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that "all valuable mineral deposits" in lands belonging to the United States, both surveyed and unsurveyed, "are free and open to exploration and purchase, and the lands in which they are found, to occupation and purchase." This language, it will be seen, is of broader import than that of the first section of the Act of 1866. It defined a "lode claim." It allowed surface of 1,500 feet by 600 feet, whether located by one or more persons. It imposed no limitation as to locating by same person on the. same lode in separate location. It recognized the local customs or rules of miners so far as the same were applicable and not inconsistent with the laws of the United States, and provided that the miners of each mining district may make rules and regulations, not in conflict with the laws of the United States, or of the State or Territory in which the district is situated, governing the location, manner of locating, amount of work necessary to hold possession of a mining claim, subject to the requirements of distinctly marking the location on the ground, so that its boundaries can be readily traced; and that all records of mining claims thereafter made should contain the name or names of the locators, the date of the location, and such a description of the claim or claims located by reference to some natural object or permanent monument as would identify the claim. It provided that the end lines of each claim should be parallel with each other. It granted exclusive right of possession and enjoyment to all lodes, the top or apex of which lay inside the surface lines of the location, with the right to follow the same beyond the side lines and within the end lines of the claim located, to any depth. It provided how tunnel rights might be secured, and how much annual work was necessary on each claim located prior or subsesuch quent to the Act; and that where claims were held in common, work could be done upon any one claim. It further provided that when a co-owner failed to contribute his proportion of the expenditures required by this Act, how his interest in the claim should become the property of his co-owners who had made such expenditure. It declared the conditions upon which a patent might be obtained, and provided that adverse claims should be determined by proceedings in a Court of competent jurisdiction. It provided, as did the Act of 1866, that as a further 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 complete development, and those conditions shall be expressed in the patent.

On the eleventh day of February, 1875, Congress passed an Act amending the then existing law "so that where a person or company has or may run a tunnel for the purpose 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." "5 The Act was made retroactive, and exempted the owners from the performance of work upon the surface of the lode.

The foregoing several Acts of Congress were codified as Title XXXII, Chapter VI of the Revised Statutes of the United States, 1878, embracing Sections 2319 to 234€, inclusive.

On January 22, 1880, Congress passed an Act declaring that the period within which work is required to be done on all unpatented

25 18 U. S. Stats. at Large, 315.

mineral claims located since May 10, 1872, should commence on the first day of January succeeding date of location.

On March 3, 1881, Congress passed an Act declaring that if in any action brought pursuant to Section 2326 of the Revised Statutes (which prescribe the method of determining adverse claims), title to the ground shall not be established by either party, the jury shall so find, and the claimant shall not proceed in the Land Office or be entitled to a patent until he shall have perfected his title.26

The intended scope of this article does not include a reference to the statutes of the various States and Territories enacted in relation to working, draining, and preservation of mines, the transfer and mortgage of mining rights, and kindred subjects. They will be found in the statutes and the various treatises upon mining law.

It may be well, however, to call attention to an Act of the Legislature of California of March 31, 1891." It is therein provided that when a mine owner has performed the labor and made the improvements necessary for the location and ownership of mining claims or lodes, he should, within thirty days, file with the Recorder of the county within which the property is situated an affidavit describing the labor performed and the improvement made, and the value; and failure to do such work renders the mine open to relocation. It makes provision, however, for saving the rights of locators who shall return to work before a relocation and continue the same with reasonable diligence. Also, when a person runs a tunnel in good faith for the purpose of developing a lode or claim, the money so expended shall be considered as expended on said lode or claim; provided, that such lode or claim shall be distinctly marked on the surface, as required by law. It also declared that mining claims shall be subject to a right of way for the purpose of working other mines; provided, that damage be assessed and paid for as in land taken for public use. The Act is not the best. specimen of lucid expression, but perhaps the intention can be ascertained without much difficulty.

Another Act of a State Legislature, interesting to the people of Montana, but not within the purview of this article, was the Act of the Legislature of that State of March 5, 1891, creating a Mineral Land Commissioner, whose duty is "to prepare and publish a clear and concise statement of the facts in respect to the danger of millions of acres of the best gold, silver, and copper-bearing mineral lands of Montana becoming the property of the Northern Pacific Railroad Company.'

