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been recognized and sanctioned by legislative enactments and judicial decision. A mining custom limiting all placer claims in that locality to eighty rods in length is a reasonable cne and does not conflict either with the Acts of Congress or the laws of the territory. Rosenthal v. Ives, (1887) 2 Idaho 244.

Eristence of local law question of fact. — The question what local laws of the district were in force at the time of an application for a patent is one of fact, to be determined by the commissioner of the general land office. Parley's Park Silver Min. Co. v. Kerr, (1889) 130 V, S. 256.

The phrase “mining district” is well known, and means a section of country usually designated by name and described or understood as being confined within certain natural boundaries in which gold or silver, or both, are found in paying quantities and which is worked therefor under rules and regulations prescribed by the miners therein. U. S. v. Smith, (1882) il Fed. Rep. 490.

Town sites. — Whenever mines are found in lands belonging to the United States, whether within or without town sites, they may be claimed and worked, provided existing rights of others, from prior occupation, are not interfered with. Steel v. St. Louis Smelting, etc., Co., (1882) 106 U. S. 450. See also Deffeback v. Hawke, (1885) 115 C. S. 406.

Land forming part of an Indian reservation is not open to exploration for mining upon being restored to the public domain in advance of the proclamation of the President opening the territory to settlement and entry. McFadden v. Mountain View Min., etc., Co., (1899) 97 Fed. Rep. 673, reversed on a question of pleading, (1901) 180 U. S. 533. But see Collins v. Bubb, (1896) 73 Fed. Rep. 735.

Cutting timber. — A locator may cut down or destroy trees as fast as the earth in whici they stand is dug or washed away in the process of mining, and such timber may be used and disposed of by him in any way that is most profitable to himself rather than to let it remain on the ground to decay. But whether the cutting of the timber is incidental to the bona fide mining operation, or the mining operation is a mere pretext for appropriating or disposing of the timber, is a fact to be determined in each case by ji; own circumstances. U. S. v. Nelson, (1878) 5 Sawy. (U. S.) 73.

A state tax on the proceeds of a minir. claim is a lien only on the claim of the miner; that is, on his possessory right to explore and work the mine under the existing laws and regulations on the subject. Forbes v. Gracey, (1876) 94 U. S. 762.

This section and section 452, R. S., aro in pari materia and must be construed together. Lavagnino v. Uhlig, (1903) 26 Utah 1.

SEC. 5. [Mineral lands on abandoned military reservations.] Whenever any lands containing valuable mineral deposits shall be vacated by the reduction or abandonment of any military reservation under the provisions of this act, the same shall be disposed of exclusively under the mineral land laws of the United States. [23 Stat. L. 103.]

This is from the Act of July 5, 1884, ch. have the preference right to make one entry 214, entitled "An Act to provide for the dis- not exceeding one quarter section: Provided posal of abandoned and useless military further, That any of such lands as are ocreservations." See PUBLIC LANDS. See cupied for town-site purposes, and any of the further Act of May 19, 1900, ch. 484, in refer- lands that may be shown to be valuable for ence to disposal of Fort Buford, abandoned coal or minerals, such lands so occupied for military reservation in North Dakota and town-site purposes or valuable for coal or Montana, which reads as follows:

minerals shall be disposed of as now provided “ That all public lands now remaining un- for lands subject to entry and sale under the disposed of within the abandoned military town-site, coal, or mineral-land laws, rereservation in the States of North Dakota spectively: Provided further, That this Act and Montana, formerly known as Fort Bu- shall not apply to any subdivision of land, ford Military Reservation, and which are not which subdivision may include adjoining otherwise occupied or used for any public lands to the amount of one hundred and purpose, are hereby made subject to disposal sixty acres, on which any buildings or inunder the homestead, town-site, and desert. provements of the United States are situland laws: Provided, That actual occupants ated, but such lands shall be appraised and thereon upon the first day of January, nine- sold as now provided by law.” [31 Stat. L. teen hundred, if otherwise qualified, shall 180.]

