pass with a conveyance of the mill, but in order to do so it must belong to the owner of the mill." Garthe v. Hart, 73, 541 (1887). The transfer of a mining claim must be in writing under sect. 1691 Civil Code. McShane v. Carter, 80, 310 (1889). The act of 1880 made it unlawful for the directors of any mining corporations to sell mining ground thereof without the consent of the holders of two-thirds of the capital stock. The term "mining ground" includes whatever realty is incident or appurtenant to the mineralized ground worked as a mine, whatever would pass by a conveyance of the mine itself as an appurtenance thereto. A ditch, by means of which the mine was operated, and which was necessary to the use and operation thereof, is an appurtenance. A conveyance without consent, as above required, passed no title. Carter v. Bacigalupi, 83, 187 (1890). If a mining claim has a known descriptive name, it may be described in a deed by that name, and parol evidence is admissible to explain and locate it. Moore v. Hamerstag, 109, 122 (1895). A mining claim is real estate, and under the Statute of Frauds can only be transferred by operation of law or an instrument in writing. The location of a mining claim may be made in the name of another than the actual locator; and when so made, the person in whose name it is made becomes vested with the legal title to the claim; and where at the time there was no fiduciary relation between them, and it was not made under any prior agreement to hold the claim in trust for the actual locator, a subsequent parol promise to so hold it is void. Murley v. Ennis, 2, 300 (1874). The right of possession Colorado. during the work of development is perhaps such an interest in land as cannot be disposed of without a writing; but it may be lost by abandonment, by a desertion of the premises with an intention not to resume work upon them. So if without writing the locator yield up the possession to another, the right which was before in him passes to his successors in possession; or rather the right of the first occupant is gone by abandonment, and by virtue of his occupancy a new right has arisen in him who succeeds. In this way the first occupant may admit into possession with him another under an agreement that the labor of development shall be performed for their joint benefit, and the right acquired by development inures to them jointly. So also of the case where the first occupant agrees for a consideration to proceed with development for himself and another jointly. The undertaking amounts to an abandonment of an interest by himself, and an occupancy by him as agent for his co-adventurer. Lebanon M. Co. of N. Y. v. Consolidated Republican Mining Co., 6, 371 (1882). The same lode may have different names by which it is known, and a conveyance of it under either name, if otherwise regular, so that it can be ascertained what is intended, is sufficient to pass title. Omar v. Soper, 11, 380 (1888). A written conveyance is not necessary to the transfer of a mining claim. Where two men discovered a lode, posted a notice, and began developing it, but before location was completed one transferred his interest to the other for a valuable consideration, and the transfer was accomplished by erasing one name from the notice, the other remaining in full possession and continuing the development, this was not an abandonment. The transfer, though irregular, was as against a subsequent locator effectual. Roseville Alta M. Co. v. Iowa Gulch M. Co., 15, 29 (1890). A mining claim is real estate, and fixtures attaching thereto become a part of it. This was held of an engine and boiler, of which the former was bolted to timbers sunk in the earth, and the latter was set on rockwork and had the ordinary connections with the engine. These were essential to the enjoyment of the benefits of the claim and the development of the mine. Dakota. Suessenbach v. First Nat. Bank, 5, 477 (1889). Mining claims are property, and may be conveyed as such on authority of Forbes v. Gracey, 94 U. S. 762. Hirbour v. Reeding, 3, 15 (1877). A., B., and C. entered Montana. into a verbal contract of partnership for the purpose of locating and developing quartz lodes in Montana, they to have equal interests. The G. S. lode was discovered by them, but recorded by B. and C. in their names. All three worked upon and developed the ground. Afterward D. located a part of the same ground under the name of D. lode, but the conflict was settled by a conveyance by D. to B. and C. The contract between A., B., and C. being a partnership agreement for the purpose of dealing in land was not within the Statute of Frauds. A. was entitled to an interest in the ground which he could enforce, and which was not impaired by the conveyance by D. to B. and C. Southmayd v. Southmayd, 4, 100 (1881). A mining partnership existed under a verbal agreement that one partner should control the interest of the other and receive all the proceeds until he was paid the purchase price of the interest of the other. There was constructive possession under this agreement. down by the other party, there was the contract out of the Statute of would be enforced. Held, though no money was paid such a part performance as to take Frauds, and specific performance Hopkins v. Noyes, 4, 550 (1883). The possessory title to a mining claim is real estate, and ought to be conveyed by deed. Shreve v. Copper Bell M. Co., 11, 309 (1891). Where, after notices of location of L. and E. claims were filed, the owners of E. moved the stakes at one end so as to conflict with L. claim, and then conveyed by separate deeds their interest in the E. claim as described in the certificate of location, they were estopped from maintaining under a subsequent purchase of the L. claim that their deeds conveyed no part of the latter. It is customary and proper for locators, when by exploration they have ascertained the true course of their vein, to change their boundaries, and having done so, and abandoned a portion of the original