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as to any retroactive force. There are decisions in other States to the contrary, and our Supreme Court may follow them, if the question is again brought before it. In all locations made prior to March 31, 1891 (the date of the approval of said Act, which by its terms took effect immediately), there can be no question that under our Supreme Court decisions, as they exist up to date, this section of the Act is a nullity. We are not prepared to say just what effect the quoted section of the Act may have upon mining locations made after the date of its approval. But it clearly seems that the Mining Act of Congress and said section should be construed together, having in view the paramount or controlling power of the Federal statute. This gives the State the power to make a law regulating the matters touched on in said section. questionably, as every one is presumed to know the law, every person locating a mining claim subsequently to March 31, 1891, locates with a knowledge of the provisions of such section, which virtually becomes a portion of his notice; consequently, why is it not constitutional as to such location? A party takes certain property with the knowledge that others may acquire certain rights therein for certain purposes upon compensation made or tendered. He, therefore, is not prejudiced by the provisions of the law. No law is retroactive unless made so in terms. This is not done in the Act referred to, and claims located before its enactment would seem not to be subject to its provisions.

WATER RIGHTS.

Un

The first legislation on this subject is contained in the Act of 1866, which has been, with only verbal changes, incorporated into the Revised Statutes of the United States.1 Section 9 of this Act confirms all rights to the use of water which have accrued by priority of possession, not only for mining purposes, but for agricultural, manufacturing, and other purposes as well. Its provisions were based upon, and were intended to adopt, the customs and rules in regard to water rights as they existed in California up to the time of the passage of the Act, as they had been construed by the Courts of that State. Such customs and rules were based upon the wants of the community and the peculiar condition of things in that State, for which there existed no precedent.

In the legislation Congress enacted it simply made valid or legal rights that theretofore had existed rather through silent acquiescence than by the positive recognition of the Federal Government. Whenever rights to the use of water by priority of possession have become vested, and are recognized by the local customs, laws, and decisions of the Courts, the owners and possessors are protected in them; and the rights of way for ditches and canals incident to such rights, being recognized in the same manner, are acknowledged and confirmed. The laws of California provide fully the steps to be taken in acquiring water rights and how such rights may be lost. A person desiring to appropriate water in this State must post a notice in writing, in a conspicuous place, at the point of intended diversion, stating therein:

(1) That he claims the water there flowing to the extent of (giving the number) inches, measured under a 4-inch pressure.

1 Jennison v. Kirk, 98 U. S. 453.

2 Jennison v. Kirk, supra.

$ C. C. C., Sec. 1410, et seq.

(2) The purposes for which he claims it (which must be a useful or beneficial purpose), and the place of intended use.

(3) The means by which he intends to divert it, and the size of the flume, ditch, pipe, or aqueduct in which he intends to divert it.

A copy of the notice must, within ten days after it is posted, be recorded in the office of the Recorder of the county in which it is posted. Within sixty days after the notice is posted the claimant must commence the excavation or continuation of the works in which he intends to divert the water, and must prosecute the work diligently and uninterruptedly to completion, unless temporarily interrupted by snow or rain. By completion is meant conducting the waters to the place of intended use. A failure to comply with such rules deprives the claimant of the right to use the water as against a subsequent claimant who complies therewith. Notice alone of an intent to divert water of a stream for a specific purpose will not of itself constitute an appropriation, but it must be followed by the commencement and completion of the works for the diversion thereof.*

A person entitled to divert a given quantity of water from a stream may take it at any point on the stream, and may change the point of diversion at pleasure, if the rights of others be not attacked injuriously. The right to take water having been once acquired, the manner and place of taking it cannot be questioned by those not injured thereby, and the ditch, flume, pipe, or aqueduct by which the diversion is made may be extended to places beyond that where the first use was made.' There seems to be no limit to the amount of water that may be appropriated by the first claimant. The rights of riparian proprietors are not affected by the above provision. In a late case in California, the subject of riparian rights received an elaborate and exhaustive consideration, to which case the reader is referred to the questions therein involved. On the filing of a homestead entry upon public land, for which a patent is subsequently issued, rights in a stream flowing over the land become vested in the homestead settler, and the waters thereof are no longer subject to the right of appropriation."

