CHAPTER IV. RIGHTS OF INDIVIDUALS MINING ON LAND OF THE UNITED STATES. SECTION 26. Character of miner's rights. 27. Policy of the government. 28. Prior discovery necessary. 29. Rights of discoverer. 30. Land must contain "valuable deposits." 31. Rock must be "in place." 32. Distinction between "lode " and "placer" claims. 33. Lode must be "known to exist." 34. Extent of mining claims. 35. Rights acquired by possession. 36. Who may locate mining claims. 37. Same-Agent may locate claims. 38. Claim must be "distinctly marked." 40. Notice of location. 41. Notice must be recorded. 42. Tunnel locations. 43. What location includes. 44. Value of Land Office decisions. 45. Distinctions between locations of ledge and surface. 46. Location in name of another. 47. Mining claims on school and railroad grants. 48. Locator must work claim. 49. Character of work necessary. 50. Same-When owned by several. 51. When annual labor should commence. 52. How long work should continue. 53. Forfeiture for failure to work. 54. Saved by work after forfeiture. 55. Same Other circumstances excusing forfeiture. 56. Relocation after forfeiture. 57. Same By one of several co-owners. § 26. Character of miner's rights. There is perhaps no better illustration of the principle that the people are the real source of the law than the history of the legisla tion consequent upon the early settlement and development of the mines in the western portion of the United States. Just what rights do attach to the claimant of mineral ground upon the public land, can only be thoroughly understood by a perusal of the history of the times and the litigation and legislation to which it gave rise. In recognition of the prerogatives of the first taker and in accordance with the English idea of sovereign proprietorship over the mines, and the passiveness of the government in its early legislation on the subject, the idea at first arose that the discoverer of mineral upon the public land had a license from the government to take the ore therefrom, and that this privilege extended not only to land to which the government had the absolute title, but since, in its transfer of public land, the title to the mineral was reserved, that it also extended to land held directly from the government for agricultural and other purposes.2 But as the granting of a license could only result from the affirmative act of the government and the extension of the miners' rights to property over which individuals had already acquired possessory rights would result in the overthrow of other well defined and settled principles of law, this idea was soon disaffirmed by the courts and the rights of the 66 1 See the leading case of Biddle Boggs v. Merced Mining Co. (14 Cal. 355); Blanchard & Week's Leading Cases, p. 131, et sub. The statute is as follows: "§ 2319. All valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and purchase, and the lands in which they are found, to occupation and purchase, by citizens of the United States and those who have declared their intention to become such, under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States." (Act of Congress May 10, 1872, Ch. 152, § 1.) Wade Am. Min. Laws, p. 15. 2 Boggs v. Merced Min. Co., 14 Cal. 355; Henshaw v. Clark, 14 Cal. 460; Hicks v. Bell, overruled in Tennant v. Flower, 17 Cal.; Stoakes v. Barrett, 5 Cal. 36. miner were more clearly defined and limited.1 His right to mine for the precious metals did not extend to private lands but must be exercised on public land alone, and although the right to mine carried with it, as incidental thereto, the right to use the timber and the water, these incidents must "In Stoakes v. Barrett, 5 Cal., McClintock v. Bryden, Ibid., and Irwin v. Phillips, it was decided that the prior possessory rights of settlers on the public lands, for agricultural and grazing purposes, must yield to the rights of miners to extract from the land the precious metals. This was considered a necessary deduction from the statute, which expressly drew the distinction. But this statute, it was held, was not to be extended by construction. If so, it would have required the court to overturn other well defined and settled principles, as laid down in Tartar v. Spring Creek Co., 5 Cal. 395; Fitzgerald v. Urton, 5 Cal. 308; Burdge v. Underwood, 6 Cal. 45." B. & W. L. C. 131, 311, 727. But see Boggs v. Merced Min. Co., supra, where Field, C. J., in treating of this subject, says: "The doctrine of an unlimited general license - put forth in many instances, and advocate by the defense- is pregnant with the most pernicious consequences. If upheld it must lead to the spoliation of landed estates, under the pretense of mining, without possibility of protection or redress on the part of the owner. There is gold in limited quantities scattered through large and valuable districts, where the land is held in private proprietorship, and under this pretended license the whole might be invaded, and, for all useful purposes, destroyed, no matter how little remunerative the product of the mining. The entry might be made at all seasons, whether the land was under cultivation or not, and without reference to its condition, whether covered with orchards, vineyards, gardens or otherwise. Under such a state of things, the proprietor would never be secure in his possessions, and without security there would be little development, for the incentive to improvement would be wanting. What value would there be to a title in one man, with a right of invasion in the whole