CHAPTER III.

LACERS AND OTHER FORMS OF DEPOSIT NOT "IN PLACE."

ARTICLE L. CHARACTER OF DEPOSITS SUBJECT TO APPROPRIATION UNDER LAWS APPLICABLE TO PLACERS.

II. THE LOCATION AND ITS REQUIREMENTS.

III. THE DISCOVERY.

IV. STATE LEGISLATION AS TO POSTING NOTICES AND PRELIMI

NARY DEVELOPMENT WORK.

V. THE SURFACE COVERED BY THE LOCATION ITS FORM AND

EXTENT.

VI. THE MARKING OF THE LOCATION ON THE GROUND.

VII. THE LOCATION CERTIFICATE AND ITS RECORD.
VIII.

CONCLUSION.

ARTICLE I. CHARACTER OF DEPOSITS SUBJECT TO APPROPRIATION UNDER LAWS APPLICABLE TO PLACERS.

8419. The general rule.-In a preceding chapter,1 in determining what constitutes "mineral land," which as such is susceptible of appropriation under the mining laws, we have to some extent anticipated much that might be properly said in defining the character of deposits which are subject to appropriation under the laws applicable to placers, and we have there endeavored 2 1 Ante, §§ 85-98. 'Ante, § 98.

to formulate general rules by which the mineral character of substances is to be established. In conformity with these rules, land of the public domain may be entered under the laws applicable to placers when it is shown to have upon or within it such a substance as falls within the classification named in section ninety-eight, if such substance is found in the form of superficial or other deposits not in place. If a discovered deposit satisfies the law as to its mineral character, and it is not found in veins of quartz, or other rock in place, it may be appropriated under the laws applicable to placers. What constitutes "rock in place" has been fully discussed.1

We say that all forms of deposit, other than those occurring in veins of rock in place, must be appropriated under the laws applicable to placers, for the reason that placers present, in popular estimation, the highest type of deposits which do not occur in veins of rock in place, and are the only class of such deposits as are individualized and specially named in the statute.2

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The right to acquire title to "claims usually called placers" was granted for the first time by the mining act of July 9, 1870.3

This has always been familiarly called the "placer law," in contradistinction to the "lode law" of July 26, 1866. The subsequent legislation preserved the distinction, so that, colloquially speaking, mineral deposits are to be treated either as lodes or placers. In time, placer, which was the name given by the Spaniards to the auriferous gravels of America, has become a generic term, in which all forms of deposit, other than those occurring in veins, are popularly included.

Dr. Raymond, in his "Glossary of Mining and Metal

1 Ante, §§ 299-301.

Rev. Stats., § 2329.

316 Stats. at Large, p. 217.

Moxon v. Wilkinson, 2 Mont. 421.

"lurgical Terms," defines the word placer as a deposit of valuable mineral found in particles in alluvium, or diluvium, or beds of streams, and enumerates gold, tin ore, chromic iron, iron ore, and precious stones, as being found in placers. He adds to the definition the statement that, by the United States statutes, all deposits not classed as veins of rock in place are considered placers.

As was said by the supreme court of the United States, in distinguishing the two classes of deposits: "Placer mines, though said by the statute to include all "other deposits of mineral matter, are those in which "this mineral is generally found in the softer material "which covers the earth's surface, and not among the "rocks beneath." 2

Assuming that our definition of "mineral," outlined in a previous chapter,3 is based upon a correct interpretation of the law, there should be but little difficulty in determining whether land containing a given substance not in place is subject to entry under the placer laws or not. The element of commercial value, its susceptibility of being extracted and marketed at a profit, and not its metallic or chemical character, are the controlling factors in determining the question.*

This is clearly shown, not only by the evolution of denotation, illustrated in the history of English jurisprudence and the decisions of the American courts, but by a long line of departmental rulings, uniform, except as to certain specific substances. As was said by the supreme court of the United States: "The construction given to a statute by those charged with the duty of

66

1 Trans. Am. Inst. M. E., vol. ix, p. 164.

'Reynolds v. Iron S. M. Co., 116 U. S. 687, 695, 6 Sup. Ct. Rep. 601. Ante, §§ 85-98.

