529.

74. A purchaser from an alien may relocate the claim and thereby acquire possessory title, but he acquires none by the purchase. Beckner v. Coates, 3 C. L. O. 18.

75. A Territory cannot pass laws affecting the right of aliens to hold and work mining claims. Territory v. Lee, 2 Mont. 124; 6 Mor. Min. Rep. 248.

6. Assignee.

76. The grantee of an entryman before issuance of patent takes no better title than his grantor, and cannot pose before the Land Department as an innocent purchaser. R. M. Chrisinger, 4 L. D. 347.

77. A transferee of an entryman before issuance of patent stands only in the place of the entryman. William E. McIntyre, 6 L. D. 503.

78. A mineral patent will issue only to a qualified applicant for patent or to one claiming under him by transfer before entry. J. C. Baker Fraction Placer, 23 L. D. 112.

79. A purchaser of land after entry but before issuance of patent is simply the assignee of an equitable interest, and as such takes with notice of all defects in title. C. A. Kibling, 7 L. D. 327; Murphy v. Sanford, 11 L. D. 123; George Hague, 13 L. D. 388; United States v. Miller, 14 L. D. 617.

80. "Until patent has issued, the Department has full and complete jurisdiction over all entries not confirmed by the statute, and persons who purchase on the faith of the receiver's receipt do so at their own risk and take the land subject to all the infirmities of title, so far as the government is concerned." Louise M. Co., 22 L. D. 662.

83. The grantor of a mining claim may be called as a witness to prove the invalidity of the location sold. Johnson v. Parks, 10 Cal. 446; 4 Mor. Min. Rep. 316.

84. 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 in evidence against the grantee of the declarant. Harrington v. Chambers, 3 Utah, 94; 1 Pac. Rep. 362. See 111 U. S. 350. 7. Conveyance.

(See CONVEYANCE, p. 393.)

85. In California, before 1860, a verbal transfer of a mining claim was held good when accompanied by change of possession (Table Mtn. Tunnel Co. v. Stranahan, 20 Cal. 198; 9 Mor. Min. Rep. 457; King v. Randlett, 33 Cal. 321); but in 1860 an act was passed with reference to gold mines (Laws 1860, p. 175), and afterward extended to all mines (Laws 1863, p. 98), which did away with oral transfers. See Patterson v. Keystone M. Co., 80 Cal. 360; Goller v. Fett, 30 Cal. 481; 11 Mor. Min. Rep. 171; Folger v. Coward, 35 Cal. 652; Melton v. Lambard, 51 Cal. 258; 14 Mor. Min. Rep. 695; Garthe v. Hart, 73 Cal. 541; 15 Pac. Rep. 93; 15 Mor. Min. Rep. 492.

86. A written conveyance is not necessary to the transfer of a mining claim. Union Cons. M. Co. v. Taylor, 100 U. S. 37; 5 Mor. Min. Rep. 323; Table Mountain Tunnel Co. v. Stranahan, 20 Cal. 198; 9 Mor. Min. Rep. 457.

87. The rule allowing parol sale of mining claims only applies where the grantor actually delivers possession. Where the land is in the adverse possession of a third party there must be a written conveyance. Copper Hill M. Co. v. Spencer, 25 Cal. 18; St. John v. Kidd, 26 Cal. 263; 4 Mor. Min. Rep. 454.

90. A mining claim is real property, and must be conveyed as such. Melton v. Lambard, 51 Cal. 258; 14 Mor. Min. Rep. 695.

91. A verbal sale, even if accompanied by delivery of possession, does not pass legal title. Goller v. Fett, 30 Cal. 481; 11 Mor. Min. Rep. 171.

92. Parol sale of a mining claim is sufficient, with delivery of possession. Gore v. McBrayer, 18 Cal. 582 (1861); 1 Mor. Min. Rep. 645; Table Mountain Tunnel Co. v. Stranahan, 20 Cal. 198; 9 Mor. Min. Rep. 457 (1862); Gatewood v. McLaughlin, 23 Cal. 178; Antoine Co. v. Ridge Co., 23 Cal. 219 (1863).