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formation of the partnership, otherwise the owners of the mine are simply tenants in common, and the relation arises from the ownership. of shares, or interests in the mine, and working the same for the purpose of extracting the mineral therefrom. The essential difference generally existing between ordinary copartnerships and mining partnerships is that in the latter a partner has no right to decide what new partners, if any, shall be admitted to the firm, and no dissolution results from the death of a partner. So one of the partners in a mining partnership may convey his interest in the mine and business without dissolving the partnership. The purchaser from the date of his purchase becomes a member of the partnership, and takes it subject to the liens existing in favor of the partners, for debts due all creditors thereof, or advances made for the benefit of the partnership, unless he purchased in good faith, for a valuable consideration, without notice of such lien. The purchaser when the partnership is engaged in working the mine takes with notice of all liens resulting from the relation of partners to each other and to the creditors of the new partnership; that is, in other words, new partners are liable for old debts. The mining ground owned and worked by partners in mining, whether purchased with partnership funds or not, is partnership property. The profits and losses of a mining partnership are shared proportionately to the respective interests, or shares, held by each member thereof; and no contract in writing binds the partnership, except by express authority derived from the members thereof;10 and the affairs of the partnership are conducted according to the policy dictated by the owners of a majority of its shares.11 An agreement to excavate two tunnels in consideration of all ores found therein, and an undivided half of certain lodes, does not constitute a partnership. Where the parties make an agreement that one of them shall prospect for mines and the other shall furnish the money and supplies, the interests in the mining ground discovered to be shared between them, this constitutes a prospecting partnership, and makes the partners co-tenants in such ground. An agreement to work a mine for the owner on shares creates a mining partnership.1

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MINER'S LIENS.

A claim of lien for labor performed on a mining claim, which states the kind or number of days of labor, with the dates between which it was performed, the price agreed to be paid therefor per day, and the aggregate amount due, and that "the terms of payment for said labor were cash as soon as said labor was performed," sufficiently shows the terms, time given, and condition of the contract. Whilst the statute giving liens to mechanics and laborers for their work and labor is to be

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liberally construed, so as to afford the security intended, it cannot be too strongly impressed upon them that they must not only bring themselves, by their notice, clearly within the provisions of the statute, but they must be prepared, if the priority of their lien be disputed, to show a compliance with those provisions, and to fix with certainty the commencement and completion of their work. For the purposes of a lien, work done on tools and machinery connected with the mine is work done on the mine. But a lien is not given for hauling ore from the mine to the mill. Work done on a mine and a mill, which lie some distance apart, is work done on two separate pieces of property, though performed under one contract.5

4

TOWNSITES.

2

The United States laws limit the quantity that shall be included in the patent of a townsite to the number of its inhabitants. Where there are over one hundred and less than two hundred inhabitants, the patent can only embrace lands not exceeding 320 acres; where the inhabitants number more than two hundred and less than one thousand, it cannot embrace more than 640 acres; and where the inhabitants are one thousand or more it cannot exceed 1,280 acres. For each additional one thousand inhabitants, not exceeding five thousand, a further grant of only 320 acres is allowed. Land embraced within a townsite on the public domain, when unoccupied, is not exempt from location and sale for mining purposes; its exemption is only from settlement and sale under the preëmption laws of the United States. Some of the most valuable mines in the country are within the limits of incorporated cities, which have grown up on what was, on its first settlement, part of the public domain, and many of such mines were located and patented after a regular municipal government had been established. Such is the case with some of the famous mines of Virginia City, in Nevada. Indeed, the discovery of a rich mine in any quarter is usually followed by a large settlement in its immediate neighborhood, and the consequent organization of some form of local government for the protection of its members. Exploration in the vicinity for other mines is pushed in such case by newcomers with vigor, and is often rewarded with the discovery of valuable claims. To such claims, though within the limits of what may be termed the site of the settlement or new town, the miner acquires as good a right as though his discovery was in a wilderness, removed from all settlement, and he is equally entitled to a patent for them.

The Acts of Congress relating to townsites recognize the possession of mining claims within their limits, and forbid the acquisition of any mine of gold, silver, cinnabar, or copper within them, under proceedings by which title to other lands there situated is secured, thus leaving the mineral deposits within townsites open to exploration and the land in which they are found to occupation and purchase, in the same manner as such deposits are elsewhere explored and possessed, and the lands containing them acquired.