An Act To open forest reservations in the State of Colorado for the location of mining

claims. [Act of Feb. 20, 1896, ch. 28, 29 Stat. L. 11.) [SEC. 1.] [Forest reservations opened for mining claims.] That the forest reservations in the State of Colorado, known as the Pikes Peak Forest Reserve, the Plum Creek Forest Reserve, and the South Platte Forest Reserve, established by Executive proclamations dated, respectively, March eighteenth, eighteen hundred and ninety-two, June twenty-third, eighteen hundred and ninety-two, and December ninth, eighteen hundred and ninety-two, in the State of Colorado in accordance with section twenty-four of the act of March third, eighteen hundred and ninety-one, from and after the passage of this Act, shall be open to the location of mining claims thereon for gold, silver, and cinnabar, and that title to such mining claims may be acquired in the same manner as it may be acquired to mining claims upon the other mineral lands of the United States for such purposes: Provided, That all locations of mining claims heretofore made in good faith within said reservations, and which have been held and worked in the same manner as mining claims are held and worked under existing law upon the public domain, are validated by this Act. [29 Stat. L. 11.]

SEC. 2. [Removal of timber.] That owners of valid mining locations made and held in good faith under the terms of this Act, shall be, and are hereby, authorized and permitted to fell and remove from such mining claims any timber growing thereon, for actual mining purposes in connection with the particular claim from which the timber is felled or removed, but no other 'timber shall be felled or removed from any other portions of said reservations by private parties for any purpose whatever. [29 Stat. L. 11.]

SEC. 13. [Mining rights in Alaska native-born citizens of Canada.] That native-born citizens of the Dominion of Canada shall be accorded in said District of Alaska the same mining rights and privileges accorded to citizens of the United States in British Columbia and the Northwest Territory by the laws of the Dominion of Canada or the local laws, rules, and regulations; but no greater rights shall be thus accorded than citizens of the United States or persons who have declared their intention to become such may enjoy in said District of Alaska; and the Secretary of the Interior shall from time to time promulgate and enforce rules and regulations to carry this provision into effect. [30 Stat. L. 415.]

This is from the Act of May 14, 1898, ch. 299. For reference to entire Act, see PUBLIC LANDS.

Sec. 2320. [Length of mining claims upon veins or lodes.] Mining-claims upon veins or lodes of quartz or other rock in place bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposits, heretofore located, shall be governed as to length along the vein or lode by the customs, regulations, and laws in force at the date of their location. A mining-claim located after the tenth day of May, eighteen hundred and seventy-two, whether located by one or more persons, may equal, but shall not exceed, one thousand five hundred feet in length along the vein or lode; but no location of a mining-claim shall be made until the discovery of the vein or lode within the limits of the claim located. No claim shall extend more than three hundred feet on each side of the middle of the vein at the surface, nor shall any claim be limited by any mining regulation to less than twenty-five feet on each side of the middle of the vein at the surface, except where adverse rights existing on the tenth day of May, eighteen mundred and seventy-two, render such limitation necessary. The end-lines of each claim shall be parallel to each other. [R. S.]

Act of May 10, 1872, ch. 152, 17 Stat. L. 91.

When federal question presented. When it was contended that title to mines was not acquired under the Act of 1872, but under the Act of July 26, 1866, which did not require parallelism of end lines, a federal question was presented, giving the federal Supreme Court jurisdiction. Kennedy Min., etc., Co. V. Argonaut Min. Co., (1903) 189 U. S. 5.

A mining claim is the name given to that portion of the public mineral lands which the miner, for mining purposes, takes up and holds in accordance with mining laws, local and statutory. Mt. Diablo Mill, ete., Co. v. Callison, (1879) 5 Sawy. (U. S.) 439.