93. Posssesory title to a mining claim is real estate, and must be conveyed by deed. It is a grant by the government to the locator of an interest in the public domain, and the thing granted must be real estate. Robertson v. Smith, 1 Mont. 410; 7 Mor. Min. Rep. 196; Hopkins v. Noyes, 4 Mont. 550; 12 Pac. Rep. 280; 15 Mor. Min. Rep. 287. (Distinguishing Table Mountain Tunnel Co. v. Stranahan, 20 Cal. 198; 9 Mor. Min. Rep. 457.)

94. A parol partition of a mining claim, if followed by exclusive possession of the several parcels, is doubtless valid; the parties cease to be tenants in common, and forever afterwards deal at arm's length. 420 M. Co. v. Bullion M. Co., 3 Sawy. 634; 9 Nev. 240; 1 Mor. Min. Rep. 114; 11 Mor. Min. Rep .608.

95. In early times, parol transfers of mining claims, followed by change of possession, were recognized as legal. Kinney v. Cons. Virginia M. Co., 4 Sawy. 382; 10 Mor. Min. Rep. 457.

96. Mining claims are real property, and pass by deed. Houtz v. Gisborn, 1 Utah, 173; 2 Mor. Min. Rep. 340.

97. In the absence of local statutes or rules, a writing is not necessary to the conveyance of a mining claim. Lockhart v. Rollins, 2 Idaho, 503; 21 Pac. Rep. 413.

98. In the absence of a statute, a writing is not necessary to the transfer of title to a mining claim, when such transfer is accompanied by possession of the grantee. Union Cons. M. Co. v. Taylor, 100 U. S. 37; 5 Mor. Min. Rep. 323.

99. A locator's right to a lode can only be conveyed by deed. Murley v. Ennis, 2 Colo. 300; 12 Mor. Min. Rep. 360.

100. Mining claims under the Montana statutes are real estate and are within the statute of frauds, and can only be transferred

by deed. Hopkins v. Noyes, 4 Mont. 550; 2 Pac. Rép. 280; 15 Mor. Min. Rep. 287.

101. Parol sale, bona fide, with delivery of possession, is valid as against a subsequent sale of the same grantor made by deed in writing duly acknowledged. Patterson v. Keystone M. Co., 23 Cal. 575 (1863). (Cases of Atwood v. Fricot, 17 Cal. 38; 2 Mor. Min. Rep. 305 (1860-61), and English v. Johnson, 17 Cal. 107; 12 Mor. Min. Rep. 202 (1860-61), as to possession of mining claims, affirmed.)

102. The name by which a lode claim is conveyed is immaterial if it may be identified. Phillpotts v. Blasdell, 8 Nev. 61; 4 Mor. Min. Rep. 341.

103. A conveyance of a lode carries all title thereto, whether held under one or more locations thereof, and the name used is immaterial if the intent is clear. Weill v. Lucerne M. Co., 11 Nev. 200; 3 Mor. Min. Rep. 372.

104. The name by which a lode is conveyed is immaterial, if the property may be identified from the description given in the deed. Lebanon M. Co. v. Cons. Republican Mtn. M. Co., 6 Colo. 381.

105. A mining claim may be conveyed by name, reference being made to the location record. Carter v. Bacigalupi, 23 Pac. Rep. 361.

106. A conveyance made by a person as officer of a corporation, for the corporation, will not estop him from asserting a personal right to the property so conveyed. Nichols v. Becker, 11 L. D. 8.

107. The deed of a corporation must show the consent of stockholders. Pekin M. & M. Co. v. Kennedy, 22 Pac. Rep. 679.

108. A deed, to give constructive possession of an entire claim to one who enters thereunder, must contain definite boundaries which can be located, marked and made known from the deed itself. Hess v. Winder, 30 Cal. 349; 12 Mor. Min. Rep. 217.

109. A deed, not giving boundaries, but referring to a location certificate in which a full description is given, will extend the possession to the entire claim described in such location certificate. Harris v. Equator M. & Sm. Co., 3 McCrary, 14; 8 Fed. Rep. 863; 2 Colo. Law Rep. 63; 12 Mor. Min. Rep. 178.