2 Davis v. Alford, 94 U. S. 545.

3 Melone v. Big Flat Co., 76 Cal. 578.

4 Barnard v. McKenzie, 4 Colo. 251.

5 Davis v. Alford, supra.

Whenever, therefore, mines are found in lands belonging to the
United States, whether within or without townsites, they may be
claimed and worked; provided, existing rights of others from prior
occupation are not interfered with. This language is only applicable
to unoccupied public lands in unpatented townsites, and to mines in
patented townsites outside of the limits of the patent.*
attempted location of a mining claim upon a lot, the title to which
has passed into private ownership by patent from the United States,
would be invalid.

It would seem that there may be an entry of a townsite, even though
within its limits mineral lands are found, the entry and the patent
being inoperative as to all lands known at the time to be valuable for
their minerals, or discovered to be such before their occupation and
improvement for residences or business under the townsite title.*

Townsite lots located upon an abandoned mining claim are not a
location upon
፡፡
lands known to be valuable for its minerals"; to be
within such terms they must not only be known, but known to be
valuable at the date of the patent, or discovered to be so before occupa-
tion or improvement, and it cannot be presumed that, because the
ledge was once profitably worked before the townsite patent, it must
be deemed to have continued valuable at the date of the patent, if work
on the ledge was abandoned before the date of the patent.5

In regard to coal, iron, and tin mining as specific branches of the
American mining industry, it is sufficient to say that their considera-
tion does not fall within the scope of this article.

In the foregoing presentation of the views expressed, the writer is far
from claiming immunity from error or completeness of exposition. He
has placed limits upon the number of mining decisions cited, and endeav-
ored to cite out of the multitude such only as seemed the most apposite
and that most directly expressed the established law. Experience in
mining litigation has enforced upon him the consciousness of liability to
mistake, and that forecast can never equal the result of past experience.
He has sought to present such an epitome (and it assumes to be noth-
ing more) of American mining law as will be of practical benefit to those
engaged in mining pursuits; that great branch of industry, beneficial
though it is, and often lucrative, is likewise attended with hardships
and disappointments, grievous to bear. Should the foregoing be of serv-
ice to those whose labors should be attended with all the security that
the law can give, its purpose will be fulfilled.

1 Steel v. Smelting Co., 106 U. S. 447; U. S. R. S., Sec. 2380, et seq.

2 Davis v. Wiebold, 139 U. S. 507.

3 McCormick v. Sutton, 97 Cal. 373.

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

5 Richards v. Dower, 81 Cal. 44.

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Oakland Paving Co.'s quarry.

Sheep Island quarry

Alameda County water companies..

Alameda Macadamizing Co.'s quarry, Alameda County

Alameda Mine, Tuolumne County

Alameda Water Co.

Alaska Mine, Trinity County

Algrehn Mine, Siskiyou County
Alkali land, Tulare County

Alma Mine, Orange County.

Allen & Anderson Mine, Fresno County
Altoona quicksilver mines, Trinity County
Alpine gypsum mine, Los Angeles County.
Alturas Mountain, Sierra County
Alvord Mine, San Bernardino County
Altamonte quarry, Alameda County.
Alta Irrigation District, Fresno County.
Alturas tailings claim, Plumas County“.
Amador County. By E. B. Preston

[blocks in formation]

.478, 479

[graphic]

121-138

125

122

121

122

125

122

121

125

120

126

-129, 130, 131

125

508

129, 130

482

425

485

117

214

482

248

400

359, 360

122

218

332, 333

139-149

149

140

143

140

[graphic]

139

142

144

144

144

139

144

147

147

144

-141, 142

143

143

144

144

[blocks in formation]
[graphic]

149

159

142

144

29
153–154

147

.511, 512, 513

144

223

144

196

144

Talisman Mine_

[blocks in formation]

Analysis of coal. (See Coal Analysis.)

144

Big Lagoon sand claims, Humboldt County
Bigelow Mine, Sierra County..

230, 231

413

143

140

144

139, 140

Amador County clays and coal. By W. L. Watts

146-149

328

164

153

432, 433

Arroyo Seco Mine, Amador County

Auriferous gravel in San Diego County

Analysis of El Toro Spring water.

