H. ADVERSE CLAIMS. 1. OBJECT OF DETERMINATION OF RIGHTS. 2. PERSON TO FILE CLAIM AND BEGIN SUIT. 3. WHAT CONSTITUTES. 4. FORM AND SUFFICIENCY. 5. STAY OF PROCEEDINGS. 6. JURISDICTION OF COURTS. 1. OBJECT OF DETERMINATION OF RIGHTS. The object of a determination of the right by litigation where there is an adverse claim is simply to ascertain the party who has the right to claim under the laws of the State and the local rules and customs, as that person, when so found, is the party upon whom the law confers the privilege or right to purchase. Four Hundred Twenty Min. Co. v. Bullion Min. Co., 9 Fed. Cas. 592. See Trafton v. Nougues, 24 Fed. Cas. 123. In an application for patent for a mining claim it was necessary that there should be some provision for ascertaining whether there were adverse claims to the mining ground sought to be patented, and for determining such claims when asserted. Brady v. Harris, 29 L. D. 426, p. 429. Where the title to a mining claim has once been put in issue between the parties and tried and determined on an adverse claim it becomes res adjudicata. Four Hundred Twenty Min. Co. v. Bullion Min. Co., 9 Fed. Cas. 592. 2. PERSON TO FILE CLAIM AND BEGIN SUIT. The person who sets up the adverse claim is the one who should commence the suit in the local court, unless the adverse claimant is in the evident and open possession of the premises, including the lode or vein in controversy, and in that case he should be made a defendant to the court proceedings. Becker v. Central City, 2 C. L. O. 98, p. 99. Where an application for a patent includes the surface and the soil, as well as the mineral, the person in possession of the surface is an adverse claimant and has an adverse claim within the meaning of this section, and is entitled to be heard in the local courts before patent issues. Townsite of Central City, In re, 2 C. L. O. 150. This act requires the commencement of a suit in a court within a reasonable time after the filing of an adverse claim. Four Hundred Twenty Min. Co. v. Bullion Min. Co., 2 C. L. O. 5, p. 6. A person having no interest whatever in a mine and having no authority to represent parties having an interest therein can not file an adverse claim authorizing a suspension of the proceedings under this act. Alger Lode, In re, Copp's Min. Lands 84. 3. WHAT CONSTITUTES. As a right of way over a mining claim is fully protected by this section, a protest on that ground is not such an adverse claim as is contemplated by section 6 of this act. Williams, In re, Copp's Min. Lands 83. See Sutro, In re, Copp's Min. Lands 98. A controversy between an original locator of a lode claim and a subsequent locator of adjoining land, as to the possessory right of a vein or lode beneath the surface and within the surface lines of such subsequent location, but having its apex within the surface lines of such prior location, is not an adverse claim within the meaning of this section. Chollar Potosi & Bullion v. Julia, Copp's Min. Lands 93, p. 96. A claim of a right of way over a mining location is not an adverse claim within the meaning of this section. Williams, In re, Copp's Min. Dec. 76. An underground conflict, or a controversy as to conflicting rights of veins or lodes on their dip below the surface can not be adjudicated in a court under this section of the mining act, as the controversy contemplated by this section is one in which the judicial decision would control the General Land Office in its subsequent action on the application for patent, and the patent when granted would simply confirm the statutory right of the grantee to follow the vein or lode with its dips, angles, and variations to any depth and into adjoining land. Williams, In re, Copp's Min. Dec. 27. 4. FORM AND SUFFICIENCY. See secs. 2325, p. 375; 2326, p. 440. This act contains no provision as to the form or manner of presenting or filing adverse claims, but the provisions in this respect were made by circular of June 25, 1867. Sierra Nevada Silver Min. Co. v. Union Consol. Min. Co., 5 C. L. O. 163. As no directions for presenting adverse claims are contained in the act, any action which gave notice to the local officers of a conflict in claims and clearly defined such claims was a sufficient compliance with the act to entitle a party asserting such claim to consideration as an adverse claimant. Sierra Neveda Silver Min. Co. v. Union Consol. Min. Co., 5 C. L. O. 163. 