110. A deed of mineral entries numbers 1 and 2, lots 3 and 4, patented as the A. and B. claims, may, if such appears to have been the intent of the parties, be held to convey all of the grantor's title to the A. and B. claims, even though the patent only covered parts thereof. Jackson v. Dines, 13 Colo. 90; 21 Pac. Rep. 918; Crescent M. Co. v. Wasatch M. Co., 19 Pac. Rep. 198.

111. A deed of a lode conveys all title of the grantor thereto, whether held by one location or another. Phillpotts v. Blasdell, 8 Nev. 61; 4 Mor. Min. Rep. 341.

112. No precise form of words is necessary to a bill of sale of a mining claim, if it is evidently intended by the owner to pass title. Meyers v. Farquharson, 46 Cal. 190.

113. Instruments conveying mining claims need not be under seal. Draper v. Douglass, 23 Cal. 347 (1863).

114. When the owner of a lode claim sells a part of his location, section 2336, United States Revised Statutes, does not apply in deciding the respective rights of grantor and grantee to work the lode on the dip, but the grantee takes, absolutely, all of every vein the apex of which is in the granted premises, as against the grantor, though they may be intersected by a prior located vein of the grantor. Stinchfield v. Gillis, 107 Cal. 84; 40 Pac. Rep. 98. See S. C., 96 Cal. 33; 30 Pac. Rep. 839.

115. A claimant who has published a notice of application for patent may not, by relinquishment, give to a claimant of a conflicting claim the right to enter the conflict without publication. Com'r to Pueblo Office, Jan. 17, 1896, In re Providence Lode.

8. Co-owners.

(See CO-OWNERS, p. 396.)

116. The possession of one co-tenant is the possession of all. Union Cons. S. M. Co. v. Taylor, 100 U. S. 37; 5 Mor. Min. Rep. 323; Waring v. Crow, 11 Cal. 366; 5 Mor. Min. Rep. 204; Colman v. Clements, 23 Cal. 245; 5 Mor. Min. Rep. 247.

117. The possession of one co-tenant in common is not adverse to his co-tenants. Union Cons. S. M. Co. v. Taylor, 100 U. S. 37; 5 Mor. Min. Rep. 323.

118. Possession of a mining claim by one tenant in common is possession of all, unless

it becomes adverse. Mallett v. Uncle Sam G. & S. M. Co., 1 Nev. 188; 1 Mor. Min. Rep. 17.

119. Co-tenants are presumed, by law, to own equal interests until the contrary be shown. Nippel v. Hammond, 4 Colo. 211.

120. To give a person the right to procure by forfeiture proceedings, under section 2324, United States Revised Statutes, the interest of another in a mining claim held by possessory title, the two persons must not only be co-owners at date of the forfeiture notice, but during the year in which the work was done upon the claim. Turner v. Sawyer, 150 U. S. 578.

121. Where several persons post notice of location on a mining claim and sign the same as locators, a subsequent notice posted on the same claim, signed by some of the original locators and other persons whose names did not appear in the first notice, is an original notice so far as the new locators are concerned, but does not affect the rights of the prior locators whose names are omitted, nor operate as an abandonment of the first location by the persons whose names are signed to both notices; and in an action by all the persons whose names are signed to the notices to quiet their title as against an adverse claimant, the second notice is admissible in evidence. Thompson v. Spray, 72 Cal. 528; 14 Pac. Rep. 182.

122. The taking of hostile possession of a mining claim by one tenant in common and excluding the co-tenant is an ouster, from the date of which the Statute of Limitations begins to run in favor of the tenant so taking possession, and against his co-tenant. 420 M. Co. v. Bullion M. Co., 3 Sawy. 634; 9 Nev. 240; 1 Mor. Min. Rep. 114; 11 Mor. Min. Rep. 608.

123. Where a relocation of a forfeited claim is made by one of the owners with the understanding that it is made for the benefit of all, he will be declared trustee for his coowners. Hunt v. Patchin, 13 Sawy. 304; 35 Fed. Rep. 816.

