniftcrdt, a weekly- newspaper published at Leadville, in said County and State, on the 'iMl day of March, A. D. 18S8. Now, T?wr(fure, I, J. Brixbin Walker, a citizen of the United States over the age of twenty-one years, residing in and my post- ollice address being Denver, in the County of Arapahoe, in said State, do, on this Jirnl day of May, A. D. 1x88, enter this, my pro- test, against the issuing of a patent to tlie .said Jex-se White, for his pretended claim upon the .<5i)-called Bear Lode, as set forth in his said plat and held notes, as aforesaid, for the following rea- sons, to-wit : 1. The .surface gi-ound and veins or lodes contained there- in as set forth and de-crii)cd in the plat and field notes of the said Je.s.fe White, or a great portion tliereof, are not the property of the said applicant, neither is he entitled to hold the same un- der or I'y virtue of the local laws, rules and customs of miners in said mining district, the laws of the State of Colorado, or the Statutes of the United States relating to mining claims. 2. Because a great portion of the premises described in said plat and notice of said applicant, and claimed by him as the so- called Bear Lode, is claimed adversely, and is owned by this protestant, and is in fact a portion of the premises claimed and owned bv this protestant as the E'ep/umt Lode, as will appear by reference to an abstract of title herewith tiled, made a part of this protest and marked exhibit A. 3. Because this protestant (and his grantors) have held, oc- cupied and possessed a great portion of the premises set forth and described by the said ^es.w White in his plat and notice of the so- called Bear Lode, long prior to the pretended discovery and loca- tion of the so-called Bear Lode ; such occupation and possession of this protestant (and his grantors) having been under and by virtue of a full compliance with the local laws, rules and customs of said mining district, and the laws of said State, and of the United States, pertaining to mineral lands. 4. Because this protestant (and his grantors) have held, oc- cupied and pos.sessed all that portion of tne .so-called Bear Lode, as represented on the plat of a survey made by CJufle.f J. Moore Deputy United States Mineral Surveyor and coU)rod nd, said plat of said survey being herewitli tiled, marked exhibit B, and made a part of this' prote.^it, and have hold, occupicrt and i)Ossessed the same long prior to tliei)retendi'd discovery and location of the so- called itear Lode, and is the original discoverer and locator of said 294 ADVERSE CLAIM. Elephant Lode, (or is a bona fide purchaser for a valuable consid- eration, from or through the original discoverer and locator of said Elejihant Lode, by conveyances,) as shown on said abstract. Seepaoe 216. 5. Because a valid discovery, Location and Record of said Eoephant Lode was made by this protestant (oi his grantors), in strict compliance with said local laws, rules and customs, and the laws of the State of Colorado and of the United States, and while the same was vacant mineral land of the United States, open to occupation long prior to any pretended Discovery or Location thereof by said Jesse IFArte (or his grantors) and said ^iepTjaft^ I, ode hath been occupied and possessed as aforesaid, ever since its dis- covery as aforesaid, by this protestant (and his grantors,) under and by virtue of such discovery, location and record. 6. Because the discovery shaft of the so-called Bear Lode was not of the legal depth often feet from the lowest part of the rim at the surface, as required by law at the date of the pretended record of the same, and has never been since sunk to that depth. 7, etc., 8 etc. Therefore, this protestant enters this his protest against the issuance of a patent to the said Jesse White, for his claim upon the so-called Bear Lode. J. Brisbin Walker. State of Colorado, ( County of Lake. J ' ' On this 1st day of May, A. 0.1888, before me, the subscriber, a Notary Public in and for said County, personally appeared the above-named J. Brisbin Watker, ^vho being lirst duly sworn, saith that he is the adverse claimant named in the foregoing protest, and adverse claim above subscribed by him That he has read the same and knows the contents thereof; that the same is true in substance and in fact ; and that the said adverse claim is made in good faith and to protect his better and prior title. J. Brisbin Walker. Sworn and subscribed before me, this first day of May, A. D. 1888. Geo. P. Brown, N. P. [seal.] To the above reasons others may be added where spe- cific facts are known going to the invalidity of the claim sought to be patented ; but in every case allege that the claims conflict and that the adverse claimant is owner of the conflicting area and veins, as iu paragraph No. 2 of the above form. The first five paragraphs constitute a good statement of an adverse right according to the various Land Office rulings, and others are added only as precautionary. ADVERSE CLAIM. 295 Exiiibii "A" is an abstract of title certified as in form "N" and should contain a copy of the Location Certificate. See Form, p. 259. The failure to file the Abstract within the period of publication has been held not to be a fatal error ; but no cautious Attorney will bo willing to risk this ruling. Mxliibit "B" is a plat made by a U. S. D. M. Surveyor, showing the interference of the two claims, certified as fol- lows: I herel)y certify that the above diagram correctlv represents the conflict claimed to exist between the Bear Lode and the £fe- p/toTii Lode as actually surveyed by me. .\nd I further certify that the value of ilie labor arid improvements on the EUpfmiU Lode made by the adverse claimant (and his grantors) is not less than one hundred dollars. Chiirles J. Moore, U. S. D. Mineral Surveyor. Improvements.— The amount of improvements on the ad versing claim is immaterial, but they are required by rule to show on the jdat. — p. 217. Separate .Vdver.se Claims.— Where there are sev- eral Applications to be adverscd by a single . ode, a separate Adverse Claim with its Plat and Abstract must be filed in each case. Copp M. L., I'^d; and where the adverse claim- ant has several lodes with which he intends to adverse a single application, the better practice is to file an advei-se on behalf of each lode, accompanied by its proper exhibits: but if he prefer to unite his several titles in a single adverse, we do not see how it could be rightfully rejected. In either case, only one suit in support is required. Adverse Claim, Where and by Wh»>nx Verified. — An adverse claim is usually verified by the adverse claimant or one of the adverse claimants and within the land district. But by act of April 26, 1882 (post p. 316) it may be ver- ified by an agent or attorney in fact cognizant of the facts 296 ADVERSE CL.AIM. stated. Such agent must make his verification in the land district. A corporation verifies either hy its executive of- ficer (president) or its agent thereto authorized. 1 L. O. 132. And if the chiimant is a non-resident or absent from the district and verifies it personally he may make such verification wherever he may be, before the clerk of any court of record or a notary public, anyivhere within the United States. In cases of emergency it is a legitimate expedient to have the intending adverse claimant convey to a third party within the district, who then makes and verifies the adverse claim precisely as if he were the real, as he becomes in fact, the legal, owner of the ad versing claim. But since the act allowing verification by the adverse claimant be- yond the district or the filing by an agent, this course need seldom be resorted to. Form of Adverse and Verification by Agent. — Proceed as in form GG to the last paragraph and insert : Wherefore this protestant, by Oharlei T. Limberg, his duly authorized agent and attorney iu fact who is personally cognizant of the facts herein stated enters this his protest against the issu- ance of a patent to the said Jesse White for his claim upon the so- called Bear Lode. J. Brisbin Walker, By Charles T. Limberg, His agent and attorney in fact. STATE OF COLORADO, I ^.. County of i«te. j^*- On th\<, Jlrst day of May, A. D. 1888, before me, the subscriber, a Notary Public in and for said County, personally appeared the above named Charles T. Limberg, who being tirst duly sworu, saith that he is the duly authorized agent and attorney iu fact of the above named J. Brisbin Walker, adverse claimant named in the foregoing protest and adverse claim above subscribed by atiiant as will further appear by the copy of his power of attorney hereto attached marked exhibit C ; that atiiant has read the foregoing protest and adverse claim, and is cognizant of the facts therein stated, and that the same is true in substance and ADVERSE CLA.IM. 29/ in fact, and is made in good fuilli to protect the prior and better title of his said principal. ClIARLRS T. LiMBERG, Sworn and subscribed before me this first day of May. A. D. 1888. J>miel Sayer, Notary Public. [seaL.] By Co-owner. — A single co-owner may make and ver- ify the advei-se claim "on behalf of himself and his co-owners," which i)hrase should, in the form " GG," follow the name of the protcstant wherever it occurs or where the context requires it, when an adverse is so made. And it is held that one co-owner may adverse although another co-owner refuse to join him. And one co-owner cannot withdraw his adverse so as to prejudice another who has joined with Lim. Computation of Tinae. — The Department at one time ruled that when the publication was in a weekly news- paper, which requires 10 insertions, the Adverse could be filed within the period necessary to complete publication, which (excluding the first day) would bring it to the 63d day. But by circular of January 14, 1884, they ruled that the period must be strictly limited to 60 days, excluding the first day, and this is the present holding. 10 L. 0. 339. To instance, where first publication was on Juuel, they exclude the first day aud count — Juno 29 days ; July 31 days. Total 60 days, and make July 31, the last day on which an Adverse could be filed. Time Cannot be Kxtr-niled. — No adverse claim can be received after the expiration of the statutory period ; even a stipulation between parties, enlarging the time for filing, is of no efiect aud will be disregarded by the Land 298 ADVERSE CLAIM. Office. G L. 0. 105 ; 9 L. 0.5; Sickel 208, 314. This ruling of the Dcpartmeut as to its owu action is undoubtedly cor- rect ; only in a Court of Chancery, If anywhere, could re- lief in such a case be afforded. So also the 30 days' time allowed for commencing suit cannot be extended ; the law limiting the period is manda- tory ; if the papers intended to commence suit are delayed in the mail, or actioa is delayed through the agency of an attorney corrupted, the Laud Office can afford no relief. — Sickel 190, 320. Period of Publication. — See page 265. Reiiublicatioii. — When for any cause a republication is required, the Adverse Claim must be re-filed during the second period of advertising ; but no additional filing fee is charged. — Siclcel, 313. Sunday. — It has been ruled that an Adverse may be filed on Sunday, when the last day falls on Sunday: and out of office hours on any day ; but that the receiving and filing out of office hours, or on Sunday, is not compulsory upon the officers.— 6 L. 0. 73. SicM, 301. And the fact that the last day falls on Sunday does not extend the time to the day following. In re Ground Hoj Lode Adverse, April 17, 1888. Amendment. — An adverse claim cannot be with- drawn for amendment ; but if a material defect should be discovered, there would be nothing to prevent the filing of a second adverse, complete in itself, provided the 60 days had not expired. Copp, 121, 155, 227. Sickel 208. A\ hat Claims stiould Adverse. — A tunnel should adverse to protect its line (p. 138.) A mill site must ad- verse a lode claim to protect its rights. 9 L. 0. 71. So also must a town lot oi other surface right. A co-tenant who is claimed to have been forfeited out, must ad- ADVERSE CLAIM. 299 verse to protect such interest as he may assert. 9 L. <). 113. Of course h)*lo must adverse lode, and mill site must adverse mill site, or all preteuse of prior title will cease to be of avail. Ste p. 76. Such easements (flumes, ditch rights, &c.) as are pro- tected by statute need not adverse. EoikiccUv. Gruluim, 9 Colo. 3fi. Seep. 112. Plat aii-. — An adverse claim sub- stantially defective may be rejected. Bechner v. Coates, 3 L. 0. 18 ; 9 L. 0. 5 ; but if it show the nature, boundaries and extent of the claim the laud oflice will leave all further questions to the court; 4 L. 0. 6C, ; 7 L. 0. 51 ; 9 L. 0. 109. The land oflice is not bound to receive an adverse claim when the filing fee is not paid or tendered ; 3 L. 0. 36. Where there is no surface conflict an adverse cannot be maintained ; 7 L. 0. 50. An adverse with no surface con- flict, filed to anticii)ate conflict expected on the dip, will not be received. New York Ilitl Co. v. Rocky Bar Co. 15 L. 0. 