5. STAY OF PROCEEDINGS. The purpose of this statute was to stay proceedings only when the adverse claimant within reasonable time commences and with reasonable diligence pursues his remedy against the applicant. Four Hundred Twenty Min. Co. v. Bullion Min. Co., 2 C. L. O. 5, p. 7. The Department is only authorized to stay proceedings until the right of possession has been fully adjudicated in a court of competent jurisdiction. Four Hundred Twenty Min. Co. v. Bullion Min. Co., 2 C. L. O. 5, p. 7. When an adverse claim has been filed the proceedings in the Department must be stayed until the controversy is settled by the judgment of a court of competent jurisdiction. Chollar Potosi & Bullion v. Julia, Copp's Min. Lands 93, p. 94. 6. JURISDICTION OF COURTS. Congress neither by this act nor by the acts of July 9, 1870 (16 Stat. 217), or of May 10, 1872 (17 Stat. 91), attempted to confer any jurisdiction not already possessed by State courts, nor to prescribe a different form of action. Four Hundred Twenty Min. Co. v. Bullion Min. Co., 9 Nev. 240, p. 248. ORIGINAL MINING ACT-AMENDMENT. 16 STAT. 217, JULY 9, 1870. MINERAL LANDS-OCCUPATION. AN ACT To amend "An act granting the right of way to ditch and canal owners over the public lands, etc." Be it enacted, etc. That the act granting the right of way to ditch and canal owners over the public lands, and for other purposes, approved July 26, 1866, be, and the same is hereby, amended by adding thereto the following additional sections, numbered 12, 13, 14, 15, 16, and 17, respectively, which shall hereafter constitute and form a part of the aforesaid act. SEC. 12. That claims, usually called "placers," including all forms of deposit, excepting veins of quartz, or other rock in place, shall be subject to entry and patent under this act, under like circumstances and conditions and upon similar proceedings as are provided for vein or lode claims: Provided, That where the lands have been previously surveyed by the United States, the entry in its exterior limits shall conform to the legal subdivisions of the public lands, no further survey or plat in such case being required, and the lands may be paid for at the rate of $2.50 per acre: Provided further, That legal subdivisions of 40 acres may be subdivided into 10-acre tracts; and that 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: And provided further, That no location of a placer claim, hereafter made 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. The first sentence of this section is the same as section 2329 R. S. For additional annotations see 2329 and 2330 R. S., pp. 507, 526. SEC. 13. That where said person or association, they and their grantors, shall have held and worked their said claims for a period equal to the time prescribed by the statute of limitations for mining claims of the State or Territory where the same may be situated, evidence of such possession and working of the claims for such period shall be sufficient to establish a right to a patent thereto under this act, in the absence of any adverse claim: Provided, however, That nothing in this act shall be deemed to impair any lien which may have attached in any way whatever to any mining claim or property thereto attached prior to the issuance of a patent. Section 13 is now section 2332 R. S. See for further annotations, p. 547. SEC. 14. That all ex parte affidavits required to be made under this act, or the act of which it is amendatory, may be verified before any officer authorized to administer oaths within the land district where the claims may be situated. Section 14 is the same as the first clause of section 2335 R. S. See for annotations, p. 582. SEC. 15. That registers and receivers shall receive the same fees for services under this act as are provided by law for like services under other acts of Congress; and that effect shall be given to the foregoing act according to such regulations as may be prescribed by the Commissioner of the General Land Office. Fees provided for by section 2338 R. S., paragraph 9, p. 608. SEC. 16. That so much of the act of March 3, 1853, entitled "An act to provide for the survey of the public lands in California, the granting of preemption rights, and for other purposes," as provides that none other than township lines shall be surveyed where the lands are mineral, is hereby repealed. And the public surveys are hereby extended over all such lands: Provided, That all subdividing of surveyed