world? And what property would the owner possess in mineral land- the same being in fact to him poor and valueless just in proportion to the actual richness and abundance of its products?" "There is something shocking to all our ideas of the rights of property in the proposition that one man may invade the possessions of another, dig up his fields and gardens, cut down his timber and occupy his land, under the pretense that he has reason to believe there is gold under the surface, or, if existing, that he wishes to extract and remove it." B. & W. L. C. 131. For general provisions of U. S. statutes, relating to mining claims, see R. S. U . S., Secs. 2318-2352. also be confined to the public domain.1 A prior appropriation to a steady individual purpose established a quasi private proprietorship, which entitled the holder to be protected in its quiet enjoyment against all the world but the true owner; but his rights were always to be exercised subject to the local rules and customs and the statutes of the State, and such is the nature of the miner's right to-day.2 -The State of Cali § 27. Policy of the government. fornia, being the first of the western mining States, was first to adopt legislation looking to the development of its mining interest and the mineral on the public land,3 and 1 Tartar v. Spring Creek Waters Mine Co., 5 Cal. 395; Ah He v. Crippen, 19 Cal. 491; Wade Amer. Min. Law, § 18, p. 31; 16 U. S. Stat. at Large, 739; Mitchell v. Haygood, 6 Cal. 148; Campbell v. Rankin, 99 U. S. 261; Jackson v. McMurray, 4 Colo. 76. Possession raises a presumption of title. Ante, idem; Sears v. Taylor, 4 Colo. 38. 2 Boggs v. Merced Min. Co., 14 Cal. 355; R. S. U. S., § 10; Doran v. Cent. Pac. Ry. Co., 24 Cal. 245; English v. Johnson, 17 Cal. 107; Bosey v. Gallagher, 20 Wall. 670; Golden Fleece M. Co. v. Cable Cons. Co., 12 Nev. 327. "But no person who relies on prior possession alone has any right or title that he can assert against the U. S. or its grantee." Wade. Amer. Min. Laws, § 18; Ah He v. Crippen, 19 Cal. 491; Doran v. Cent. Pac. R. Co., 24 Cal. 245; Heydenfeldt v. Daney Gold &c. Co., 93 U. S. 634. 3 Boggs v. Merced Min. Co., 14 Cal. 355; McClintock v. Brydon, 5 Cal. 17; Stokes v. Barrett, Irwin v. Phillipps, Id. 140; Id. 308. See Blanchard & Weeks' Notes, p. 162 et sub. "It being undoubtedly the policy of that State, as derived from her legislation, to permit settlers in all capacities to occupy the public lands, and by such occupation to acquire the right of undisturbed enjoyment against all the world but the true owner, in evidence of this, acts were passed to protect the possession of agricultural lands acquired by mere occupancy; to license miners; to provide for the recovery of mining claims; recognizing canals and ditches, which were known to divert the water of streams from their natural channels for mining purposes, and others of like char. acter. This policy was extended equally to all pursuits, and no partiality evinced, except in the single case where the rights of the agriculturalists were made to yield to those of the miner when gold was discovered in his land. The policy of the exception was obvious. Without it, the entire gold region might have been inclosed in large tracts, and eventually what would have sufficed as a rich country to many thousands would have been reduced to the proprietorship of a few." although the general government at first only acquiesce d in the policy pursued by this State in failing to adopt opposing legislation, it finally, by affirmative acts, favored the policy previously adopted by the California legislature, and by appropriate legislation extended facilities calculated to promote the development of the mines of precious metals in the Western States and Territories.1 The State recognized the rights of the miner as superior to those of the agricultural claimant upon the public land, and the former was permitted to mine on land previously located for agricultural purposes; 2 but the property rights of the agriculturist were protected by the courts and such reasonable rules established limiting the operations of the miner, as to prevent a disturbance of the improvements of the agriculturist.3 But although these inducements were early offered the citizen, both by the State and general government, for the development of the mineral resources, in order to protect the rights of the general government, and further the interests of the individual citizen, many local and general statutes were enacted on the subject, prescribing the manner of location and perfection of mining claims, and before a citizen could claim the benefit of these statutes he must first show a faithful compliance with the conditions required.4 1 Boggs v. Merced Min. Co., supra; Clark v. Duval, 15 Cal. 85; Smith v. Doe, Id. 100; United States v. Iron, Sil. Min. Company, 128 U. S. 673; 9 Sup. Ct. Rep. 195. 2 McClintock v. Bryson, 5 Cal. 97; Tartar v. Spring Creek &c. Co., 5 Cal. 395; Id. 140; Id. 308. 3 Clark v. Duval, 15 Cal. 85; Smith v. Doe, Id. 100. 4 United States v. Iron, Sil. Min. Co., 128 U. S. 673. But a substantial compliance with mining customs as to posting notice of claims is sufficient where good faith is shown; and such a custom, when invoked years after all other acts of location have been done, should be liberally construed. Donohue v. Meister, 88 Cal. 121; 25 Pac. 1096. Mineral lands in Michigan, Wisconsin and Miunesota (R. S. 2345), Kansas and Missouri (R. S. 1 Sup. 104; 19 St. 52), Alabama (R. S. 1 Sup. 404; 22 St. |