traced. The marking must be such that the boundaries of the claim. or location can be readily traced, and the question must always be whether or not from the objects placed by the locator the boundaries can be readily traced. One monument, properly marked, may serve that purpose, while seven monuments may be insufficient. What will constitute a valid marking of the location must always largely depend upon the conformation of the particular ground located, and compliance with a statute or local rule or custom requiring the placing of a certain number of monuments at certain points of the location within a certain time is necessary as one of the acts constituting a valid location of a mining claim within the jurisdiction, but it is not sufficient under the Federal law, unless the location is thereby so marked that its boundaries can be readily traced.

* * *

In Gleeson v. Martin White, post, Judge Beatty says: "One of the imperative requirements of the statute, an indispensable condition precedent to a valid location, is that it shall be distinctly marked on the ground, so that its boundaries can be readily traced. We do not understand that the law requires the surface claim to be defined immedi* *. * And it does not appear ately upon the discovery of the vein. to be a necessary consequence that the least admissible marking is by * * * The posts or monuments at all the corners of the claim. vein is always the principal object that the locator has in view; it is the first thing that attracts the attention of mining men. The surface claim by which it is located ought to conform to its course. * * So that, if the center line of the claim is once established, the boundaries are thereby fixed, and may be readily traced.


* *

* *


It must be remembered that the law does not in express terms require the boundaries to be marked. It requires the location to be so marked that its boundaries can be readily traced. Stakes at the corners do not mark the boundaries; they are only means by which the boundaries may be traced. Why not, then, allow the same efficacy to the marking of a center line. * * If the grand object of the law is attained by the marking of a center line, why should it not be allowed to be sufficient? * * * A mining claim consists of a certain breadth of surface, to be laid off on each side of the line of the croppings, with the mineral deposits included therein. The center line, as a matter of course, is to be a straight line conforming to the general strike of the vein, as nearly as that can be ascertained. The side lines are to be parallel to the center line; and if, as we assume to be the proper construction of the law, the end lines must be parallel and conform to the dip of the vein, which is at right angles to its strike, it follows, with the conclusiveness of a mathematical demonstration, that when the center line is once definitely fixed the boundary lines can be traced (that is, followed out) with absolute certainty. It may be that they could not be traced as easily and readily as if stakes were set at the corners, but the difference would be very slight and of no practical The whole object of the law is accomplished whenever, from the monuments on the ground, the boundaries of a mining claim can be traced with absolute certainty and without any practical difficulty, and for that purpose a definitely fixed center line is sufficient."


* * *

Where there is any doubt as to the true course of the vein, the marking of the boundaries should be postponed as long as possible until the

true course can be ascertained by explorations." In the absence of any local regulation prescribing the time to be allowed for such purpose, the question, What is a reasonable time? would have to be determined by the circumstances of each case. In a recent case it was held that in the absence of State statutes or mining rules fixing the time within which the exterior boundaries should be marked, twenty days was a reasonable time. And as long as the locator exercises good faith and reasonable diligence the Courts will protect him."

To hold that the miner, as soon as he discovers a lode, must immediately stake the territory which he is entitled to claim thereon, in order to protect it from the invasion and claim of others learning of his find, would be an unreasonable, if not an impossible, requirement."2

One who has indicated by his acts his intention to perfect a location under the mining laws and statutes should be held, by proper application of the doctrine of relation, to have first marked the boundaries of the claim (in legal effect) as against one who, for the purpose of depriving him of the benefit of his work or of his discovery of mineral of value, shall intervene and mark the boundaries before the first occupant shall have completed or even commenced their alignment.43

The mining law allows the miners to provide for the recording of claims, and no doubt it was the intention of Congress that such record should have some practical effect, such as, for instance, to hold the claim for a reasonable time, until the vein could be so developed as to admit of an intelligent marking of the surface boundaries."