3. Champion Co. v. Wyomiug Co., 16, Pac. 5] 3. An adverse based on a claim located after the publica- tion began not conttiniug allegations denying the valid- 300 ADVERSE CLAIM. ity of the prior claim ad versed, will be rejected ; 1 L. 0. 50. Contra, 9 L. 0. 190. Eyectmeut, in Support of Adverse. — After the Ad- verse Claim is filed, the Adverse Claimant must bring suit in Ejectment for the premises in dispute, within 30 days, under the terms of R. 8. ? 2326, which says : " It shall be the duty of the Adverse claimant, within thirty days after filing his claim, to commence proceedings in a Court of competent jurisdiction, to determine the question of the right of possession, and prosecute the same with reasonable diligence to final judgment ; and a failure so to do shall be a waiver of his Adverse claim." The Proper Court is usually the District Court of the County where the mine is situate, except in those cases where the facts of value and citizenship are such that the U. S. Circuit Court may have jurisdiction. It has been held that the Federal Courts have jurisdiction in all suits sup- porting Adverse Claims, (where the value reaches the juris- dictional limit, then $500, now $2000,) on account of such cases arising under laws of the United States. Frank Co. v. Larimer Co., 1 M. R. 150. But that decision has not been followed in more recent cases in the same Court. Even when the Courts of the United States have un- doubted jurisdiction the State Court is not ousted, but the suit may be commenced in the State Court, subject to De- fendant's right of removal. Filing Complaint, but delaying issue of Summons, is not a compliance with the law. Gopp, M. L., 296. Title in Neither Party.— That if, in any action brought pur- suant to section twenty-three hundred and twenty-six of the Re- vised Statutes, title to the ground in controversy shall not be es- tat)lished by eitlier party, the jury shall so find, and judgment shall be entered according to the verdict. In such case costs shall not be allowed to either party, and the claimant shall not proceed in the land office or be entitled to a patent for the ground in controversy until he shall have perfected his title. A. C. March 2, l&Si. ADVERSE CLAIM. 301 The rulings under the above act are, that each party is practically a plaintiff and must show his title ; that there can be no uon suit, but that if neither show title the verdict must be special — which is an assertion that the title re- mains in the United States, so far, at least, as the litigating parties are concerned. Jackson v. Rohy 109 U. S. 440. Rosen- thal V. Ices, 12 Pac. 901. Statutory new trials are, in practice, granted to either party after such verdict. The effect of the act is to prevent a recovery upon possession alone in ejectment supporting adverse. Becker V. Pagh, 9 Colo. 589, This of course would not apply where a party claims by continuous five years possession under R. S. ? 2332. The suit in support of an adverse is one at law and not in equity. Burke v. McDonald, 13 Pac. 351. And ejectment is the proper form. Becker v. Pagh, 9 Colo. 589. Complaint. — As the complaint is filed in support of the adverse it should conform strictly to it. It should not declare generally for either lode but for the interference. If it declare for the entire lode it would necessitate a dis- claimer as to parcel of the promises. There is also a special paragraph with regard to the costs. — G. S. ^ 423. (hh.) fohm of com pl ain't. State of Colorado, \ County of Dike, / ^"^ In the District Court of said County. J. Vrisbin ys'alker, ] Plaintiff. V. V Jesse White, ) Defendant. The plaintiflf complains and alleges : 1. That on to wit: the .///vsMayof J((//!/ feel in length by :i(W feet in width, situate in Mpine Mining District, County and State aforesaid. 302 ADVERSE CLAIM. 2. That the plnintilf is, and at all times mentioned In thi« complaint hath been, a citizen of the United States, {or) 2. That at and before the date last aforesaid theplaintifl had declared his intention to become a citizen of the United States before a conrt of record, to-wit : The Court of Common Pleas of the County of Allegheny, Commonwealth of Pennsylvania. 3. That he claims the legal right to occupy and possess said premises and is entitled to the possession thereof by virtue of full compliance with the local laws and rule» of miners In said min- ing district, the laws of the United States, and of said State of Colorado, by pre-emption (and purchase) and by actual prior possession, as a Lode Mining Claim, located on the public domain of the United States.- See Code, § 2G7. 4. That on or about the first day of November, A. D. 1885, the Defendant wrongfully entered upon parcel of said claim, to-wit: All that X)art of said claim which is intersected i y the exterior lines of Survey Lot No. .35.5.5, known as the Bear Lode Mining Claim, as shown by plat marked Exhibit "B," ' filed on the first day of 3/«i!/, A. D. 1888, in the Land Office of the United States, at Leadvilk. in the said State, with the adverse claim of said Plaintiff against the entry of said survey lot for Patent, such ground so inter.-ected being described as follows: (Tiert interference .should be dei^crihed by metes^ and bounds) and that defendant hath ever since hitherto wrongfully withheld the possession of said parcel of said Elepharit Lode from the Plaintiff to his damage in the sum of one hundred dollars. 5. That this suit is brought in .support of said adv-rse claim, and that Plaintiff' neces.sarily disbursed, expended and paid out the sum of Twenty-five Dollars, for jilats, abstracts, and copies of papers filed in .said Land OfRce with his said Adverse Claim, and also a reasonable counsel fee, to-wit: Fifty Dollars, for the ex- pense of preparing his said Adverse Claim. Wherefore Plaintiff prays judgment against the Defendant: 1. For the recovery of possession of said parcel of said Ele- pMnt Lode Mining Claim. 2. For the sum of One Hundred Dollars Damages. 3. For the sum of Seventy five Dollars expended in support of said Adverse Claim . 4. For costs of suit. Wm. M. Maguire, Attorney for Plaintiff. Add verification if desired ; but in actions of ejectment, trespass, etc., the practice of verifying the pleadings ought to be discouraged. Paragraph 2 of above complaint is inserted under the suggestion of recent cases in California. Lee Doonv.Tesh, ADVERSE CLAIM. 303 6 Pac. 97; 68 Col. 43; 8 Pac. 261; but we do not believe it to be necessary. The fact of citizcnslii]) of ])oth jiartios has already been proved in the Laud Oltice proceedings by statutory evidence— E. S., §2321; and in judicial proceed- ings it is presumed until denied. Paragraph 5 of above form is based ou G. S. Sec. 423; the costs in such sGciiou, strictly construed, could not be made to include more than the expense of abstract, plat and attorney's fee. It is customary between counsel to concede without proofs that $75 has been paid uuder this allegation. If the statutory new trial is taken this amount does not seem to go as part of the costs, but goes to the final trial. There is another style of complaint which sets forth chronologically the fact of discovery, of sinking the shaft its depth, and what it disclosed ; the placing of the location Stake, the marking of the claim, and the record ; fol- lowing the language of the statute coucerning location, &c.; but many claims are sufficiently valid to maintain eject- ment without a strict location, or the defendant may be in position where he is estopped from asserting weak points in the plaintilFs case, and such recitals are not the statement of facts reijuired by the Code. In any event such recitals lead to cumbersome pleadings and to an immaterial issue and are not the ultimate facts required to be stated in Code pleading. ^ General allegations of title are sufficient. Rough v. Sim- mons, 3 Pac. 804 ; 65 Cal. 227. Kulinjis in Ejectment Suppui-ting Adver.se.— An adverse claim may show that the location ad versed is invalid by reason of the existence of a third claim in which neither party has any interest. Harrington v. Chambers, 1, 304 ADVERSE CLAIM. Pac. 362. Affiimed, III U. S. 350, bnt with only a general reference to this point in the last paragraph. To the con- trary seems Strepy v. Stark, 7 Colo. 614. Declarations of a locator may be given in evidence to dispute his title. Harrington v. C/iambers, supra. But not ad- missions made after he has parted with his title. McGinnis V. Egbert, 8 Colo. 41 ; 15 M. R. — . Proof of €01111116110111)? Suit. — After the complaint is filed a certificate should be made and signed by the Clerk of the Coui't and filed within fifteen days in the local Land Ofiice, in substance as follows : ( jj.) certificate op suit, State of Colorado, i „ County of Lfike. \ ^^• I, J. H. Pkiyter. Clerk of the District Court of said County, do hereby certify that J. Brisbin Walker did on the 11th day of May, A.D. 188S, commence an action iii said Court against Jesse M'hiie, to sustain an adverse claim against the Bear Lode, Survey Lot No. 5555, situate in Alpine Mining District, Lake County, State of Col- orado, and to recover possession of all that parcel of the Elephant Lode, embraced within the lines of said Survey Lot, situate in said Mining District, and that said action is now pending and un- determined in said Court. Attest my baud and the seal of said Court at Leadvllle, this nth day of May, A. D. 1888. [SEAL OF COURT.] J. H. Playter, Clerk. But the failure to file this certificate is not fatal under Eule 7 of L. O. Circular of July 6, 1883, to-wit: 7. Where an adverse claim has been flled, but no suit com- menced against the ap]:)licant Cor jiatent within the statutory period, a certificate to that eflcot by tb(?Clerk of the State Court having jurisdiction in the case, and also by the Clerk of the Cir- cuit Court of the United States for the district in which the claim is situated, will be required. Diligent Piosecution. — The Land OflBce cannot ad- judicate upon the question whether the suit is being pros- ecuted with due diligence. Richmond Co. v. Rose, 114 U. 8., 576. ADVERSE CLAIM. 305 Dismissal and Reinstatement. — Jurisdiction once atta'-hcd remains and wlicre default was had, but tlie cause reinstated, the adverse hohls, notwitlistaudiug Certificate of no suit pending had been filed during the interval. 9 L. O. 161. Nor will a Receiver's Receipt obtained in such interval be allowed in evidence. McEvoyv. Hyman, 25 Fed. 539. "Waiver of Adverse. Filial Dism;8sa'. — An ad- verse claim may be waived. 12 L. 0. 167. Dismissal of the supporting suit is a waiver. Id. 264. 5. Where such suit h=s been dismissed, a certitlcate of the clerk of the court to tliat effect, or a certified copy of the order of dismissal, will be sullk'ieiit. Rule r>, /,. O. Circular, July 6, 1883. 6. In no case will a relinquishment of the Rround in con- troversy, or other proof, tiled with the Register or Receiver, be accepted in lieu of the evidence required in paragraphs 4 and 5. —Rule a, Ibid. PROCEEDINGS AFTER DETERMINATION OF SUIT. Land OfVioo KcMniirpinoiit in Such f'ase. — I. Wliere an ad- verse claim lias been tiled and suit thereon commeiK'ed within the statutory period, and final judgment determining the right of possession rendered in favor of the applicant, it will not be suf- ficient for him to file with the Register a certificate of the clerk of the court, setting forth the facts as to such judgment, but he must, before he is allowed to make entry, file a certified copy of the judgment, togother with the other evidence reciuired by sec- tion 'JoiitJ, Re\'lse(i Statutes." Rule 4 Circ- July 0, 1883. The ejectment being determined in favor of Defendant he files a copy of the judgment roll and enters the lot ; if in favor of Plaintiff, he completes proof in the same manner as the original applicant, and upon filing a copy of the judg- ment roll is allowed to enter and pay for the lode or so much as his adverse claim may cover; if it claim only a part of the original survey, a patent will issue to the origi- nal applicant for the portion not in controversy. When there is a recovery by Plaintiff he must obtain a new order 306 ADVERSE CLAIM. of survey, paying the same deposit as the applicant, and must file a new plat in the Land Office, but of course does not have to make publication or post notice : with these exceptions, he proceeds after winning his suit, using a full set of "final entry papers," with affidavit of citizenship, the same as if he had been an original applicant for patent. When a case is compromised after suit brought, it is therefore always more convenient to stipulate to have the plaintiflf dismiss, taking bond or deed to secure the land yielded, instead of taking verdict for either Plaintiff or De- fendant. In such case upon filing Certificate of Dismissal the original survey goes to Patent without further complica- tion, and the Defendant can convey after entry according to the terms of settlement. Annual Ijiibor. — The pendency of an Adverse Claim or of a suit supporting the same, does not excuse the non- performance of annual labor on either I.ode. Copp, 273. Sickel 371. But it is not required after entry. 11 L. 0. 67. Seep. 56. Where neither Lode keeps up its annual labor after ad- verse, the application may be cancelled on the suggestion of an intervening relocator. Higgina v. John Gold Co. 14 L. 0. 