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The opportunities that mines have afforded for the acquisition of wealth have been provocative of much sharp litigation as to the ownership of mining property. The result has been that nearly every term used in the mining laws has received judicial interpretation and definition.

WHAT IS A MINING CLAIM?

A "mining claim," as the term is used in the statutes of the United States, is that portion of a vein or lode and of the adjoining surface, or of the surface and subjacent material, to which a claimant has acquired the right of possession by virtue of a compliance with the laws of the

26 21 U. S. Stats. at Large, 505.

27 Stats. Cal., 1891, 219.

18 Stats. Mont., 1891, 178.

United States and the local rules and customs of miners, and must contain at least one known vein or lode; but the vein or lode is not the whole claim. It includes the exclusive right and enjoyment of all the surface within the lines of location.1

Independent of Acts of Congress providing a mode for the acquisition of title to the mineral lands of the United States, the term "mining claim" has always been applied to a portion of such lands to which the right of exclusive possession and enjoyment, by a private person or persons, has been asserted by actual occupation, or by compliance with local mining laws, or rules, usages, or customs; but, says the Supreme. Court of California: "The mere fact that portions of the land contain particles of gold or veins of gold-bearing quartz rock would not necessarily impress it with the character of mineral land' within the meaning of the Acts of Congress of July 1, 1862, and July 2, 1864, giving alternate sections to the Pacific Railroad, but reserving from the grant mineral lands. It must at least be shown that the land contains metals in quantities sufficient to render it available and valuable for mining purposes. Any narrower construction would operate to reserve from the uses of agriculture large tracts of land which are practically useless for any other purpose, and we cannot think this was the intention of Congress.' A miner's claim may include as many locations as he can purchase, and the ground covered by all will constitute what he claims for mining purposes, or, in other words, will constitute his mining claim, and be so designated. Care should be taken not to confound the terms "location and "mining claim" as meaning one and the same thing, when in fact they often mean very different things. A mining claim is a parcel of land containing precious metals in its soil or rock. A location is the act of appropriating such parcel, according to certain established rules." The use of the words "mines or mining claims" is evidently intended to distinguish between the cases in which the miner is the owner of the soil, and therefore has perfect title to the mine, but works the mine under what is well known in the mining districts, and what is recognized by the Act of Congress as a mining claim.*

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The words "mining ground," when used in a deed, have a technical meaning. They refer to that interest which a mere occupant of the mine has in the same. They are not the words used when a fee simple title or leasehold interest in real estate is to be conveyed." The term mining ground" includes the ditches used appurtenant thereto." There is included in the term "mining ground" the vein specifically located, all the surface ground located on each side of it, and all other veins or lodes having their apex inside the surface lines."

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term "veins" or "lodes" as used in the Acts of Congress is meant lines or aggregations of metal embodied in quartz or other rock in place. The terms are found together in the statutes, and both are intended to indicate the presence of metal in the rock. Yet a lode may and often does contain more than one vein.2

A broad metalliferous zone, having within its limits true fissure veins, plainly bounded, cannot be regarded as a single "vein" or "lode," although such zone may have boundaries of its own which can be traced. It is difficult to give any definition of the term, as understood and used in the Acts of Congress, which will not be subject to criticism. A fissure in the earth's crust, an opening in its rocks and strata made by some force of nature, in which the mineral is deposited, would seem to be essential to a lode, in the judgment of geologists. But to the practical miner, the fissure and its walls are only of importance as indicating the boundaries within which he may look for and reasonably expect to find the ore he seeks. A continuous body of mineralized rock lying within any other well-defined boundaries on the earth's surface and under it, would equally constitute, in his eyes, a lode.

