The patentee of a placer mining claim takes it subject to the easement therein which had been acquired under the congressional enactment by the construction and use of a ditch used in diverting and carrying water while such claim was still a part of the public land, but such easement extended only to the maintenance and use of the ditch substantially as then constructed for the purpose of diverting and carrying the volume of water theretofore appropriated and gave no right to enlarge the ditches or to change its location or to use it in diverting and carrying a largely increased volume of water. Snyder v. Colorado Gold Dredging Co., 181 Fed. 62, p. 70. Vestal v. Young, 147 Cal. 715. Clear Creek Land, etc., Co. v. Kilkenny, 5 Wyo. 38. A person who has constructed some ditches on a tract of land but has brought no water thereon, and the work consists mainly in making a considerable number of shafts with a view to the discovery of lodes and not for the purpose of placer development, is not entitled to a patent for a placer claim. Searle Placer, In re, 11 L. D. 441, p. 442. See Clipper Min. Co. v. Searl, 29 L. D. 137, p. 139. SECTION 2330, REVISED STATUTES. Legal subdivisions of 40 acres may be subdivided into 10-acre tracts; and two or more persons, or associations of persons, having contiguous claims of any size, although such claims may be less than 10 acres each, may make joint entry thereof; but no location of a placer claim, made after the 9th day of July, 1870, shall exceed 160 acres for any one person or association of persons, which location shall conform to the United States surveys; and nothing in this section contained shall defeat or impair any bona fide preemption or homestead claim upon agricultural lands, or authorize the sale of the improvements of any bona fide settler to any purchaser. This section is the same as the latter half of section 12, act of July 9, 1870 (16 Stat. 217), p. 670. A. CONSTRUCTION AND APPLICATION OF SECTION. B. DISCOVERY ON PLACER CLAIMS, p. 528. C. LOCATIONS ON SURVEYED AND UNSURVEYED LANDS, p. 530. D. RELOCATION, p. 531. E. AGRICULTURAL AND MINERAL LANDS, p. 531. F. ASPHALTUM AND PHOSPHATE LANDS AS PLACER LOCATIONS, p. 532. G. CONSOLIDATION OF CLAIMS, p. 532. A. CONSTRUCTION AND APPLICATION OF SECTION. 1. LOCATION BY INDIVIDUAL-QUANTITY. 2. LOCATION BY ASSOCIATION-QUANTITY. 4. POSSESSION OF ASSOCIATION CLAIM. See sec. 2331, p. 534. 1. LOCATION BY INDIVIDUAL QUANTITY. In describing a placer location there must be a natural object or permanent monument by which the claim can be identified. Green v. Gavin, 10 Cal. App. 330, p. 335. See Fuller v. Harris, 29 Fed. 814. In the administration of the placer mining law a literal interpretation may be given to the provision limiting the number of acres that may be included in a single location without working injustice to any claimant thereunder. Chicago Placer Min. Claim, In re, 34 L. D. 9, p. 11. This section regulates the quantity of land that may be embraced in a placer mining claim. Price v. McIntosh, 1 Alaska 286, p. 293. This section, following the mining act of May 10, 1872 (17 Stat. 91), limits a placer location to no more than 20 acres for each individual claimant. Smelting Co. v. Kemp, 104 U. S. 636, p. 651. Stanislaus Electric Power Co., In re, 41 L. D. 655, p. 657. Poire v. Wells, 6 Colo. 406, p. 412. See Yard, In re, 38 L. D. 59. This section does not permit one person to enter more than 20 acres of placer ground by one location by the device of using the names of employees or friends as locators and himself paying the expenses of such location. Durant v. Corbin, 94 Fed. 382, p. 384. See Gird v. California Oil Co., 60 Fed. 531, p. 545. Under this section an individual can not acquire more than 20 acres of mining ground by one location, but an association of persons may make joint locations of not to exceed 160 acres. Nome & Sinook Co. v. Snyder, 187 Fed. 385, p. 387. A local custom of miners in the Cape Nome mining district of Alaska to the effect that placer claims shall be located 1,320 feet by 660 feet is void in that it contemplates that every placer claim shall contain precisely 20 acres while the statute provides that placer claims shall not include more than 20 acres. Price v. McIntosh, 1 Alaska 286, p. 296. The rule of approximation should apply with respect to placer claims upon surveyed lands the same as has been applied by the department to preemption, homestead, and other claims limited by statute to not exceed a specified area; but the rule should be applied on the basis of 10-acre legal subdivisions. Ventura Coast Oil Co., In re, 42 L. D. 453, p. 455. Overruling, Chicago Placer Min. Claim, In re, 34 L. D. 9, p. 11. A miner can locate 20 acres or less of placer mining ground in any form he chooses, excluding nonmineral land, and no miners' rule, regulation, or custom can limit him in the area or form of his claim, nor in its width or length; and any such rule, regulation, or custom, is void as being in conflict with both the spirit and letter of the placer mining law. Price v. McIntosh, 1 Alaska 286, p. 300. Denying Rosenthal v. Ives, 2 Idaho (244) 265. See Rablin, In re, 2 L. D. 764. Pearsall, In re, 6 L. D. 227. Esperance Min. Co., In re, 10 C. L. O. 338. 