238. PROTEST. The office of n protest is to show that no pateut such as applied for should isiue — as where a mill site pateut is asked for on raiiioral ground. Or that it should not issue to the particular ajiplicaut by reasou of some defect of person, as that the applicant is a foreign corporation ; or for failure to comply with the practice of the departmeut in some serious particular. It is not safe to rely on the presumption that the Laud Office will of its own motion observe every departure from its owu rules. For irregularities, such as short publication, the appli- cant would have to go back to that step, and during the re- publication the protestant could adverse. The fact that the protectant is or claims to be the real owner, or to have the better title, is the office of an adverse and not a ground of protest : but it should be averred to give standing to the protestaut. The protestant can never by this means get title. He can at most, defeat the efforts of the applicant. He is not considered a party to the proceeding (4 L. O., 114,) and has no right of appeal: 4 L. O., 3; 8 L. C, 53. To what exteut defects in the original location, e. g. that discovery shaft is on patented ground; has never dis- closed mineral, entry by etc. See 14 L. O., 162: 11 L. O., 67; and in particular, the final paragraph of U. S. R. S. ^ 2325. FORM OF PKOTE.ST. Id the matter of the application of The Rnnring Fork Mining Compdn.}/ Tot patent on the Alicf H. Mill Site Survey Lot No. 9a0 U, Central CUii Land (Ifflce. Colorado. Your Protestant, Joseph Ueynolds.. whose i^o.^t office ad- dress is Chicago. Jllinois. a citizen of the United .^tates over ttie age of twenty-one years, heieby respectfully protests against the entry by and issuance of patent to The Roaring Fork Mining Comp'iny on their so called mill site called the Alice H. Mill Site, Survey Lot No. 930 B. Because : 308 PROTEST. 1. The said so called mill site is not and never was used or occupied in connection with said Alice H. Lode for mining or milling purposes. 2. It is not and never was used or occupied by the appli- cant or its grantors in connection with any lode or by itself for miiung or milling purposes. 3. There are no improvements and never have been any improvements upon said mill site except the improvemenis made by your protestant. 4. The said mill site is below the mill and below the tail race of the mill of the said applicant company and has never been and is noi now parcel of nor appurtenant to said mill nor included within the mill site on which said mill stands. 5. Said so called mill site or a great part thereof has been in good faith located as the Lion Mill Site by your protestant and is now being used for mining purposes in connection with the iio« Lode, lying immediately above said mill site owned and being worked by your protestant. 6. &c.; 7, (tc : Add or substitute other reasons according to the facts, e. g. The publication was not posted on the Land Office BuUet'i.i during the period of newspaper I'Ublication— the location of said mil site is on mineral land and land more valu- able for mineral than for mill site purposes— &c., &c. Wherefore f jr these causes as verified by the affidavit of your protestant attached hereto, and as well for the want of proper pruof that the said so-called .4 Hce iT. Mill Site is being "used or occupied by the proprietor of the said Alice H. Lode for mining or milling purposes," as required by the terms of section 2337 of the Revised Statutes of the United States, and that the applicant has otherwise failed to comply with the terms of Chapter b of Title XXXIl of said Revised Statutes, entiiled, " Mineral Lands and Mining Resources," your jietitioner protests as aforesaid. EeywAds. State of CoLOitADO, ) County of Gilpin. f ' Before me the subscriber, Ed. W. HurlbtU. a Notary Public in and for said County, jiersonally appeared Joseph Iteyruolds , who, being duly sworn, saith that he is the protestant named in the forpgoing protest subscribed hy him ; that he has read the same and kn )ws the contents thereof, and that the .same and the matter* and thing* therein slated are true. Reynolds. Sworn and tubscribed before me this \Qth day ©f May, A. D. ISHS. [SEAL.] Ed. W. Hurlbut, N. P. TEXT OF U. S. STATUTES REPEALED. Sections of Act of July ii), ISHti, Kepealtil liy Act of Slay 10, ISti, and not fouml in the Bi-rised Statutes. Oriirinal License to Explore.— 5 1. That the mineral lauds of the imblic domain, both surveyed and unsurveyed, are hereby declared to be free and open to exploration antl occnpation by all citizens of the I'nited States, ami those who have declarei their intention to become citizens, subject to such regulations as may be prescribed by law, and subject also to the local customs or rules of miners in the several mining districts, so far as the same may not be in conilict with the laws of the United States. IniprovementN. Dip. I'atent.— ? 2.— That whenever any per- son or association of persons, claim a vein or lode of iiuartz. oroiher rock in place, bearing gold, silver, cinnabar, or copper, having previously occupied and improved the same according to the local custom or rules of miners in the district where the same is situated, and having expended in actual labor and improve- ments thereon an amount of not less than one thousand dollars, and in regard to whose possession there is no controversy or op- posing claim, it shall and may be lawful for said claimant or as- sociation of claimants to lile in the local J^and Oflice a diagram of the same, so extended laterally or otherwise as to conform to the local laws, customs, and rules of miners, and to enter such tract and receive a patent therefor, granting such mine, together with the right to follow such vein or lode with its dips, angles, and variations, to any depth, altliougti it may enter the land ad- joining, which land adjoining shall l)e sold siilyect to this condi- tion. Application for Patent. — i, ii— That upon the tiling of the dia- gram as provided in the secf)nd section of this Ai't, and posting the same in a conspicuous place on the claim, together with a no- tice of intention to apply for a patent, the Register of the Land Offlce shall publish a notice of the same in a newsjiaper published nearest to the location of said claim, and shall also po.^t sucli no- tice in his oflice for the period of ninety davs; and after the ex- piration ol said period, il no adverse claim .shall have been fded, it shall be tne duty of the Surveyor-General, upon application of the party, to survey the premises and nnike a i>lat thereof, in- 310 U. S. STATUTES REPEALED. dorseil with his approval, designating the number and descrip- tion of the location, the value of the labor and improvements, and the character of the vein exposed ; and upon tlie payment to the T^roper officer of five dollars per acre, togctlier with the cost of such survey, plat, and notice, and giving satisfactory evi- dence that said diagram and notice have been jiostcd on the claim during said period of ninety days, the Register of the Land Ottice shall transmit to the General Land Office said plat, survey, and description : and a patent shall issue for the same thereupon. But said plat, survey, or description shall in no case cover more than one vein or lode, and no patent shall issue for more than one vein or lode, which shall be expressed in the patent issued. Form of Surrey. Length of Claim.— g 4— That when such lo- cation and entry of a mine shall be upon unsurveyed lands, it shall and may be lawful, after the extension thereto of the public surveys, to adjust the surveys to the limits of the premises ac- cording to the location and possession and plat aforesaid, and the Surveyor-General may, in extending the surveys, vary the same from a rectangular form to suit the circumstances of the country and the local rules, laws, and customs of miners; Provided, That no location hereafter made shall exceed two hundred feet in length along the vein for each locator, with au addiiional claim for discovery to the discoverer of the lode, with the right to follow such vein to any depth, with all its dip>^, variations, and angles, together with a reasonable quantity of surface for the convenient working of the same as fixed by local rules: A7id provided furl her. That no i)erson may make more than one location on the same lode, and not more than three thousand feet shall be taken in any one claim by any association of persons. See pages 18, 22. Adverse Claims.—? 6.— That whenever any adverse claimants to any mine located and claimed as aforesaid shall appear before the api>roval of the survey, as provided in the third section of this Act, all jiroceedings shall be stayed until a final settlement and adjudication in the courts of competent jurisdiction of the rights of possession to such claim, when a patent may issue as in other cases. FULL TEXT OF UNITED STATES LAWS NOW IN FORCE. The text is taken from the last edition of the "Revised Statutes of the United States," 1878, and the subsequent Sessiou Laws to and including the Session of 1886-87. This revision includes the unrepealed sections of An Act granting the right of way to ditch and canal owners over the public lands, and for other purposes. — Approved July 2(; 18(56. An Act to amend an Act granting the right of way to ditch and canal owners over the public lands, and for other purposes, —Approved July 9, 1870. An Act to promote the development of the mining resources of the United ^U\.W%.— Approved May VK 187:;. Commonly called the " Mining Acts," with all their amendments and miscellaneous sections from other Acts. The repealed sections, (being sections 1, 2, 3, 4 and G, of the Act of 1866,) repealed by the Act of 1872, are found on preceding pages 307,308. TITLE XIII, CHAPTER 17. Posnessory ActionN. — § 910.— No possessory action I otwcen per.tons, in any court of the I'nited States, for the recovery of any mining title, or for damages to any such title, shall be affect- ed by the fact that the paramount title to the land in which such mines lie is in the I'nited States : but each ciuse shall be adjudged liy the law of possession.— .See. 9, Feb. 27, 186.3. Hee pp.'J-\[l Note.— All the Statutes, State or Federal, nrinted in this book, have been compared with the original, so as to have its exact wording and i>uuetuation. 312 TEXT OF U. S. STATUTES. TITLE XXXII, CHAI'TER 6. ENTITLED " MINERAL LANDS AND MINING KESOURCES." Reserved from Vale under the Pre-Enipfion Acts. — \ 2318. — In all cases lands valuable for minerals shall be reserved from sale, except as otherwise expressly directed by law.— Sec. 5, Jvly 4, 1866. General License.— § 2319. — All valuable mineral deposits in lands belonging to the United States, both surveyed and unsur- veyed, are hereby declared to be free and open to exploration and purchase, and the lands in which they are found to occupa- tion and purchase, by citizens of the United .'-^tates and those who have declared their intention to become such, under regula- District I lions prescribed by law, and according to the local cus- Rules. I toms or rules ol miners in the several mining-districts, so far as I he same are applicable and not inconsistent with the laws of the United States.— ,S'et'. 1, May 10. 1872. See p. 9. Length of Claims.- j 2320. — Mining-claims upon veins or lodes of quartz or other rock in place bearing gold , silver, cin- nabar, 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, Ijut s"hall not exceed, one thousand five Discovery I hundred feet in length along the vein or lode ; but no Essential. I location of a mining-claim shall be made until the discovery of the vein or lode within the limits of the claim lo- Widf h of I cated. No claim shall extend more than three hun- ClainiH. I dred 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 adverse rights existing on the tenth day of May, eighteen hundred and seventy two, render such limitation necessary. The end-lines of each claim shall be parallel lo each other.— ,%(;. 2, May 10, 1872. Seej/p. 22, 23, 26. Proof of Citizenship.—? 2321.— Proof of citizenship, under this chapter, may consist, in the case of an individual, of his own alfidavit thereof; in the case of an association of persons unin- corporated, of the affidavit of their authorized agent, made on his Citizenhhip of I o\yn knowledge, or upon information and belief ; Corpomtinns. | and in the ca.se of a corporation organized under the laws of the United States, or of any State orTerritory thereof, by the filing of a certified copy of their charter or certificate of incorporation.— ,S'ftj. 7, May 10. 1872. ,S'««p. 201. Surface, IHpand Side Veins.—? 2322.— The locators ot all min- ing locations heretofore nuide or which shall hereafter be made, on any mineral vein, lode, or ledge, situated on the public domain. TEXT OF U. S. STATUTES. 