location to the public, it cannot be said to be their intention in conveying the claim to sell, or the intention of the other party to buy, the original location. Brandow v. Pocotillo S. Min. Co., 6, 169 (1870). Where Nevada. the words" Pocotillo Mine" were used in a mortgage to designate certain mining ground therein specially described, it could not be set up on foreclosure that a larger tract was intended which was, in fact, known as the Pocotillo Mine." Phillpotts v. Blasdel, 8, 61 (1872). One who has located a mining claim may relocate by a different name, and if he then conveys by the latter name, the existence of the former location will not invalidate the conveyance. It seems that this is true even where the relocation was made under the impression that it was a location of an independent lode. One and the same lode may have two names, by which it is known indifferently, and if it becomes better known under a name derived from a second and invalid location, it may be conveyed by that name, the point to be ascertained being whether the lode in question was the lode meant. Weill v. Lucerne M. Co., 11, 200 (1876). Where a party conveys all his right, title, and interest in and to certain mining ground, described as a set of claims known as the L. Co. claims, afterwards particularly described, and it appears that his interest was derived from different locations of the same lode, the conveyance necessarily passes his interest under both locations, and it is immaterial that he designated it by the names used in the second location. New Mexico. Zeckendorf v. Hutchison, 1, 476 (1871). When a discoverer conveys a claim to a third party before he has completed his location, the purchaser is bound to do the acts required to complete the location within the time to which his grantor was limited. The performance of these acts must be stated in a bill for an injunction to restrain a trespass; they will not be presumed. Utah. Houtz v. Gisborn, 1, 173 (1874). Mining claims by a law of the Territory are real property and pass by deed, although the legal title is in the government. THE possessory right obtained by location is, as has been explained, only an equitable title to the claim, the legal title remaining in the United States. This legal title may be purchased by the owner of the possessory right. The method of obtaining it is provided by Rev. Stats. 2325, as follows: 2. "A patent for any land claimed and located for valuable deposits, may be obtained in the following manner: Any person, association, or corporation authorized to locate a claim under this chapter, having claimed and located a piece of land for such purposes, who has or have complied with the terms of this chapter, may file in the proper land office an application for a patent, under oath, showing such compliance, together with a plat and field-notes of the claim or claims in common, made by or under the direction of the United States surveyor-general, showing accurately the boundaries of the claim or claims, which shall be distinctly marked by monuments on the ground, and shall post a copy of such plat, together with a notice of such application for a patent, in a conspicuous place on the land embraced in such plat previous to the filing of the application for a patent, and shall file an affidavit of at least two persons that such notice has been duly 1 This chapter only treats the subject in its general aspect; the reader should also consult the different sub-titles of the next chapter. 2 This is applicable to placer patents as well as to lodes. N. Pac. Ry. Co. v. Cannon, 54 Fed. 252. posted, and shall file a copy of the notice in such land office, and shall thereupon be entitled to a patent for the land, in the manner following: The register of the land office, upon the filing of such application, plat, field-notes, notices, and affidavits, shall publish a notice that such application has been made, for the period of sixty days, in a newspaper to be by him designated as published nearest to such claim; and he shall also post such notice in his office for the same period. The claimant at the time of filing this application, or at any time thereafter, within the sixty days of publication, shall file with the register a certificate of the United States surveyor-general that five hundred dollars' worth of labor has been expended or improvements made upon the claim. by himself or grantors; that the plat is correct, with such further description by such reference to natural objects or permanent monuments as shall identify the claim, and furnish an accurate description, to be incorporated in the patent. At the expiration of the sixty days of publication the claimant shall file his affidadavit, showing that the plat and notice have been posted in a conspicuous place on the claim during such period of publication. If no adverse claim shall have been filed with the register and the receiver of the proper land office at the expiration of the sixty days of publication, it shall be assumed that the applicant is entitled to a patent, upon the payment to the proper officer of five dollars per acre, and that no adverse claim exists; and thereafter no objection from third parties to the issuance of a patent shall be heard, except it be shown that the applicant has failed to comply with the terms of this chapter." It is thus seen that the qualifications of the applicant are that he must be a person, association, or corporation authorized by the act of Congress to locate a claim; the claim must have been regularly and lawfully located, the possessory title kept alive in the manner required by the Revised Statutes, and the applicant or those in his chain of title must have put upon the claim, work or improvements of the value of $500. These requirements have, with the exception of the last, been sufficiently treated in the foregoing pages. A. Expenditure. Rev. Stats. 2325 provides that "the claimant, at the time of filing this application, or at any time thereafter within the sixty |