Pac. 892. But in Oregon and Washington they have been held to be personal property. Herron v. Eagle Co. 61 Pac. 417; Phoenix Co. v. Scott, 54 Pac. 777. The Distinctions Between Mining Claims and Other Classes of Realty are substantially those arising out of the following incidents:

1. The title being first acquired by possession, it may be lost by acts amounting to a discontinuance of possession; that is by abandonment.

2. Annual labor upon each claim is required by Act of Congress as a condition upon the non-performance of which the same consequences result as in the case of a technical abandonment; that is, the claim becomes open to the entry of the next occupant.

3. The formula of notice and recording, and the method of initiating title are subject to regulation by the State or Territory, in details not covered by the Acts of Congress.

4. Special modes of assessment and collection of taxes are or have been attempted; but distinctions of this sort have generally been found impracticable.

5. There are statutes to prevent forcible dispossession of claimants, to allow of underground surveys and inspection and to regulate drainage.

6. The mode of perfecting patent in the U. S. Land Office is wholly different from that regulating pre-emption or homestead entries upon agricultural lands.

SCHOOL CLAIMS.

Fully one-half of all the sections of the old Colorado Statutes on the subject of mines was taken up by a persistent attempt to force a "School Claim" on each location. The whole effort was in violation of the Organic Act, and has been held absolutely null and void as well by the courts as by the land office, and repudiated by the miners as an attempt to put

the whole cost of schools on a class of men who, as a rule, were not persons with families.

By Act of 1862, claim No. 3, east or west, was to be set apart for schools; by Act of 1866, one side claim on each end of the discovery claim of 1,400 feet was to be recorded-100 feet for schools and 100 feet for disabled miners.

SOLDIERS' CLAIMS.

By Territorial Acts passed in instances during the civil war, claims belonging to soldiers were protected from forfeiture during enlistment and for a reasonable time thereafter; they were also allowed to locate and record claims by proxy; and their titles were protected from sale on execution during their absence.

During the Spanish war Congress passed an act, approved July 2, 1898, relieving volunteers from performance of annual labor during their term of service. It required the record of a notice stating the fact of enlistment and of "His desire to hold said claim under this Act."-30 St. L. 651; M. R. 11th Ed. 16. A notice filed under this Act was considered in Field v. Tanner, 75 Pac. 916.

Co-owners with such volunteers were required to do their proportion of work, and in default of such labor their interest might be forfeited to any person who entered and did such work during the ensuing year.

LENGTH OF LODE CLAIM LOCATED BEFORE MAY 10, 1872.

3,000-Foot Act of Congress of 1866.

Sec. 4 * * * No location hereafter made shall exceed two hundred feet in length along the vein for each locator, with an additional claim for discovery to the discoverer of the lode, with the right to follow such vein to any depth, with all its dips, variations, and angles, together

with a reasonable quantity of surface for the convenient working of the same as fixed by local rules. And provided further, That no person may make more than one location on the same lode, and not more than three thousand feet shall be taken in any one claim by any association of persons.-A. C. July 26, 1866. Repealed May 10, 1872.

Before the Act of Congress of 1866 the length of lode claims was regulated either by district rules or by State or Territorial legislation. It was by no means uniform. Short lengths of 100 or 200 feet, sometimes as low as fifty feet or less, were the limitations under the older district rules. In later years the tendency was to allow longer claims. In Colorado the statute fixed the length of a claim in 1861 at 100 feet. In 1866 at 1,400 feet. The Act of Congress of 1866 allowed 400 feet to the discoverer and a claim of 200 feet to each associate locator, not exceeding 3,000 feet on the lode under one location. Associates and Side Claims.