2. LOCATION BY ASSOCIATION- QUANTITY. This section authorizes an association location of contiguous claims only and clearly implies that claims not contiguous may not be joined in a single location, Stenfjeld v. Espe, 171 Fed. 825, p. 827. A single placer ciaim, whether made by one person or association of persons, can not exceed 160 acres. Donnelly v. United States, 228 U. S. 243, p. 265. The law is that the unit of an individual placer location is limited to 20 acres and not more than 160 acres may be embraced within one location by an association of persons of which there must be at least eight. Rooney v. Barnette, 200 Fed. 700, p. 705. An association of persons may locate a tract as a mining claim which shall embrace as many individual claims of 20 acres each as there are individuals in the association, not exceeding 160 acres in all. Cook v. Klonos, 164 Fed. 529, p. 534. Nome & Sinook Co. v. Snyder, 187 Fed. 385. Hall v. McKinnon, 193 Fed. 572, p. 574. Where a location is made by an association of locators the fraudulent and concealed conduct of one of the locators in the association claim should not invalidate the en tire location, particularly where the location can be reduced without injury to innocent parties to the limit observed for the number of locators who have not participated in the fraud. Rooney v. Barnette, 200 Fed. p. 705. See Cook v. Klonos, 168 Fed. 700. The object in allowing an association of persons to take more than an individual is not to avoid a discovery of mineral but solely for the purpose of permitting them to thus make a consolidated entry and by one system of development work all the land upon which mineral had been previously discovered. Louise Min. Co., In re, 22 L. D. 663, p. 665. This section limits the aggregate that may be taken by any number of associated persons to 160 acres. Bay v. Oklahoma Southern Gas, etc., Min. Co. 13 Okla. 425, p. 430. It is the theory of the law that an association placer claim of 160 acres consists of 8 contiguous placer claims of not more than 20 acres each, and such a claim can not be located wholly upon valid subsisting placer claims previously located and in the lawful possession of other persons for the ostensible purpose of locating triangular pieces of land lying between boundaries of such previously located placer claims. Stenfjeld v. Espe. 171 Fed. 825, p. 827. 3. LOCATION BY DUMMIES. It is contrary to public policy for the locator of a placer mining claim to procure eight persons, friends and employees, to locate for him a placer claim containing in all 160 acres, and the fact that such locations were made to secure the water rights necessary to profitably work the ground does not prevent such location from being invalid. Durant v. Corbin, 94 Fed. 382, p. 383. 4. POSSESSION OF ASSOCIATION CLAIM. It is sufficient for persons locating a mining claim if they take and keep peaceable possession of an association placer claim in compliance with the statute and have a record of such location which contains the names of the locators, the date of the location, and a sufficient description of the claim by reference to natural objects and permanent monuments supplemented by the sinking of a shaft to bedrock, and where in the sinking of such shaft gold is discovered in the gravel, as against persons claiming and asserting a right to such claim by reason of a prior location in the absence of evidence of a discovery and where the evidences of prior possession were not shown to have been made by the persons asserting an interest in the claim. Cook v. Klonos, 164 Fed. 529, p. 536. See Cook v. Klonos, 168 Fed. 700. 5. LOCATION BY CORPORATION QUANTITY. A corporation, regardless of the number of its stockholders, can lawfully locate no greater placer area than is allowable in the case of a single natural person, and this is 20 acres. Igo Bridge Extension Placer, In re, 38 L. D. 281, p. 282. See McKinley v. Wheeler, 130 U. S. 630. Miller v. Chrisman, 140 Cal. 440. United States v. Trinidad Coal, etc., Co., 137 U. S. 160. B. DISCOVERY ON PLACER CLAIMS. 1. DISCOVERY ESSENTIAL. 2. DISCOVERY ON ONE SUBDIVISION-EFFECT AND SUFFICIENCY. See section 2322, p. 108. 1. DISCOVERY ESSENTIAL. Discovery is the initial fact necessary to a mining claim and parties can not go upon the public domain and acquire the right of possession by the mere performance of the acts prescribed for a location. Hall v. McKinnon, 193 Fed. 572, p. 576. See Creede & Cripple Creek Min., etc., Co. v. Uinta Tunnel Min., etc., Co., 196 U. S. 337, p. 353. The discovery of minerals is an essential thing to a valid mining location. Zeiger v. Dowdy, 13 Ariz. 331, p. 334. See Nevada Sierra Oil Co. v. Home Oil Co., 98 Fed. 673, p. 675. New England & Coalinga Oil Co. v. Congdon, 152 Cal. 211, p. 213. A subsequent discovery will not work the validation of a placer claim where the area of a claim exceeds that which the first locators can locate in the first instance. Yard, In re, 38 L. D. 59, p. 68. When an asserted placer claim of 160 acres made by eight persons, which is invalid because of a want of discovery, is transferred to one of such persons, he alone can not perfect such a location by making a subsequent discovery, as the eight persons are necessary both to initiate and perfect a valid location of that area. Yard, In re, 38 L. D. 59, p. 69. See Chrisman v. Miller, 197 U. S. 313. Steele v. Tanana Mines R. Co., 148 Fed. 678. While a single discovery of mineral is sufficient to authorize the location of a placer claim and may, in the absence of other evidence, be treated as sufficiently establishing the mineral character of the entire claim to justify the issuing of a patent, yet such single discovery does not conclusively establish the mineral character of all the land included in the claim so as to preclude further inquiry by the department as to the mineral character of the entire tract. Ferrell v. Hoge, 29 L. D. 12, p. 15. Crystal Marble Quarries Co. v. Dantice, 41 L. D. 642, p. 645. See Yard, In re, 38 L. D. 59. Nichols, In re, L. D. (unreported). A placer patent is void if the location on which it was based was made without discovery. Noyes v. Mantle, 127 U. S. 348. McConaghy v. Doyle, 32 Colo. 92, p. 99. 2. DISCOVERY ON ONE SUBDIVISION EFFECT AND SUFFICIENCY. A placer claimant will not be required to prove a discovery on each 20 acres in a placer location of 160 acres where the rulings in force at the time of location require proof of a single discovery only, but opportunity may be given the locator for a further showing. Ferrell v. Hoge, 19 L. D. 568 (on review). See McDonald v. Montana Wood Co., 14 Mont. 88. |