A notice is generally, and for safety ought always to be, posted immediately upon the discovery of the vein, before there is any time to survey the ground and ascertain the bearing and distance of natural objects or permanent monuments in the neighborhood; and, besides, the claim referred to by the notice is always sufficiently identified by the fact that it is posted on, or in immediate proximity to, the croppings. A notice claiming a location on "this vein" has only one meaning. But the notice is exposed to the danger of removal by adverse claimants, or 'destruction by the elements; and for the permanent evidence of the location its record is provided for. The record, if it consisted of a mere copy of the notice, would not identify the claim. It was on this account that the record (not the notice) was required to contain "such a description of the claim or claims located by reference to some natural object or permanent monument as will identify the claim" (R. S., 2324). It is a sufficient compliance with this provision of the law, if the description of the locus of the claim is appended to the notice when it is recorded.45

It is always indispensable when a record is made, that the claim shall be located with reference to some natural object or permanent monument, by reference to which the claim can be identified," and without such description a recorded certificate of location is void. The reference to natural objects and permanent monuments is for the purpose of identi

40 Iron Co. v. Elgin Co., 118 U. S. 196.


41 Gleeson v. Martin White, supra; Doe v. Waterloo, supra; Burke v. McDonald, 33 P.R. 50. 42 Omar v. Soper, 11 Colo. 380.

43 Gregory v. Pershbaker, 73 Cal. 120.

44 Golden Fleece v. Cable, supra.

45 Gleeson v. Martin White, supra.

46 U. S. Rev. Stats., Sec. 2324; Dillon v. Bayless, 11 Mont. 171.

47 Faxon v. Barnard, 4 F. R. 702; Gilpin v. Drake, 8 Colo. 586.

fying the claim. It is, among other purposes, to show the prospector that the ground he may desire to appropriate has been taken by another. Now, if such prospector reads his predecessor's notice, finds his monuments, and tracing the description finds nothing described, is that notice to him? Is it a description which enables the Government to grant such locator anything certain? We think not. A permanent monument, with no intelligible reference to it, would not describe or identify the claim.48 In some States the location must be perfected by the sinking of a shaft and such other acts as the law or local rules require. In fact, the safe location of a mining claim requires an observance of the law and local customs, of which one cannot be assured except by a careful study of the same. An attempt to refer to them all would unnecessarily extend this article. The Federal law makes the necessity for recording a mining claim depend upon local rules, or State or Territorial law, in the absence of which it is not necessary, and even where such a custom prevails, the fact that the notice is recorded before it is But where a local custom requires posted does not render it invalid.49 posting before recording, it is binding.50 The notice to be recorded is not necessarily identical with that placed upon the claim.61

When a notice is required by local law to be of record, it must contain not only a reference to some natural object or permanent monument, as before said, but also the name of the locator or locators, and the date of the location,52 and its effect is determined by the local laws or regulations. To make the record of a mining claim complete, it must be recorded where the local rules or State law require. An unauthorized location of a mining claim in the name of a third person, by one assuming to act as his agent, may be ratified by the former.55



[ocr errors]

Any person may enter upon and locate mineral land which has become forfeited or abandoned.' Abandonment is a voluntary act. Forfeiture rests entirely upon the fact of observance or non-observance of the requirements of the statutes or of mining rules and regulations. Mere failure to do work, while it may cause a forfeiture, does not constitute an abandonment. A subsequent location is usually called a "relocation," and is made in the same manner and subject to the same conditions as an original location. Where a notice states that it is a relocation of a certain claim therein named, it is an implied admission of the validity of the original location, and an assertion that the relocator claims a forfeiture by reason of a failure on the part of the original locator to make his annual expenditures."

A relocation made before the default of the owner is a nullity,


[blocks in formation]

does not become valid upon the first locator's subsequent default. Hence, a relocation on lands actually covered at the time by another valid and subsisting location is void, and this not only against the prior locator, but all the world, because the law allows no such thing to be done."



A relocation may be made under proper circumstances, by the original locator, and it does not act as an abandonment of the first location," though other names are added as co-locators. So, also, by the vendee of an alien. If the claim originally informally located is subsequently relocated by the same person according to law, his title dates back by relation to the first location."

It is doubtful if entry by stealth, at 1 o'clock of a New Year's morning, can be the basis of a valid relocation."