It is impossible to understand the limitations on the size of claims without considering a certain custom which originated in the earliest mining camps of California, and became a general practice over the western slope. With slight local modifications this custom was for the discoverer to record a notice that he claimed 50, 100 or 200 feet, as the case might be, on a certain lode. On the same paper, or by a separate paper signed later, other parties, real or nominal associates of the discoverer, would give notice of claim to No. 1 East, No. 1 West, etc., on the same lode. Not only would the associates of the discoverer make such records, but often third parties, without even going on the ground, would file on these side claims -in instances to the extent of several thousand feet on each side from the discovery claim. Joint Records.

In other districts the discoverer and his associates would file on the discovery claim, No. 1 East, No. 1 West, No. 2 West, etc., indefinitely by a joint location certificate, not attempting to segregate the

feet claimed by one from the feet claimed by the other.

Record Without Location Work.

These side claims, whether taken separately or as one joint location, were supposed to be at least staked off on the ground, but no discovery hole was required, and, in fact, in most cases, only the paper record was made and the claims seldom pursued further, unless developments on the discovery claim seemed to indicate that the side claims might be of value. Such was not the original intention of the miners, but the custom degenerated to this, and the records of thousands of such claims remain, whose owners never did any work upon, nor ever knew the exact situation of their claims.

Nominal Associates Conveying to Discoverer.

This privilege to locate side claims was soon taken advantage of by the discoverer, who procured nominal parties to record, and immediately after recording to convey their claims to him, and as soon as the Act of Congress, 1866, was passed, such became the universal practice, the custom as it already existed being altered only in this: That the claims were no longer numbered, but were taken together as a joint location by a supposed association of fourteen persons, taking fifteen claims of 200 feet each, or 3,000 feet in all-the discoverer being allowed one additional claim. Further, after the passage of such Act, the staking of the lode into its several claims was abandoned altogether. Before the Act each locator usually recorded one specific claim, in which the other locators had no interest, nor he in theirs, but after the Act, the record almost always showed a joint location of undivided claims.

Validity of Such Nominal Records

It is more than doubtful whether at any time, as against an adverse bona fide claim, such nominal side claims were by the record alone, of any validity, unless actually possessed and defined upon the ground

in some manner; Cons. Rep. Co. v. Lebanon Co. 15 M. R. 490; 9 Colo. 343; Becker v. Pugh, 15 M. R. 304; 9 Colo. 589; Hess v. Winder, 12 M. R. 217; 30 Cal. 349; but the practice of the Land Office is to patent such claims without inquiry, if sufficient development for patent has been done on any one of them, or on the discovery.

Length of Lode Claim at Various Dates in Colorado.

1. Prior to Nov. 7, 1861, the length of a lode claim was fixed by district rules.

2. From Nov. 7, 1861, to March 11, 1864, the length of a claim was 100 feet, but an indefinite number of claims could be based on a single discovery.

3. From March 11, 1864, to Feb. 9, 1866, 100 feet was the length of a claim, and sixteen claims of that length could be based on a single discovery.

4. From Feb. 9, 1866, to July 26, 1866, 1,400 feet was the length of a claim and the limit of a location.

5. From July 26, 1866, to Feb. 11, 1870, 200 feet was the length of a claim and 1,400 feet could be taken under one location.

6. From Feb. 11, 1870, to May 10, 1872, 200 feet was the length of a claim and 3,000 feet could be taken under one location.

7. Since May 10, 1872, 1,500 feet is the length of a claim.

LENGTH OF LODE CLAIM SINCE MAY 10, 1872.

Not to Exceed 1,500 Feet.

R. S. Sec. 2320.-Mining-claims upon veins or lodes of quartz or other rock in place bearing gold, silver, cinna bar, lead, tin, copper, or other valuable deposits, heretofore located, shall be governed as to length along the vein or lode by the customs, regulations, and laws in force at the date of their location. A mining-claim located after the tenth day of May, eighteen hundred and seventy-two. whether located by one or more persons, may equal, but shall not exceed, one thousand five hundred feet in length along the vein or lode; but no location of a mining-claim shall be made until the discovery of the vein or lode within the limits of the claim located. * * * -Sec. 2, A. C. May 10, 1872.