Mineral Law Digest Embracing a Digest of Decisions of the Courts and of the Land Department, Under the Public Mineral Land Laws

386. Unoccupied town site land may be located and entered as a mining claim. Steele v. St. Louis Smelting Co., 106 U. S. 447; Deffeback v. Hawke, 115 U. S. 392; Sparks v. Pierce, 115 U. S. 408.

387. Lands valuable for deposits of min. eral-bearing tailings (apparently) may be located as a mining claim. Rogers v. Cooney,

7 Nev. 213.

388. A location of a placer claim, using names of persons as co-locators who are not intended to have any real interest but who are to convey their rights after location, is a fraud on the government. Mitchell v. Cline, 84 Cal. 409; 24 Pac. Rep. 164.

389. A location of one hundred and sixty

acres as a placer claim is an entirety, consti

tuting but a single location. Com'r to John Cowell, June 5, 1893.

390. A location of a placer claim of one hundred and sixty acres is a location of but one claim and there is no necessity of mark

alien may hold the claim as against all but the United States; and where the alienage of an applicant is set up by an adverse claimant, the declaration of intention to become a citizen, made by the applicant during the pendency of the adverse suit, but before judgment, will render his title good as far as citizenship is concerned. Manuel v. Wulff,

152 U. S. 505.

(Reversing Supreme Court of L. D. 452; Ole Krogstad, 4 L. D. 564; Lord v. Mont., 9 Mont. 279. Citing Man v. Huk, 3 Perrin, 8 L. D. 536; Jackson v. Beach, 1

Johns. Cas. 399; Governeur v. Robertson, 11 Wheat. 332; Osterman v. Baldwin, 6 Wall. 116.)

396. A conveyance of a mining location by a qualified locator to an alien is not an

abandonment of the location, but the alien may hold as against all but the State or the United States, and a conveyance by him to a citizen carries good title. Gorman M. Co. v. Alexander, 2 S. Dak. 557; 51 N. W. Rep. 346. 397. In the absence of evidence to the

ing every twenty acres thereof. Com'r to contrary, locators are presumed to be citiAaron F. Parker, April 12, 1893.

391. Under section 2319, United States Revised Statutes, minors who are citizens of the United States may locate mining claims. Thompson v. Spray, 72 Cal. 528; 14 Pac. Rep. 182.

392. A location by a minor is not necessarily invalid. Com'r to Francis Cunningham, 7 C. L. O. 179.

393. No distinction is made in locating mining claims on account of sex of the locator. Com'r to Eureka Office, Nov. 13, 1877, 4 C. L. O. 179.

394. An alien may neither locate nor hold a mining claim. North Noonday M. Co. v. Orient M. Co., 6 Sawy. 299; 1 Fed. Rep. 522; 9 Mor. Min. Rep. 529; Lee Doon v. Tesh, 68 Cal. 43; 8 Pac. Rep. 621; Anthony v. Jillson, 83 Cal 296; 23 Pac. Rep. 419; Bohanon v. Howe, 2 Idaho, 417; 17 Pac. Rep. 583; Territory v. Lee, 2 Mont. 124; 6 Mor. Min. Rep. 248; Tibbitts v. Ah Tong, 4 Mont. 536; Wulff v. Manuel, 9 Mont. 279; 23 Pac. Rep. 723; Golden Fleece G. & S. M. Co. v. Cable Cons. G. & S. M. Co., 12 Nev. 312; 1 Mor. Min. Rep. 120; 15 Nev. 450; Lee v. Justice M. Co., 29 Pac. Rep. 1020.

895. A conveyance of a mining claim by a qualified locator to an alien does not operate as an abandonment of the claim, but the

zens or to have declared their intention to become such. Garfield M. & M. Co. v. Hammer, 6 Mont. 53; 8 Pac. Rep. 153; 130 U. S. 291.

398. The oath to a notice of location required by the Montana statutes, in which it is asserted by one of several locators that all of the locators are citizens of the United States, is prima facie proof of such citizenship. Hammer v. Garfield M. & M. Co., 130 U. S. 291.

