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right of disposition and undisturbed possession, and this was the view of the matter taken by the State courts, by whom the rights of the miner were held to be subservient to the claimant, by title from the government, for school or railroad purposes.1 But as such grants were only made by the government for special purposes and the object of the donation could be equally subserved by granting lands not rich in mineral, the Federal tribunals established certain rules in the nature of conditions precedent to the vesting of the title to such lands, and held that until the land had been surveyed and other formal acts of transfer performed by the government, the mining claimants had superior rights upon such land, and on the discovery of mineral, could successfully locate claims thereon.2 And some of the cases have gone to the extent of holding that such grants were not intended to include land rich in mineral, and that in specifying the purposes for which the donation was made, there was an implied reservation of mineral land.3 But such authorities are questionable, for without an express reservation, it is subtle reasoning to arrive at such an intention.4

1 Higgins v. Houghton, 25 Cal. 252; Foley v. Harrison, 15 How. 447; Cooper v. Roberts, 18 How. 173; Sherman v. Buick, 45 Cal. 656; Veeder v. Duffy, 3 Wis. 520; Lessieur v. Price, 12 How. 59; How v. Missouri, 12 How. 126. "The Supreme Court of California, in Sherman v. Buick, supra, held that the title to each sixteenth and thirty-sixth section, upon its being surveyed, vested absolutely in the State of California; that Congress had no power, after the passage of that act, to impair the grant or prevent the title to those sections, upon their being surveyed, from vesting in the State, and that therefore the Act of Congress of May 30th, 1862, did not have the effect to extend the right of pre-emption over those sections." B. & W. L. C. 89, 90, 684.

2 Kissell v. St. Louis Public Schools, 18 How. 19; Gaines v. Nicholson, 9 How. 365; Terry v. Mergeld, 24 Cal. 624; Grayson v. Knight, 27 Cal. 507; Middleton v. Lowe, 30 Cal. 596; West v. Cochran, 17 How. 413; Ry. v. Smith, 9 Wall, 99; Railroad v. Tremont Co., 9 Wall. 90.

3 Decision of Secy. of Interior, Copps' U. S. Min. Decisions, pp. 30, 31; Decision of Case of Gen. Land Office, ante, idem.

4 See Borden v. R. R. Co., 154 U. S. 288. Townsite grants cannot

§ 48. Locator must work claim. The miners of the different mining districts are allowed considerable latitude in regard to the regulations which they may pass governing the location of claims upon the public land, and about the only limitation placed upon their power to prescribe rules for the location of such claims is the general provision of the United States statutes, that they shall not be in conflict with the laws of the United States, or the statutes of the different mining States.1 The statute of the United States 2

effect a valid mining location. R. S. U. S., Sec. 2392; Dower v. Richards, 151 U. S. 661; s. c. 81 Cal. 44; Davis ». Weibold, 139 U. S. 507; O'Keefe v. Cannon, 52 Fed. Rep. 898; Blackmore v. Reilly (Ariz.), 17 Pac. Rep. 72; Tombstone Townsite cases (Ariz.), 15 Pac. Rep. 26; Butte City Lode Cas., 6 Mont. 397; 20 Am. & Eng. Enc. Law (2 Ed.), 691. A loca tion upon an Indian reservation is void. Kendall v. San Juan S. M. Co., 144 U. S. 658; s. c. 9 Colo. 349; McFadden v. Mt. View M. Co., 97 Fed. Rep. 670; 20 Am. and Eng. Enc. Law (2 Ed.), 690. But a location, in good faith, upon an Indian reservation will be upheld, after reservation is opened to the public. Noonan v. Caledonia G. M. Co., 121 U. S. 393; 20 Am. and Eng. Enc. Law, supra. A location upon a military reservation is void, or has been so held by the Interior Department. Ft. Maginnis, 1 Land. Dec. 552; 20 Am. and Eng. Enc. Law (2 Ed.), 690. And so are locations upon forest or park reserves. U. S. v. Gear, 3 How. 120; Wilcox v. Jackson, 13 Pet. 498; U. S. v. Tygh Valley Land Co., 76 Fed. Rep. 693; 20 Am. & Eng. Enc. Law (2 Ed.), p. 690.

1 Wade's Amer. Mining Laws, p. 17; Mor. Min. Rts. (10 Ed.) 136, et sub.

2 R. S. U. S., § 2324. Under Rev. St. U. S., § 2324, permitting miners of each mining district to make regulations, not in conflict with the laws of the United States, etc., governing the amount of work necessary to hold possession of a mining claim, and providing that, until a patent has been issued therefor, not less than $100 worth of labor shall be performed during each year, 20 days' work, which according to an arbitrary rate allowed therefor by a regulation of a local mining association, would amount to $100, is insufficient to hold a mining claim for one year, unless such work is really worth $100. Woody et al. v. Barnard et al. (Supreme Court of Arkansas, Oct. 26, 1901), 65 S. W. Rep. 100. The court, in above case, quotes from Bradley v. Lee (Cal.) as to the effect of local rules, on character of work, as follows: "The true interpretation of the mining usage in the county of Nevada is that work to the value of one hundred dollars, or twenty days of faithful labor performed

provides that there shall be not less than one hundred dollars' worth of labor performed, or improvements made during each year upon lode claims, located upon the public land, but this requirement is intended more to show the good faith of the owner in the location of his claim, than as a limitation upon the power of State legislatures to impose other burdens upon the locator for the development of the mineral resources of the different States, and in the absence of necessary legislation by Congress, as one of the conditions of the sale, the local legislatures of the different States may provide other additional rules for the working and development of mining claims, which are not in conflict with the above provision of the United States statute.1

§ 49. Character of work necessary. The courts are very liberal in their construction of the statute requiring a certain amount of labor performed or money expended by the locator of claims on the public land, and almost any kind of work performed for mining purposes upon the claim is held sufficient.2 The work and expenditures required by the statute upon such claims may either be made upon the surface of the soil, or in running drifts or tunnels for the development of the claim,3 and if the work is performed

on a claim, or on any one of a set of adjoining and contiguous claims owned by the same party, is sufficient to hold the same for one year," and the court hold that the Bradley case did not attempt to say that local rules could contravene the statute. See Bradley v. Lee, 38 Cal. 362.

