LAND OFFICE DECISIONS.

The policy of the government has been uniform since the inauguration of the public land system to reserve from sale salt springs and the adjacent lands. Grants of salt springs were made to the States and Territories as follows: Ohio, 1804, Stat. 2, 277; Indiana, 1804, Stat. 2, 277; Illinois, 1818, Stat. 3, 429; Missouri, 1820, Stat. 3, 545; Arkansas, Stat. 5, 58; Michigan, Stat. 5, 59; Florida, Stat. 5, 789; Iowa, Stat. 5, 789; Wisconsin, Stat. 9, 58; Minnesota, Stat. 11, 166; Oregon, Stat. 11, 383; Kansas, Stat. 11, 269: Nebraska, Stat. 13, 47. By the Colorado Enabling Act, March 3, 1875, salt springs not exceeding twelve, with six sections adjoining each, were granted to the State, Provided that no salt springs or lands, the right whereof is now vested in any individual or individuals, or which hereafter shall be confirmed or adjudged to any individual or individuals, shall by this act be granted to said State." This proviso applies only to private claims recognized by treaty stipulations. Morton v. Nebraska, 21 Wall. 660.

Applications for lands containing salt springs were accordingly rejected. Hall v. Litchfield, Copp, 333 (1876).

Salt is a mineral, and lands containing valuable deposits of salt are excepted from the grant to the Central Pacific Railroad Company.

The act of Jan. 12, 1877, providing for the sale of saline lands, is not applicable to lands in the State of Nevada. Eagle Salt Works, Copp, 336 (1877).

Many springs and many waters are impregnated with minerals held in solution; but it does not follow that the lands bearing such waters are mineral lands, and can be patented as such. Lands of a saline character are an exception, and are expressly provided for in the laws relating to the disposition of the public lands. Lands containing mineral springs not of a saline character are subject to sale under the general laws, and not under the acts relating to the sale of mineral lands. Pagosa Springs, 1 L. D. 562 (1882).1

Land chiefly valuable for its salt deposits is not subject to entry as a placer mine. No authority exists for the disposal of saline lands or salt springs belonging to the United States, except under the provisions of the act of Jan. 12, 1877. The provisions of said act are not applicable to the Territory of Utah: hence there is no authority for the disposal of such lands in said Territory. Salt Bluff Placer, 7 L. D. 549 (1888).

The provisions in the act of March 3, 1875, requiring the State of Colorado to make its selection of salt springs within two years after the admission of the State, is directory only, and failure to select within the period specified does not work a forfeiture of the grant.

The act of 1875 is not repealed by that of Jan. 12, 1877, nor does the proviso in the later act amount to a legislative declaration that the right of selection conferred by the act of 1875 expires at the end of two years after the admission of the State. State of Colorado, 10 L. D. 222 (1890).

1 See similar conclusion as to sulphur springs in Morrill v. Margaret M. Co., 11 L. D. 563 (1890).

The settled policy of the government in the disposition of salt lands and salines has been, and is now, to reserve the same from general disposal. Deposits of rock salt are "salines," and not subject to entry under the statutes authorizing the acquisition of title to mineral lands. Southwestern M. Co., 14 L. D. 597 (1892).

A desert land entry will not be allowed of land on the beach of Great Salt Lake chiefly valuable for the saline deposits therein and not susceptible of reclamation at a cost that would justify the outlay at any probable price for agricultural land. Jeremy v. Thompson, 20 L. D. 299 (1895).

On salt springs and salt lands in Alabama, see State of Alabama, 21 L. D. 320 (1896).

CHAPTER XVIII.

TITLE ACQUIRED BY STATUTE OF LIMITATIONS.

PROPERTY in minerals in place being real estate, title thereto may be acquired under Statutes of Limitations in the same way as title to other real estate. The same is true of title to mining claims upon the public domain. By Rev. Stats. 2332 it is proIvided that those who have held and worked their claims for the time prescribed by the Statutes of Limitations for mining claims of the State or Territory where they are situated, have a title sufficient to establish the right to a patent in the absence of any adverse claim. And such a possession, at least against a wrongdoer, raises a conclusive presumption that the claimant holds under a valid location.

In some States and Territories special limitations have been imposed by statutes upon suits for recovery of mining property,1 but in the absence of such limitations such suits are governed by the general statutes relating to actions for the recovery of real estate.

The important question in these cases is what constitutes adverse possession of mining property.

