tion,1 are constantly maintained. Such interests are held to descend to the heir,2 to be subject to sale on execution, and to be assets in the hands of executors and administrators for the payment of debts.* 3 2536. Origin of the doctrine. -The dignity thus attaching to the miner's title had its genesis in the early history of mining in the west, and was founded upon the law of possession. It was the natural result of the recognition by local legislatures of mining rights in the public domain, and the exercise of such rights by appropriation under the local rules and customs. As no intruder upon the possession of a prior appropriator could successfully defend an action involving possessory rights by asserting that the paramount title was in the general government, this antecedent possession was in itself sufficient evidence of title. This was nothing more than the application of a familiar rule of the common law that, as against a mere trespasser, title may be inferred from possession. The actual possessor of real property was so far regarded by law as the owner thereof that no one could lawfully dispossess him of the same without showing some well-founded title of a higher or better character than such possession itself furnishes." The early announcement of the doctrine by the courts in the mining states that controversies between occu 1 Dall v. Confidence S. M. Co., 3 Nev. 531, 93 Am. Dec. 419; Aspen M. etc. Co. v. Rucker, 28 Fed. 220, (disapproving Strettell v. Ballou, 3 McCrary, 46, 9 Fed. 256). But it is seldom that a division of mines may be made. Generally, partition suits must result in sale. Aspen M. and S. Co. v. Rucker, 28 Fed. 220; Lenfers v. Henke, 73 Ill. 405, 24 Am. Rep. 263. See, also, Coleman v. Coleman, 19 Pa. St. 100, 57 Am. Dec. 641. Lohman v. Helmer, 104 Fed. 178. 3 Phoenix M. and M. Co. v. Scott, 20 Wash. 48, 54 Pac. 777; Butte Hardware Co. v. Frank, 25 Mont. 344, 65 Pac. 1. Hale & Norcross G. and S. M. Co. v. Storey County, 1 Nev. 83. 53 Washburn on Real Property, 3d ed., p. 114; 5th ed., p. 134. pants of the public mineral lands were to be determined by the law of possession, and that persons claiming and in the possession of mining claims on these lands were, as between themselves and all other persons, except the United States, owners of the same, having a vested right of property founded on their possession and appropriation,' was the declaration of no new canon of jurisprudence. The enunciation of the rule that the naked possessor of land was deemed in law the owner until the general government or a person showing title under it makes an entry upon the same, and that when this was done the right or claim of the possessor must yield to the paramount authority of the United States or its grantee,2 was but a restatement of a well-established rule of law. It is also a familiar doctrine of the common law that where one, under a title deed describing a parcel of land by metes and bounds, enters upon the premises, claiming to hold the same under his deed, he is constructively in possession of all that is included in his deed, though he actually occupies but a part; and, by the same rule, any instrument having a grantor and a grantee, and containing an adequate description of the lands to be conveyed and apt words for their conveyance, gives color of title to the lands described.* The application of these elementary rules to the novel and peculiar conditions surrounding the early history of the mining industry in the west, evolved a new color of title by which the extent of a miner's right of possession was determined. Hughes v. Devlin, 23 Cal. 502. Doran v. C. P. R. R., 24 Cal. 245. $3 Washburn on Real Property, 3d ed., p. 118; 5th ed., p. 138. Id., 3d ed., p. 139; 5th ed., p. 167; Brooks v. Bruyn, 35 Ill. 392. 537. Actual and constructive possession, under miners' rules.-It was early announced as a rule of · property that mining claims were held by compliance › with local rules, and pedis possessio was not required to give a right of action. When the claim was defined, and a party entered into possession of a part, that possession was possession of the entire claim as against any one but the true owner or prior occupant, and priority of occupation established a priority of right.2 This doctrine of constructive possession was even extended to instances where the right asserted was not referable to local rules. Thus it was held that mining ground acquired by an entry under a claim for mining purposes upon a tract the bounds of which were distinctly marked by physical marks, accompanied with actual occupancy of a part of the tract, was sufficient to enable the possessor to maintain ejectment for the entire claim, although such acts of appropriation were not done in accordance with any local mining rule.3 In such case, however, the extent of such location was not without limit. The quantity taken must have been reasonable, and whether it was so or not was to be determined in such cases by the general usages and customs prevailing upon the general subject. If an unreasonable quantity was included within the boundaries, the location was ineffectual for any purpose, and possession under it only extended to the ground actually occupied.* But, as a rule, mere entry and possession gave no Attwood v. Fricot, 17 Cal. 37, 76 Am. Dec. 567; English v. Johnson, 17 Cal. 107, 76 Am. Dec. 574; Roberts v. Wilson, 1 Utah, 292. 'Gibson v. Puchta, 33 Cal. 310. *Table Mountain T. Co. v. Stranahan, 20 Cal. 199; Hess v. Winder, 30 Cal. 349. See Valcalda v. Silver Peak Mines, 86 Fed. 90. Table Mountain T. Co. v. Stranahan, 20 Cal. 199. See Mallett v. Uncle Sam M. Co., 1 Nev. 156. right to the exclusive enjoyment of any given quantity of the public mineral lands.1 Where an occupant relied upon constructive possession, it devolved upon him to establish three essential facts: (1) That there were local mining customs, rules, and regulations in force in the district embracing the claims; (2) That particular acts were required to be performed in the location and working of the claims; (3) That he had substantially complied with the requirements.2 This rule was somewhat relaxed in favor of a purchaser who entered under a deed which contained definite and certain boundaries which could be marked out and made known from the deed alone, which was nothing more than a reiteration of the doctrine of the common law relative to entries under color of title, heretofore mentioned. The miner's title extended to such mining lands as were reduced to his actual possession, or to such as were constructively in his possession, according to the rules above enumerated. 2 538. Federal recognition of the doctrine. - While the government passively encouraged and fostered the system of development of the mineral resources as practiced in the mining states and territories, it gave no legislative expression of its encouragement, or any recognition that the occupants of the public mineral lands were other than mere trespassers, until February 27, 1865, when congress passed an act providing for a district and circuit court for the state of Nevada, the ninth section of which provided as follows: 1 Smith v. Doe, 15 Cal. 101; Gillan v. Hutchinson, 16 Cal. 154. Hess v. Winder, 30 Cal. 349. 66 any "That no possessory action between individuals in of the courts of the United States for the recovery "of any mining title, or for damages to such title, shall "be affected by the fact that the paramount title to the "land on which such mines are is in the United States; "but each case shall be adjudged by the law of posses"sion."1 This was re-enacted in the Revised Statutes, and forms a part of the general legislation of congress on the subject of mineral lands. 3 The supreme court of the United States, in the case of Forbes v. Gracey, approved and confirmed the doctrine of the early decisions as to the nature of a locator's estate. 66 "Those claims,” said that court," are the subject of bargain and sale, and constitute very largely the "wealth of the Pacific Coast states. They are property "in the fullest sense of the word, and their ownership, "transfer, and use are governed by a well-defined code or codes of law, and are recognized by the states and "the federal government. These claims may be sold, "transferred, mortgaged, and inherited, without infringing the title of the United States." 4 66 539. Nature of the estate as defined by the courts since the enactment of general mining laws.-With reference to the character of the estate held by a mining locator since the passage of the act of July 26, 1866, the decisions of the courts, both state and federal, are quite harmonious. They in no way antagonize the theories of the earlier decisions, but adopt them. Naturally, the definition is enlarged and perfected. A mere occu 4 94 U. S. 762. See, also, Del Monte M. and M. Co. v. Last Chance M. Co., 171 U. S. 55, 62, 18 Sup. Ct. Rep. 895. |