399. If an alien locator conveys his claim to a citizen before the attachment of adverse rights, his grantee has good title if he maintains the claim. North Noonday M. Co. v. Orient M. Co., 6 Sawy. 299; 1 Fed. Rep. 522; 9 Mor. Min. Rep. 529.

400. A location of no more land than might have been located by one person is not invalidated by the fact that one of the several locators was an alien, but will be good as to the citizens. North Noonday M. Co. v. Orient M. Co., 6 Sawy. 299; 1 Fed. Rep. 522; 9 Mor. Min. Rep. 529; Golden Fleece G. & S. M. Co. v. Cable Cons. G. & S. M. Co., 15 Nev. 450; 12 Nev. 312; 1 Mor. Min. Rep. 120.

401. Locators and intermediate mine owners other than the applicants will not be presumed aliens in the absence of an allegation to that effect or objection prior to the issu

ance of patent. Wandering Boy Lode, 2 C. | of location. Thompson v. Spray, 72 Cal. 528; L 0. 2.

402. In application for mining patents, proof of citizenship is not required of the original locator or intermediate owners, but of the applicants for patent or adverse claimants only. Cash Lode, 1 C. L. O. 98.

14 Pac. Rep. 182.

412. A territory cannot declare or enforce a forfeiture of a mining claim located or held by an alien. Territory v. Lee, 2 Mont. 124; 6 Mor. Min. Rep. 248.

413. One who claims under a location may 403. A foreigner may make a mining loca- not defeat the right of one of the locators to tion and dispose of it, provided he becomes a a share of the proceeds of the mine by alleg. citizen before he disposes of the mine. Kemping alienage of such locator. Billings v. Aspen ton Mine, 1 C. L. O. 178. M. & M. Co., 52 Fed. Rep. 250.

404. A mining claim passing into the possession of an alien, although located by a citizen, reverts to the government and may be relocated. Tibbitts v. Ah Tong, 4 Mont. 536. 405. A transfer to an alien is an abandonment of the locator's right. Lee v. Justice M. Co., 29 Pac. Rep. 1020.

406. A location by an alien is validated by his declaration of intention of becoming a citizen before the intervention of adverse rights. Golden Fleece G. & S. M. Co. v. Cable Cons. G. & S. M. Co., 12 Nev. 312; 1 Mor. Min. Rep. 120; 15 Nev. 450.

407. The title of a claimant of the public mineral lands as locator of a mining claim may not be questioned on the ground of alienage by any one excepting the United States, or in proceedings to obtain United States patent (on adverse suit). Billings v. Aspen M. & Sm. Co., 51 Fed. Rep. 338; 10 U. S. App. 1, 322; Wood v. Aspen M. & Sm. Co., 36 Fed. Rep. 25.

408. A location by an alien is void, and is not validated by a subsequent declaration of intention. Anthony v. Jillson, 83 Cal. 296; 23 Pac. Rep. 419.

409. An alien, although he may not locate or enter public lands, may, until office found, hold a mining claim under possessory title as grantee of a qualified locator. Ferguson v. Neville, 61 Cal. 356.

410. In a suit for trespass upon a mining location plaintiff must show citizenship, and if defendant justifies under another location he must show citizenship, as no rights could be acquired by location without it. Bohanon v. Howe, 2 Idaho, 417; 17 Pac. Rep. 583.

411. The evidence of one plaintiff that he was a citizen of the United States at the time of location, and that the other plaintiffs were his children, born in California, is sufficient proof of citizenship of plaintiffs at the time

414. One claiming by purchase a mining location must allege citizenship of the locator. Anthony v. Jillson, 83 Cal. 296; 23 Pac. Rep. 419.

415. Where a location is made by a citizen and an alien, and the alien thereafter declares his intention of becoming a citizen, the citizen cannot, by relocation, cut his co-owner out on the ground that the original location was void as to the alien. Sever v. Gregovich, 16 Nev. 325.

416. Possessory title to a mining claim may not be held by a State or Territory, as it is not one of the persons named in section 2325, United States Revised Statutes. Territory v. Lee, 2 Mont. 124; 6 Mor. Min. Rep. 248.