Andrew's River Mine, Siskiyou County

Angels Camp mines, Calaveras County

Annie Rooney Mine, San Bernardino County

Antelope Copper Mine, San Benito County
Antimony Hill, San Benito County.

Antimony in Monterey County.

In Kern County.

In San Benito County.

Armstrong Mine, Butte County..

Arrastra process of milling, Nevada County.

Arrastras at South Fork District, Shasta County.

Artesian area of Tulare County..

Artesian belt, Upper Lake, Lake County.

Asbestos, San Diego County

In Del Norte County-

251

442

171

Bismarck Mine, San Bernardino County.
Bituminous rock, in Mendocino County.

In Monterey County..

Black Bear Mine, Siskiyou County

Black Hawk Mine, San Bernardino County.
Black Jack Drift Mine, Siskiyou County.
Black Oak Mine, Tuolumne County..
Blackfoot Mine, San Bernardino County.
Blair Consolidated Mine, Calaveras County.

Bloomer Hydraulic Mine, Siskiyou County

Bloomingdale Mine, Butte County.

Blue Gravel Mining Company, Siskiyou County.
Blue Lakes, Lake County

338, 344

255

259

424, 429, 431, 432

364

449

500, 501

394

172

426

164

448

62

369

371

Blue Light Mine, San Bernardino County.
Blue Point Claim, El Dorado County

115

203

371

Bonanza Mine, Trinity County

483

261

Bonanza Drift Mine, Plumas County.

337

237

371

153

Borax District, geology of, San Bernardino County
Borax Mine, San Bernardino County.
Borax vein, section of---

345, 346, 347, 348

345, 346, 347, 348

[graphic]

315, 316

53

Borings in Carquinez Straits, Contra Costa County
Bower Mine, El Dorado County.

[blocks in formation]

Brine springs, Glenn County.

Auriferous veins and mountain peaks, Siskiyou County.
Austrian Hydraulic Mine, Siskiyou County

[blocks in formation]

Boyle's Mine, Siskiyou County..

Bradford Quicksilver Mine, Lake County

Brick Company, Stockton, San Joaquin County

Brick clay, Marin County'

Brick making, Livermore, Alameda County.

Santa Clara County

Sonoma County..

Brown Mine, Butte County

Brown's Valley Irrigation District, Yuba County
Brookite.

B

Bruner Mine, Calaveras County-

[blocks in formation]

Brunswick Mine, Nevada County.

[blocks in formation]

Badger Mine, Butte County..
Badger Mine, Tuolumne County.
Badger Cañon, El Dorado County.

Baker Mine, Lake County.

Bald Hill Mine, Calaveras County

Bald Mountain, Sierra County

Bald Mountain Mine, Sierra County

Bald Mountain Extension Mine, Sierra County.

Bangor, Butte County...

Banghart Mine, Shasta County

Basalt Silver Mine, Fresno County.

Basalt blocks in Marin County.

In Sonoma County...

Basaltic columns, Fresno County

Bavaria claim, Nevada County.

Bay Field iron mine, Fresno County.
Bay State Mine, Amador County

Bazoo Mine, Butte County.

162

Buchanan Mine, Tuolumne County.

508

Buckeye Drift Mine, Sierra County

203

Buckeye Quicksilver Mine, Colusa County.

66

Buckman Springs, San Diego County..

174

Building stone. (See Stone.)

196

Bull of the Woods Mine, Sierra County.

[blocks in formation]

Beach mining, Humboldt County

Beatty claim, El Dorado County

Bella Ruffin Mine, Kern County

Belmont Mine, Amador County..

Bellwether Mine, Amador County

Bennett's Mine, Siskiyou County.

-227, 230, 231, 232

203

238

143

Belleview Mining and Agricultural Co., Tuolumne County.

Bench placers, Siskiyou County..

501, 502

Bullion Mine, Fresno County

Bullychoop District, Trinity County
Bullychoop Mountain, Shasta County
Bully Hill mines, Shasta County.
Burros Mines. (See Los Burros.)
Bushman's crusher and amalgamator
Bushman & Orr claim, Plumas County
Butte Bar Mine, Plumas County
Butte County. By E. B. Preston.
Mines in-

Amoskeag Mine.

American Eagle Mine.

Badger Mine

Bangor Mine

Banner Mine..

Best Mine..

Big Banner Mine.
Bloomingdale Mine
Cambria Mine

Cherokee Flat Mine...