Pacific Coast Marble Co. v. N. P. R. R. Co., 25 L. D. 233; Aldritt v. Northern Pac. R. R. Co., 25 L. D. 349; Phifer v. Heaton, 27 L. D. 57; McQuiddy v. State of California, 29 L. D. 181.

"executing it, is always entitled to the most respectful "consideration, and ought not to be overruled without "cogent reasons."'1

While this element of profit, or commercial value, has generally pervaded the rulings of the land department, we find that in dealing with certain specific substances, either by reason of their commonplace character, or the other extreme, their unique and peculiar properties, the department has lost sight of this controlling factor, and leaned toward strict and frequently, we think, strained rules of construction. Owing to the infinite variety in nature, the application to individual instances of general laws framed and construed on broad theories may seem to produce absurd results. But this in no sense proves that the law or the general rule of construction is absurd. We cannot conceive of any class of deposits of the general character under consideration which may not fairly be tested by the general rules announced in section ninety-eight.

That the true position of the land department upon this subject may be fairly presented, it is necessary to consider its rulings as to specific substances.

2420. Specific substances classified as subject to entry under the placer laws.-Among the substances, other than those of a metallic character, which have been classified as mineral, and when occurring in the form of deposits not in place, lands containing which have

1 Post, 666; United States v. Moore, 95 U. S. 760; Hastings and Dakota R. R. v. Whitney, 132 U. S. 357, 10 Sup. Ct. Rep. 112; Hahn v. United States, 107 U. S. 402, 2 Sup. Ct. Rep. 494; Brown v. United States, 113 U. S. 568, 5 Sup. Ct. Rep. 648; Doe v. Waterloo M. Co., 70 Fed. 455; 82 Fed. 45, 50; Calhoun G. M. Co. v. Ajax G. M. Co., 27 Colo. 1, 83 Am. St. Rep. 17, 59 Pac. 607; McFadden v. Mountain View M. and M. Co., 97 Fed. 670; Hawley v. Diller, 178 U. S. 476, 20 Sup. Ct. Rep. 986; Hewitt v. Schultz, 180 U. S. 139, 21 Sup. Ct. Rep. 309; United States v. Southern Pac. R. R., 184 U. S. 49, 22 Sup. Ct. Rep. 285; Fairbank v. United States, 181 U. S. 283, 21 Sup. Ct. Rep. 648.

been held to be subject to appropriation under the placer laws, we note the following:

Alum;1 asphaltum;2 borax; diamonds; gypsum;" kaolin, or china clay; marble; mica; soda, carbonate and nitrate; slate, for roofing purposes;10 umber;11 building-stone.12

As to these substances, we understand the rule is uniform, the elements of quantity and quality being present, by which the value of the land, for the purpose of removing and marketing the product, is determined. Other substances require specific mention.

2421. Building-stone, and stone of special commercial value.-As heretofore observed,13 congress, on August 4, 1892, enacted a law, wherein it provided that any person authorized to enter lands under the mining laws of the United States may enter lands that are chiefly valuable for building-stone under the provisions of the law in relation to placer mineral claims.14 The previous rulings by the land department, as to whether land containing stone of this character was subject to entry under the placer laws, were not uniform.

'Copp's Min. Lands, 50; 2 L. D. 707.

Copp's Min. Lands, 50.

Id. 50, 100; 2 L. D. 707; Copp's Min. Dec. 194; 1 Copp's L. O. 11. · Copp's Min. Lands, 88.

Id. 309; Phifer v. Heaton, 27 L. D. 57; McQuiddy v. State of California, 29 L. D. 181.

'Copp's Min. Lands, 121, 176, 209; 1 L. D. 565; Montague v. Dobbs, 9 Copp's L. O. 165; Aldritt v. Northern Pac. R. R. Co., 25 L. D. 349. 'Copp's Min. Lands, 176; Pacific Coast Marble Co. v. N. P. R. R. Co., 25 L. D. 233; Schrimpf v. Northern Pac. R. R. Co., 29 L. D. 327.

8 Copp's Min. Lands, 182.

Id. 50; 2 L. D. 707.

10 Copp's Min. Lands, 143; 1 Copp's L. O. 132.

11 Copp's Min. Lands, 161.

12 Forsythe v. Weingart, 27 L. D. 680.

13 Ante, § 139.

1427 Stats. at Large, p. 348.