vide for exceptional cases where reason and common sense required a different regulation.

The case of the Bear river claim was of this exceptional character. The placer deposit was in a cañon on the banks of a very crooked stream, and where the adjoining lands were totally unfit for mining or agricultural purposes. The placer applicant was permitted to proceed to patent.

There can be no question but that this ruling is in harmony with the custom of miners in California. This particular river was, from 1852 to 1867, the scene of great mining activity, and for miles up and down the stream, during the season when the stage of the water would permit, miners claimed, occupied, and worked its bed, bars, and banks, under regulations defining the extent of their claims by a certain number of feet along the stream, and a width extending to the sides of the gulch. The ruling of Secretary Teller was followed in a later case by Acting Secretary Muldrow.1

While it is true that congress is not bound to shape its legislation so as to conform to the previously existing local customs, yet the history of federal mining legislation shows that great consideration has been paid to such customs. Evidently, there was some reason for the modification of the original placer act in this respect, and there can be no doubt that Secretary Teller states the "old law, the mischief, and the remedy" correctly.

These gulch or river claims, as well as deep placers found in ancient river-beds where the deposits follow the meanderings of the channel, certainly present instances where it would be unreasonable in all cases to insist that a mining claimant should take and pay for, at an increased rate, any considerable amount of land that is useless for mining purposes, for the sake of

In re Pearsall and Freeman, 6 L. D. 227. But see Miller Placer, 30 L. D. 225.

obtaining title to the small quantity which is useful.1 The inconvenience to the government in administering its land system is no greater in this respect than that caused by the segregation of lode claims.2

A patent for a placer claim should describe with mathematical accuracy the land intended to be conveyed thereby, and where such a degree of accuracy cannot be obtained under an application that embraces land theretofore surveyed and returned in irregular subdivisions as "lots," an additional survey will be required.3

Lands must be treated as unsurveyed until the plat is finally approved.*

The land department has said that a placer location must conform to the system of public land surveys and the rectangular subdivisions of such surveys, whether the locations are upon surveyed or unsurveyed lands." This is somewhat ambiguous. The secretary was criticising, in the case cited, an entry of a tract three miles long by from thirty to fifty feet wide, connecting two large tracts. The obvious intention was to point out the necessity for making placer locations in the rectangular form and in subdivisions of surveys conformable to the system of public land surveying. Locations cannot conform to lines of the public surveys until the lands have been surveyed.

Sometimes part of a township has been surveyed so that as a matter of calculation it is not difficult to determine the precise or proximate position of adjoining unsurveyed lands and the section number which would

'Esperance Mining Claim, 10 Copp's L. O. 338.

For illustration of manner of describing minor subdivisions located as placers, see Mining Circular, July 26, 1901, pars. 23, 24. See Appendix.

Holmes Placer, 26 L. D. 650.

Copp's Min. Dec. 41. Ante, §§ 104, 105, 142; Bullock v. Rouse, 81 Cal. 590, 595, 22 Pac. 919; Medley v. Robertson, 55 Cal. 396.

Miller Placer, 30 L. D. 225.

be given them when surveyed. The proximity of the unsurveyed to the surveyed lands has led to an error quite common of treating these unsurveyed lands as if the lines of the public surveys had been extended over them, and locating placer claims thereon by the government subdivision which the locator determines would be created when the system of surveys is extended over them. But such a description would not identify anything and would not satisfy the law.1

It may be practicable where discoveries are made in a region over which the public surveys have been partially extended to perfect by unofficial and private surveys the township and section lines, and in addition to a description by metes and bounds, which would certainly be necessary, there might be added a statement that the subdivision so located would, if the government surveys were extended, embrace such and such a tract, describing the probable result of the extension of such surveys. But this would be impracticable in most cases, and would entail an expense upon a placer locator not contemplated by the law and the results of which would in no sense be binding upon the government. In new regions over which the government has as yet established neither base nor meridian lines, as in Alaska, or in the unsurveyed public domain far removed from surveyed public lands, the method is not only impracticable but impossible. We incline to the view that, as a general rule, locations upon unsurveyed lands may be made in any form so long as the statutory area is not exceeded.