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The term as used in the Acts of Congress is applicable to any zone or belt of mineralized rock lying within boundaries clearly separating it from the neighboring rock. It includes all deposits of mineral matter found through a mineralized zone or belt coming from the same source, impressed with the same forms, and appearing to have been created by the same processes. This definition, expressed in other words, is that a "lode" designates any zone or belt of mineralized rock lying within boundaries clearly separating it from the neighboring rock. It further implies a oneness, genetically, of the ore deposits included within its boundaries. The definition of a lode given by geologists is that of a fissure in the earth's crust filled with mineral matter, or more accurately, as aggregations of mineral matter containing ore in fissures. (See Van Cotta's Treatise on Ore Deposits, Prime's translation, 26.) But miners used the terms before geologists attempted to give it a definition.5

In the books and among miners, veins and lodes are invested with many characteristics, as that they lie in fissures or other openings in the country rock; that they contain materials differing or in some respects corresponding with the country rock; that they are of tabular form and a banded structure; that some one or several things are generally associated with the valuable ores; that they have selvages and slickensides in the fissures and openings, and the like. Some of these characteristics are said to be common to all lodes and veins, and others are of rare occurrence. A vein or lode is a seam or fissure in the earth's crust filled with quartz or with some other kind of rock in place, carrying gold, silver, or other valuable mineral deposits named in the statute.' It is a fissure or seam in the country rock filled with quartz matter bearing gold and silver. A body of mineral or mineral-bearing rock in the general mass of the mountains, so far as it may continue

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unbroken and without interruption, may be regarded as a lode, whatever the boundaries may be. In the existence of such a body, and to the extent of it, boundaries are implied. On the other hand, with welldefined boundaries, very slight evidence of ore within such boundaries. will prove the existence of a lode. Such boundaries constitute a fissure, and if in such a fissure ore is found, although at considerable intervals and in small quantities, it is called a lode or vein. An impregnation to the extent to which it may be traced as a body of ore, is as fully within the broad terms of the Act of Congress as any other form of deposit.10 Whether it is thin or very thick is immaterial, so it is continuous; it may be irregular in thickness, and it may be rich or poor, provided it contains a trace of any of the metals named in the statute.1 In a very recent case the Supreme Court of California says: A single small vein is weighed and measured by the same law and entitled to the same consideration as the Mother Lode, and very often is far more valuable in the eyes of the miner.” 18 A vein is by no means always a straight line or of uniform dip or thickness, or richness of mineral matter throughout its course. The cleft or fissure in which a vein is found may be narrowed or widened in its course, and even closed for a few feet, and then found farther on, and the mineral deposit may be diminished or totally suspended for a short distance, but if found again in the same course with the same mineral within that distance its identity may be presumed; and-ore bodies formed off from and connected with a fissure vein do not form a separate vein, ledge, or mineral deposit. A vein or lode must be continuous only in the sense that it can be traced through the surrounding rocks." A vein or lode, as distinguished from a placer claim, includes aggregations of metal imbedded in quartz or other rock in place. The word "lode" is properly defined, says the Supreme Court of California, as a "zone or belt of mineralized rock lying within boundaries clearly separating it from the neighboring rock," and does not apply to gravel deposits inclosed in defined boundaries. Strata lying along the plane of contact between blue and brown. limestone, if mineralized to the extent of showing valuable minerals, and distinguishable from other parts of the country rock by carrying ore, and by association with the plane of contact, may constitute a mineralized zone. "Such a zone," says Judge Hallett, "is clearly a lode within the meaning of the law."" A vein or lode must be something more than detached pieces or bunches of quartz.18 Where mineral deposits are separated into three well-defined parts, traceable for a great distance in their length and depth, and having distinct foot and hanging walls, each part is a separate vein within the meaning of the mining laws giving the right to follow the dip of a vein beyond the side lines, although there are many ore-bearing cracks and seams running out from each vein, and sometimes extending over to the other.19