124. If, through conspiracy between one tenant in common of a mining claim and a stranger, the claim is abandoned, and is relocated by the stranger, all rights under the original location are lost. Injured owners must proceed in equity to have the relocator declared trustee for their use. Doherty v. Morris, 11 Colo. 12; 16 Pac. Rep. 911.

125. One tenant in common of a mining claim promised his co-tenant that he would perform the required annual labor to hold the claim, but fraudulently failed so to do, and relocated the claim for himself. Held, that the claim had been legally abandoned and was therefore subject to the relocation; but that the relocator, by reason of the fraud, might be declared a constructive trustee under the relocation for his co-tenant as to the co-tenant's interest in the original location. Saunders v. Mackey, 5 Mont. 523; 6 Pac. Rep. 361.

125a. Tenants in common in a mine may join in an action to recover possession of all their undivided interests. Goller v. Fett, 30 Cal. 481; 11 Mor. Min. Rep. 171.

126. A tenant in common of a mining claim, holding under possessory title, is not bound to file an adverse claim against an application for patent. to the claim, filed by a co-owner. The statute contemplates the filing of an adverse by one setting up a title against the mining claim applied for, not by one claiming an interest in the claim. Turner v. Sawyer, 150 U. S. 578; Hunt v. Patchin, 13 Sawy. 304; 35 Fed. Rep. 816.

127. There is no relation of trust or confidence between mining partners which is violated by the sale and assignment by one partner of his share in the company assets and business to one or more of his associates without the knowledge of the other associates. Bissell v. Foss, 114 U. S. 252.

128. In the absence of a special contract there is no relation of trust between tenants in common of mining property who are partners only for the purpose of developing the same, which prevents one from receiving a higher sum for his interest than the others. Harris v. Lloyd, 11 Mont. 390; 28 Pac. Rep.

736.

129. A parol contract to the effect that if the defendant should secure a paying quartz mine through the efforts of the plaintiff, the defendant would, in addition to wages, give the plaintiff an interest in such mine, is as to the interest to be given so uncertain and indefinite as to be unenforcible by a court of equity, and the court has no right to assume that the interest to be conveyed is a one-half interest rather than a one-eighth or any other interest, in the absence of an allegation and finding that the parties understood that they

were to own equal and undivided interests in the mine. Berry v. Woodburn, 107 Cal. 504; 40 Pac. Rep. 802.

130. One who locates a claim in the names of himself and others, even without their consent, makes such others co-owners with himself, and cannot deprive them of their interests by destroying the location notice and posting a new one, omitting their names. Morton v. Solambo M. Co., 26 Cal. 527; 4 Mor. Min. Rep. 463.

131. Those whose names are inserted in a notice of location are presumed to have assented, in the absence of a contrary showing. Morton v. Solambo M. Co., 26 Cal. 527; 4 Mor. Min. Rep. 463.

132. One in whose name the location is made is presumed prima facie to assent, and becomes the owner of the location, and the one making the location cannot claim to be the owner. Van Valkenburg v. Huff, 1 Nev. 142; 9 Mor. Min. Rep. 467.

133. 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 Pac. Rep. 805.

134. Where A. legally locates a claim in the names of himself and B. they become tenants in common, even if the location was made without B.'s knowledge, and A. cannot dispose of B.'s interest. Chase v. Savage S. M. Co., 2 Nev. 9; 9 Mor. Min. Rep. 476.

9. Discovery.

(See DISCOVERY, p. 39.)

135. Local rules and customs of miners recognized discovery, followed by appropriation, as the foundation of the possessor's title, and development by working as the condition of its retention. Jennison v. Kirk, 98 U. S. 453. (Affirming Titcomb v. Kirk, 51 Cal. 288; 5 Mor. Min. Rep. 10.)

136. Discovery and appropriation is the source of title of a mining claim under the act of 1866, as well as that of 1872. Jackson v. Roby, 109 U. S. 440.