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187

81

400

214

189-190

.51, 484
51-52

[graphic]

140

Christy Mine..

428

Defiant Mine.

[blocks in formation]

32

328

328-329

326

150-165

[graphic]

154

164

162

164

.153-154

159

[graphic]

153, 154

164

164

155

158

155

163

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Agostini Gravel Mine.

177

Putnam Mine

Calico District, geology of..

Bald Hill Mine.

Blair Consolidated Mine

Bruner Mine

Calaveras Consolidated Mine

Cloud Mine

Copperopolis Mine

Eclipse Mine.

Excelsior Mine.

Fellowcraft Mine.

Gold Cliff Mine.

Gold Hill Mine.

Jones Mine...

Lane & Tullock Mine.

Last Chance Mine.

Lindsay Mine .

McTippican Mine

Osborn & Bradley Mine

Pine Log Mine

Prince Mine..

Rising Star Mine.

Rodesino Mine

Royal Consolidated Mine

Safe Deposit Mine

Sheep Ranch Mine

Shenandoah Mine..

Stickles Miné..

Calaveras Consolidated Mine, Calaveras County

Cacareous tufa, False Bay, San Diego County

Calcaroni sulphur process, Colusa County

Calico District ore deposits

174

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172

174

169, 170

173, 174

-167, 168

[blocks in formation]

PAGE.
162, 163, 164
162
.150, 151, 152
152, 153

162

159

Cañon Creek District, Trinity County.
Canvas plant for tailings...

Carbondale Coal Company, Amador County.
Carbondale pottery, Amador County
Carbondale Mine, San Bernardino County.
Cargo Muchacho Mine, San Diego County

159

[blocks in formation]

Cedar Mining District, Los Angeles County
Cedar Grove Mining District, Sierra County
Cement, in San Diego County

In Sutter County.
Cement copper, San Diego County

Centennial and Topaz Mine, Plumas County
Centennial Mine, Nevada County
Centerville placers, Shasta County..
Central Irrigation Company, Glenn County.
Central Mine, Colusa County..

Central North Star Mine, Nevada County.
Champion Mine, Nevada County.
Champion Iron Mine, Fresno County
Channel of gravel, San Diego County-

Chaparral Mine, Tuolumne County..
Chanchellula Mountain, Shasta County.
Charleston Mine, Monterey County.
Cheney Coal Mine, Orange County.

Cherokee Flat Gravel Mine, Butte County

Chicago exhibit of specimens

412

383

471

314

325

280

44

226

185-186

277

.286, 287

214

91

496-497

53

260-261

108

155-156

14

53

165

201

441

402

482

506

344 345

287

158

122

195

251

49

.50, 396

326

Chloriding in Calico District, San Bernardino County
Chlorination at Champion Mine, Nevada County.
Christy Mine, Butte County.

In Del Norte County.

In Marin County.

In Santa Cruz County.

In Shasta County

In Plumas County

Churntown District, Shasta County.

Cinnabar King Quicksilver Mine, Sonoma County.

Cincinnati Belle Mine, San Diego County.

City of Six, Sierra County

35, 43, 395

PAGE.

482

[graphic]

163

148

149

-361, 362
385
499-500

88-90

90

191

139

405

246

[graphic]
[graphic]

461

.380-381

406

223

177

177

Clark Creek Mines, Del Norte County

[graphic]

197

176

168

172

Clay, in Amador County

In Marin County.

In Placer County.

146-149

253

321

.175, 176

In Sutter County.

[graphic]

471

176

330

.171, 174

Cleveland Hydraulic Mine, Sierra County

411

174

Cleveland Quartz Mine, Sierra County

414-415

Clinton Consolidated Mine, Amador County.

142

173

171

399

_169-170

.173-174

26

97-98
187

183

[blocks in formation]

Coahuilla Valley, San Diego County

387

337
-338, 339, 343

Caliente Mines, Kern County

237-238

California Coal Mine, Fresno County

217-218

[blocks in formation]

43, 395
433 434

Coal analysis, Eureka, Humboldt County.

Fresno County

Glendale, Humboldt County

Jacoby Creek, Humboldt County.

Myrtle Creek, Humboldt County.

Coal, in Alameda County

In Amador County

228

218

228

228-229

228

122

-146, 148-149

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