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The distinction between "lode" and "vein" was recently aptly explained by John Hays Hammond, the eminent mining engineer, in his testimony in a mining suit in Idaho; an epitome of it is as follows: "There is more or less ambiguity in the use of the terms 'veins,' 'lodes,' and 'ledges.' In the statutes these terms are used interchangeably, the object clearly being to give them a more comprehensive meaning than the technical definitions convey. Dana described veins as fillings of cracks or fissures, and divides them into: first, dikes, or those that have been filled by an eruption of melted rock; second, true veins, or those that have been filled by other methods. Dikes should not, I think, be included in the classification of veins, as the filling of dikes is a rock and not a mineral. Webster defines a vein as a seam or layer of any substance, more or less wide, intersecting a rock or stratum, and not corresponding with the stratification; often limited in the language of miners to such a layer or course of metal or ore.' This definition is open to the objection that it excludes veins known as 'bed' veins, which follow the strike and dip of the strata in which they are included. The Germans recognize veins of this character as 'lager gange.' These bed veins (lager gange) occupy a previously existing fissure, which, while following the planes of stratification, are nevertheless true fissures in their origin. We make a distinction, however, between 'bed' veins and 'true' fissure veins, the true fissure veins being such veins as cut across the stratification when the country rock is of a stratified character. "Webster's definition of a lode is: A metallic vein, or any regular vein or course, whether metallic or not, but commonly a metallic vein.' This definition is not by any means sufficiently comprehensive. Preferable to the foregoing definitions are those of Van Cotta, who defines veins as 'aggregations of mineral matter in fissures of rock,' and lodes as 'aggregations of mineral matter containing ores in fissures.' He bases the distinction between a lode and a vein upon the presence or absence of ores. In this country no such distinction obtains. While veins may not contain ores, they do contain minerals, such as quartz, calcspar, etc. The best definition of a lode is that given by Judge Field in his Eureka-Richmond decision, which is: 'A zone or belt of mineralized rock lying within boundaries clearly separating it from the neighboring rock. It includes all deposits of mineral matter found through a mineralized zone or belt, coming from the same source, impressed with the same forms, and appearing to have been created by the same processes.' This definition was made with especial reference to the Eureka-Richmond ore bodies, but that deposit is by no means sui generis, and the term lode has become extensively used in the classification of ore deposits that are not comprehended by the definition of a vein. A lode as defined by Judge Field is not necessarily a fissure vein, but a lode may contain several fissure veins. Popularly, such an ore occurrence is called a 'broad lode.' Dr. Raymond, an eminent authority, says that a lode is some formation in which the miner could find ore, and out of which he could not expect to find ore. Among practical miners generally narrow veins are designated simply as 'veins,' while veins of great thickness are called 'lodes.' This distinction, of course, is not scientific."

The term "rock in place" has always received a liberal construction. The term does not mean merely hard rock, merely quartz rock; but any

combination of rock, broken up, mixed up with minerals and other things, is rock in place within the meaning of the statute.20

A vein or lode cannot be in place unless it is 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 on top is not within, and that which is without the rock in place cannot be said to be within it, and the mineral must be in place within definite boundaries. If the rock above the lode is in its original position, although somewhat broken and shattered by the movement of the country or other causes, it is in place." Neighboring rock is the nonmineral rock lying next to a lode or vein of mineral rock, being called, in the miner's language, "country" or "country rock." 22

AS TO WHO MAY ACQUIRE TITLE TO MINING CLAIMS FROM THE GOVERNMENT.

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Any citizen of the United States, or one who has declared his intention to become such, may make a mining location. This, by the decision of the Courts, includes minors,' females,' and corporations. It has been held, however, that when the location is made by a corporation, all of its stockholders at the time of such location must be citizens of the United States.* The oath of one of several locators is prima facie evidence of the citizenship of all the locators. The statute makes it not only admissible in the Land Office for the purpose of entitling the locator to a patent, but to the litigation of all claims arising under its act, as well in the Courts as in the Land Department. A foreign born son becomes a citizen by the naturalization of his father during the son's minority. An alien, upon declaring his intention of becoming a citizen, may have the advantage of work previously done, and of a record previously made by him, in locating a mining claim on the public mineral lands.

A location by an alien who has not declared his intention to become a citizen shall be maintained until the Government avoids it."