An amended location is not, strictly speaking, a relocation, though sometimes called so. When the rights of third parties are not interfered with, the boundaries and a record of a mining location may be changed at the pleasure of the owner, subject only to the provisions of the State or local laws."

The United States Circuit Court says, in reference to the State law of Colorado, specifically providing for amended certificates:

"Errors and mistakes in certificates of location are of frequent occurrence. Under the law as it is at present, a fully complete and unimpeachable certificate cannot be made without the aid of a surveyor and the best instruments. It is often, and perhaps generally, impracticable to obtain the services of a surveyor in making a location, and the miner must depend upon his own skill and judgment. In such effort he usually fails. Indeed, it may be said as to the course of his lines he is always in error, and the natural object and permanent monument required by Section 2324 of the United States Revised Statutes are entirely beyond his grasp. He does not know what they are, nor how to refer to them. Every one who is at all familiar with mining locations knows that in practice the first record must usually, if not always be imperfect. Recognizing these difficulties, it has never been the policy of the law to avoid a location for defects in the record, but rather to give the locator an opportunity to correct his record whenever defects may be found in it. The local laws usually provide for the amending of certificates of location." 12


Having ascertained how to acquire an inchoate title to a mining claim, we will now consider what to do to maintain it, and what steps are necessary to preserve the acquired right until patent is issued.

On each claim located after the tenth day of May, 1872, $100 worth of work must be performed or improvement made each year until the issuance of the patent.' This applies to placer as well as to lode locations."


6 Belk v. Meagher, 104 U. S. 279.

7 Fuller v. Harris, 29 F. R. 818.

8 Weill v. Lucerne, 11 Nev. 201.

9 Fuller v. Harris, supra.

10 Pharis v. Muldoon, 75 Cal. 284.

11 Crœsus v. Colorado, 19 F. R. 78.

12 McEvoy v. Hyman, 25 F. R. 596.

1 U. S. Rev. Stats., Sec. 2324.

* Carney v. Arizona, 65 Cal. 40.

It is not difficult, in looking at the policy of the Government in regard to its mineral lands, to understand the purpose of this provision. For many years after the discovery of the rich deposits of gold and silver in the public lands of the United States, millions of dollars' worth of these metals were taken out by industrious miners without any notice or attention on the part of the Government. The earliest legislation by Congress simply recognized the obligatory force of the local rules in each mining locality in regard to obtaining, transferring, and identifying the possession of these parties. Later, provision was made for acquiring title to the land where these deposits were found, and prescribing rules for the location and identification of claims, and securing their possession against trespass by others than their discoverers. But in all this legislation to the present time, though by appropriate proceedings and the payment of a very small sum a legal title in the form of a patent may be obtained for such mines, the possession under a claim established according to law is fully recognized by the Act of Congress, and the patent adds little to the security in continuous possession of a mine he has discovered or bought.

These mineral lands being thus open to the occupation of all discoverers, one of the first necessities of a mining neighborhood was to make rules by which this right of occupation should be governed among themselves; and it was soon discovered that the same person would mark out many claims of discovery, and then leave them for an indefinite length of time without further development and without actual possession, and seek in this manner to prevent others from availing themselves of the abandoned mine. To remedy this evil a mining regulation was adopted that some work should be done on each claim in every year, or it would be considered as abandoned. Congress, when it came to regulate these matters and provide for granting a title to claimants, adopted the prevalent rules as to claims asserted prior to the statute, and as to those afterwards it required $100 worth of labor or improvements to be made in each year on every claim. Clearly the purpose was the same as in the matter of similar regulations by the miners, namely, to require every person who asserted an exclusive right to his discovery or claim to expend something of labor or value on it as evidence of his good faith, and to show that he was not acting on the principle of the dog in the manger.

