TITLE VI.

THE TITLE ACQUIRED AND RIGHTS CONFERRED BY LOCATION.

CHAPTER

I. THE CHARACTER OF THE TENURE.

II. THE NATURE AND EXTENT OF PROPERTY RIGHTS CONFERRED BY LODE LOCATIONS.

III. THE EXTRALATERAL RIGHT.

IV. THE NATURE AND EXTENT OF PROPERTY RIGHTS CONFERRED BY PLACER LOCATIONS.

V. PERPETUATION OF THE ESTATE BY ANNUAL DEVELOP. MENT AND IMPROVEMENT.

VI. FORFEITURE OF THE ESTATE, AND ITS PREVENTION BY RESUMPTION OF WORK.

535. Nature of the estate as defined by the early decisions. It is somewhat difficult to comprehensively classify the nature of the estate acquired and held by the possessor of a valid mining location by the use of any definitive term recognized by the common law or employed in the United States to designate a particular tenure.1

In the early history of mining jurisprudence, the estate or interest acquired by the miner in his claim, held and worked under the local rules and customs, was treated as an interest in real property. It was liable to sale on execution, and was subject to taxation."

1

1 Judge Knowles in Black v. Elkhorn M. Co., 49 Fed. 549. McKeon v. Bisbee, 9 Cal. 137, 70 Am. Dec. 642.

3 State of Cal. v. Moore, 12 Cal. 56; People v. Shearer, 30 Cal. 645; Hale & Norcross M. Co. v. Storey County, 1 Nev. 82; People v. Taylor, 1 Nev. 88; Forbes v. Gracey, 94 U. S. 762.

The supreme court of California thus announced its views:

66

"From an early period of our state jurisprudence we "have regarded these claims to public mineral lands as "titles. They are so practically. . . . Our courts have given them the recognition of legal estates of free"hold; and so for all practical purposes, if we except some doctrine of abandonment not perhaps applicable "to such estates, unquestionably they are, and we think "it would not be in harmony with the general judicial "system to deny to them the incidents of freehold es"tates in respect to this matter."1

And in a later case the same tribunal stated the rule to be:

"That although the ultimate fee in our public miner"al lands is vested in the United States, yet, as between "individuals, all transactions and all rights, interests, "and estates in the mines are treated as being an estate "in fee and as a distinct vested right of property in "the claimant or claimants thereof, founded upon their "possession or appropriation of the land containing "the mine. They are treated, as between themselves "and all persons but the United States, as the owners "of the land and mines therein." 2

As was said by the supreme court of Nevada, the courts and the laws adapting themselves to the necessity of the case, and governed by rules of common sense, reason, and necessity, have universally treated the possessory rights of the miner as an estate in fee. Actions for possession, similar to the action of ejectment,3 actions to quiet title, actions of trespass, bills for parti

Merritt v. Judd, 14 Cal. 60, cited and approved in Roseville Alta Co. v. Iowa Gulch, 15 Colo. 29, 22 Am. St. Rep. 373, 24 Pac. 920; Spencer v. Winselman, 42 Cal. 479.

2 Hughes v. Devlin, 23 Cal. 502, 507; Watts v. White, 13 Cal. 321. Davidson v. Calkins, 92 Fed. 230.

Mt. Rosa M. M. and L. Co. v. Palmer, 26 Colo. 56, 77 Am. St. Rep. 245, 56 Pac. 176.