the adjacent ground beyond them. But as the character of the land is always a question of fact, if it should be determined that the tract contiguous to the end-lines is in fact non-mineral, there is no objection to appropriating it for millsite purposes.2

523. Nature of use required in case of location by lode proprietor.-The statute does not mention any particular mining purpose for which a millsite, selected by a lode proprietor, shall be used. If used in good faith for any mining purpose at all in connection with a quartz lode, such use would be within the meaning of the statute.3

The erection on the tract of a cabin, using the same for storage of tools and supplies, and ores in small quantities, has been held to be within the intent of the law.*

It has been said that using land for deposit of tailings, or storing ores, or for shops or houses for workmen; for collecting water to supply motive power for a quartz-mill, or for pumping works, or for obtaining water for use in developing the mine, might be considered proper uses in connection with a located lode.

8

But land cannot be entered as a millsite simply be

'See Mabel Lode, 26 L. D. 675; Paul Jones Lode (on review), 31 L. D. 359.

National Mining and Exploring Co., 7 Copp's L. O. 179; In re Long, 9 Copp's L. O. 188.

Hartman v. Smith, 7 Mont. 19, 14 Pac. 648; Silver Peak Mines v. Valcalda, 79 Fed. 886, S. C. on appeal, 86 Fed. 90.

Id. See, also, Eclipse Milisite, 22 L. D. 496.

Satisfaction Extension Millsite, 14 L. D. 173; In re Lenning, 5 L. D. 190.

Id. But see, contra, Peru Lode and Millsite, 10 L. D. 196.

'Sierra Grande M. Co. v. Crawford, 11 L. D. 338.

Gold Springs and Denver City Millsite, 13 L. D. 175. See Silver Star Millsite, 25 L. D. 165; Valcalda v. Silver Peak Mines, 86 Fed. 90.

cause it has timber growing thereon, which is valuable for use on a located lode claim,1 although the millsite locator may cut the timber growing on the millsite for the purpose of constructing his mill thereon.2

3

The department has permitted the entry of ground for dumpage purposes in tracts of greater area than five acres, on the theory that it was necessary for use in connection with mining, the land being more valuable for that purpose than any other; but this seems to us an unwarranted

on which tailings are deposited may be entered as a millsite, dum page grounds may also be entered for like reasons. Jt is quite clear that unless they may be entered under the millsite laws for this purpose, they cannot be entered at all.1

mills terpretation of the law. If ground

The fact that the lode claim in connection with which the millsite is used is patented is immaterial. A millsite may be appurtenant to a patented as well as an unpatented claim, and patent for the millsite may subsequently be applied for separately."

2524. Millsites used for quartz-mill or reduction works disconnected with lode ownership.-The right to patent a millsite under the last clause of section twentythree hundred and thirty-seven of the Revised Statutes depends upon the existence on the land of a quartz-mill or reduction works."

While the nature of the use required in case of the

Two Sisters Lode and Millsite, 7 L. D. 557.

In re Page, 1 L. D. 614.

34 Copp's L. O. 102.

4 See In re Burton, 29 L. D. 235.

Eclipse Millsite, 22 L. D. 496.

•In re Lenning, 5 L. D. 190; In re Cyprus Millsite, 6 L. D. 706; Two Sisters Lode and Millsite, 7 L. D. 557; Le Neve Millsite, 9 L. D. 460; Brodie Gold Reduction Co., 29 L. D. 143; Cleary v. Skiffich, 28 Colo. 362, 65 Pac. 59.

874

the

appropriation of a millsite as an adjunct to a located lode is not specified, and the law is satisfied so long as -purposes are reasonably associated with the lode to which it is appurtenant, in the case of sites selected under tu last clause of section twenty-three hundred and thirty-seven, the character of the use is distinctly specified. The right to a patent for a millsite under this clause depends upon the presence on the land sought to be patented of a quartz-millor reduction works.1

Land not improved or occupied for mining or milling purposes may not be appropriated as millsite for the purpose of securing the use of water thereon.2

Water rights upon the public domain may not be acquired under the millsite laws.