313 their heirs and assigns, where in > ndverso claim exists 011 the tcii'h day of May, eiijhteen hundred and seventy-two, so long as they comply with the laws of tlie I'niled States, and with State, Territorial, and local regulations not in contlict witli the laws of the United Slates governing their )iossessory title shall have the exclusive right of jjossession and enjoyment of all the surface ia- cludod within the lines of th^ir locations, and of all veins, lodes, Top or Apex ■ and ledges throughout their entire depth, the top Controls. I or apex of which lies inside of such surface-lines extended downward vertically, althougli su«h veins, lodes, or ledges may so far depart from a perpendicular in their course downward as to extend outsiile the vertical sid«-liues of such .surface locations. 15ut their right of possession to such outside parts of such veins or ledges shall be conliued to such portions thereof as lie I ctween vertical planes drawn downward as above described, through the enddines of their locaiions, so continued in iheir own direction that such planes will intersect such exte- Surf»rp I '^'"' l"^'"''^ ^^ such veins or ledges. And nothing in I jjjj^ section shall authorize the locator or possessor of a vein or lode which extends in its downward cour.se oeyond the vertical lines ol his claim to enter upon the surface of a claim owned or possessed by another.— Sec. 3, Jfaw 10, 1872. Seepp.Sb, [)i, '.r>, 1(12. Tmiiiels.— J 232S.— Where a tunnel is run for the development of a vein or lode, or for the discovery of mines, the owners of such tunnel shall have the right of pos.session of all veins or lodes within three thousand feet from the face of such tunnel on the line thereof, not previously known to exist, discovered in such tunnel, to the same extent as if discovered from the surface; and locations on the line of such tunnel of veins or lodes not appear- ing on the surface, made by other parties after the commence- ment of the tunnel, and while the same is being prosecuted wita reasonable diligence, shall be Invalid; but failure to iirosecute 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.— A-f. 4, Muy 10, 1872. i>ee p. i:M. nistrict KhIcs. — j* 2321.- The miners of each mining-district may make regulations not in conflict with the laws of the United Slates, or with the laws of the State or Territory in which the district is situated, gctverning the location, manner of recording, amount of work necessary to hold possession of a mining-claim, Locatiuii, I subject to the following retiuirements: The location Kecord. | must be disiineily marked on the ground so that its boundaries can be readily traced. All records ol mining-claims hereafter made shall contain the name or names of the lix-alors, the date ol the location, ai.d such a description of the claim or claims located by reference to some natural object or permanent Annual I monimient as will identify the claim. On each claim Labor | located after the tenth day of May, eighteen hiuidred and seventy-two, and until a natcnt has been isstied therefor, not less than one hundred dollars worth of labor shall be i>erformed or improvements made during each year. On all claims located 314 TEXT OF U. S. STATUTES. prior to the tenth day of May, eighteen hundred and seventy-two, ten dollars' worth of labor shall be performed or improvements made by the*tenth day of June, eighteen hundred and seventy- four, and each year thereafter, lor .each one hundred feet in length along the vein until a patent has been issued therefor; but where such claims are held in common, such expenditure may be made upon any one claim; and upon a failure to comply with these conditions, the claim or mine upon which such failure occurred shall be open to re-location in the same manner as if no location of the same had ever been made, provided that the origi- nal locators, their heirs, assigns, or legal representatives, have not resumed work upon the claim after failure and before such Forfeiture. | location. Upon the failure of any one of several co- owners to contribute his proportion of the expenditures required hereby, the co-owners who have performed the labor or made the improvements may, at the expiration of the year, give such delin- quent co-owner personal notice in writing or notice by publica- tion in the newspaper published nearest the claim, for at least once a week for ninety days, and if at the expiration of ninety days after such notice in writing or by publication such delin- quent should fail or refuse to contribute his proportion of the ex- penditure required by this section, his interest in the claim shall become the property of his co-owners who have made the re- quired expenditures.— &c. 5, Mcaj 10, 1872. Seejxiges 45, 52, 6-1. Amendment of 1875— Labor by Tunnel.— [That section two thousand three hundred and twenty-four of the Revised Statutes be, and the same is hereby, amended so that where a person or company has or may run a tunnel for the purposes of developing a lode or lodes, owned by said person or company, the money so expended in said tunnel shall be taken and considered as ex- I'cnded on said lode or lodes, whether located prior to or since the passage of said Act; and such person or company shall not be re- quired to perform work on the surface of said lode or lodes in order to hold the same as required by said Act.l— ^'fc. 1, Feb'v 11. 1875. Amendment of 1880.— Annual Labor Period Fixed.— That section twenty-three hundred and twenty-four of the Revised Statutes of tiie United States be amended by adding the following words: "Provided, That the period within which the work re- quired to be done annually on all unpatented mineral claims shall commence on the first day of January succeeding the date of location of .such claim, and this section shall apply to all claims located since the tenth day of Mav Anno Domino eighteen hun- dred and seventy-two."— ^'ec. 2, Jan'y 2, 1«S0. Seep. 53. Application for Patent.- 3 2325. — A patent for any land claimed and located for valuable deposits may be obtained in the following manner : Any person, association, or corporation au- *N0TE. - Instead of June 10, 1874, the date ultimately fixed was January 1, 1875. S*e note, 23. 52. TEXT OF U. S. STATUTES. 315 thorized to locate a claim under thLs chapter, having claimed and located a jiioce ot land for such jiuriwsc.s, wlio has, or have, conii)lii'd with the terms of this chaiiier, nmy tile in the projier Land-()iru'e an upplieation Cor a patent, under oath, showing such compliance, together with a jilat and field-notes of the claim or claims in common, n)ade l>y or under the direction of the United States Surveyor-Ccnenil. showing accurately the boun- daries of the claim or claims, which shall be distinctly marked by monuments on the ground, and shall post a copy of such plat, together with a notice of such njiplication for a patent, in a con- fjncuous place on the land embraced in such plat nrevious to the filing of the ap|)lication for a patent, and shall file an atridavit of at least two persons that sueu notice has been duly posted, and .shiill file a copy (jf the notice in such Land Office, and shall no IMys I thereupon be entitled to a patent for the land, in ruliliVatinn. I the manner following: The Register of the Land Olliee. uiMiii the filing of such application, iilat. field notes, no- tices, and allidavits, shall publish a notice tiiat such application has been made, for the iieriod of sixty days, in a ne\vspai>er to be by him designated as pulilished nearest to such claim ; and he shall also post such notKH> in his oMice for the same period. The cliiimjini at the time of tiling this application, or at any time thereafter, within the sixty days of publication, shall file with $.'>00 Improve- I the Register a" certificate of the United States intMits. I .Survevor-General that five hundred dollars' worth (if labor has been expended or improvements made upon the claim by himself or grantors ; that the plat is correct, with .such further description by such reference to natural objects or permanent monuments as" shall identify the claim, and furnish an accurate description, to be incorporated in the patent. At the e.xi)iration of the sixty days of publication the claimiint shall file his affidavit, showing that the plat and notice have been jiosted in a conspicuous j>lace on the claim during such jieriod of Adverse I publication. If no adverse claim shall bave been filed <'laini 1 with the Register ami the Receiver of the proper Land Office at the expiration of the sixty days of publication, it shall be as.sumed that the apiilicant is entitled to a patent, upon the jiayment to the proper ollicer of five dollars per acre, and that S.'>"|iiTlno adverse claim exists; and therealter no objection .^tTi'. I from third parties to the issuance of a patent shall be heard, except it be shown that the api>licant has failed to ci imply with the terms of this chapter.— Nee 6, May 10, 1S72 Hee App.fvr fatent.-m. AmPiidniPiit ofl^SO. Apiilications by Xon-Risidents.— That section iweiuy-thrce hundred and twenty-five of the Revised Statutes of the United States be amended by adding thereto the following words : "Prorhieil. That where tne clamnint for a patent is not a resident of or witnin the land district wherein the vein, lode, ledge, or deposit sought to be patented is located, the aijplication for patent and the affidavits reipiired to be made in this section by the claimant for such patent may be made by his, her, or its authorized agent, where said ageut is conversant with 3 1 6 TEXT OF U. S. STATUTES. the facts sought to be established by said affidavits : And pro- vided. That this section shall apply to all applications now pending for patents to mineral lands."— ;Sec. l,,7«/«Ma? 2/22, 1880. See page 295. , Adverse riainiN.— ? 2326.— Where an adverse claim is filed dur- ing the period of publication, it shall be upon oatli of the person or persons making the same, and shall show the nature, bounda- ries, and extent of such adverse claim, and all proceedings, ex- cept the publication of notice and making and filing of the affi- davit thereof, shall be stayed until the controversy shall have been settled or decided by a court of competent jurisdiction, or Suit Supporting I the adverse claim waived. It shall be the duty in 30 Days. | of the adverse claimant, within thirty days after filinghis claim, to commence proceedings in a court of com- petent jurisdiction, to determine the question ot the right of possession, and prosecute the same with reasonable diligence to Proceedinifs after I final judgment; and a failure so to do shall Judsment. | be a waiver of his adverse claim. After such judgment shall have been rendered, the party entitled to the pos- session of the claim, or any portion thereof, may, without giving further notice, file a certified copy of the judgment roll with the Kegister of the Land Office, together with the certificate of the Surveyor-General that the requisite amount of labor has been ex- pended or improvements made thereon, and the description re- quired in other cases, and shall pay to the Receiver five dollars per acre for his claim, together with the proper fees, whereupon the whole proceedings and the judgment roll shall be certified by the Register to the Commi-;sioner of the General Land Office, and a patent shall issue thereon for the claim, or such portion there- of as the applicant shall appear, from the decision of the court, to rightly possess. If it appears from the decision of the court tbat several parties are entitled to separate and different portions of the claim, each party may pay for h s portion of the claim, with the proper fees, and file the certificate and description by tne Surveyor-General, wheretipon the Register shall certify the proceedings and judgment roll to the Commissioner of the Gen- eral Land Ofiice, as in the preceding case, and patents shall issue to the several parties according to their respective rights. Nothing herein contained shall be construed to prevent the alienation of the title conveyed by a patent for a mining claim to any person whatever.— >ec. 7, May 10, 1872 Seepage 292. Amendment of 1882. Adverse by Agency: by Non-ltesidents. —That the adverse claim required by section twenty-three hun- dred and twenty-six of the Revised Statutes may be verified by the oath of any "duly authorized agent or attorney-in-fact of the a'iverse claimant cognizant of the facts stated ; and the adverse claimant, if residing or at the time being beyond the li idts of the district wherein the claim is situated, may make oath to the ad- verse claim before the clerk of a^y court of record of the United States or the State or Territory where the adverse claimant may then be, or before any notary public of such State or Territory.-- Sec. 1, April 26, 1882. 22 SUii. L. 49. TEXT OF U. S. STATUTES. 3 1 7 IiU'iu. Afliiluvits Out of Liinil District.— That applicants for mineral patents, if residing beyond the limits of the dis- trict wherein the claim is situated, may make any oath or atlidavit rei|Uired for proof of citizenship l>efore the clerk of any court of record or before any notary i)ublic of any State or Ter- ritory.— Sec. 2, /(/. Survey.- ? 2327.— The description of vein or load claims, up- on surveyed lands, shall designate the location of tne claim witli reference to the lines of the public surveys, but need not conform therewith; but where a patent shall be issued f othing in this section contained shall defeat or impair any bona fide pre- emption or homestead claim upon agricultural lands, or author- ize the sale of the imj)r()veme:ils of any boiui Jide stttler to any purchaser.