The rights of purchasers from an alien locator, when no adverse interests have been acquired, will be sustained.10 But the Supreme. Court of Nevada held that an alien who has never declared his intention to become a citizen is not a qualified locator of mining ground, and he cannot hold a mining claim, either by actual possession or by location, against one who connects himself with the Government title by compliance with the mining law. Where the first claimant who takes up the claim is not a citizen, or has forfeited his rights by noncompliance with the mining laws, or abandons his claim, the mining ground staked off by him is open to location by any citizen of the United

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States." But the United States Circuit Court of Appeals has recently decided that an alien who has expended time, money, and labor in exploring for and locating a mining claim on public lands, conjointly with others, may hold his interest, or recover the same if deprived thereof, as against his co-locators, and as against all the world, except the United States, though Rev. Stats., Section 2319, confines the right of exploration, purchase, and occupation of unsurveyed mining lands to citizens of the United States, or persons who have declared their intention to become citizens, and that the question whether an alien. can inherit an interest in a mining claim located upon Government lands is determined, not by the Federal law, but by laws of the State in which the mine is situated; and under Acts Colo. November 4, 1861, and April 2, 1887, aliens may inherit mining claims located in that State.12 And one who asserts title to a mining claim under a location made by an alien and two citizens cannot defeat the claims of the alien's heirs on the ground that, under Rev. Stats., Section. 2319, an alien cannot be a locator; for mining rights constitute no exception to the general rule that the right to defeat a title on the ground of alienage is reserved to the Government alone. And the Supreme Court of California has held that an alien's declaration of intention to become a citizen must precede his mining location, to render it valid.1 When several persons perform all the acts necessary to make a valid location, some of whom are aliens and others are citizens, and the location embraces no more than the citizens were entitled to take, such citizens can acquire a title, under such location, to the whole. Prior to the Act of Congress of March 3, 1887, known as the "Alien Act," there was nothing in the laws of the United States prohibiting aliens from holding and working mining ground under a lease from one qualified and who had made a proper location of such mining ground.16

We now proceed to trace the course necessary to pursue to acquire title to a mining claim, from the initiatory step to its conveyance by the Government.

It is an indispensable prerequisite to acquiring any rights to a quartz lode mining claim that a discovery shall have been made of the vein or lode sought to be located. The vein is discovered when there is disclosed a well-defined body of rock in place carrying gold, which body afterward proves to be continuous." To constitute a discovery, "rock in place," a well-defined crevice, or at least one well-defined wall or side of the lode, must be found.18 It is not sufficient to find mineral, which would yield something in a fragmentary condition, in the slide or loose stuff on the surface of the mountain, but the locator must find it within rocks in the general mass of the mountain.19

No valid location of a mining claim can be made until a vein or deposit of gold, silver, or metalliferous ore or rock in place has been

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11 Golden Fleece v. Cable Co., 12 Nev. 312.

12 Billings v. Aspen, 51 F. R. 338.

13 Billings v. Aspen, 52 F. R. 250.

15 North Noonday v. Orient, supra.

16 Ah Kle v. McLean, 32 P. R. 200.

17 Golden Terra v. Mahler, 4 Morr. M. R. 390.

18 15 Am. and Eng. Enc. of Law, 531 and cases cited.

19 Argentine v. Terrible, 112 U. S. 478.

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discovered.20 A location before an actual discovery confers no right upon the locator.21 But if after such location a vein or lode is discovered within the limits of the claim located before any other party has acquired any right therein, from the date of his discovery would be good, to the limits of his claim, and the location valid." The proper interpretation of the Acts of Congress is that a location must be made by taking up a piece of land to include the vein.' And the location should be made in conformity with the strike of the vein; but the law does not require the claim, in order to be valid, to be located along the course of the vein," which is the direction of the vein across and through the country,25 and a location so laid that its greatest length crosses a vein will secure only so much of the vein as it actually crosses at the surface."

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The most practicable rule is to regard the course of the vein as that which is indicated by surface outcrop, or surface exploration and workings. It is on this line that claims will naturally be laid, whatever be the character of the surface, whether level or inclined." A location will be presumed to include the vein upon which the discovery was made, till the contrary be shown. But the mere posting of a notice on a ridge of rocks cropping out of the earth or on other ground, that the poster had located thereon a mining claim, without any discovery or knowledge on his part of the existence of metal there or in its immediate vicinity, would be justly treated as a mere speculative proceeding, and would not itself initiate any right."