417. A corporation, organized under the laws of a State for the purpose of mining, may locate a mining claim as a citizen of the United States. McKinley v. Wheeler, 130 U. S. 630; Thomas v. Chisholm, 13 Colo. 105; 21 Pac. Rep. 1019.

418. A party to an adverse suit claiming under a location made by a corporation must allege and prove such corporation to have been organized in some of the States or Territories of the United States, and that its members were individually qualified to make the location. Thomas v. Chisholm, 13 Colo. 105; 21 Pac. Rep. 1019.

419. A placer location made by A., B. and C. in their own names, but for the use of a corporation, may cover only that area which the corporation might locate, viz., twenty acres. Gird v. California Oil Co., 60 Fed. Rep. 531.

420. A location may be made by an agent. Gore v. McBrayer, 18 Cal. 582; 1 Mor. Min. Rep. 645; Morton v. Solambo M. Co., 26 Cal. 527; 4 Mor. Min. Rep. 463; Murley v. Ennis, 2 Colo. 300; 12 Mor. Min. Rep. 360; Kramer v.. Settle, 1 Idaho, 485; 9 Mor. Min. Rep. 561;

Schultz v. Keeler, 2 Idaho, 305; 13 Pac. Rep. 481; Dunlap v. Pattison, 42 Pac. Rep. 504.

421. An agent may locate a mining claim, but unless specifically authorized he cannot divest his principal of title so acquired. Gore v. McBrayer, 18 Cal. 582; 1 Mor. Min. Rep. 645. 422. A mining location may be made by an agent, who may, as agent, also make any necessary affidavits pertaining thereto. Dunlap v. Pattison, 42 Pac. Rep. 504.

423. A location may be made by an agent, and in the absence of a contrary showing a location purporting to be made by an agent for a principal will be presumed to be made with the assent of the principal. Gore v. McBrayer, 18 Cal. 582; 1 Mor. Min. Rep. 645.

424. "A party in whose name a location of a mining claim is made is presumed prima facie to assent to the same. Van Valkenburg v. Huff, 1 Nev. 142; 9 Mor. Min. Rep. 467; Morton v. Solambo M. Co., 26 Cal. 527; 4 Mor. Rep. 463.

425. One may locate a mining claim for himself and others. Gore v. McBrayer, 18 Cal. 582; 1 Mor. Min. Rep. 645; Morton v. Solambo M. Co., 26 Cal. 527; 4 Mor. Min. Rep. 463.

426. A location made by an individual in his own name may be shown to have been made by him as agent of another. Sold Again Lode, 20 L. D. 58.

427. When A. locates for B., it is presumed that he has authority so to do. Rush v. French, 1 Ariz. 99; 25 Pac. Rep. 816.

432. If A. locates a claim in the name of B., and holds and works the same, the law presumes it to be done by A. as agent for B., and A. can maintain no action for the claim in his own name. Van Valkenburg v. Huff,

1 Nev. 142; 9 Mor. Min. Rep. 467.

433. A. and B. are mining and prospecting partners. A discovery is made but no lo cation. After dissolution of partnership A. makes a location. Held, that B. has no interCal. 121; 12 Pac. Rep. 120; 15 Mor. Min. Rep. est in this location. Page v. Summers, 70 617; McLaughlin v. Thompson, 29 Pac. Rep. 816.

434. Where the record shows the survey of a mining claim to have been based upon an amended location made by a stranger in his own name, the applicant for patent may show by affidavits that such stranger, in making the amended location, acted as his agent. Gray Copper Lode, 18 L. D. 536.

435. An amended location made by a stranger to the record may be shown to have been made in trust for the real owner. Com'r to Denver Office, Nov. 2, 1894, In re Silk Finish Lode.

436. A partnership is not constituted by an oral agreement to locate claims as partners where no joint capital is used. Craw v. Wilson, 40 Pac. Rep. 1076.