- 6'«!. V^, July 9, 1870. Seepage 116. Placers on Surveyed Lands.— ? ■•331— Where placer claims are upon snrveye 1 lands, anil conform to legal subdivisions, no further surveyor plat shall bo required, and all placer mining 3 I 8 TEXT OF U. S. STATUTES. claims located after the tenth day of Maj-, eighteen hundred and seventy-two, shall conform as near as practicable with the United States system ot public laud surveys, and the rectangular sub- divisions of such surveys, and no such location shall include moretha-i twenty acres for each individual claimant ; but where placer claims cannot be conformed to leeral subdivisions, sur^^ey and plat shall be mad^ as on unsurveyed lands ; and where by the segregation of mineral land in any legal sub division a quan- tity of agricultural landless than f rty acres remains, such frac- tional portion of agricultural land may be entered by any party qualified by law. for homestead or pre-emption purposes.— /Sec. 10, JlfaylO, 1S7J. See page lie. Limitations.—? 233?.— Where such person or association, they and their grantors, have held and workei their claims for a period equal to the time prescribed by the statute of limi ations for mining claims of the State or Territory where the ame may be .situated, evidence of such possession and working of the claims for such period shall be sufficient to establish a right to a patent thereto under this chapter, in the absence of any adverse |- . j claim ; but nothing in this chapter shall be deemed to I impair any lien which may have attached in any way whatever to any mining claim or property thereto attached prior to the is.suance of a patent.— Sec. 13, July 9, 1870. See pages 141, 199. Placer Claim Containing Lode.— ? 2333.— Where the same per- son, association, or corporation is in possession of a placer claim, and also a vein or lode included within the boundaries thereof, application shall be made for a f>atent 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. Placers $2.50 | and twenty-five feet of surface on each side there- per acre. 'of. The remainder of the placer cl.iim, or any placer claim not embracing any vein or lode claim, shall be paid for at the rate of two dollars and fifty cents per acre, together with all costs of proceedings ; and where a vein or lode, such as is described in section twenty-three hundred and twenty, is known to exist within the boundaries of a placer claim, an appli- cation for a patent for such placer claim which does not include an application for the vein or lode claim shall be construed as a conclusive declaration that the claimant of the placer claim has no right of possession of the vein or lode claim ; but where the existence of a vein or lode in a placer claim is not known, a pat- ent for the placer claim shall convey all valuable mineral and other deposits within the boundaries thereof.— Sec. 11, May W, 1872. Secz4). 122, 280. Deputy-Surveyor and Fees.— < 233-1.— The Surveyor-General of the United States "may appoint in each land district containing mineral lands as many competent surveyors as shall apply for TEXT OF U. S. STATUTES. 3 l 9 appointment to survey mining claims. The expen.«es of the sur- vey of vein or lode claini'*, and the .sm vey and snb-divi.sion of placer claims into .'^mailer (luantilie.'ithan cine hun. — Where two or more veins intersect or cross each other, priority of title shall govern, and such prior lo- cation shall be entitled to all ore or mineral contained within the space of intersection ; but the subsequent location shall have the right of way through the space of intersection for the purposes of Veins IWiitin;; 1 the convenient working of the mine. And where on tho I'ip. I two or more veins unite, the oldest or prior loca- tion shall take the vein below the point of union, including all the space of intersection.— Sw. 14, May 10, 1872. See pages Sfi-yi. Mill-Sites.— 3 23.37.— Where non-mineral land not contiguous to the vein or lode is used or occupied by the proprietor of sucii vein or lode for mining or milling purpo.scs, such non adjacent surface ground may be embraced and included in an application 320 TEXT OF U. S. STATUTES. for a patent for such vein or lode, aud the same may be patented therewith, subject to the same preliminary requirements as to survey and notice as ai'e applicable to veins or lodes ; but no loca- tion 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 con- nection therewith, may also receive a patent for his mill-site, as provided in this section.— Sec. 15, ilfaj/ 10, 1872. See page 12S. Easements.— 1 23 18. —As a condition of sale, in the absence of necessary legislation by Congress, the local legislature of any State or Territory may provide rules for working mines, involving easements, drainage, "and other necessary means to their com- plete development; and those conditions shall be fully expressed in the patent.— .yec. 5, Jul2/ 26, 1866. See page — . Water Ricrhts. Appropriation.— § 2339.— Whenever, by pri- ority of possession, rights to the use of water for mining, agri- cultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknOi\ lodged by the local customs, laws, and the decisions of courts, the pos>essors an 1 owners of such vested rights shall be maintained and pro- tected in the same ; and the right of way for the construction of ditches and canals for the pui po-es herein specified is acknowl- edged and confirmed ; but whenever any person, in the con- struction of any ditch or canal, injures or damage-) the possession of any settler on the public domain, the party committing sucli injury or damage shall be liaVjle to the paity injured for such injury or damage. Sec. 9, Jtdy 26, ]t66. See page 109. Patents subject to Water Easements.— g 2310.— All patents granted, or pve-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 pi eceding sec- tion.— .S'ec. 17, /uly 9, 1870. See page 109. Homesteads.— § 2341.— Wherever, upon the lands heretofore designated as mineral lauds, which have been excluded from .survey and sale, there have been homesteads made by citizens of the United States, or persons who have declared their iniention to become citizens, which homesteads have been made, im- proved, and used for agricultural purposes, and upon which there have been no valuable mines of gold, silver, cinnabar, or copper discovered, and which are properly agricultural lands, the set- tlers or owners of such homesteads shall have a right of preemp- tion thereto, and shall be entitled to purchase the same at the price of one dollar and twenty-five cents per acre, and in quantity not to exceed one hundred and sixty acres ; or they may avail themselves of the provisions of chapter five of this title, relating to "Homesteads."- .S'ec. 10, July 26, 1866. COAL LANDS. 321 Seifrt'Kiitlon of Ajrrlcultural Lnndn.—? 2^5-12.— Upon the sur- vey of the liiiulsdest'rili'.d in tht' preceding section, the Secretary of tlie Interior may cle.signate and set ai)art sneli jiortions of the same as are clearly agricultural lands, which lands sliall there- after be subject to jire-emption and sale as other public lands, and be subject to all the laws and regulations applicable to the same.— Sec. 11, July 26, 18»50. See page Land Districts.— § 2313.— The President is authorized to establish aiditional land districts, and to appoint the necessary officers under existing laws, wherever he may deem the same necessary for the public convenience in executing the provisions of this chapter.— ,Sef. 7, July 20, liSOO. See page 203. Vested Uights.— 2 2344.— Nothing contained in this chapter shall be construed to impair, in any way, rights or interests in mining property acquired under existing laws : nor to affect the provisions of the Act entitled " .Vn .\ct {granting to A. Sutro the right of way and othc. privileges to aid in the construction of a draining and exploring tunnel to the Comstock Lode, in the State of Nevada," approved .lulv twenty-five, eighteen hundred and sixty-six.— AVc. 17, July 9, 1870.— *ft-. 16, May 10, 1872. § 2&15.— Excepts Michigan, Wisconsin and Minnesota.* State and Railroad (trants.- ? 23^16.— No act passed at the first session of the Thirty-eighth Congress, granting lands to States or coiporations to aid in the construction of roads or for other purposes, or to extend the time of grants made prior to the thirtieth dav of January, eighteen hundred and sixty-tive, shall be so construed as to embrace mineral lands, whicli m all cases are reserved exclusively to the United States, unless otherwise specially jirovided in the Act or Acts making the grant.— iJes. No. 10, Jan. 30, 1865. ♦March 3, 1S83, 22 Stat. L. 487 Alabama excepted. As to lands ou Military Reservations See Act oj July 5, 1S84, 23 Stat. L. 104. COAL LANDS. Legal Subdivlsif.ns.— g 2;M7.— Every person above the age of twantyone vears, who is a citizen of the United States, or vho has declared his intention to become such, or any as,>;ociation of persons severallv qualified as alxive, shall, upon ai)plication to the Register of tlie proper land ollicc, have the right to enter, by legal sub-divisions, any quantity of vacant coal lands of the United States not otherwise appropriated or reserved by compe 11 322 COAL LANDS. tent authoritv, not exceeding one hundred and sixty acres to 160 c- 320 fsuch individual person, or tliree hundred and ac^e^s SIO to twenty acres to such association, upon payment to $20 itr. acre I tlie Receiver of not less than ten dollars per acre for such lands, where the same shall be situated more than fifteen mile^ from anv completed railroad, and not less than twenty dollars per acre for such lands as shall be within fifteen miles of such road. — .S'ec. 1 , March 3, 1873. Settlers Preferred.—? 2248.— Any person or association of pers >ns severally qualifier l, as above provided, who have opeued and improveii, or shall hereafter open and improve, any coal mine or mines upon the public lands, and shall be in actual possessio : -f the same, shall be entitled to a preference-right of entry, under the preceding section, of the mines so opened and improved: Provided, That when any assiCiation of not less 140 Acre I than four persons, severally qualified as above pro- Tracts. I viiled, shall have expended not less than five thou- sand dollars in working and improving any such mine or mines, such associirtion mav enter not exceeding six hundred and forty ■ acres, including such mining improvements.— /Sec. 2, Ibid. Land Office Proceedinss.— ? 2349.— All claims under the pre- ceding section must be presented to the Register of the proper land district within sixty days after the date of actual possession and the commencement of improvements on the land, by the filing of a declaratorv statement therefor ; but when the town- shii> Tjlat is not on file at the djitc of such improvement, filing must'he made within sixty days from the receipt of such plat at the district office ; and where the improvements shall have been made prior to the expiration of three months from the third day of March, eighteen hundred and seventy-three, sixty days from the expiration of such three mouths shall be allowed for the filing of a declarato y statement, and no sale under the provis- ions of this section shall be allowed until the expiration of six months from the third day of March, eighteen hundred and sev- enty-three.— Acc. 3, It/id. Entry Limited.— 5 2350.— The three preceding sections shall be held to' authorize only one entrj- by the same person or asso- ciation of persons ; and no association of persons any member Of which fhall have taken the benefit of such sections, either as an individual or as a member of any other association, shall enter or hold anv other lands under the provisions thereof ; and no member of any association which shall have taken the benefit of such sections shall enter or hold any other lands under their pro- visions ; and all persons claiming under section twenty-three hundred and forty-eight shall be required to prove their respective rights and pay for the lands filed upon within one year from the time prescribed for filing their respective claims; and upon failure to file the proper notice, or to pay for the land within the required period, the same shall be subject to entry by any other qualified applicant.— -Sec. 4, IIM. TIMBEK ACT. 323 C'onlllcliiiff (iaiiiis.— ? 23r>l.— In case of coullicting claims upon coiil lanils wliere the imi>rovemc!its shall be commenced, atler the the third day of March, eighteen hundred and seventy- lliTee, priority of ins^ession and improvement, foUoweil by proper lilinj? and continue 1 good faith, sliall determine the i>refercnce- right to purchase. An 1 also where improvements have already been made prior to the third day of March, eighteen hundred and seventv-three, divisi, Ibid. Vesti'tl Rights. Lodes and Placers Excepted.—? 23.52.— Noth- ing in the live preceding sections shall be con-Jtrued to destroy or impair any rights which may have attached prior to the third dav of Mar. 125, 124. DIVISION II. LODE CL.\I.MS. lientrtli. 1500 Feet.