Reservoirs, dams, and plants for generating power do not fall within the designation of quartz-mills and re

duction works.3

? 525. Location of junior lode claims conflicting with senior millsites.-We have heretofore observed that jinior lode locators enjoy the privilege of placing the lin's of their locations upon or across lands which have prè viously been appropriated by others whether mineral oi non-mineral.1

The enunciation of this principle, however, has been accompanied by another,—that is, that the junior locator cannot by this method of placing his boundaries infringe upon or impair the rights acquired by the prior appropriator. This last principle is of undoubted application to patented millsites, as the issuance of a patent con

Brodie Gold Reduction Co., 29 L. D. 143.

In re Cyprus Millsite, 6 L. D. 706; Mint Lode and Millsite, 12 L. D. 624.

3 Le Neve Millsite, 9 L. D. 460; In re Lenning, 5 L. D. 190; Two Sisters Lode and Millsite, 7 L. D. 557.

'Ante, §§ 363, 363a.

clusively presumes that the land covered by it is non-
mineral.1 But suppose it is discovered at any time
after the location of the millsite and prior to the issu-
ance of a patent therefor that the land embraced within
it contains the apex of a discovered vein,-may a junior
lode locator place his lines within the millsite boundary
so as to deprive the millsite owner of that part of the
tract embraced within the junior lode location? Under
the placer laws a lode discovered within the limits of the
prior placer claim might, by a peaceable entry in good
faith on the surface of the placer, be located by a junior
lode claimant, with surface ground of the width of fifty
feet, and to this extent the rights of the prior placer
claimant must yield. But there is no such provision
with reference to millsites or other class of non-mineral
land. It is quite well settled, we think, that if at any
time prior to the issuance of the patent for a millsite,
the land is shown to be mineral in character, no patent
therefor can issue, and the jurisdiction of the land de-
partment continues for the purpose of investigating the
character of the land until a patent is issued. Under
this state of facts, the question arises, as between a prior
millsite claimant and a conflicting junior lode locator
who attempts to embrace within a lode location the
apex of a previously discovered vein,-would the in-
quiry as to the character of the land be addressed to
its known quality at the date of the millsite location, and
thus preclude the junior lode locator from acquiring
any rights against the millsite claimant, or would the
discovery of the vein within the millsite at any time
prior to its passing to patent, render the vein subject
to location by one entering peaceably and in good faith
for that purpose?

The supreme court of Colorado is of the opinion that the inquiry as to the character of the land must be addressed to its known condition at the time the millsite locator's rights attached,- that is, the date upon which he took the first step in the series which culminated in the perfection of the location. Unless at that date the millsite area contained deposits which were then known to be valuable, and which could be worked at a profit, the junior lode claimant could not acquire any rights as against the millsite claimant.1

3

There is much to be said in favor of this rule, but it seems to us that it is not in harmony with the rule applied in cases of railroad grants,2 homestead and preemption filings, as well as townsite and placer claims. If lands within a millsite location could not be patented when they are discovered to be mineral, why should the millsite claimant be permitted to hold them under a law which interdicts the acquisition by millsite title of mineral lands? There is no presumption arising from a mere location that lands embraced within it are of a given character. If the return of the surveyor-general shows the land to be non-mineral, the presumption that it is of this character is only prima facie, and it is subject to contestation.*

Perhaps it would be the safer rule, and more in harmony with equitable considerations, to hold that when any claimant initiated an inchoate right to a tract of the public non-mineral land no discovery of mineral subsequent to the taking of the first step in the series of acts which might ultimately culminate in a final entry or patent should defeat the right of the non-mineral appropriator. But clearly this is not the rule followed by the executive department, as we have heretofore noted. Ante, §§ 205-206. • Ante, § 106.

1 Cleary v. Skiffich, 28 Colo. 362, 65 Pac. 59.

3

Ante, 88 154, 156.