[ocr errors]


Work may be done on the claim itself anywhere upon its surface within the surface lines, or anywhere below the surface within those lines extended downward vertically; or on other ground, when it has a direct relation and is in reasonable proximity to it. Where several locations are held as a mining claim, work done upon any one of the locations, equaling in amount that which would be required on all the locations, if they were separate or independent, is sufficient to maintain the acquired right to each location, but the locations must be contiguous, so that each location thus associated will be in some way benefited by the work done on one of them. To fulfill the requirements of the law, the work done must have a direct bearing upon either the

[blocks in formation]


present or future improvement or working of the mine itself;" and if done for the purpose of discovering mineral, whatever the particular form or character of the deposit which is the object of search, it is within the spirit of the statute. The work may be performed by the original locators, or their heirs, assigns, or legal representatives. The law fixes no time within the year when the work must be done. The period within which the annual work is required to be done commences on the first day of January succeeding the location, and expenditures made or labor performed prior to the first day of January succeeding the date of location, cannot be applied on the first annual expenditure. If the locator, or his heirs or assigns, after the time for the expenditure has elapsed, but before third parties' right have intervened, resume work, and continue till the necessary amount is expended, their right is revived, and relates back to the original location." Under the late statute of California before referred to, provision is attempted to be made for furnishing evidence that the labor or improvements required by law have been duly performed. It consists in filing with the Recorder of Deeds for the county in which the property is situated, within thirty days after the time limited for the performance of the labor or making the improvements, an affidavit describing the labor performed and improvements made, and the value of the same. Upon the failure of any co-owners to contribute his or their share of the expenditures required, those who have performed the labor or made the improvements, at the expiration of the year, may give the delinquent notice in writing, or by publication in a newspaper once a week for ninety days, and if, after the expiration of that time, the delinquent fail to contribute his or their portion, their interests become the property of those who have performed the requirements of the statute. One seeking to perfect a title to a mining claim in California should acquaint himself with the provisions of the Act." The provision of the above statute of California as to a co-owner obtaining the interest of his delinquent co-owner, is a copy of the Federal statute upon that subject.


There is no time prescribed within which a mine owner shall apply for a patent. He may make the application himself or by a duly accredited agent, for an official survey of the premises sought to be patented. The application usually contains the name of the deputy surveyor desired by the applicant to make the survey. The application must be accompanied by a certified copy of the notice of location, if the same appears of record; if not, secondary evidence of the applicant's title will be received; and by evidence of the deposit in the SubTreasury of the United States of the fees required for the office work in

Bryan v. McCaig, 10 Colo. 309; Du Prat v. James, 65 Cal. 555; Moxon v. Wilkinson, 2 Mont. 421; Remington v. Baudit, 6 Mont. 138.

8 U. S. v. Iron Co., 24 F. R. 568.

9U. S. Rev. Stats., Sec. 2324.

10 Belk v. Meagher, 104 U. S. 279; U. S. Rev. Stats., Sec. 2324.

11 Pharis v. Muldoon, 75 Cal. 284; Belcher v. Deferrari, 62 Cal. 160; U. S. Rev. Stats., Sec. 2324. 12 Stats. Cal. 1891, 219.

1 Wolfley v. Lebannon, 4 Colo. 112.

the Surveyor-General's office. It has been held that the survey is the act of the claimant and not the act of the Government, and that the deputy acts under the direction of the claimant."

Briefly, we may say that the deputy's duties are to survey the located premises and make a plat thereof, indorsed with his approval, designating the number and description of the location, the value of the labor and improvements, and the character of the vein exposed.

After the deputy has made the survey and sent such data to the Surveyor-General as is required by him, two copies of the plat and a copy of the field notes are sent to the applicant. A diagram showing the location of the claim within the section is sent by the Surveyor-General to the General Land Office, and he also forwards a copy of the plat furnished the applicant for patent to the local Land Office. The original returns of the deputy are kept in the office of the Surveyor-General. The Federal law provides that $500 worth of labor or improvements shall have been expended or made by the claimant or his grantors upon the claim prior to the expiration of the sixty days' period of newspaper publication of the intention to apply for a patent. It is immaterial at what time prior to that the labor is performed or improvements made. The essential thing is that evidence of such fact be furnished within the statutory period to the local Land Office. The proceedings to obtain patent for a consolidated claim are the same as when the claim covers but one location."