437. A location made by several persons. may not be renewed (or amended) by some of the original locators associated with strangers, omitting the names of some of the original locators to their injury. Strang v. Ryan, 46 Cal. 33; 1 Mor. Min. Rep. 48.

428. A location made by A. in the name of B. constitutes B. the legal owner, and A. cannot compel B., as trustee, to convey to him. Moore v. Hammerstag, 109 Cal. 122; 41 quired the right of the other, and erased the Pac. Rep. 805.

429. If the locator of a mining claim inserts in the location notice the names of others, they become tenants in common with the one making the location. The locator cannot dispose of the other interests unless authorized so to do. Chase v. Savage S. M. Co., 2 Nev. 9; 9 Mor. Min. Rep. 476.

430. Only twenty acres of placer ground can be embraced in a single location by one person. Reynolds v. Iron Silver M. Co., 116 U. S. 687; 15 Mor. Min. Rep. 591; St. Louis Sm. Co. v. Kemp, 104 U.S. 636; 11 Mor. Min. Rep. 673. 431. Placer claims may be located jointly by two or more persons. Chapman v. Toy Long, 4 Sawy. 28; 1 Mor. Min. Rep. 497.

438. Where one of two discoverers ac

name of the other from the location notice and remained in sole possession, the alteration of the notice did not amount to an abandonment of the original location. Omar v. Soper, 11 Colo. 380; 18 Pac. Rep. 443; 15 Mor. Min. Rep. 496.

439. A locator of a mining claim is estopped from denying the validity of the location after selling it to another. Stinchfield v. Gillis, 96 Cal. 33; 30 Pac. Rep. 839; S. C., 107 Cal. 84; 40 Pac. Rep. 98.

440. The declarations of a party in possession and claiming title to a mining claim, made before parting with his interest, against the validity of the location of such claim, are admissible as evidence against the grantee of

106

the declarant. Harrington v. Chambers, 3 | ing mineral exists within the limits of the location. McShane v. Kenkle, 44 Pac. Rep. 979 Utah, 94; 1 Pac. Rep. 362. (Mont.).

441. "Under the requirements of the law, a valid location of a mining claim may be made whenever the prospector has discovered such indications of mineral that he is willing to spend his time and money in following, with the expectation of finding ore; and a valid location of a mining claim may be made of a ledge deep in the ground, and appearing at the surface not in the shape of ore, but in vein matter only." A discovery stake was set September 16, and the claim partly staked September 17, the location being completed September 18. The location dates back to September 16. Burke v. McDonald, 2 Idaho, 1022; 29 Pac. Rep. 98.

446. A location of a placer claim must be based on a discovery of a valuable mineral deposit. Reins v. Murray, 22 L. D. 409.

447. A discovery of mineral is not a prerequisite to a location of a placer mining claim. Gregory v. Pershbaker, 73 Cal. 109; 14 Pac. Rep. 401; 15 Mor. Min. Rep. 602.

448. A discovery of mineral-bearing rock in place is not essential to a valid discovery, which may be made upon croppings. Failure to perfect a location within the time prescribed by law may be excused by illegal occupancy of the ground by other persons. Erhardt v. Boaro, 3 McCrary, 19; 2 Colo. Law 442. A discovery of a vein or lode of min- Rep. 89; 4 Mor. Min. Rep. 434. (See 113 U. S. eral-bearing rock in place is a prerequisite to 527.) Mt. Diablo M. & M. Co. v. Callison, 5 a valid location. Jackson v. Roby, 109 U. S. Sawy. 439; 9 Mor. Min. Rep. 616; Davidson v. 440; Jupiter M. Co. v. Bodie Cons. M. Co., 7 | Bordeaux, 15 Mont. 245; 38 Pac. Rep. 1075. 449. A location based on a discovery on Sawy. 96; 11 Fed. Rep. 666; 4 Mor. Min. Rep. 411; McGinnis v. Egbert, 8 Colo. 41; 5 Pac. the dip of the lode is void. Upton v. Larkin, Rep. 653; 15 Mor. Min. Rep. 329; Bryan v. Mc-7 Mont. 449; 17 Pac. Rep. 728; 15 Mor. Min. Caig, 10 Colo. 309; 15 Pac. Rep. 413; Burke v. Rep. 404; S. C., 5 Mont. 600; 6 Pac. Rep. 66. McDonald, 2 Idaho, 649; 33 Pac. Rep. 49; Golden Terra M. Co. v. Smith (Mahler), 2 Dak. 377; 11 N. W. Rep. 97; 4 Pac. Coast Law Jour. 405; 4 Mor. Min. Rep. 390; Upton v. Larkin, 7 Mont. 449; 17 Pac. Rep. 728; 15 Mor. Min. Rep. 404; S. C., 5 Mont. 600; 6 Pac. Rep. 66: Gleeson v. Martin White M. Co., 13 Nev. 457; Overman Silver M. Co. v. Corcoran, 15 Nev. 147; 11 Mor. Min. Rep. 691; Waterloo M. Co. v. Doe, 17 L. D. 111; Etling v. Potter, 17 L. D. 424; Winter Lode, 22 L. D. 362.

