Slike strani
PDF
ePub

rule adopted that the term "mineral" includes all classes of deposit, whether metallic or non-metallic.1 But the question here under consideration was neither involved nor discussed in the later departmental rulings.

It is not difficult to account for the dearth of adjudicated cases upon the subject now under consideration, so far as the courts are concerned. Primarily it is peculiarly within the province of the land department to interpret and apply the law to occurrences of this character. A careful search through the official reports of land department decisions, as well as the periodical literature dealing with mining questions, discloses the fact that there are few authentic expressions of opinion by the officials of the land department, and these are not sufficient to justify the assertion that there has been such a contemporaneous and uniform interpretation of the law as would be binding upon the courts. We give such instances as have come under observation.

Commissioner McFarland expressed the opinion that veins of clay or non-metalliferous substances were not subject to location as lodes, but might be entered as placers.2

At a time when the department entertained the view that salt deposits were subject to location under the mining laws a ruling was made to the effect that when a deposit of rock salt was found in an inclined position in the mass of the mountain in the form of a ledge it was subject to location under the lode laws.3

As to deposits of asphaltum or gilsonite, the occurrence of which in veins is illustrated in figure 30A, we

'Pacific Coast Marble Co. v. Northern Pacific R. R. Co., 25 L. D. 233. To same effect, Northern Pacific R. R. Co. v. Soderberg, 99 Fed. 506, 104 Fed. 425.

2 Montague v. Dobbs, 9 Copp's L. O. 165.

In re Megarrigle, 9 Copp's L. O. 113; post, § 515.

quote the following from the "Mining and Scientific "Press":-1

"The commissioner of the United States land office "has ruled that hydrocarbon claims, for example "asphaltum, bitumen, and gilsonite, must be located as "lode claims, not as placers. The ruling was made in a "contest between a senior placer location of a gilsonite "deposit in Rio Blanco county, Colorado, and a junior "lode location of the same ground. The ground of the "ruling was that gilsonite was found in fissures and was logically a lode deposit." 2

3

It is unnecessary for us to here reiterate the conclusions heretofore reached by us as to what is meant by the terms "mineral land" and "valuable deposits," as these terms are used in the mining laws. We think those conclusions were based upon the weight of authority. If they are correct, it follows, in our judgment, that land containing any substance, metallic or non-metallic, which possesses economic value for use in trade, manufacture, the sciences, or in the mechanical or ornamental arts, if such substance exists therein in veins or lodes of rock in place in sufficient quantities to render the land more valuable for the purpose of removing and marketing the product than for any other purpose, such land must be appropriated under the laws applicable to lodes.

This may be contrary to the popular notion. But if there is any logic in the law, it seems to us that there is

1 Vol. 83, p. 118.

The author was confronted with this question with reference to a vein of borax, occurring in San Bernardino county, California. Desiring to fortify his views as expressed in the first edition of the treatise, he asked the commissioner of the general land office for his opinion. It was given tentatively, with the suggestion that it was not to be considered in the light of an official precedent, but rather as an impression. His opinion thus given was as follows: The question whether a vacant tract of public land should be located as a placer or lode mining claim depends upon the geological formation, and not upon the kind of mineral. 'Ante, § 98.

AND MINING CLAIM

but one conclusion to be deduced, and that is the one we have adopted.

Perhaps instances of non-metallic substances occurring in veins of rock in place are rare, and the solution of the question not of great public importance. But it is a matter of public importance that the mining laws should be consistently construed, and that arbitrary interpretation should be avoided.

We are of the opinion that the metallic or non-metallic character of the contents of veins or lodes of rock in place is entirely immaterial, if they otherwise fulfill the requirements announced in section ninety-eight of this treatise.1

ARTICLE II. THE LOCATION AND ITS REQUIREMENTS.

327. "Location" and "mining "claim" defined.

§ 328. Acts necessary to constitute a valid lode location under the Revised Statutes, in the absence of supplemental state legislation and local district rules.

§ 329. The requisites of a valid lode location where supplemental state legislation exists.

§ 330. Order in which acts are performed immaterial; time, when non-essential.