The proceedings in the local Land Office are initiated by the filing of an application, under oath, of the claimant or his or its agent, thereunto duly authorized, showing a compliance with the requirements of the law. This is accompanied by a copy of the plat and field notes given by the Surveyor-General to the claimant, an abstract of title of the claimant, or in case the locator is the applicant, a certified copy of the notice of location takes the place of the abstract, or in the event that the records have been destroyed an affidavit of the claimant, supported by those of any other parties cognizant of the facts relative to his location, occupancy, and possession, etc., should be filed with the application. The proceedings necessary to be had when the statute of limitations is the basis of the applicant's rights are set out under the head of The Statute of Limitations, post. If the applicant be a natural person, evidence of his citizenship must be given by his affidavit; if a corporation, a certified copy of its articles of incorporation proves its citizenship. The application will not be received by the Register of the Land Office unless there is therewith presented the affidavit of two witnesses to the prior posting on the claim of a copy of the plat, together with a notice of intention to apply for a patent. Thereafter the Register orders publication for sixty days, of the intention to apply for a patent, in a newspaper published nearest to the claim. Where newspapers are published equal distances from the claim, the Register determines in which one the notice shall be published. During the period of publication the plat and notice must remain posted on the

2 Wolfley v. Lebannon, supra.

* Smelting Co. v. Kemp, 104 U. S. 636.

claim, and during the same period the Register must keep a copy of the notice of intention to apply for a patent posted in his office. The Register is responsible for defects in the published notice. Upon the expiration of the sixty days' newspaper notice (which is process bringing all adverse claimants into Court'), in case no adverse claim has been filed, the applicant becomes entitled to a patent without further action on his part, other than the payment of $5 per acre and fraction thereof embraced in the claim, and the filing in the local Land Office of an affidavit of the continued posting on the claim of the plat and notice of intention to apply for a patent, during the sixty days of newspaper publication, the affidavit of the publisher of the newspaper publishing said application, and the agreement of the publisher to look only to the applicant for his advertising bill, a sworn statement of the fees and charges paid by him to the Surveyor-General, the local Land Office, the Deputy Surveyor, the newspaper publishing the notice, and the amount paid for the land. He must also file a certificate from the County Clerk, and another from the Clerk of the Federal Court, that no suit is pending affecting the title to the property. Upon the performance of these acts the Receiver issues to the claimant a final receipt. The Receiver then sends all the papers mentioned, together with the certificate of posting of notice in the local Land Office, etc., to the General Land Office. After the applicant for patent has obtained his final receipt, or certificate of purchase, he is not obliged to continue the annual expenditure upon the claim required by the mining Act, pending final decision on his application and issuance of patent, because, says the United States Supreme Court, "When the price is paid the right to a patent immediately arises. If not issued at once, it is because the magnitude of the business of the Land Department causes delay. But such a delay, in the mere administration of affairs, does not diminish the rights flowing from the purchase, or cast any additional burdens on the purchaser, or expose him to the assaults of third parties."

The proceeding is in the nature of a proceeding in rem, and is binding upon all the world, so far as any unrepresented claim is concerned.* But the provisions in Rev. Stats., Secs. 2325-26, as to adverse claims to a lode to which a patent is asked, do not apply to a person who, before the publication first required, had himself gone through all the regular proceedings required to obtain a patent for mineral land from the United States, had established his right to the land claimed by him, and had received his patent therefor."

[blocks in formation]

days, does not extend the time in which to file adverse claims in the local Land Office.

Under the law the first step of a party desiring to file an adverse claim is to employ a deputy mineral surveyor to make a survey, which will show the adverse claimant's entire claim, its relative position or situation with the one against which he claims, and the extent of the conflict. From this survey a plat is made by the deputy, showing the boundaries and extent of the adverse claim and the approximate value of the labor performed or improvements made thereon by the adverse party or his predecessors in interest, and the plat must indicate the position of any shafts, tunnels, or other improvements, if any such exist upon the claim of the party opposing the application for patent, and by which party such improvements were made. This plat must be certified or sworn to by the deputy making it.