443. Failure of claimant to make a discovery of a vein of mineral-bearing rock in place within his location may be set up before the Land Department by one who has failed to file an adverse claim. Waterloo M. Co. v. Doe, 17 L. D. 111.

444. "It is the finding of the mineral in rock in place, as distinguished from float rock, that constitutes the discovery, and warrants the prospector in making a location of a mining claim." Book v. Justice M. Co., 58 Fed. Rep. 106.

445. It is not required, under section 2320, United States Revised Statutes, that paying mineral necessary to justify the location of the claim should be found at the time and place of the discovery, but it is sufficient if the development of the vein showed that pay

450. A location notice need not show the

position of the discovery shaft. Quimby v. Boyd, 8 Colo. 194; 6 Pac. Rep. 462.

451. A lode discovered in a tunnel run in accordance with the provisions of section 2323, United States Revised Statutes, and of which a location notice was posted at the mouth of the tunnel, and duly recorded, need. not be located by the discoverer on the surface to protect his right, and a subsequent locator on the surface acquires no rights against the tunnel location. Ellet v. Campbell, 18 Colo. 510; 33 Pac. Rep. 521.

452. A discovery of a lode in a tunnel gives the right to make a surface location thereof, just as a discovery on the surface would do. Rico-Aspen M. Co. v. Enterprise M. Co., 53 Fed. Rep. 321.

453. On the discovery of a lode in a tunnel, within three thousand feet of the face thereof, the tunnel claimant may locate fifteen hundred feet of such lode, subject only to the requirement that his discovery must be covered by his claim. Enterprise M. Co. v. Rico-Aspen Cons. M. Co., 66 Fed. Rep. 200.

454. The locator who has a vein extending through his claim owns all other veins whose apexes are within his claim, and may

adverse an application for a conflicting claim located on one of such other veins. Freeland v. Hoffman, 13 Mor. Min. Rep. 289.

455. An unauthorized underground working of a lode will not prevent its location by the discoverer of the apex, as "The possession of a vein recognized by the mining laws and to which protection is given, is by one who holds the surface where the vein makes its apex." Eilers v. Boatman, 3 Utah, 159; 2 Pac. Rep. 66; 1 West Coast Rep. 632; 15 Mor. Min. Rep. 462. See 111 U. S. 356; 15 Mor. Min. Rep. 471.

456. A locator need not be the discoverer of the vein located, but must have known of its existence. Jupiter M. Co. v. Bodie Cons. M. Co., 7 Sawy. 96; 11 Fed. Rep. 666; 4 Mor. Min. Rep. 411; Book v. Justice M. Co., 58 Fed. Rep. 106.