1 Wade Amer. Min. Laws, pp. 23-24. R. S. U. S., § 2338. State may pass supplemental acts, so far as the prerequisites to a valid location is concerned. Copper Globe Min. Co. v. Allman (Utah, 1901), 64 Pac. Rep. 1019. But where local regulation contravenes manifest intent of Federal act, it must give way. Emerson v. McWhirter, 133 Cal. 510; 65 Pac. Rep. 1036; Wright v. Killian, 132 Cal. 56; Cleary v. Skiffith (Colo.), 65 Pac. Rep. 59; Mor. Min. Rts. (10 Ed.) supra.

2 Wade Amer. Min. Laws, supra. Moxon v. Williamson, 2 Mont. 421; et sub.

But it must be for mining purposes.
Mor. Min. Rts. (10 Ed.), Chap. II.

3 R. S. U. S., § 2324; Wade Amer. Min. Laws, p. 17.

ENT

LIBRARY.

JUSTICE § 50 RIGHTS OF INDIVIDUALS MINING ON U. S. LANDS. 75 within the time prescribed by the statute, or the money expended of an amount sufficient for the character of the claim, the original location will not be allowed to lapse or forfeit on account of the kind of work performed.1 But although any kind of work for mining purposes is held a sufficient compliance with the statute, provided the amount of work performed is sufficient to hold the claim, still it is necessary that the work should be performed in good faith and for the actual development of the locator's claim, and if the work is done for other than mining purposes, or the expenditures are not made for the actual development of the claim, by such work and expenditures, the locator will not acquire any right as against the government to such land as a mining claim.2

§ 50. Same- - When owned by several claimants. When there are several owners of a vein or lode which has not been entered, each of the several co-owners can contribute his proportion of the expense necessary to hold such claim in common ownership, and where a number of such claims are held in common, upon the same vein or lode, the aggregate work and labor, or expenditures neces

"Labor by the owner of a mine in constructing a wagon road thereto, for the purpose of developing and operating the mine, is a sufficient compliance with the law requiring annual assessment work." Doherty v. Morris (Colo.), 28 Pac. 85.

2 Honaker v. Martin, 11 Mont. 91; 27 Pac. 397. "But labor of sufficient value done on a quartz lode mining claim within a given year is sufficient without its being paid for, under Mont. Comp. Stat., div. 5, § 1483, requiring the owner of such claim to perform a certain amount of work each year, and providing for the filing of an affidavit showing, among other things, the actual amount paid for said labor and improvements, and by whom paid, when the same was not done by the owner or owners of said quartz claim,' as these provisions relate, not to the effect of doing the work or making the improvements, but are intended to provide a convenient method of preserving prima facie evidence of such labor and improvements." Coleman v. Curtis (Mont.), 30 Pac. 266.

sary to hold all the claims, may be performed or expended upon any one of the claims so located,1 but in either case, if any one of the several co-owners fails to contribute his proportion of the expenditures necessary for holding the claim, those who have performed the work or made such expenditures may take and appropriate the interest of the party failing to contribute his proportion of the expenses, and divide such interest between the remaining co-owners 2 who have made the expenditures, or performed the work and labor required by law for holding the claim.3 But before the delinquent co-owner could be deprived of his interest in the claim for failure to perform his portion of the work and labor necessary to hold the claim, the law requires that he be given a certain number of days' notice of the intention of the remaining co-owners to appropriate his interest in the claim toward defraying the expenditures required to be made, and if he should perform his portion of the work and labor, or contribute his share of the expenses before the termination of the period of publica

1 Wade Amer. Min. Laws, p. 198, et sub.; Mor. Min. Rts. (10 Ed.), Chap. IV., et sub.

2 Mor. Min. Rts. supra. Wade Amer. Min. Laws, p. 16. Act Cong. 1872, Ch. 152, § 5, provides: "Upon the failure of any one of several co-owners to contribute his proportion of the expenditures required hereby, the co-owners who have performed the labor or made the improvements may, at the expiration of the year, give such delinquent coowner personal notice in writing or notice by publication in the newspaper published nearest the claim, for at least once a week for ninety days, and if at the expiration of ninety days after such notice in writing or by publication, such delinquent should fail or refuse to contribute his proportion of the expenditure required by this section, his interest in the claim shall become the property of his co-owners who have made the required expenditures."

3 Ante, idem. "But the right to acquire by forfeiture, under Rev. St., § 2324, the part interest of one who fails to pay his proportion of the expenditure for annual labor, exists only in favor of owner in the year for which such labor is performed." (U. S. S. C.), 14 S. C. Rep. 192; 38 C. L. J. (No. 6) 133.

one who is a coTurner v. Sawyer

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