448a. Limitation as to size and form of claims under district rules.-During the period when placer mining claims were governed entirely by the local district

1

1 Terry v. Megerle, 24 Cal. 610, 85 Am. Dec. 84; Barnado's Heirs v. Ashley's Heirs, 18 How. 43; Grogan v. Knight, 27 Cal. 516; Robinson v. Forrest, 29 Cal. 318; Middleton v. Low, 30 Cal. 596; State v. Central Pac. R. R., 21 Nev. 94, 25 Pac. 442; Bullock v. Rouse, 81 Cal. 590, 22 Pac. 919.

regulations, the size and shape of the claims varied in different localities, based somewhat on the manner of occurrence of the deposits. Since the passage of the congressional laws on the subject there has been no attempt by state or territorial legislation to limit the size of claims to less than the unit of location sanctioned by the United States mining laws, -i. e. twenty acres.

As to the power of the local mining districts to provide for such limitation, there has been but little discussion by the courts.

The supreme court of Idaho expressed the view that such a rule or custom was reasonable and entirely in harmony with the spirit of the laws.1

The regulations of the land department for many years contained the following:

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66

"The foregoing provisions of the law are construed to mean that after the ninth day of July, 1870, no loca"tion of a placer claim can be made to exceed one hun"dred and sixty acres whatever may be the number of locators associated together, or whatever the local regulations of the district may allow; and that from " and after May 10th, 1872, no location made by an indi"vidual can exceed twenty acres, and no location made "by an association of individuals can exceed one hun"dred and sixty acres, which location of one hundred "and sixty acres cannot be made by a less number than "eight bona fide locators; and no local laws or mining regulations can restrict a placer location to less than twenty acres, although the locator is not compelled to "take so much." 2

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This was changed, however, by the adoption of later rules, which eliminated the last clause quoted above in italics.3

Whether this indicates a change of opinion on the part of the department as to the power of the local dis'Rosenthal v. Ives, 2 Idaho, 244, 12 Pac. 904.

'Circular, Dec. 10, 1891, par. 61.

'Circular, Dec. 15, 1897, par. 35, 25 L. D. 573; Circular, June 24, 1899, par. 35, 28 L. D. 599; Circular, July 26, 1901, par. 29. See Appendix.

tricts to place a limitation on the size of claims, or suggests that, in the judgment of the secretary, the subject was one not strictly within the scope of departmental regulations, or that the interpretation of the statute should not be prejudged by him until his jurisdiction in a contested case should be invoked, is difficult to determine.

The regulations of the Cape Nome mining district, Alaska, adopted October 15, 1898, provided that placer claims should be located thirteen hundred and twenty feet long by six hundred and sixty feet, making an area of twenty acres.

The validity of this regulation, so far as it prescribed the form of the location, was involved in a suit tried in the United States district court for the district of Alaska, second division.1

The court held that "No miner's rule, regulation, or "custom can limit him in the area or form of his claim, "nor in its width or length; that any such rule, regula"tion, or custom is void for conflict with both the spirit "and the letter of the placer mining law."2

8 448b. Surface conflicts with prior locations.-The reasons assigned by the courts for permitting junior lode claimants to place the lines of their locations upon or across lands which have been previously appropriated, a matter fully discussed in preceding sections,1 do not apply with equal force to placers. Yet the doctrine as to lode claims having been extended by the department so as to authorize the junior lode locator to

'Price v. McIntosh, unreported, pending on writ of error to circuit court of appeals, ninth circuit.

'Quoted from transcript in the circuit court of appeals. The property involved in the case was a bench claim in Glacier creek. It was not therefore within the purview of law providing for the exploration and mining for gold on the shore of Bering Sea, below the line of ordinary high tide, discussed in section 429.

§§ 363, 363a.