Where the ownership of minerals in place is severed from the ownership of the soil or surface, the mere possession of the latter is not such a possession of the minerals beneath as to be adverse. Nor will the non-user of the minerals or of the right to dig them by the mine owner, convert the possession of the surface owner into an adverse possession of the minerals. The latter must perform some act adverse, hostile to the rights of the mine. owner, which prevents him from exercising his rights. The surface owner setting up the statute must establish a possession

1 Arizona, Rev. Stats. 1887, sec. 2308; Colorado, M. A. S. 2923-6; Montana, Code Civ. Proc. 1895, sec. 494; Oregon, Hill's

Ann. Laws 1892, sec. 2178; West Virginia, Code App. 1891, p. 1045.

of the mine as such independently of his possession of the surface.

Such a possession must be actual, notorious, exclusive, continuous, peaceable, and hostile for the statutory period. And in these respects the surface owner is in no better position than a stranger. No act or acts on his part will establish title in him which would not give title to a stranger. Actual possession is taken by the opening of mines and carrying on of mining operations. That possession is continuous if the operations are continuous, or are carried on continuously at such seasons as the nature of the business and the customs of the country permit or require. A cessation of operations in accordance with the custom of the neighborhood, or from necessity occasioned by some natural agency, would not be an interruption of the possession. But there must be something evidencing possession in the interval which connects the operations when resumed with those which have gone before, and to distinguish such possession from a series of repeated acts of trespass.

Where there is no division of the estate in the surface from that in the minerals, the ordinary rules on the subject of the adverse possession of real estate govern.

To establish an adverse possession of a mining claim in the public domain, there must be actual possession of a part, accompanied by a claim of title to the whole, and continuous working thereon. Possession of the surface of the claim is possession of all the veins and ledges to which the owner of the claim has title. And conversely, without possession of the surface of a claim no possession of any of the veins whose apices are therein, can be adversely acquired, as by sinking shafts to them outside of the surface boundaries. The statute in such a case could only begin to run after the prior locator acquired actual knowledge of the fact of the possession of the vein. Where one party claims under a patent from the United States, the statute begins to run from the date of that patent. In Nevada adverse possession of a mining claim is defined by statute1 to "consist in holding and working the same in the usual and customary mode of holding and working similar claims in the vicinity thereof."

Of course the Statute of Limitations does not run against the United States.

1 Gen. Stats. 1885, 3632.

United States.

Union M. Co. v. Taylor, 100, 37 (1879). Where the plaintiff in ejectment was a tenant in common with the defendants, their possession of the claim was his possession, and the Statute of Limitations did not run against him until he was ousted by them and they maintained a possession adverse to him.

Hamilton v. Southern Nev. G. & S. M. Co., 33 Fed. 562 (1887), C. C. D. Nev. "The only evidence of actual possession for the prescribed time was going upon the land once and looking at its boundaries, and afterwards doing the annual hundred dollars' worth of work in tunnels, where those doing it were unseen during that time, for the purpose of not forfeiting complainant's rights and rendering the claim not liable to relocation. While defendant also claims and introduces testimony showing, or at least tending to show, that it also did the annual work required by the statute to preserve its rights during the same period for the same purpose, and so was itself in possession; that its possession was better than, or at least as good as, that of complainant. Evidently such a loose, uncertain, scrambling, and mixed possession is not sufficient to vest a title under the Statute of Limitations.

In

Hunt v. Patchin, 35 Fed. 816 (1888), C. C. D. Nev. The owners in common of a mining claim by agreement forfeited the claim by failing to do annual work, and one of them relocated it in his own name. an action by the other to enforce a trust in his favor, begun May 18, 1885, he was not barred by the Nevada statute limiting to two years the time for commencing an action to recover a mining claim, when he had no intimation that the defendant denied the trust until May 29, 1883.

Glacier Mt. S. M. Co. v. Willis, 127, 471 (1888). A complaint in ejectment for a mine in Colorado, which alleges a valid and legal location by those under whom the plaintiff claims, and possession and occupation by the plaintiff for more than five consecutive years prior to the ouster, and payment of taxes by him during that time, sets up a sufficient claim to title as against everybody except the United States.

Francœur v. Newhouse, 43 Fed. 236 (1890), C. C. N. D. Cal. The taking actual possession of a portion of a claim, working and expending money thereon continuously and claiming title to the full limits, is adverse possession of the whole within the Statute of Limitations. The title of the United States does not prevent the running of the statute as against other claimants.

Fremont v. Seals, 18, 433 (1861). The act of March, California. 1856, "for the protection of actual settlers and to quiet land titles in this State," was passed for the benefit of those who desire to build up homes and for that purpose are seeking in good faith lands for settlement and occupation. The eleventh section does not apply to miners engaged simply in extracting gold from a quartz vein. They are not settled upon their vein in the sense of the act.

Nessler v. Bigelow, 60, 98 (1882). Plaintiff in an action to quiet title claimed under a patent issued under the mining laws of the United States less than five years before the commencement of the action. Defendant averred fifteen years' adverse possession. Held, he could