— § 2597.— The length of any lode claim hereafter located may etiual but not exceed fifteen liundred feet along the vein.— Sec. 1, February 13, 1871. See jkifie 23. Width 160 or 300 Feet.—? 2398.— The width oflode claims hereafter located in Gilpin, Clear Creek, Boulder and Sum- mit counties, shall be seventy-five feet on each side of the 326 TEXT OF PRESENT STATE STATUTES. center of the vein oi- crevice ; and in all other counties the width of the same shall be one hundred and fifty feet on County I each side of the center of the vein or crevice : Pro- Option. ! vided, that hereafter any county may, at any gen- eral election, determine upon a greater width not exceeding three hundred feet on each side of the 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 deter- mine upon a less width than above specified.— 5ec. 2, Id. See page 24. Requisites of Location Cerliflcatc— ? 2399 —The discoverer of a lode shall, within three months from the date of discov- ery, record his claim in the office of the Recorder of the county in which such lode is situated, by a location certifi- cate which shall contain : First— The name of the lode. Sec07id— The name of the locator. Thi d— 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. —Sec. 3, Id. See p. 45. Void Location Certificate.— §2400 — 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 dLscoverj' shaft, the general course of the lode, and such de-cription as .shall identify the claim with reasonable certainty, shall be void.— Sec. 4, Feb. 13, 1874. See ixige 45. DiscoTery Shaft and Staking. — ? 2401. — Before filing such lo- cation certificate the discoverer shall locate his claim by : First — Sinking a discovery shaft upon the lode to the depth of at least te i leet 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 di-covery on the surface a plain sign or notice, containing the name of the lode, the name of the locator, and the daie of discovery. Third— By marking the surface boundaries of the claim. — Sec. 5, Ftb. 13, 1874. See page 26. Six Boundary Stakes.—? 2402.— 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 ai the center of each side line. Where it is practically impossible on account of bed rock to sink Note.— The Act approved February 13, 1874, did not take ef- fect till June 15, 1874, which date was in the original Acts erro- neously printed June 1st. TEXT OK PRESENT STATE STATUTES. 327 Prer i|»itouH I huch posts, ihey miiy be placed in a pile of stones, (•roiiiid. I and wliere in mnrkiiig the siirlace )lace any such jwst at the nearest practicable point, suitably marked to designate the proper place,— Sec. il, Ftb. i:'., IsTl. Sec. \,Feb.2, 187G. iS't e page 26. Open Cuts and Tunnel IMscoverit's.— ^ '2^03 —Any open cut, cross-cut or tunnel which shall cut a lode at the dejith ot ten feet below the surface, shall hold such lode, tlJC same as if a discovery shaft were sunk thereon, or an adit of at least ten feet in along the lode from ihe point where the lode may be in any manner discovered, shall be equivalent to a discovery shaft.— iS'ec. 7, Fvb. 13, 1874. See page 35. 60 Days to Sink a Shaft.— J 24 4.— The discoverer shall have sixty days from the time of uncovering or disclosing a lode to sink a discovery shaft thereon.— &c. S, F'eb. 13, IS74. See page 27. Side Lines. Top or Apex.— ^ ^05 —The location or location certificate of any lode claim shall be construed to include all surface ground withni 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, vertically, with such parts of all lodes or ledges as contiinie by dip beyond the .sidelines of the claim, but shall not include any portion of such lodes or ledges beyond the end-jines of the claim or the end-lines continued, whether by dip or otherwise, or beyond the side-lines in anv other manner than by the dip of the lode.— 6fc. 9, Feb'y 13, 1874. See page So. End-Lines.— 5, 2406.— If the top or apex of a lode in its longi- tudinal course extends beyond the exterior lines of the claim at any point on the surface, or as extended vertically downward, such lode may not be lollowed in its longitudinal course beyond the point where it is iutersected by the exterior lines.— ublic highways. Parol ccnisent to the loca- fonsent. | tion of any such easement accompanied by the com- pletion of the same over the claim shall be sutticient without 328 TEXT OF PRESENT STATE STATUTES. writings ; And i^rovidcd 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.— >S'cc. 11, Feb. 13, 1874. See pp. 109; 111. Snrface ISistils.— § 2108.— When the right to mine is in any case separate from the ownership or right of occupancy to the surface, the owner or rightlul occupant of the surface may de- mand satisfactory security from the miner, and if it be refused may enjoin such "miner from working until such security is given. The order for injunction shall fix the amount of bond.— Sec. 12, Feb. 13, 1874. IS e p(XQe 180. Relocation of his own Claim by tlie Ownpr.— ? 2409. — If at any time the locator of any mining claim heretofore or hereafter located, or his assigns, shall apprehend that his original certi- ficate was defective, erroneous, or that the requirements of the law had not been complied with tefore filing, or shall be desir- ous of changing his surface boundaries, or of taking in any part of an overlapping claim which has been abandoned, or in ease the original certificate was made prior to the passage of this law, and he shall be desirous of securing the benefits of this Act, such locator, or his assigns, may file an additional certificate, subject to the provisions of this Act ; Provided, that such relocation does not interfere with the existing rights of others at ihe time of such relocation, and no such relocation or other record there- of shall preclude the claimant or claimants from proving any such title or titles as he or they may have held under previous location.— Sfc 13, Feb. 13, 1874. See page 70. Record Proof of Annual Labor.—? 2410.— 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 who.se behalf such outlay was made, or .some person for him, may* make and record in the office of t.ne recorder of the county wherein such claim is situate an afiBdavit in substance as follows : State of Coi>orado, \ County, ; ^^• 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 descrit'C claim or part of claim.) situate in mining district, County of , State of Colorado, befiveen the dciy of , A. D. and the day of A. r>. * 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.) TEXT OF PRESENT STATE STATUTES. 329 And such affidavit, when so recorded, shall be prima facie evidence of the performance of such labor or the making of such improvements.* Kolocntion of Abandoned ('lainis.— ? JHl.— The relocation of abandoned lode claims shall be by sinking a new discovery .shaft and lixing now boundaries in the same manner as if it were the lucaiiou of a new claim ; or the relocator may sink the original discovery shaft ten feet deeper tha'i it was at the time o£ abandonment, and erect new or adopt the old boundaries, re' owing the p >stR if removed or destroyed. In cither case a new location stake shall be erected. In any ca.se, whether the whole or part of an abandoned claim is takei, the location certificate may state thnt the whole or any part of the new location is located as abandoned property.— AVf. 16. Feb. 18, 1874. See page 68. One Record for Each Claim.—? 2112.— No location certifi- cate .shall claim more than one location, whether the location be made by one or several Incators. And if it jiurport to claim more than one location it shall be ab.solutely void, except as to the first locnti^ '11 therein described, ami if they are described together, or so that it canii it be told which locati n is first de- scribed, the cei titicate shall be void as to all.— .Sec 17, Feb. 13, 1 874. — See page 45. Miscellaneous Scctio :?. — The above printed sec- tions constitute the sections properly incorporated into the chapter of the General Statutes (Eevision of 1883) en- titled mines. Sections 2387-2396 printed in the chapter * Note.— Sec. 15 of Act of Feb. 13, 1874. amended March 31, 1887, Acts of IS*"?, page 312. The .'Section before amendment lead : Within si.x months after any set time crauiinal period allowed for the peri'ormance of labor, or making improvements upon any lode claim, the per.-on on whose behalf such outlay was made, or some person for him, shall make and record an atHdavit in substance as follows : Static of Colou.\uo, i Coimty. f'^^- 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 (hero describe claim or part of claim) situate in mining district, county of .State of Colorado. Such expenditure was made by or at the expense of , owners of said claim, for the purpose of liolding said claim. (Jurat) Signature. And such signature shall be prima facie evidence of the performance of such labor. 330 TEXT OF PRESENT STATE STATUTES. are almost entirely obsolete. Sections 2413-2424 refer to inspection, survey, drainage and other matters only inci- dental. All the sections printed in the chapter are herein- before either printed in full or referred to under their proper headings. There has never been a codification of the mining statutes of either Territory or State, but the act of 1874 was an approach to it and contains, with its amendments, all the statutory regulations concerning discovery, location, record and annual labor. The only local Act is one of 1874 (Acts, p. 87,) referring to Eureka and Las Animas mining districts. All the statutes bearing on tho subject of mines in addition to those above printed in full I have endeavored to collate as follows : INDEX OF STATE STATUTES. COXKTITUTION— 1S76. Art. XVI. Sec. 1— Commissioner of Mines See page 200 Art. XVI. Sec. 3— Drainage " 08 Art. XVI. Sec. 7— Right of Way. Easem< nt " 109,Ui Art. XVI. Sec. 4— School of Mines " 202 Art. X. Sec. 3— Taxation " 139 Art. XVI. Pec. 2— Ventilation. Escapes. Employ- ment of Chil-lrcn " ^181 CODE— 1887. Sec. 363— District Rules See page 3 " 267, 274— Ejectment " 184 " 148- Injunction " 1^0 " 159-160— Injunction-Jumping Case " 183 " SiW— Inspection " 197 " 258— Measure of Damages " 187 " 364— Survey " '97 GENERAL STATUTES— 1861-1883. Sec. 26.«;>— Abandonment. (Obsolete! See p&go — " 423— Adverse Claim, costs on " 30S " 2396, 2677~District Rules and Records " 3 " 2416-24J4— Drainage " 108 " 486-487— Injunction not to issue out of County Court " 197 " 2391-239:— Interference of claims " 82 " Wl4-2415-Jumping Act " 183,195 •' 2189— Limitations, Statute of " 1S9 " 1887-1890— Miner,' Courts. (Obsolete) 'I J172~Miner's Inch " 2!37,214S— Miner's Lien • " 1^1 " 320-3.'5— Mining Corporations " 169 332 INDEX OF STATE STATUTES. Sec. 26SS-2691— Mining under iraproTcments. (Ob- solete) Seepage " 2388 — Mining under improvements. (See Sec. 240S) " 130 •' 2506-2512— Ore buyers " 180 " 2513— Ore stealing " '82 " 779, 780, 886, 887, 897, 910, 2511-2513— Penal Pro- visions " 180 " 2676-2687— Possessory Titles " 9, U •' 2387. 2394— Right of Way " lU " 3098-3116— .School of Mines " 202 " 2395— Soldiers' Claims. (Obsolete) " U " 2113— Survey and Inspection " 197 " 2138— Surveyor's Lien " 144 " 2393— Tailings " l-'5 '• 2389-2390— Tunnel Sites " I'l " 3171, 3472— Weights and Measures ACT.S OF 1885. Page 134— Coal Mines See page 184 " 276— Malicious Mischief " 183 ACTS OF 1887. Page 45, 222— Coal Mines See page 184 " 270-Forcible Entry " 186 " 278— Giant Powler Act " 278 " 340— Mine Tax Act " 139 TERMS OF COl RT.-U. S. CIRCUIT AM) DISTRICT COURTS. Son. Samuel F. Miller, Circuit Justice. Hon. David J. Brewer, Circuit Judge. Hon. Moses UaUell, District Judfe. Henry W. Hobson, District Attorney. Zejyh T. Hill, Marshal. William A. U'lUard, Clerk. The United States Circuit and District Courts sit at Denver on the first Tuesday of May and ou the first Tues- day of November. At Pueblo ou the first Tuesday of April. At Del Norte on the first Tuesday of August. SUPRF.^IE COURT. Hon. William E. Beek, C. J. Hon. .Toseph C. Helm, J. Hon. Samue} H. Elbert, J. Hon. Alvin Marsh, Attorney Geueral. James A. Miller, Clerk. Terms. — First Tuesday in April and first Tuesday in December, at Denver. 334 TERMS OF COURT. T) PS o fe Q o H " u « C^ CJrQ >. C c a fl * cS =i c = n o o o +J> HJ 4-3 « Cfi '7J 2 (ilftfH r, :>. P : H o : A O^ & M H o H >-I b. i_3 M pa H H H M 03 d >. « 0) 13 H n3 IN P< -«! el •r-( (^ >-5 O W O 60 CI H z p o o H o n S3 -<( a < 2 t^ ^ 8 M S H 02 i § o a. • O Ir-I ri w •^ ^ « rt OS >> r?.s .S -d rrj "O ^ >■* -; a S - '< ^ GO " * " ' c •** s f-' ii "^ i § ^; S w K w w p P5 -< p 05 H !» M «5i I o 'A ft 0) P M D >^ a &^ »5 U O !>.Ci « r 2 a g ^^d■ OS'S in ^s'9.4pfi M fe CO |i( H : C9 : • S= : c 8 -. S ~ ° ^ V Z ? ^ E^ bH pS ^2; r O^ o c g -«! P m^ PS K O -A a < OfiWWCii TERMS OF COURT. 336 H H iZ! P e I ci o « Q a . »«' 5 U !► '- w S CO cS° «pa S <" o o -^ a! g..« -..3 a =1 = a p* 6j O t\ v. 5 » ■< S ■< X3 ® a £^' a 53 ^.= ■"0. ce « = >. t3 =E- as "■•H — 'a J3.d a o St" c =1 If C d M a a-i-oCtb^ c^ '^ *-: *^' f-i »— 1 --- *^ ». ^ -'•T' cJ rt S cS >> a H K H . a -^ M Q M M Q s *^ H •I ^ >;.2 g a >>- sj — 5, ?% "25 =:^ §£•- a^5". ^ is- C- I— r <% ''^ ^ C' . a r- , ^ a t-5 '5 >-. t'.'c "S >. >>■ a =; ci c 3 5! ss Si c-c-o c c'2'2 !