§ 331. Locations made by agents.

327. "Location" and "mining claim" defined."Location" and "mining claim" may not always or necessarily mean the same thing. The supreme court of the United States has said that a mining claim is a parcel of land containing precious metal in its soil or rock. A location is the act of appropriating such parcel

This rule, however, would not apply to rock salt occurring in veins. See, post, § 513.

The use of the term "precious metal" in this connection is manifestly of no controlling importance. The Revised Statutes enumerate a number of metals which are in no sense "precious," and, as such statutes are interpreted, they include a great variety of substances which are not metallic.

according to certain established rules. The "location" in time became among the miners synonymous with the "mining claim" originally appropriated. If the miner has only the ground covered by one location, his "min"ing claim" and his "location" are identical, and the two designations may be indiscriminately used to denote the same thing. But if by purchase he acquires other adjoining "locations," and adds them to his own, then the term "mining claim" is frequently used colloquially to describe the ground embraced by all the locations.1

Judge Hillyer defined a "mining claim" to be that portion of the public mineral lands which the miner for mining purposes takes up and holds in accordance with the mining laws.2

As generally or colloquially used, the term "mining "claim" has no reference to the different stages in the acquisition of the government title. It may include all mines contiguous to each other and held under one ownership, whether patented or unpatented, if acquired under the mining laws.3

Where these terms are used in statutes, federal or state, their true meaning is to be determined from a consideration of the entire context, which involves, of course, the general scope and character of the legislation. A few illustrations from the adjudicated cases will serve to demonstrate this.

As was said by the supreme court of the United States,

"That which is located is called in section twenty"three hundred and twenty of the Revised Statutes and "elsewhere a 'claim,' or 'mining claim.' Indeed, the

1St. Louis Smelting Co. v. Kemp, 104 U. S. 636; McFeters v. Pierson, 15 Colo. 201, 22 Am. St. Rep. 388, 24 Pac. 1076. See, also, N. P. R. R. Co. v. Sanders, 49 Fed. 129, 135; In re Mackie, 5 L. D. 199.

Mt. Diablo M. and M. Co. v. Callison, 5 Saw. 439, Fed. Cas. No. 9886. 3 Bewick v. Muir, 83 Cal. 368, 372, 23 Pac. 389.

AND MINING CLAIM

"words 'claim' and 'location' are used interchange"ably."1

As used in section twenty-three hundred and twentyfour of the Revised Statutes, requiring a certain amount of work to be done annually upon "each claim," and in section twenty-three hundred and twenty-five, prescribing the amount of labor or improvements required as a condition precedent to the issuance of a patent, the word "claim" means "location." 2

As used in the revenue acts of the different states and territories, providing for the taxation or exemption from taxation of property, the term "mining claim" does not include patented mines.3

"Location" is the inception of the miner's title.

A statute of California provides that "every person "who performs labor upon any 'mining claim' has a the same. upon

"lien

[ocr errors]

In construing this law, the supreme court of that state has held that the lien extends to the whole claim, but by such a "claim" was meant a portion of the public lands to which the right of enjoyment has been asserted under the mining laws; that a Mexican grant containing eleven hundred and nine acres, and another three hundred and fourteen acres, upon which mining was conducted, the whole being known as the Guadalupe mine, was not a "mining claim," and no lien could be filed thereon. Nor is a tract of one hundred and sixty acres

'Del Monte M. and M. Co. v. Last Chance M. Co., 171 U. S. 55, 74, 18 Sup. Ct. Rep. 895.

'Opinion of Assistant Attorney-General Van Devanter, 27 L. D. 91. Post, 88 628, 673.

3 Salisbury v. Lane (Idaho), 63 Pac. 383; Waller v. Hughes (Ariz.), 11 Pac. 122.

Cal. Code Civ. Proc., § 1183.

Helm v. Chapman, 66 Cal. 291, 5 Pac. 352.

Williams v. Santa Clara Min. Assn., 66 Cal. 193, 5 Pac. 85; U. S. Min. Dec. 136, 142; Week's Min. Lands, 118.

« PrejšnjaNaprej »