1

property; and, as we have already seen, possessory actions may be maintained.2

§ 468. Estate of inheritance may be selected as a homestead May be sold on execution.- From what is said in the last and preceding sections and elsewhere it is apparent that the estate acquired by a miner by location is one of inheritance. It may be devised by last will and testament and descends to his heirs. So it has been held that mineral lands of the United States, which have been located and used chiefly as a placer claim, but which have also been used as a residence by the owner and family, and to some extent for pasturing stock and raising vegetables, may be selected as a homestead. And contrary to the general rule, which prohibits land, the paramount title to which is in the United States, from being sold on execution, it is well settled that these possessory rights to mining claims, wherever they are not claimed as exempt, may be seized by attachment and sold upon execution; and since they are regarded in most of the states as real property, it would seem to follow that they should be sold in the same manner as other real property is sold, and that they are subject to redemption."

§ 469. Overlapping locations.- Concerning the law of overlapping locations, there is much of the subject that is

1 Gillis v. Downy, 85 Fed. Rep. 483; Noyes v. Mantle, 127 U. S. 348; Belk v. Meagher, 104 U. S. 279; Sullivan v. Iron Silver M. Co., 109 U. S. 550. 2 See ante, §§ 447, 450, 451.

Harris v. Equator M. Co., 8 Fed. Rep. 863; Noyes v. Mantle, supra; Hess v. Winder, 30 Cal. 349; Gaylord v. Place, 98 Cal. 472; State ex rel. Baker v. District Court (Mont.), 62 Pac. Rep. 882; Hale, etc. M. Co. v. Story County, 1 Nev. 83; Atkinson v. Tabor, 7 Colo. 195, 3 Pac. Rep. 64.

4 Gaylord v. Place, supra.

5 McKeon v. Bisby, 9 Cal. 137; Hughes v. Devlin, 23 Cal. 501; State v. Moore, 12 Cal. 56, 70; Hamilton v. Southern Nevada M. Co., 33 Fed. Rep. 582.

6 Id. In Colorado the possessory title to a mining claim may be sold for delinquent taxes, patented and unpatented claims being liable alike to taxation. See Appendix "B."

generally involved in questions arising in adverse suits, and will be considered under that head. But in passing it is proper to say that, as a general rule, almost without qualification, the law applicable to such a condition is that the first in time is strongest in right. As was said by the California court in a recent case: "It is familiar history in mining districts that claims have often been found to overlap one another to a greater or less extent. In such cases the question as to the ground covered by the two locations has been: which location was prior in time and superior in right? And it has never been held, so far as we know, that either of them must wholly fail because of the conflict. On the contrary, in so far as the ground taken was vacant, each location, if properly made in other respects, has been considered to be valid and sufficient."1

470. No dower interest attaches in mines before patent. While the general rule at common law was that dower attached to open and improved mines and quarries,2 and that rule is recognized in this country so far as it relates to mining and mines elsewhere than on the public domain of the United States, wherever the right of dower exists, nevertheless it did not attach to copyhold lands at the common law, and for reasons equally cogent it may be considered as settled that no dower attaches to unpatented mines in this country. This question was carefully considered in the case mentioned above, which was carried to the supreme court of the United States, in the course of the opinion wherein the court takes occasion to say: "By the terms of the statute there is no grant of any right to the wife. It is granted to the locator and his heirs and assigns,

1Doe v. Tiley, 73 Cal. 21, 14 Pac. Rep. 375. See also Argentine M. Co. v. Benedict, 18 Utah, 183, 55 Pac. Rep. 559.

210 Am. & Eng. Encyc. Law, p. 158 (2d ed.). See also post, Part XII, ch. IL

3 Black v. Elkhorn M. Co., 52 Fed. Rep. 859, 3,C. C. A. 312; Duncan v. Nevassa Phosphate Co., 137 U. S. 547; 1 Scrib. Dower, p. 363.

4 Black v. Elkhorn M. Co., 163 U. S. 449.

and there is no condition that hampers the right to convey by incumbering it with an inchoate right of dower. And until he does some act towards paying the purchase-money he obtains no vested right of purchase or to claim a patent."