“ The word 'claim,' used as a noun, has a definite and particular meaning, denoting, when coupled with the name of miner, a particular piece of ground to which that miner had a recognized, vested, and exclusive right of possession for the purpose of extracting precious metals therefrom.” Northern Pac. R. Co. v. Sanders, (1892) 19 Fed. Rep. 129, affirmed (1897) 166 U. S. 620.

A mining claim is a parcel of land containing precious inetal in its soil or rock. A location is the act of appropriating such parcel, according to certain established rules. If a miner has only the ground covered by one location his “mining claim ” and “ location” are identical, but if by purchase he acquires the adjoining location of his neighbor and adds it to his own, then his mining claim covers the ground embraced by both locations. St. Louis Smelting, etc., Co. v. Kemp, (1881) 104 U. S. 649.

The words "vein,” “ lode," and "ledge" are used as synonymous terms, in the common parlance of miners, in the laws of Congress. Synnottv. Shaughnessy, (1885) 2 Idaho 127.

In determining what is a “vein,” “ lode," or “ ledge” of rock in place bearing silver or other precious metals, miners themselves must be called in. Such a dispute does not make a federal question. Blue Bird Min. Co. 1. Largey, (1892) 49 Fed. Rep. 289.

The terms“ vein” and “lode” ployed in this statute in the sense in which miners use them, uncontrolled by scientific definitions. Hayes 1. Lavagnino, (1898) 17 Utah 185. See also Eureka Consol. Min. Co. v. Richmond Min. Co., (1877) 4 Sawy. (U. S.) 302; Gregory v. Pershbaker, (1887) 73 Cal. 114.

In general it may be said that a lode or vein is a body of mineral or mineral body of rock, within detined boundaries in the general mass of the mountain. The thinness or thickness of the matter in particular places does not affect its being a vein or lode. If there is a general and pervading continuance of this mineral matter, with a casual and occasional interruption, but pursuing the same general course, bounded by the same rocky material above and below as far as you can trace that until it breaks off totally and is interrupted for a very large distance, it is a rein of rock or mineral matter. Stevens 0. Williams, (1879) 1 McCrary (U. S.) 488.

See also Iron Silver Min. Co. v. Cheesman, (1886) 116 U. S. 529; Synnott v. Shaughnessy, (1885) 2 Idaho 127; Cheesman v. Shreeve, (1889) 40 Fed. Rep. 792; Gregory v. Pershbaker, (1887) 73 Cal. 114; Synnott v. Shaughnessy, (1885) 2 Idaho 122.

A body of mineral or mineral-bearing rock in the general mass of the mountain, so far as it may continue unbroken and without interruption, may be regarded as a lode, whatever the boundaries may be. Hyman Y. Wheeler, (1886) 29 Fed. Rep. 347.

A vein or lode that has never been claimed ; that has not been located; that has not been marked out by metes and bounds, and in which there has been no actual development, or, to use the language of the statute, discovery of a vein or lode within the limits of the claim located,". is not a vein or lode such as is described in this section. Iron Silver Min. Co. v. Sullivan, (1883) 16 Fed. Rep. 829.

A vein or lode cannot be in place, within the meaning of this section, unless it be within the general mass of the mountain. It must be inclosed by, or held within, the general mass of fixed and immovable rock. It is not enough to find the vein or lode lying on the top of fixed or immovable rock, for that which is top is not within, and that which is without the rock in place cannot be said to be within it. Leadville Min. Co. v. Fitzgerald, (1879) 15 Fed. Cas. No. 8,158.

Whether a lode is in place depends upon the position of the ore or vein matter in the earth, as whether the inclosing mass is fixed and immovable, more than upon the character of the ore itself. Whether the ore is loose and friable, or very hard, if the inclosing walls are country rock, it may be located as a vein or lode. But if the ore is on top of the ground, or has no other covering than the superficial deposit, which is called alluvium, diluvium, drift, or debris, it is not a lode or vein within the meaning of the Act, which may be followed beyond the lines of the location. Tabor v. Dexler, (1878) 23 Fed. Cas. No. 13,723.