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By a proper location, a prior inchoate right to obtain a title becomes established, and actual possession is not requisite to maintain such right prior to the issuance of patent.30 But a location made without prior right of entry on the ground is void. Location confers no right of entry, where such right did not previously exist; and, when perfected, it has the effect of a grant by the United States of the right of present and exclusive possession, and it may be the subject of bargain and sale, and may be sold, transferred, mortgaged, and inherited. The location involves a compliance with the laws of Congress, and with State law and local miners' rules when not inconsistent with the Federal law; and priority of location gives the better title.33

If the location covers more than is allowed by law or by the local laws of the mining district, the whole is not thereby rendered void, but the excess may be rejected and the claim held good for the remainder, and a locator of a mining claim may abandon a portion of his original location without forfeiting any rights he may have to the balance of the claim; but where a person who has located a mining claim permits an adjoining occupant to patent that part of his claim on which is located

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his discovery shaft, the remaining portion thereof reverts to the condition of public lands, and is relocatable; and such rule applies, though the patentee made his location after such person.

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Discovery and appropriation are the source of title to mining claims, and development by working is the condition of their continued possession until patent is obtained; and as the title comes from appropriation made in accordance with the mining laws, rules, and customs, it is not necessary that a party should personally act in taking up a claim, or in doing the acts necessary to give evidence of the appropriation or to perfect the location. Such acts as these are valid to give title to the claimant, if done by any one for him, or with his assent or approval." The locator must take measures to inform the world that he has appropriated a certain portion of the public mineral lands, and of the extent and boundaries of the portion so appropriated. This is done by taking the following steps: He must distinctly mark the location on the ground, so that its boundaries can be readily traced. This, unless modified or extended by State law or local rules, can be done by the placing of a monument or stake on the center or lode line, upon which is placed a notice in writing describing the length and breadth of the claim.37

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This method of location can be followed safely only in the absence of State law and local regulations, notwithstanding that the mining Act of Congress does not require a mining claim to be marked by monuments on the ground until the time of its survey for patent. When they exist it is provided generally that the center line shall be marked by three stakes or monuments—one at the center, and one at each end— upon the center one of which is placed the location notice, and upon each center end line a notice stating the direction of the lode with reference to the points of the compass, and declaring the stake or monument to be the limit stake or monument of the lode in the direction mentioned in the notice upon it; as, to illustrate, the east and west end line of the lode. It also generally gives the name by which the lode is to be called. In addition to the foregoing a stake or monument is placed at each corner of the surface of the claim, designating which corner it is with reference to the points of the compass, and also containing the name of the claim. The Federal law does not prescribe the form, shape, or size of a monument or stake, but where monuments or stakes are relied upon to control courses and distances, they must be found as called for; hence, if the location notice calls for a post or stake, a monument of rock will not answer the call.39

The validity of a location cannot be made to depend upon the number of monuments erected to mark its boundaries, nor upon the length of time it takes to erect them. The location would be just as valid whether it required five minutes or five hours for the work, provided that when completed the boundaries of the location could be readily

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P. R. 69.

34 Richmond v. Rose, 114 U. S. 576; Tyler v. Sweeny, 54 F. R. 284; Miller v. Girard, 33 35 O'Reilly v. Campbell, 116 U. S. 418; Jennison v. Kirk, 98 U. S. 453; Jackson v. Roby, 109 U. S. 440; Gore v. McBrayer, 18 Cal. 383. 36 U. S. Rev. Stats., Sec. 2324.

37 North Noonday v. Orient, supra; Jupiter v. Bodie, supra; Gleeson v. Martin White, supra; Carter v. Bacigalupi, 83 Cal, 187; Gregory v. Pershbaker, 73 Cal. 120; Erhardt v. Boaro, supra, Marshall v. Harney Peak, 47 N. W. 290; Doe v. Waterloo, 55 F. R. 11.

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38 U.S. Rev. Stats., Sec. 2325.

39 Pollard v. Shively, 5 Colo. 309.

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