While this decision on its face may seem to be somewhat at variance with the doctrine announced in the foregoing sections, that a mining location properly made constitutes an estate of inheritance, it is nevertheless in line with the firmly fixed opinion of both bench and bar in the mining states that school of contemporaneous construction whose interpretation should not be wholly ignored. Moreover, it agrees with the letter of the statute, which, by its terms, extends no such right; and if by the light of strict criticism a seeming contradiction is evolved, and an enlarged estate of the same character in one case is diminished in another, it is better that the law be settled upon the line of preconceived opinion, even at the expense of a slight warping of the statute, than that a decision be made which would unsettle many titles and furnish excuse for ruinous litigation.

1 Citing Benson M. & S. Co. v. Alta M. & S. Co., 145 U. S. 428; Shepley v. Cowan, 91 U. S. 330.

CHAPTER II.

OF ANNUAL LABOR AND ASSESSMENT WORK.

§ 475. The statutory requirements - Definitions.

476. The statute had its birth in the customs of the miners.

477. Miners' rules have their origin in the Mexican law and in cus

toms of England.

478. Time within which to perform.

479. Where work should be done.

480. Same subject - Work upon one of several claims held in com

mon.

481. Discussion and comparison of cases as to claims held in common, whence the divergence, and what the true rule.

482. Work must be performed in good faith upon claims held in common, and must tend to develop.

483. Same-Whether work tends to develop is a question of fact. 484. Does not apply to a partitioned claim.

485. What is sufficient as annual labor.

486. What has been held insufficient.

487. Statute mandatory - Effect of failure to do annual labor.

488. Same-Some special cases noted - How far treated here.

489. Same-Compliance with federal statute sufficient - When claimant excused from performing work.

490. Same subject - Statutes excusing annual labor - Who may take advantage of.

491. Who may take advantage of failure to do work-Effect on overlapping claims.

492. Value of labor and improvements - Not essential that work be

paid for.

493. Work must be performed up to issuance of receiver's receipt. 494. By whom work should be performed.

495. Same-Work done by equitable owner

appointed to perform work.

496. How annual labor may be proved.

When receiver will be

497. Development work is required by Canadian law. 498. The doctrine of this chapter restated.

§ 475. The statutory requirements - Definitions.- As a condition precedent to holding and operating mining property within the mining states and territories, the statute

requires that: "On each claim located after the tenth day of May, eighteen hundred and seventy-two, and until a patent has been issued therefor, not less than one hundred dollars' worth of labor shall be performed or improvements made during each year. And upon a failure to comply with these conditions, the claim or mine upon which such failure occurred shall be open to relocation in the same manner as if no location of the same had ever been made, provided that the original locators, their heirs, assigns or legal representatives, have not resumed work upon the claim after forfeiture and before such location."1

This act was amended in 1875 so as to allow work done in a tunnel, the property of the owner or owners of the claim, to apply in satisfaction of the statute in the same manner, and to the same extent, as if such work had been done upon the surface. The work thus required has been designated by various titles by the different courts which have had occasion to construe these acts of congress, some courts styling it as annual labor,3 and others as assessment work, while the land office usually designates it as representation work."

476. The statute had its birth in the customs of the miners. The experience of miners, from the beginning of mining in California and the western states and territories, demonstrated that some rule or regulation, requiring

1 Act of May 10, 1872, 17 Stat. at L., p. 92, § 5; R. S. U. S., § 2324.

2 Act of Feb. 11, 1875, 18 Stat. at L., p. 315; Supp. to R. S. U. S., vol. 1, p. 62.

See post, § 481, note 3, p. 452; Honaker v. Martin, 11 Mont. 91, 27 Pac. Rep. 397; Slavonian M. Co. v. Perasich, 7 Fed. Rep. 331. See also Wade on Mining Law, § 29.

4 Utah Mining & Mfg. Co. v. Dick ert & Myers Sulphur Co., 6 Utah, 183, 21 Pac. Rep. 1002; Klopenstine v. Hays, 20 Utah, 45, 57 Pac. Rep. 712; Thompson v. Jacobs, 3 Utah,

246. 2 Pac. Rep. 714. And this is the term usually employed by min. ers in speaking of the statutory requirements. See also Barr. & Ad. Mines, p. 263.

5 General Circular of Oct. 31, 1881, SS 17, 18; Copp's Min. Lands, p. 35. See also Renshaw v. Switzer, 6 Mont. 464, 13 Pac. Rep. 127; Chambers v. Harrington, 111 U. S. 350. The last circular of the land office classes it as annual expenditure. Circular of General Land Office, June 24, 1899, pages 14, 15, 37.