The adverse claim must be upon the oath of the party making it, his agent or attorney in fact, and in the case of a corporation, some one of its officers is usually authorized to prosecute the proceedings in the Land Office, and must show the nature, boundaries, and extent of such claim, and must be accompanied by said plat, an abstract of title, if held under mesne conveyances, or a location notice, if made by one who claims to be a locator, and evidence of citizenship. An adverse claimant must be able to establish by proof all the prerequisites necessary to be established in the case of an original claimant, in order to prevail against the applicant for a patent. In order to keep an adverse claim alive, proceedings must be commenced in a Court of competent jurisdiction to determine the question of the right of possession and to determine who has the better right to obtain the patent. The proceedings must be commenced within thirty days from filing the adverse claim, and be prosecuted with reasonable diligence to final judgment. What constitutes the commencement of an action in a State Court is a matter of State law. The filing of an adverse claim does not arrest the publication of notice or the filing of the affidavit of such publication. All other proceedings in the local Land Office are stayed until the final determination of the questions litigated in the Court, or the adverse claim is waived. Waiver may be evidenced by a filing in the records of the Court by the plaintiff, of a plea that he abandons his case or waives his claim, or by an instrument signed by the contestant, and duly authenticated, that he had sold his interest to the other party, or had abandoned his claim and his contest, or by failure to prosecute the case with reasonable diligence, or by failure to appear at the trial. Undoubtedly the parties can lawfully agree at any stage of the proceedings that the patent may issue to the applicant, and that he shall deed the ground in conflict, in whole or in part, to the contestant.


[blocks in formation]
[blocks in formation]

improvements made upon the claim, or such portion thereof as the decision of the Court shows him entitled to, and the description required in other cases, and pays the same fees and amounts as are required of an original claimant in the absence of an adverse claim."

The Register certifies to the General Land Office the whole proceedings and the judgment roll. Upon the reception at the General Land Office of the judgment roll, etc., patent issues in conformity with the judgment of the Court. In case there are several parties whose rights in the claim are established by the result of the litigation, each of which is segregated from the rights of the others, then a patent is to be issued to each of the parties according to their respective rights.


It is not clear why the law requires that an adverse claim filed in the local Land Office is to be made with such particularity as to detail, as its office is merely to stay all proceedings until the controversy it inaugurates shall have been settled or determined by a Court of competent jurisdiction, or the adverse claim waived. If the Court decides for one party or the other, the Land Department is bound by the decision. If it decides that neither party has established a right to the mine, or any part of it, this is equally binding as the case then stands. With all this these officers have no right to interfere. After the decision they are governed by it. Before the decision, once the proceeding is initiated, their function is suspended, and they have no further act of judgment to exercise.


If a certified copy of the adverse claim could be filed in the Courts as the commencement of proceedings between the applicant and the adverse claimant, to determine who has the better right to obtain the patent, its value would be apparent. As it is, it serves no purpose that a simple notice in writing substantially setting forth the ground of the adverse claimant's alleged rights would not effect, and thus a present great and useless expense would be obviated.

The discussion so far has been in relation to those who claimed an interest or some right in the mining property. It may happen, however, and sometimes does happen, that a protest is filed against the issuance of a patent, by a party claiming no interest in the mining claim itself. It must be filed in the local Land Office, and is cognizable only there, and may be filed at any time before the patent is issued. The ground of such protest may be non-citizenship of the applicant, or in a general way it may be said to be fraud or lack of good faith on the part of the claimant in regard to any of the essential requisites to entitle him or it to a patent.


After all the foregoing proceedings have been had, and the claim is pending in the General Land Office, that office has the power to suspend, disaffirm, or cancel the final receipt issued to the applicant,' order republication and a reposting on the claim and in the local Land Office (if this is done it subjects the applicant to the interposition of any

U. S. R. S., Sec. 2326; Iron Co. v. Campbell, supra.


10 U. S. R. S., Sec. 2326.

11 Richmond v. Rose, supra.

12 Wight v. Du Bois, 21 F. R. 693.

1 Deffeback v. Hawke, 115 U. S. 392.

« ForrigeFortsett »