137. Discovery and appropriation are recognized as the sources of title to mining claims, and development by working as the condition of continued ownership, until issu-ance of patent therefor. (Entry of the claim and payment for the land.) Erhardt v. Boaro,

113 U. S. 527. Min. Rep. 452.

Crary, 44; 4 Fed. Rep. 702; 1 Colo. Law Rep.

147; 9 Mor. Min. Rep. 515.

140. One who has made a location without a discovery may hold it as against one who has no better title. Field v. Gray, 25 Pac. Rep. 793.

141. Where two conflicting locations are

made, neither based upon a discovery, the second locator has the superior right if he first makes a discovery. But before a discovery by either, the first locator may prevent the second from trespassing upon his claim. Crossman v. Pendery, 2 McCrary, 139; 8 Fed. Rep. 693; 1 Colo. Law Rep. 496; 4 Mor. Min. Rep. 431.

142. If the title to the land on which the discovery is situated fails, the whole location is lost. Gwillim v. Donnellan, 115 U. S. 45; 15 Mor. Min. Rep. 482.

143. At the time California was acquired by the United States the discoverer of a mine

was rewarded by an investiture, ipso facto, with a perpetual property and ownership of the mine. Castillero v. United States, 2 Black, 1.

10. Entry.

(See ENTRY, p. 239.)

144. After a legal entry of, and payment for, public land, the entryman holds complete equitable title, the United States thereafter holding the naked legal title in trust for the -entryman until the issuance of patent. Carroll v. Safford, 3 How. 441; Witherspoon v. Duncan, 4 Wall. 210; Hughes v. United States, 4 Wall. 232; Heydenfeldt v. Dana G. & S. M. Co., 93 U. S. 634; Wirth v. Branson, 98 U. S. 118; Steel v. St. Louis Sm. Co., 106 U. S. 447; Deffeback v. Hawke, 115 U. S. 392; Cornelius v. Kessel, 128 U. S. 456; Benson M. & Sm. Co. v. Alta M. & Sm. Co., 145 U. S. 428. (See 16 Pac. Rep. 565.) Bigelow v. Chatterton, 10 U. S. App. -267; Union M. & M. Co. v. Danberg, 2 Sawy.

v. Coles, 6 Colo. 350; Poire v. Wells, 6 Colo. 406; Omaha & Grant Sm. & Red. Co. v. Tabor, 13

Colo. 41; 21 Pac. Rep. 925; People v. Shearer, 30

Cal. 648; Deno v. Griffin, 20 Nev. 249; 20 Pac.

Rep. 308; Ross v. Supervisors, 12 Wis. 38; Gwynne v. Niswanger, 15 Ohio, 368; Goodlett v. Smithson, 5 Port. (Ala.) 246; F. P. Harrison, 2 L. D. 767.

145. A legal entry of public land vests the

equitable title thereto in the entryman, the United States thereafter holding the legal title in trust for the entryman until a patent issues, and this right cannot be defeated by an order of the Land Department, issued without warrant of law, canceling the entry. Cornelius v. Kessel, 128 U. S. 456.

146. In the Federal courts a certificate of land may not be considered as evidence of the holder's legal title, as the making of entry vests only equitable title in the entryman. Langdon v. Sherwood, 124 U. S. 74.

147. The owner of a mining claim need not purchase the same from the United States unless he so desires. Chapman v. Toy Long, 4 Sawy. 28; 1 Mor. Min. Rep. 497; Smith v. Van Clief, 6 C. L. O. 2.

148. Entry should not be allowed where the claim applied for is involved in a pending suit to determine the right of possession thereto, instituted prior to publication of notice of application for patent. If on said suit it is adjudged that the applicant is not entitled to the possession of a part of the claim, he will not be allowed to enter such part. Northwestern Lode & Mill Site Co., 8 L. D. 437.

149. The cancellation of a mineral entry has for its effect simply to set aside all that has been done by the claimant toward the acquisition of a patent, and relegates him to his possessory title. John R. Magruder, 1 L. D. 526; McGowan v. Alps Cons. M. Co., 23 L. D. 113.

150. In an action upon an adverse claim, where plaintiffs, as evidence of their title, had