^ ai ffc f^ cc ct' •2 l!?l Qj a c «* -VA w ^ ^ .^^ r^ U L* ty C — f" £ ■'■ : H : >- : 55 : H . a : Z ;^ O H r? Z .J >S^3 W ^ Ed 3 U O SO O 336 TERMS OF COURT. H iti ^ •^ w M M 2 00 o W ft CO a o ^ •& •-"-§ 13 "^ tH O ■ a '-' S " 2-^a3 - 3 O « iD,-H tH sh 0) OT' ■'^ ^ S^ o; o. P^ § i s § s fil ^ f^ H ft! (H ?- nS2So m 2; W o -a o (N >. 0! ^-4 d, Cj QJ 's S r>ft si; Rm S^c^t^ S ^ f^ _ o o MC1J5.H S ^ S H CC ■< '^ & COUNTY COURTS. Each six terms beginning on first Mon- days of January. March, May, Julj', Septem- ber and November. Arapahoe, Cliaffeo, El Paso, Ijiiko, Park, Rio Grande, Sagnaclie, Summit, Uiicompahgro Weld. 1 Four terms, commencing on second Mon- Costilla. > days of March, June, September, and De- J cember. ^ Four terms, commencing on the third Conejos. j- Mondays of .^larch, June, September and J December. Las Animas, ") Four terms, commencing on the first V Mondays of January, April, July and Oc- Logan. J tober. All other counties have four terms, beginning on the first Mondays of March, June, September and December. The jurisdiction of this Court is confined to $2000. It cannot issue an injunction in any mining case. The County Courts are supposed to commence their terms at set periods, holding four or more each year. But as suits are now commenced without regard to return days, the return days of this Court are of small importance. Being paid in fees and not by salary and deprived of an at- tending panel of jurors these Courts become rather an of- fice than a court and are able to command respect only as the personal character of the judge may suffice to relieve the effect of these inherent defects iu their constitution. APPENDIX.-LASD DISTRICT CHVNtJES. By circular of Jan. 7, 1888, the General Land Office publishes the following Land District changes, dating from January 4 : 1. The boundarie.i of the Lake City Land District shall be 0.1 follows: Commencing at a point where the line between townships 8 and 9 south of the sixth principal meridian inter- sects the western boundary of the State ; thence E. along said line to the N. E. cor. T. 9 S., R. 97 W., thence S. to the line be- tween townships 11 and 12 »outh, thence E. along said line to the N. E. cor. of T. 12 S , R. 91 W. ; thence S. along said line to the third connection line south ; thence W. along said connection line to the line between ranges 6 and 7 west of the New Mexico principal meridian ; thence south along said range line to the K. E.cor. of T. 11. N. R. 7 W., thence W. along the line between townships 11 and 42 north to the western boundary of the .State ; thence north with said boundary line to the place of beginuing. 2. Tranter from the Lake City to the Gunnison Land Dis- trict all of the townships in ranges 1, 2 and 3 we-^t of the New Mexico principal meridian and north of the line between town- ships 12 and 43 north ; all of the townships in ranges 4, 5 and & west of said meridian and north of the line between townships 41 and 42 north. 3. Transfer from the Lake City to the Del Norte Land Dis- trict all the townships and parts of townships in ranges 1, 2 and 3 west of tlie New Mexico principal meridian south of the line between townships 42 and 43 north, and all of the townships and parts of townships in ranges 4, 5 and G west of said meridian, south of the line between townships 41 and 42. 4. Remove the Land Office novj located at Lake City to Montrose, and the Lake City Land District shall be hereafter known as the Montrose Land District. GLOSSARY OF MINING TERMS. Accquia. A ditch. Spanish. Adit. A horizontal drift or other passage used as an opening or drtlin to a mine ; applied to no level except one openiiig on the surface. Latin. Adventurer. A shareholder. English. Alligator. A rock breaker operating by jaws. Alluvinm. The sediment of streams and floods. Latin. Amalgam. The mechanical combination of quick- silver with gold or silver. Apex. The top of a vein. Latin. Arastra. A circular mill for grinding quartz by trituration between stones attached loosely to cross arms. Sp. Ai'ch. A part of the gangue left standing for support. Cornish. Argentiferous. Silver-bearing. Lat. Ascension Theory. That referring the . A shaft or winze which has beeu worked from below. Itiflio Blocks. Cross sections of timber set ou the floor of a sluice, with irregular spaces between, in which the gold settles. American. Klse. See Raise. lleef. An Australian term for lode or ledge. Rob. To gut a mine: to work for the ore in sight without regard to supports or any future considerations. llocker. See Cradle. JtooT. The stratum or rock overlying a deposit, or flat vein. Royalty. The dues to the lessor. Rusty. Oxidised. Ore coated with oxide. Applied to gold which will not easily aiualgaiuate. Scale. A loosened fragment of rock threatening to break olT and fall. Sc.'hist. Crystalline or uietamorpliic rock with slaty structure : usually carrying mica, sometimes argillaceous. Scyr. fjatioiis. All those aggregations of ore having irregular form but definite limits. They difter from beds and lodes by the irregularity of their form ; from impreg- nations by their definite limits. Von Cotta, 81. Selvage. A lining; a gouge; a thin baud of clay often found in the vein, upon the wall. Set. Portion of ground taken by a tributer. 352 GLOSSARY. Shaft. A pit sunk from the surface ; au opening more or less perpendicular sunk on, or sunk to reach the vein. Shift. A miner's turn or spell of work. Webster. Two shifts imply 16 or 20 hours work ; three shifts imply 24 hours work. Sill. A windlass frame. Silver. A metallic element ; the whitest of the met- als ; specific gravity, 10,53 ; fusing point, 1873°; symbol, Ag.; atomic weight, 108. 1 oz. pure silver coined in U. S. dollars is worth $1.2929, gold. Silver Glance. Auore; 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. One kind of fault — the vertical dislocation of a lode. Slide. The mass of loose rock overlying either lode or country. Slope. Au opening upon the inclination of the vein. Sluice. A series of boxes set in line and floored with riflle blocks. SmeUiiiff. 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. Sole. The floor of a horizontal working. Sollar. Any platform or wooden floor or covering in a working. Cornish. GLOSSARY. 353 Sough. A drain. Eng. Spar. A general term applied to rock with distinct cleavage and luster. Spur. A branch or off-shoot to a larger vein. Spiling. Timbering used in quicksand or loose ground where lathes are driven behind timbers and kept flush with the heading. Stamps. Machines for crushing ores by vertical stroke. Stope. The working above or below a level where the mass of the ore body is broken. Com. Stoi>ing. The act of breaking theore above or below a level ; when done from the back of the drift it is called over-hand or back stoping ; when from the sole it is under- hand stoping. ^stratum. A bed of rock or earth of any kind. Dana. The plural is strata. Strike. The extension of a lode or deposit on a hori- zontal line. Vo)i Cotia, 19. Synonymous with trend and course. StuUs. 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. Sulphuret. A sulphide. Sulphide's the more recent and approved term. Sump. The extension of a shaft, forming a pit for the collection of water. Corn. 12 354 GLOSSARY. Syndicate. An association or council of persons ; in use since the 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 tlie tail or lower end of a sluice, or washed from any sort of placer working. Tr i I (liters. 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. Tunnel. A horizontal excavation starting at the sur- face and driven across the country for the discovery or working of a lode or lodes. Tut work. Work paid for by the foot as distinguished from tribute work. Upcast. A ventillating shaft where the air ascends. Veins. Aggregations of mineral matter in fissures of rocks. Von Cotta, 26. 4 Saw., 310; Bainhridge, 2. The word vein has a broader scope than lode, including uon- metalic beds. See p. 92. It is also applied, in working, to smaller zones threading the greater deposit. See Vena and Veta. Vena. The branches of the veta, or main vein. Span. Veta. A main vein. Span. Vug. A cavity. Wall. The plane of the country where it touches the side of the vein, when used with reference to lodes. Tie side of a level or drift, when used with reference to the workings See p. 105, GLOSSARY. 355 Wheal. A pit or hole in the jjround. A mine. The names of most mines in Cornwall are preceded by the word Wheal. Old form Huel. Cornish. Whim. A machine for raising the bucket by means of a revolving drum. Whip. An apparatus for raising the bucket with rope and pulleys, by horse power on a straight drive. Winze. A shaft sunk from a level ; not necessarily connecting two levels. Ziiik. A metallic element; blueish white; fusing point 773° Fahr ; generally found as a sulphide (blende) or as a carbonate (calamine). Atomic weight, 65.2 ; specific gravity, 8,9. TABLE OF CASES CITED. Ahren v. Dubuque Co., 108. Anderson v. Harvey, 192. Anderson v. Harper, 189. Ardesco Co. v. Gilson, 189. Argentine Co. v. Terrible Co., 104. Armstrong v. Lower, 32, 83, 'J4, 108. Arnold v. Baker, 184. Aspen Co. v. Rucker, 196. Atchison v. Peterson, 110, 126. Atkins V. Hendrie, 57, 90. Attorney General v. Cliambers, 198. Attwood V. Fricot, 22, 186. Baird v. Williamson, 108. Barker v. Dale, 52. Barnard v. McKenzie, 143. Basey v. Gallagher, 110. Baxter Co., v. Patterson, 41. Bay State Co., v. Brown, 185. Becker v. Pugh, 17, 22, 185, 301. Beckner v. Coates, 299. Belcher Co., v. Deferrari, 61. Belk V, Meagher, 49, 57, 61. Bell V. Bed Rock Co., 8, 52. Bennitt v. Whitehouse, 198. Berea Co v. Kraft, 189. Blake v. Butte Co., 84. Boggs V. Merced Co., 80, 81. Bowman Lode, 34. Bracken v. I reston, 192. Bradbury v. Davis, 162. Bradley v. Harkness, 111. Branagan v. Dulaney, 89. Breeze v. Haley, 140. CASES CITED. 357 Brooks, in re, 65. Brown v. CaUlwoU, 189. Brown V. -19 Co., 134. Bullion Co. V. Eureka Co., 94. Burdgc V. Underwood, 131. Burke v. McDonald, .m. Burnett V. Whitesides, 191. Butte Co. V. Vaughn, 111. Caldwell V. Fulton, 131. Cameron v. Seaman. 20.5. Campbell v. Rankin, 50. Capner v. Flemington Co., 190. Carney v. Arizona Co., 125. Chamberlain v. Collinson, 188. Chambers v. Brown, 188. Champion Co. v. ^Yyoming Co., 300. Chapman v. Toy Long, 125, 1G7, 192. Clare v. Peo., 182. Clary v. llazlctt, 80. Clavering v. Clavering, 190. Comstock, in re, 177. Cole Co. V. Virginia Co., 19C. Colman v. Clements, 8. Cons. Rep. Co. v. Lebanon Co., 17, 22. Corning T. Co. v. Pell, 3G, 136. Courcbainc V. Bullion Co., 50. Cox V. Clough, 200. Crane v. Salmon, 162. Croesus Co. v. Colorado Co., 44. CuUacott V. Cash Co., 44. Davis V. Gale, 111. Debris Cases, 1'27. Deffeback v. Hawke, 80. * Depuy V. Williams, 52. Derry v. Ross, 51. Dodge V. Marden, 112. Dougherty v. Crary, 52. Drummond v. Long, 41. 358 CASES CITED. Dugdale v. Robertson, 198, 13 M. R., 662, (3 Kay & J. 695.) Duggan V. Davey, 102. Du Prat V. James, 49, 57. Durant Case, 105. Duryea v. Boucher, 41. Duryea v. Burt, 141. Eagle V. Badger case, 34. Eagle Salt Works, 74. Eclipse Co., V. Spring, 84. Edwards v. Allouez M. Co., 126. Ege V. Kille, 187. Eilers v. Boatman, 48. Electro-Magnetic Co., v. Van Auken, 35. Elgin Co. V. Iron S. Co., 108. Emma Mine Case, 191. Empire Co. v. Bonanza Co., 187. English V. Johnson, 22, 50. Ennor v. Barwell, 198. Equator Co. v. Marshall Co., 115. Erhardt v. Boaro, 28, 31, 37, 50, 62, 192. Ernest v. Vivian, 193. Esmond v. Chew, 125. Eureka Co. v. Richmond Co., 77, 95, 97. Faxon v. Barnard, 48, Ferguson v. JSeville, 1C8. Ferris v. Coover, 51. Field V. Beaumont. 191 . Finerty v. Fritz, 150. Flagstaff Case, 92, 104. Foote V. National Co., 34. Forbes v. Gracey, 140. 420 Mining Co. v Bullion Co., 77, 199. Frank Co. v. Larimer Co*., 300. Garfield Co. v. Hammer, 49, 168. Gelcich v. Moriarity, 36. Gilpin County M. Co. v. Drake, 37, 41, 188. Gleeson v. Martin White Co., 22, 36, 37, 49, 89, 95. CASES CITED. 359 Gold UirtLode, 2tU. Gold mil Co. V. Ish, 133. Gold Tel. Co. v. Commercial Tel. Co., 193. Golden Fleece Co. v. Cable Co., 7, 77, 92, 1G7, 185. Golden Gate Co. v. Snperior Court, 127. Golden Terra Co. v. Mahler, 29. Gonu V. Russell, 22, 37, 61. Good Return M. Co. mre, 119. Gore V. McBrayer, 8, CS. Gray v. Truby,35. Graydon v. Hood, 00. Great Western Lode, 271. Grey v. Northumberland, 191. Gregory v. Pershbaker, S.'SU; U Pac. JOl. Griffith Lode Case, 60. Ground Hog lode in re, 261 GwilUm V. Donnellan, 32, Hall V. Equator Co., 89, 91, 94, 191. Hall V.Hale, 56. Hall V. Johi sou, 188. Hamilton v. Ely, 191. Hardin Lode Case, -10, 41. Hardt v. Liberty Hill Co., 127. Harkness v. Burton, 52. Harlan v. Harlan, 1h9. Harrington v. Chambers, 29, 97, 303, 304 Harris v. Equator Co., 11, 186, 199. Harvey v. Ryan, 8. Hauswirth v. Butcher, 23, S6. Hawxhnrst v. Lander, 60. Henshaw v. Clark, 192. Hess V. Winder, 17, 22, 186, 192. Heydenfeldt v. Daney Co., 80, 133. Hicks V. Compton, 192. Hlgglns V. John Gold Co., 306. Hobbs V. Amador Co., 127. Holland v. Mt. Auburn Co., 36. Horner v. Watson, 131. Horswell v. Ruiz, 49. 