lands into lots less than 160 acres may be done by county and local surveyors at the expense of the claimants: And provided further, That nothing herein contained shall require the survey of waste or useless lands. See section 2340 R. S., p. 622. SEC. 17. That none of the rights conferred by sections 5, 8, and 9 of the act to which this act is amendatory shall be abrogated by this act, and the same are hereby extended to all public lands affected by this act; and all patents granted, or preemption or homesteads allowed, shall be subject to any vested and accrued water rights, or rights to ditches and reservoirs used in connection with such water rights, as may have been acquired under or recognized by the ninth section of the act of which this act is amendatory. But nothing in this act shall be construed to repeal, impair, or in any way affect the provisions of the "Act granting to A. Sutro the right of way and other privileges to aid in the construction of a draining and exploring tunnel to the Comstock lode, in the State of Nevada," approved July 25, 1866. The middle part of section 17, making patents subject to water rights, is the same as section 2340 R. S. For annotations see section 2340 R. S. The last sentence of section 17 is section 2344 R. S., and is the latter part of section 12 of the act of May 10, 1872 (17 Stat. 91, p. 95). For annotations of this section see section 2344 R. S., p. 629. A. PLACER CLAIM STATUTE. B. PLACER CLAIMS, p. 673. C. AFFIDAVITS AUTHORITY TO MAKE, p. 675. E. LIENS PROTECTED, p. 675. F. SUTRO TUNNEL RIGHTS PROTECTED, p. 675. G. STATE SELECTIONS CAN NOT INCLUDE MINERAL LANDS, p. 676. H. WATER RIGHTS, p. 676. A. PLACER CLAIM STATUTE. 1. PURPOSE AND EFFECT. 2. CODIFICATION. 3. PROVISIONS PERPETUATED. 1. PURPOSE AND EFFECT. This was the first placer act and its provisions are separate and distinct from the lode law, and decisions applicable to lode claims may or may not apply to placer claims. Price v. McIntosh, 1 Alaska 286, p. 291. No surveys of mineral lands were authorized or made until the passage of this act. Keystone Consol. Min. Co. v. California, Copp's Min. Lands 101, p. 113. This act protected the rights conferred by sections 5, 8, and 9 of the original act of July 26, 1866 (14 Stat. 251). McFarland v. Alaska Perseverance Min. Co., 3 Alaska 308, p. 324. This act amended the statute of 1866 by making all placer claims, including all forms of deposit except veins of quartz or other rock in place, subject to entry and patent. Deffeback v. Hawke, 115 U. S. 392, p. 401. Jacob, In re, 7 C. L. O. 83. By this amendatory act the right to locate or purchase mineral lands was extended to placer claims. Hawke v. Deffeback, 4 Dak. 20, p. 26. By these statutes, the plan for the disposal of public mineral lands was further developed and perfected. This act provided for the allowance of placer claims on lands containing valuable minerals of other forms of deposit than veins of quartz or other rock in place. Tucker v. Florida R. etc., Co., 19 L. D. 414, p. 415. This act made placer claims, including all forms of deposit except veins of quartz or other rock in place, subject to entry and patent under the same conditions and upon similar proceedings as those provided for vein or lode claims. Cosmos Exploration Co. v. Gray Eagle Oil Co., 104 Fed. 20, p. 47. Salt Bluff Placer, In re, 7 L. D. 549, p. 550. Henderson v. Fulton, 35 L. D. 652, p. 653. Prior to the adoption of this statute it was not possible to obtain the legal title to placer mining claims, and the legislature of Montana recognized this fact in the adoption of the statute for the recovery of placer mining claims. Horst v. Shea, 23 Mont. 390, p. 395. This act authorizes the sale of placer lands in tracts not to exceed 160 acres and requires such tract to conform to the system of public surveys, but no provision is made for any reserved right in the Government or for the disposition of the land subject to the rights of the placer claimant, and a lode claimant gets a complete title to the lands within his patent, subject only to the express reservation stated therein as required. Cranes Gulch Min. Co. v. Scherrer, 134 Cal. 350, p. 353. 2. CODIFICATION. The provisions of this statute and of all other mining statutes as originally enacted are at present codified and embodied in sections 2318 to 2352 of the Revised Statutes. Pacific Coast Marble Co. v. Northern Pac. R. Co., 25 L. D. 233, p. 235. |