Complete possessory title. -- The statute prescribes two prerequisites to the vesting in à competent locator of the complete possessory title to a lode mining claim. They are the discovery upon unappropriated public land of the United States within the limits of his claim of a n.ineral-bearing lode, and the distinct marking of the boundaries of his claim so that they can be readily traced. No appropriation of the land is made until both these requirements are fulfilled, and until that time the lode and land sought are open to location and appropriation by any competent locator; but when these requirements have been complied with the land is no longer public, but the possession, the right to the possession, and the right to acquire the title, are irrevocably vested in the locator. There is no requirement in the legislation of Congress that the discovery shall be made before the location, or that the location shall precede the discovery. Erwin v. Perego, (C. C. A. 1899) 93 Fed. Rep. 608. The validity of a location of a mining



claim is made to depend primarily upon the A notice of location posted upon mineral discovery of a vein or lode within its limits. land before discovery is made an absolute l'ntil such discovery, no rights are acquired nullity. Gemmell 2. Swain, (1903) 28 Mont. by location. The other requisites which must 331. be observed in order to perfect and keep alive A discovery becomes a condition precedent a valid location are not imperative, except to the location. Recording the notice or as against the rights of third persons. If declaratory statement in the proper county the necessary steps outside of discovery are is one of the acts of location, but the statute not taken within the time required by law, of the territory provides that before such a but are complied with before the rights of record can be made there must have been a third parties intervene, they relate back to discovery of a vein or lode of quartz or ore, the date of location, but not so with discov- with at least one well-defined wall. Upton ery; for it is upon that act that the very life 1. Larkin, (1885) 5 Mont. 600. of a mineral location depends, and from the A discovery of seams, containing mineraltime of such discovery only would the loca- bearing earth and rock, which were similar tion be valid, provided, of course, that others in their character to the seams or veins of had not previously acquired rights therein. mineral matter that had induced other miners Beals v. Cone, (1900) 27 Colo. 481.

to locate claims in the same district, which Possession of the surface of a mining- by continued development thereon had reclaim location is possession of all veins, sulted in establishing the fact that the seams, lodes, and ledges, the top and apex of which as depth was obtained thereon, were found to are inside the surface lines, although such be a part of a well-defined lode or vein conveins, lodes, and ledges, as they go down- taining ore of great value, is sufficient to ward, may extend outside such surface lines; show a compliance with the statute as to the and the possession of the surface ground pro- necessity of a discovery of a vein or lode to tects such veins, lodes, and ledges from the make a valid location. Shoshone Min. Co. 1. operation of the statute of limitations. Rutter, (C. C. A. 1898) 87 Fed. Rep. 801, Therefore, before the defendants could set up reversed on other points (1900) 177 U. S. any adverse claim to the Salmon and Cliff 505. extension vein, they ought to have shown that Subsequent discoveries may validate carlier they were in possession of the same at the locations, and the latter may then inure to surface. No adverse possession could become the benefit of the locators as against the operative by going outside of its boundaries United States and all parties whose claims and sinking a shaft upon what they claimed were initiated subsequent to the discoveries. as another location, and striking the original But they would inure to their benefit as of location extension on its dip, and outside of the dates of the discoveries and not as of the its surface lines, no matter how long con- dates of the locations, and they would neither tinued, if unknown to the original locators. destroy nor affect intervening rights. The Pardee v. Murray, (1882) 4 Mont. 234.

marking of boundaries and filing of location A discovery of a vein in a tunnel is like certificates may precede discovery or discova discovery on the surface. Until one is made ery may precede them, but no location is valid there is no right to locate a claim in respect until both are complete. The earlier act to the vein, and the time to determine where then inures to the benefit of the locator as of and how it shall be located arises only upon the date of the later, subject to all rights the discovery. Enterprise Min. Co. v. Rico- which have intervened between them. Uinta Aspen Consol. Min. Co., (1897) 167 U. S. Tunnel Min., etc., Co. v. Creede, etc., Min., 115.

etc., Co., (C. C. A. 1902) 119 Fed. Rep. 169. If, on the same vein, there are surface out- See also Nevada Sierra Oil Co v. Home Oil croppings within the boundaries of two Co., (1899) 98 Fed. Rep. 678, in which case claims, the one first located necessarily car- the court said: “ All of this, however, is ries the right to work the vein. Argentine based upon the supposition, as is expressly Min. Co. v. Terrible Min. Co., (1887) 122 shown in the opinion of the court, that the U. S. 484.

location has also been made in conformity Discovery of vein or lode. — A location can with any valid state legislation that may only rest upon an actual discovery of the exist in the particular state in which the minvein or lode. King v. Amy, etc., Min. Co., eral land is situated, and with any valid local (1894) 152 U. S. 227. See also Tuolumne rules and regulations of the mining district Consol. Min. Co. v. Maier, (1901) 134 Cal. in which the land may be situated, if any 585; Buck v. Jones, (Colo. App. 1902) 70 such exist." See section 2324. Pac. Rep. 951; Erhardt v. Boaro, (1885) 113 Willing to spend time and money in deU. S. 536.

veloping. — “When a locator of a mining Discovery of a vein or lode must be made claim finds rock in place containing mineral within the boundaries of the claim before it

in sufficient quantity to justify him in excan be located. Discoveries made after a lo- pending his time and money in prospecting cation by another can avail nothing. Ledoux and developing the claim, he has made a disv. Forester, (1899) 94 Fed. Rep. 600. See eovery, within the meaning of the statute, also Michael v. Mills, (1896) 22 Colo. 443. whether the rock or earth is rich or poor,

Until discovery is made, no right of pos- whether it assays high or low, with this session to any definite portion of the public qualification, that the definition of a lode mineral lands can even be initiated. Until must always have special reference to the that is done, the prospector's rights are con- formation and peculiar characteristics of the fined to the ground in his actual possession. particular district in which the lode or vein is found. Bonner v. Meikle, (1897) 82 Fed. it does not follow that because no mineral has Rep. 697. See also Montana Cent. R. Co. v. been found the land is unoccupied. The mere Migeon, (1895) 68 Fed. Rep. 811, affirmed possession of a piece of mining ground is (1896) 77 Fed. Rep. 249; Book 1. Justice only good as against an intruder, but not as Min. Co., (1893) 58 Fed. Rep. 106; McShare against one who subsequently locates the 1. Kenkle, (1896) 18 Mont. 208; Shreve v. same in compliance with the mining laws. Copper Bell Min. Co., (1891) 11 Mont. 309; Cosmos Exploration Co. v. Gray Eagle Oil Muldrick v. Brown, (1900) 37 Oregon 185. Co., (C. C. A. 1901) 112 Fed. Rep. 4. See

Jere indications of mineral, however also Hawsv. Victoria Copper Min. Co., strong, are not sufficient to answer the re- (1895) 160 U. S. 303; English v. Johnson, quirements of the statute, which requires, as (1860) 17 Cal. 108. one of the essential conditions to the making Length of location. — The discoverer is enof a valid location of unappropriated public titled to claim 750 feet of the lode each way land, a discovery of mineral within the limits

from the point of discovery, or in the lanof the claim. “If a competent locator actu- guage of the statute, “ 1,500 feet in length ally finds upon unappropriated public land along the vein or lode.” Ellet v. Campbell, petroleum or other mineral in or upon the (1893) 18 Colo. 524. ground, and so situated as to constitute a “On the public domain of the United part of it, it is a sufficient discovery, within States a miner may hold the place in which the meaning of the statute, to justify a loca- he may be working against all others having tion under the law, without waiting to ascer- no better right. But when he asserts title tain by exploration whether the ground con- to a full claim of 1,500 feet in length and tains the mineral in sufficient quantities to 300 feet in width, he must prove a lode expay. The question whether a particular piece tending throughout the claim.” Zollars v. of public land is more valuable for mineral Evans, (1880) 5 Fed. Rep. 172. than for agricultural purposes is one that “ Three hundred fect on each side." — A does not arise in cases like the present.” claim may, if there is no restriction in the Vevada Sierra Oil Co. v. Home Oil Co., (1899) local rules, be six hundred feet wide, although 98 Fed. Rep. 676.