360 CASES CITED. Hyman v. Wheeler, 97, 08. International Co. v. Miles, 193. Iron S. M. Co. v. Cheesman, 98, 103. Iron S. M. Co. v. Murphy, 100. Irwin V. Davidson, 190, 191. J. Q. S. Lode, 261. Jackson v. Roby, 57, 12.5, 185, 301. Jennison v. Kirk, 110. Johnson v. Buell, 92. Johnstone v. Robinson, 157. Jones V. .lackson, 127. Jupiter Co. v. Bodie Co., 29, 41, 58, 104. Kahn v. Old Telegraph M. Co., 77, 80. Kendall v. San Juan Co.. 179. Kevern v. Prov. Co., 189. King V. Edwards, 61. King V. Thomas, 134, 200. Kramer v. Settle, 57, 62. Lalande v. McDonald, 49. Lampman v. Milks, 110. Laughlin v. Hawley, 164. Law V. Grant, 343. Leadville Co. v. Fitzgerald, 96. Lebanon Co. v. Rogers, 93, 200. Lee Doon v. Tesh, 167, 168, 302. Leggatt V. Stewart, 23. Lewis V. Marsh, 198. Lime Lode Case, 105. Lincoln v. Rodgers, 126. Little Gunnell Co., v. Kimber, ,57, 61, 68. Little P'gh Co. v. Araie Co., 32. Little Schuylkill Co. v. Richards 11.5. Lockwood V. Lunsford, 191, 192. Logan V. Driscoll, 125. Lonsdale v. Curwen, 198. Lorimier v. Lewis, 74. Maeris v. Bicknell, 111, 112. CASES CITED. 36 | Magnet Co., v. Page, 192. Mallctt V. Uncle Sam Co., 11, 51, 52. Mammoth Co.'s App., 191. Marvin v. Hrew.ster Co., 131. Mather v. Trinity Church, 169. Mellors v. Shaw, 18i». Merced Co. v, Fremont, 191, 192. Merrltt V. Judd, 11. MoUie Mullen Mill Site, 129. Monroe v. N. Pac. Co., 188. Moody V. McDonald, 188. Moore v. Ferrell, 191, 192. .Moore v. Robius, 81. Moore v. Smaw, 132. More V, Massinl, 192. Morris v. DeWitt, 189. Morton v. Nebraska, 74. Mt. Diablo Co. v. Calli.sou, 57, 97. Murley v. Ennis, 28, 157. Murphy v. Cobb, 184. Myers v. Spooncr, 51. McAndrews v. Burney, 188. McCord V. Oakland Q. Co., 65. McCormick v. Varnes, 104. McEvoy V. Hyman, 73, 305. McGarrlty v. Byiugton, 57. McGinnls v. Egbert, 29, 33, 37, 49, 63, 64, 73, 185. 30J. McGoon V. Ankeny, 52. McKinstry v. Clark, 35, 48. Neuman v. Drelfurst, 6.5. New York Hill Co. v. Rocky Bar Co., '29o, Noonan v. Caledonia Co., 179. North Noonday Co. v. Orient Co., 28, 48, 9'., 1 VS H5. Noteware v. Stearns, 110. Noycs V. Black, 18. O'Kelfe V. Cunningham, 12P. Old Tel. M. Co., v. Central Co., 191. Ontario S. M. Co., in re. 13^1. 362 CASES CITED. Ophir Co., V. Carpenter, 112. Oregon Co., y. Trullenger,110. Oreamuno v. Uncle Sam Co., 51. O'Reilly v. Cam pell, 62. Osterman v. Baldwin, 167. Overman Co. v. Corcoran, 28. Pacific Co. V. Spargo, 103. Packer v. Heaton, 57. Page V. Fowler, 189. Palmer v. Uncas Co., 143. Pardee v. Murry, 85, 88. Parrott v. Palmer, 191, 193. Patterson v. Hitcticock, 25, 28, 92, 94, 159. Paull V. Halferty, 350. Pelican Co. v. Snodgrass, 61. People V. Gold Run Co., 127. People V. Page, 181. People V. Sloper, 181. People V. Williams, 182. Perry v. Ricketts, 188. Plienix Co. v. Lawrence, 48. Phipp.s V. Hully, 201. Pollard V. Shively. 40, 42. Prosser v. Parks, 8. Quimby v. Boyd, 58. QuLncy Co. v. Hood, 188, 189. Quirk V. Falk, 111. Rara Avis Co. v. Boucher, 143. Raunheim v. Dahl, 76. Real del Monti Co. v. Pond Co., 191. Remington v. Bandit, 57. Reynolds v. Iron S. Co., 123. Richmond Co., v. Eureka Co., 104. Richmond Co., v. Rose, 23, 304. Robertson v Smith, 12. Rockwell V. Graham, 115, 299, Rogers V. Cooney, 127. Rose V. Richmond Co., 80. CASES CITED. 363 Rosenthal v. Ives, 167, 185, 301. Rough V. Simmons, 303. Russell V. Brosseau, (il. St. John V. Kidd.S. St. Louis Co., V. Kemp, 57,58, 80, 118, 287. Salmon v. Symonds, 133. Saunders v. Mackey, 70. Scogln V. Culver, 271. Sears v. Taylor, 7, 50, 185. Sierra Co. v. Sears, 191. Silver Bow Co. v. Clarke, 76, 80. Smallhouse Co. v. Kentucky Co., 113. Smart v. Jones, 110. Smelting Co. v. Kemp, 57, &S, 80, 118, 287. Smith v. Idaho Q,. Co., 189. • Smith V. O'Hara, 111. Smith V. Oxford Co., 189. Smith V. Reynolds, 150. Smoke House Lode Case, 134. Sparrow v Strong, 10, 28. Stanley v. Little Pittsburg Co., HO. State V. Berryman, 182 . State V. Burt, 182. Steel V. Gold Co., 291. Stephenson v. Wilson, 199. Stevens v. GUI, 97. Stevens v. Murphy, 98. Stevens v. Williams, 96, 98. Stockbrldgc Co. v. Cone Works, 19S. Stone Lode Case, 291. Strahlendorf V. Rosenthal, 188, 189. Strang v. Ryan, 7U. Strepey v. Stark, 32, 73, 304. Sweet V. Webber, 37, 49, 124, 125. Table Mt. Co. v. Stranahan, 8. Tabor v. Dexter, 96. • Talbot v. King, 77. 80. Thistle v. Frostberg Co., 186. 364 CASES CITED. Thomas v. Oakley, 192. Thornborough v. Savage Co., 19S. Tibbetts v. Ah Tong, 167. Titcomb v. Kirk, 110, 114. Tombstone Co. v. Way Up Co., 107. Townsend v Peasley, 108. Trihay v, Brooklyn Co., 189. Tucker v. Masser, 118. United Merthyr Co., in re, 187. United States v. Carpenter, 179. United States v. Castillero, 22. United States v. Gear, 192. United States v. Iron S. Co., 57. United States v. Parrott, 191. United States v. Williams, 324. Upton V. Larkin, 28, 32. Utley V. Clark-Gardner Co., 177. Van Zandt v. Argentine Co., 29. Waters v. Stevenson, 188- Weese v. Barker, 48. West Point Co. v. Reymert, 192. Wheeler v. West, 157. Wright V. Dubois, 76. Willson V. Cleaveland, 52. Wilson V. Henry, 199. Wolfley V. Lebanon M Co., 76, 92, 93. WoodruflFv. N. Bloomfleld Co., 127. Yo Semite Case, 12. Yunker v. Nicholls, 110, 114. Zollars V. Evans, 29. INDEX. Abandoiinient, pa<;k51. Rclocfttion after, 08. Of Tunnel, 138. Abstract of Title— 111 E.\iiiiiiiiing Title, 159. On Application for Patent, 259. On Adverse Claim, 295. Ackiiowlodjjiiuiit, 14.S. Fv Individual, 140. By Wife, 140. Bv Corporation, 149. By Attorney in Fact, 149. .icreagi— Of Lode Claim, ^:^i. Of Placer, 12iJ. Acts of roiipress: See Statutes- Text of, 311. Repealed Sections, 3fi9. Ejectment Verdict, 300. Adverse Claim, 292. Statute Concerninp, 316. Land Cifflce Rules, 216. Form of. ?92. Complaint Supporting, 301. Certificntc of Suit, 301. Effect of Failure to Assert, 76. Waivtr of, 305. Affldavits— In Land District, 275. By Agent, 277. Agent, :;76. Of Foreign Corporation, 177. To Pri 'Cure Patent, 276. Airricultiiral Lands, 132, 2.6. Aliens. 166. Angles, 107. 366 INDEX. Annual Labor, 52. Proof of, 63. By Tunnel, 138. On Old Lodes, 54. On New Lodes, 54. On Placers, 123. Pending Patent, 56, 20G. Proof of, by Affidavit, 64. Computation of Time, 56. District Rules, 7, 53. Apex, 38, 99. Application for Patent: 2iir-See Forms. Land Office Rules, 213. Surveyor General's Rules, 231. Instructions to Applicants, 240. By Agent, 276. On Surveyed Lands, 283. Appropriation, 27. Assay, 201. Assay Office, 201. Association, 17, 18, 118. Attachment, lb7. Boundaries — Staking, 39-41. Surveyor-General's Rules, 231. Monuments Control, 44. By-Laws, 172. Citizenship — Land Office Rules, 223. Form of Proof, 261. Statute, 312. Of Corporation, 262. Claim- Acreage of Lode, 274. Acreage of Placer, 120. Legal Status, 9, 11. Leneth, .5, 15, 19, 22. Width. 20, -^X Size of Placer, 118. Is Real Estate, 11. Coal Lands, 32'. Coal Mines — Penal Regulation of, 184. Commissioner of Mines, 200. INDEX. 367 ConTevanee, 141. Agre'c-muuts for, 150-153. Ill Examining Title, lt5'>. Form of Wurninty, Uo. Form of (juil Claim, 147. Acknowledgment, 146, 148, 149. Escrow, 15o. Corporations, 109. Citizenship of, 262. Domestic, 1^9. Form of Articles, 169. First Meeting, 171. By-Laws, 172. Iteports, 17r>. Foreign, 176. Ditch Comiiany, 176. Acknowleilgments by, 149. Costs. 303. Courts — Terms of U S , 333. Tenu»of Supreme, 333. Terms of District, 334. Terms of County, 337. Crevice, 34. Crimes, 180. Ciistoui, S. Damages — For Ditches, 109. For Negligence, 188. Measure of, 187. For Dumping, 125. Dead Work, 154. Deeds, 144. Departure — From .Side Lines, '. 1-94. Deposit.^, 9S. Deputy Surveyor, 224, 'ZA\. Dip, 102. Of Depo.sits, 98, 101. Discovery, 26—14. On Old Lodes, 21. Under Present Law, 26. In Open Cut, 27, 35. In Tunnel, 27, 35. Gives Title, 28. When complete, 28. Bv Drill Hole, 30. Holds 60 days, 31. 368 INDEX. DiscoTery Claim, IG. Discovery Shaft- Statute requiring, 2(1. Must be 10 feet deep, 26, 33. Must be on Public Uomaiu, S2. And on the Claim, 33. Time to Sink, 27, 47. In Center, 23. In Slide or Country, 34. Walls in, U. District Rules, 3. Defects of, 5. Extracts from, 5. Decisions, 7. In Ejectment, 7. Land Office Instructions, 209. Affecting Labor, 7, 53. Ditches, ino. Statute concerning, 109. Decisions, 110. Location Notice, 112. Location Certificate, 112. Ditch Company, 176. Drainage, 108. Dump, 115, see 'lailings. Easements, 109, 114. Ejectment, 184. Form of Complaint, 301. Special Verdict in, 300. End Lines, 145. Escrow, 153. Eureka District, 330. Examination of Title, 158. Extensions, 50. Feeders, 106. Fees— Of Surveyor General, 241. In Land Office, 266. Float, i:>l. Forcible Dispossession, 183, 195. Forcible Ent ry, 186. Foreign Coriiorations, 176. Ferfeiture, see Abandonment. To Co-owner, 64. Form of Proof, 65,67. Of Placers, 124. INDEX. 36 9 KoriiiN — Aproval of Survey and Certificate of Improvements, 2.58. H. .\i)proved Field .Notes', 2.54. J. Surveyor General's Certificate to Transcript, 254. A'.. Notice of Application, 25r). L. Proof of Posting, 257. 13 370 INDEX. Forms in Application Tor Patent.— (lontiniicil. M. ApplicatiDH, ■_'riS. .v. AV)striicl (if Titlo, 'lyj. O. Proof of Citizcnsliip, 'iCI. P. Proof of Non-AbiUidomiuMit, 2C:i. Q. Piililisher's Contract, 'idl. H. l-'iiblic.atioii Notice, 'iti'S. .S'. Proof of Notice KemaiiiiiiK Posted, 2t)8. T. Proof of Publication, 2('i9. U. Proof of Suras Paid, 26'.». V. Application to Purchase, '270. W. Register's Certificate of Posting, '271. A'. Register's Final Certificate of Entry, '212. Y. Artidavit of Lost Receiver'.s Receipt, 273. Z. Powe; of Attorney, 276. A A. Mill-Site— Non-Mineral Affidavit, 277. BB Affidavit of use for Mining Purposes. 278. 00. ■ Placer— Proof of No Veins, 282. DD. Application for Descriptive Report, 283. EE. Order for Descriptive Report, 284. FF. Descriptive Report, 284. Forms in Adverse Claim— GO. Adverse, '292. Exhibit ''A." Abstract for Adverse, 295, Kxhibit "B." Plat for Adverse. 295. UH. Complaint Supporting, 301. J J. Certificate of Suit, 304. Glossary, 339. Indian Reservation, 179. Ini|.rovcmouts, 237,288, 295. Injunction, 190. Inspection, 197. Interference of Claims, 82. Jumpina: Act, 183, 195. Land Districts, 203, 338. Laud Offices, 203. Land Office Uules, 206. Las Animas District, 330. Lease, 154. I'"orm of, 155. Led>,'C, %. License, 15G, Of the United States, 9. Liens, 141. How Affijcted by Patent, 141. Judgment, 141, 163. Miners' 141. Certificate of, 164. INDEX. 371 Limitalioiiit. 1<.)0. Loi'iition, 'ill. Ddinilioii of, 31. or Old l-orl»'S, 21. or NfW l.cxlos, '-'Ik or riiu-crs. 120. Diagram of, 13. Not CoveiitiL' Vein, :iS, in, 'M. Land Omue UuUs. 210. Witlionl Snrvey, :>S. Location Certilloiite— Statute Reiiniiing, ■I.'). Korm or Lode, Iti. Form or Placer. 121. Form or Mill Site, 128, Form f)r Water llight, 112. Without Survey, :W. Surveyor General's Rules, 2:!1. Location Notice- On Lode, 32. On Diteh, 112. On PhK'er, 12or on, 123. Patent for, 118, 122, 279. Forfeiture of, 124. Land Office Pvtiles, 218. Possession — Without Record, 48-")0. As Notice, 165. In Ejectment, 18r>. Possessory ('l.iiui, 0, 11. Power of Attorn(;y, 276. Proof— OfCitizeaship, 201. Of Labor, 61. Prospt'cfing, 157. Form of C(jntract, 157. Protest, 307. Publication, 67, 261. Keal Estate, 13. Receiver's Receipt, 81, 272. Cancellation of, 81. INDEX 373 Record, 45. I)(.-liilitii>ii of, 4."). Possi'ssioii Without Record, 60. Statute Kcquiiing, 45. Priority. 47. Kcliition, 76. l{f local ion — Ol Abandoned Claim, 68. By ('o-uwiRT, 00. Hy the Owner. 70. i''orni of Certificate, 71, 73. Iteplcviii, IS'.i. Kijfht of Way, 114 To Cross Lode.s. 88. To Ditches, 109. Itock ill Phirp, 96. Scliool riaiiiis, 13. School I. anils. V.V-<. Si-hool oC .MiiiPN, 202. Sovcraiii'c. 1:51. Slile IJiii-s— Vein Leaving, 91-'J4. Side Veins— In Old Location.s, 8.1 In New liOcation.s. 85. Soldier's Claims, 14. Spurs, lOii. Stakes, 2K-1 1. Statute Kequirinp, 26. Center Posts, 10. Size of, 42. Sttttiitfs— Full Text of Conp:ressionaI, Sll . IJepealed Coiifrn-ssioniil, :'.09. Fnl! Text of Colorado, 324. Index of Colorado, Xi\. Tinil.er Act, 323. I'laeerAet, llC, 122, 12.".. 11)0 foot Act, 15. 1 lOo foot Act, 15. l.Viot'oot .\ct, '.2. ir.i'(( foot Act. 1.5. 3()(Xi foot Act. 15. Sundiiy, J'.is. Supreme Court, Terni.s of, 3 ':'., Snrface— .AcreftRC of, 120. Mininv' under Improvements, Kto. .'fcvcrancc, 1:'>1. St'liurate Ownci-sliip, l:'.l. Siirfare Iinprovenieuts. 130. , 374 INDEX. Survey — For Patent, 282. For .\(tvcr.sc', .i'XK Vov l.ociitioii, 38. Ofliciiil, 'ill. With Iiispt'ction-, T.iT. On lilxaniinatioii of Title, 158. Prcsumoil to Cover Vein, 8:i. SurTcyor (Jt^ioral's Knies, 231. Table of Cases, :!.')(>. Tailliiifs. 12."). The Debris Cases, 127. Taxes, K)'.i. Terms of Court, 333. Timber, 323. Time, 297. Title- Abstract of, 159, 250, 299. Kxanii nation of, 158. Possessory, 9-13. Patented, 74. Title Hoiid, 150. Town Sites. 133. Trails, 11 1. Trespass, 187. TiiiiTiel. 131. Discovery in, 27, 35. Record of, 137. Abandonment of, 138. Companies, 169. Labor in, 138. Land Office Knle, 211. Statutes, 131. Variations, 107. Veins: .See Lodex— Irregularity of, 82. Side, 83, 85. Uniting on Dip, 90. Leaving Location, 91. Lodes, Veins and Ledges, 95. Widertlian Claim, 91 Ventilation, 184. Walls, 105. In Discovery, 34. AVater: tiec DitchcH, Appropriation, Drainage. Warranty Deert, 145. UNIVERSITY OF SOUTHERN i^"' '"'^"''"' ' m^l _UC SOUTHERN REGIONAL LIBRARY FACILITY """ IHIIIIIiMI AA 000 744 349 2 nililililllllllll N9 32(i5 AGO .■'I'i'i.i: