pant of lands, who is technically a trespasser, has rights of less dignity than one who enters with the consent of the paramount proprietor under rules defining the terms of his occupancy and the extent and limit of his rights.

Prior to the issuance of a patent the locator cannot be said to own the fee-simple title. The fee resides in the general government, whose tribunals, specially charged with the ultimate conveyance of the title, must pass upon the qualifications of the locator and his compliance with the law. Yet, as between the locator and every one else save the paramount proprietor, the estate acquired by a perfected mining location possesses all the attributes of a title in fee, and so long as the requirements of the law with reference to continued development are satisfied, the character of the tenure remains that of a fee. As between the locator and the government, the former is the owner of the beneficial estate, and the latter holds the fee in trust, to be conveyed to such beneficial owner upon his application in that behalf and in compliance with the terms prescribed by the paramount proprietor.1

Until patent issues the locator's muniments of title consist of the laws under the sanction of which his rights accrue, the series of acts culminating in a completed valid location, and those necessary to be continuously performed to perpetuate it.

A mining claim perfected under the law is property in the highest sense of that term, which may be bought, sold, and conveyed, and will pass by descent. It has the effect of a grant by the United States of the right of present and exclusive possession of the lands lo

Noyes v. Mantle, 127 U. S. 348, 351, 8 Sup. Ct. Rep. 1132; Dahl v. Raunheim, 132 U. S. 262, 10 Sup. Ct. Rep. 74; Gillis v. Downey, 85 Fed. 483.

cated.1 Actual possession is not more necessary for the protection of the title acquired to such a claim by a valid location than it is for any other grant.2

Although the locator may obtain a patent, this patent adds but little to his security.3

The owner of such a location is entitled to the exclusive possession and enjoyment, against every one, including the United States itself."

"Where there is a valid location of a mining claim "the area becomes segregated from the public domain "and the property of the locator. . . . ... He may sell it, "mortgage it, or part with the whole or any portion of "it as he may see fit."

He is entitled to the most plenary and summary remedies for quieting his claim cognizable in equity."

As was said by the supreme court of Oregon," the general government itself cannot abridge the rights of the miner. There are equitable circumstances binding upon the conscience of the governmental proprietor that must never be disregarded. Rights have become vested that cannot be divested without the violation of all the principles of justice and reason. The same funda

8

Forbes v. Gracey, 94 U. S. 762; Gillis v. Downey, 85 Fed. 483, 487; Stratton v. Gold Sovereign M. and T. Co., 1 Leg. Adv. 350; Phoenix M. and M. Co. v. Scott, 20 Wash. 48, 54 Pac. 777; McCarthy v. Speed, 11 S. Dak. 362, 77 N. W. 590. See, ante, § 322, note 1, p. 581.

2 Harris v. Kellogg, 117 Cal. 484, 49 Pac. 708; McCarthy v. Speed, 11 S. Dak. 362, 77 N. W. 590; Bramlett v. Flick, 23 Mont. 95; 57 Pac. 869; Belk v. Meagher, 104 U. S. 279; Gwillim v. Donnellan, 115 U. S. 45, 5 Sup. Ct. Rep. 1110.

Chambers v. Harrington, 111 U. S. 350, 4 Sup. Ct. Rep. 428.

4 McFeters v. Pierson, 15 Colo. 201, 22 Am. St. Rep. 388, 24 Pac. 1076; Gold Hill Q. M. Co. v. Ish, 5 Or. 104; Seymour v. Fisher, 16 Colo. 188, 27 Pac. 240.

5 St. Louis M. and M. Co. v. Montana Limited, 171 U. S. 650, 655, 19 Sup. Ct. Rep. 61.

Gillis v. Downey, 85 Fed. 483.

'Gold Hill Q. M. Co. v. Ish, 5 Or. 104.

To the same effect, see Merced M. Co. v. Fremont, 7 Cal. 317, 327, 68 Am. Dec. 262; Conger v. Weaver, 6 Cal. 548, 65 Am. Dec. 528.

mental rules of right and justice govern nations, municipalities, corporations, and individuals.1 The government may not destroy the locator's rights by withdrawing the land from entry or placing it in a state of reservation.2

The doctrine hereinbefore enunciated has never been seriously questioned. It has been reiterated in many cases in both the state and federal courts.3

The supreme court of Oregon has said that the nature of title or rights acquired or held by a locator in possession of a mining claim prior to his compliance with the provisions of the statutes of the United States entitling him to a patent is difficult to determine from authorities; that prior to such compliance it is agreed he has an absolute right of possession; that in many states this possessory right is by statute declared to be an interest in real estate and subject to seizure and sale as such, and the decisions of the courts holding it to be real estate are most, if not all, based upon some statutory provision.1

This may be quite true; but it is to be remembered

United States v. Northern Pac. R. R., 95 Fed. 864.

2 Military and National Park Reservations. Opinion Assistant Attorney-General, 25 L. D. 48.

3 Manuel v. Wulff, 152 U. S. 505, 14 Sup. Ct. Rep. 651; Black v. Elkhorn M. Co., 163 U. S. 445, 16 Sup. Ct. Rep. 1101, S. C. before Judge Knowles, 49 Fed. 549; McFeters v. Pierson, 15 Colo. 201, 22 Am. St. Rep. 388, 24 Pac. 1076; Seymour v. Fisher, 16 Colo. 188, 27 Pac. 240; Wills v. Blain, 4 N. Mex. 378, 20 Pac. 798; Harris v. Equator M. and S. Co., 3 McCrary, 14, 8 Fed. 863; Keeler v. Trueman, 15 Colo. 143, 25 Pac. 311; Houtz v. Gisborn, 1 Utah, 173; Talbott v. King, 6 Mont. 76, 9 Pac. 434; Silver Bow M. and M. Co. v. Clark, 5 Mont. 378, 5 Pac. 570; McKinley Creek M. Co. v. Alaska United M. Co., 183 U. S. 563, 571, 22 Sup. Ct. Rep. 84; McCarthy v. Speed, 11 S. Dak. 362, 77 N. W. 590; Phoenix M. and M. Co. v. Scott, 20 Wash. 48, 54 Pac. 777; Mt. Rosa M. M. and L. Co. v. Palmer, 26 Colo. 56, 77 Am. St. Rep. 245, 56 Pac. 176; Davidson v. Calkins, 92 Fed. 230.

+ Herron v. Eagle M. Co., 37 Or. 155, 61 Pac. 417.

that the statutory enunciation of the principle was in the beginning but an expression in a higher form of a rule which had its origin in local customs, -the "Ameri"can common law of mines, "-and the acceptance of the doctrine by the federal tribunals arose out of a consideration of these equitable circumstances. It cannot be doubted that each state may determine for itself the nature or character of actions which may be maintained in its courts for the redress of private wrongs, and may in this behalf, and perhaps others, classify interests in real property as chattels or chattels real, or declare that a given privilege exercised with reference to land shall not be classified as an interest in real estate, for the purpose of either litigation or taxation. But this does not, as we understand it, militate against the dignity of the estate in an unpatented mining claim accorded by the decisions of all the courts, state and federal, from the beginning.

The principles here discussed will again be the subject of consideration when we deal with the nature of the remedies which are available to the owner of a mining claim and the forum in which actions are to be brought to redress injuries thereto.

540. Nature of the estate compared with copyholds at common law.-It has been said that the interest of a locator of a mining claim is, in some respects, not unlike that of a copyholder at common law; that both had their origin in local customs, and in each the custom crystallized into law; that the copyholder held his land by the custom of the manor, and while the fee remained in the lord the right to the possession and enjoyment of the premises was in him. He might alienate his lands at will, and on his death they descended to his heirs; the

copyholder was a feeholder, yet the fee was in the lord.1

The same authority states that the estate of the copyholder might be taken in execution for the payment of his debts. We are not sure that this is a correct statement of the rule of the common law. Blackstone says, speaking of this class of estates, that no creditor could take possession of lands, but could only levy upon the growing profits, so that if the defendant aliened his lands the plaintiff was ousted of his remedy. Therefore, copyhold lands were not liable to be taken in execution upon a judgment.2 The American authorities

seem to support this view.3

Be that as it may, there is one essential difference between the two estates with reference, at least, to the extent of the thing possessed and enjoyed.

In copyhold, or customary lands, the lord of the manor is owner of the minerals, but the tenant is in possession of them, and consequently, in the absence of prescription or a special custom to the contrary, the one cannot explore mines without the consent of the other, although the tenant may continue the working of mines and quarries already opened.*

541. Nature of the estate compared with the dominium utile of the civil law. The nature of the estate held by a locator in a mining claim bears some resemblance to the emphyteusis or dominium utile of the Roman or civil law. Although the emphyteuta did not become owner of the thing, yet he had nearly all the

1 Black v. Elkhorn, 52 Fed. 859.

3 Blackstone, 418-419.

Watson on Sheriffs, 208; Wildey v. Bonny, 26 Miss. 35; Colvin v. Johnson, 2 Barb. 206; Bigelow v. Finch, 11 Barb. 498; 17 Barb. 394.

Rogers on Mines, 270; MacSwinney on Mines, 72; Arundell on Mines, 4; Bainbridge on Mines, 4th ed., p. 37.