the known lode to include which such claim Imaginary existence of vein. — Locations is located not twelve inches in wi h. Mt. resting simply upon a conjectural or imagin- Diablo Mill, etc., Co. v. Callison, (1879) 5 ary existence of a vein or lode within their Sawy. (l'. S.) 439. limits are not permitted. King v. Amy, etc., Excess may be rejected. The land departMin. Co., (1894) 152 U. S. 227.

ment has no power to issue a patent for a Original discoverer. -- This section does not greater width of land than 300 feet, and a require that the locator of a claim must be patent is void as to any excess over 300 feet. the original discoverer of the vein or lode. Lakin v. Roberts, (C. C. A. 1893) 54 Fed. If there has been a discovery of a vein, and Rep. 461. See also Lakin v. Dolly, (1891) 53 the knowledge on the part of the locators of Fed. Rep. 333: Price v. MeIntosh, (1901) 1 metal there, the locators are entitled to make Alaska 292; Hansen v. Fletcher, (1894) 10 their location, even though the original dis- Utah 266. But in Carson City Gold, etc., covery was made by some one other than the Min. Co. V. North Star Min. Co., (C. C. A. locators. Hayes v. Lavagnino, (1898) 17 1897) 83 Fed. Rep. 658, the court said that Utah 185. See also Erwin v. Perego, (C. C. every case must be considered with reference A. 1899) 93 Fed. Rep. 612.

to its own peculiar facts. The Lakin cases Discovery by sinking shaft. - It is but just did not involve any construction of the law and reasonable to infer that if a mineralized appertaining to the extra-lateral rights of the vein or lode is discovered by the sinking of a lode patented. The lode, neither in its length shaft, its existence was known to the locator nor depth, was involved; it was only the surbefore the location was made. Hayes v. face ground that was in dispute.“ In this Lavagnino, (1898) 17 Utah 185. See Žollars case the plaintiff in error does not claim any '. Evans, (1880) 5 Fed. Rep. 172.

right whatever to the surface boundaries of Discovery of rein in tunnel.

- The right the North Star claim, as patented; and it to a vein discovered in a tunnel is declared is a well-settled and elementary principle of to be “to the same extent as if discovered law that the possession of this surface ground from the surface.” See section 2323, R. S. by the defendant in error is suflicient evi. If discovered from the surface, the discoverer dence of title, as against any one not showing might, under this section, claim one thou- any higher or better right thereto. Moreover, sand five hundred feet in length along the even if the principles of the Lakin cases vein or lode.” The clear import of the lan- could be considered, remotely or otherwise, guage is to give to the tunnel owner, discover- as having any application to the present case, ing a vein in the tunnel, a right to appro

still the defendant in error would be entitled priate fifteen hundred feet in length of that to the vein or lode, which was proved and vein. Enterprise Min. Co. v.


established in this case, and to the surface Consol, Vin. Co., (1897) 167 U. S. 115.

ground for 300 feet on each side of the center Question of fact. Whether there has been of the lode; and this is all that is required to such a discovery as would sustain a location give the party the extra rights which are involves question of fact. Bonner provided for by the statute.” See Leggatt Meikle, (1897) 82 Fed. Rep. 697.

v. Stewart, (1883) 5 Mont. 107; Hauswirth Mere possession. – While no valid location v. Butcher, (1882) 4 Mont. 299. of a mining claim can be made under the When under the local laws of the mining mining laws until the discovery of mineral, district, only two hundred feet can be appro

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