457. A discovery after location, but before the intervention of adverse rights, validates the location. North Noonday M. Co. v. Orient M. Co., 6 Sawy. 299; 1 Fed. Rep. 522; 9 Mor. Min. Rep. 529; Jupiter M. Co. v. Bodie Cons. M. Co., 7 Sawy. 96; 11 Fed. Rep. 666; 4 Mor. Min. Rep. 411; Zollars & Highland Chief Cons. M. Co. v. Evans, 2 McCrary, 39; 4 Mor. Min. Rep. 407; Golden Terra M. Co. v. Smith (Mahler), 2 Dak. 377; 11 N. W. Rep. 97; 4 Pac. Coast Law Jour. 405; 4 Mor. Min. Rep. 390; Patchen v. Keeley, 19 Nev. 404; 14 Pac. Rep. 347; Wight v. Tabor, 2 L. D. 738; Branagan v. Dulaney, 2 L. D. 744; James Mitchell, 2 L. D. 752.

458. A location void at the time it was made because of no discovery continues and remains void, and is not cured by a subsequent discovery on the claim located. Upton v. Larkin, 5 Mont. 600; 6 Pac. Rep. 66; S. C., 7 Mont. 449; 17 Pac. Rep. 728; 15 Mor. Min. Rep. 404.

450. A location based on a discovery made within the limits of a prior subsisting locasion is invalid. Gwillim v. Donnellan, 115 U. S. 45; 15 Mor. Min. Rep. 482; Golden Terra M. Co. v. Smith (Mahler), 2 Dak. 377; 11 N. W. Rep. 97; 4 Pac. Coast Law Jour. 405; 4 Mor. Min. Rep. 390.

460. A location based upon a discovery made upon a prior location may be validated by a relinquishment of the ground including such discovery, by the senior locator, before the intervention of adverse rights. McEvoy v. Hyman, 25 Fed. Rep. 596; 15 Mor. Min. Rep. 397.

461. In adverse proceedings defendant may defeat plaintiff's claim by showing that plaintiff's location was upon land not subject to location, having been included in the exGirard v. Carson, 44 Pac. Rep. 508. (Citing terior limits of a patent to a third person. Armstrong v. Lower, 6 Colo. 393; 15 Mor. Min. Rep. 631. Affirmed, 6 Colo. 581; 15 Mor. Min. Rep. 458.) Gwillim v. Donnellan, 115 U. S. 45; 15 Mor. Min. Rep. 482.

462. A second discovery of mineral within the limits of a legal location is valueless to other claimants. Hibschle v. Gildersleeve, 8 C. L. O. 66 (Colorado court).

463. A. locates with no discovery. may hold it as against B., who has made no discovery. Field v. Grey, 25 Pac. Rep. 793.

464. Where two conflicting locations are made, neither based on a discovery, the second locator has the better right if he first discovers mineral. Crossman v. Pendery, 2 McCrary, 139; 1 Colo. Law Rep. 496; 4 Mor. Min. Rep. 431.

465. A. locates, then B. does. If B. gets mineral first, he has the superior right. But A. may keep B. off as a trespasser before B.'s discovery. Crossman v. Pendery, 8 Fed. Rep. 693.

466. The first discoverer who completes a legal location within the time allowed therefor is protected against a location previously perfected by a subsequent discoverer. Pelican & Dives M. Co. v. Snodgrass, 9 Colo. 339; 12 Pac. Rep. 206.

467. When two locations are based upon one discovery, only one of them can be valid, and the party claiming under one of them must show that one to be the valid one. Kinstry v. Clark, 4 Mont. 370; 1 Pac. Rep. 759.

468. A discovery made in a shaft on the line of a claim and partly within the limits of a prior location is valid. Larkin v. Upton, 7 Mont. 449; 17 Pac. Rep. 728; 15 Mor. Min. Rep. 404; S. C., 5 Mont. 600; 6 Pac. Rep. 66. (Affirmed, S. C., 144 U. S. 19.)

469. A mineral entry of two locations based on one discovery of mineral in a discovery shaft on the line between the two locations will be canceled. Poplar Creek Cons. Qtz. Mine, 16 L. D. 1.

470. Two locations may not be made on one discovery, but (semble) two discoveries may be united in one discovery shaft. McKinstry v. Clark, 4 Mont. 370; 1 Pac. Rep. 759,

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Mineral Law Digest Embracing a Digest of Decisions of the Courts and of the ...