LEGAL STATUS OF POSSESSORY CLAIMS.

The National Government the Source of Title.

By proper expressions in the Organic Act of each Territory or the Enabling Act of each State, the ownership of the United States in the public domain is declared as fundamental law. The attempt once made in California to assert a State ownership in mines, Hicks v. Bell, 3 Cal. 219, has long ago been abandoned.-Moore v. Smaw, 12 M. R. 429; 17 Cal. 199. The title to all lands in the French and Mexican cessions is, in the first instance, in the United States of America, excepting grants made by the old governments prior to the treaties. These cessions include all land west of the Mississippi River except the old Territory of Oregon.

The fee simple thus remaining in the government, all citizens, or persons who have declared their intention to become citizens, are allowed to enter upon the unappropriated public domain and acquire title to mineral lands by complying with certain regulations intended to preserve the peace and protect the first occupant.

Before the passage of Acts of Congress to this effect, the assertion of claims to mines by discoverers had been recognized by district rules, local statutes and decisions of courts. But ever since 1866 the matter has been regulated by specific Acts of Congress, supplemented by district rules and local legislation concerning the details of location and the manner of perfecting title.

Whether a Vested Estate.

That a possessory mining claim is a vested estate, is no longer debatable. It is "property in the highest sense of that term." Its legal status is clearly and learnedly stated by GILBERT, J., in O'Connell v. Pinnacle Co. 140 F. 854. This opinion, as well as the decision which it affirms (131 F. 106), gives the distinction between such a mining title and a pos

sessory pre-emption or homestead title in cases of descent before patent.

The Miner Holds a Qualified Title dependent upon possession and maintained by compliance with local directions. He is not compelled to advance to patent nor to pay for the use of the land, but his holding is of the same legal class as a homestead or pre-emption and is in anticipation of an ultimate entry and patent. His title is not absolute in a technical sense, nor secure in a practical sense, until he gets the fee simple title by such proceedings.

Abandonment.

Such an estate, dependent upon possession, is conversely one which may be lost by abandonment. -Merritt v. Judd, 6 M. R. 62; 14 Cal. 59; Mallett v. Uncle Sam Co. 1 M. R. 18; 1 Nev. 188.

Is a Freehold.

That is to say, an estate which passes to the heirs. Harris v. Equator Co. 12 M. R. 178; 8 F. 863; White Star Co. v. Hultberg, 77 N E. 327; McFeters v. Pierson, 15 Colo. 201; Keeler v. Trueman, Id. 143.

Is Real Estate.

The miner's claim or title is real estate as distinguished from chattel or personal property and is conveyed, sued for, descends, is devisable and is treated in other respects as the real property of the occupant, subject only to the paramount title of the United States.-Roseville Co. v. Iowa Gulch Co. 16 M. R. 93; 15 Colo. 29; Butte Co. v. Frank, 21 M. R. 368; 65 P. 1; Bakersfield Co. v. Kern County, 77 P. 892; Bradford v. Morrison, 86 P. 6.

But in Oregon and Washington they have been held to be personal property.-Herron v. Eagle Co. 61 P. 417; Phoenix Co. v. Scott, 54 P. 777. In the former state they are now declared to be real estate by statute.

The Distinctions Between Mining Claims and Other Classes of Realty are substantially those arising out of the following incidents:

1. The title being first acquired by possession, it may be lost by acts amounting to a discontinuance of possession; that is by abandonment.

2. Annual labor upon each claim is required by Act of Congress as a condition upon the non-performance of which the same consequences result as in the case of a technical abandonment; that is, the ground becomes open to the entry of the next occupant.

3. The formula of notice and recording, and the method of initiating title are subject to regulation by the State, Territory or Mining District, in details not covered by the Acts of Congress.

4. Special modes of assessment and collection of taxes are or have been attempted; but distinctions of this sort have generally been found impracticable.

5. There are statutes to prevent forcible dispossession of claimants, to allow of underground surveys and inspection and to regulate drainage.

6. The mode of perfecting patent in the U. S. Land Office is wholly different from that regulating pre-emption or homestead entries upon agricultural lands.

SCHOOL CLAIMS.

Fully one-half of all the sections of the old Colorado Statutes on the subject of mines was taken up by a persistent attempt to force a "School Claim" on each location. The whole effort was in violation of the Organic Act, and has been held absolutely null and void as well by the courts as by the land office, and repudiated by the miners as an attempt to put the whole cost of schools on a class of men who, as a rule, were not persons with families.

By Act of 1862, claim No. 3, east or west, was to be set apart for schools; by Act of 1866, one side

claim on each end of the discovery claim of 1,400 feet was to be recorded-100 feet for schools and 100 feet for disabled miners.

SOLDIERS' CLAIMS.

By Territorial Acts passed in instances during the civil war, claims belonging to soldiers were protected from forfeiture during enlistment and for a reasonable time thereafter; they were also allowed to locate and record claims by proxy; and their titles were protected from sale on execution during their absence.

During the Spanish war Congress passed an act, approved July 2, 1898, relieving volunteers from performance of annual labor during their term of service. It required the record of a notice stating the fact of enlistment and of "His desire to hold said claim under this Act."-30 St. L. 651; Mining Rights 11th Ed. 16. A notice filed under this Act was considered in Field v. Tanner, 75 P. 916.

Co-owners with such volunteers were required to do their proportion of the work, and in default of such labor their interest might be forfeited to any person who entered and did such work during the ensuing year.

LENGTH OF LODE CLAIM LOCATED BEFORE MAY 10, 1872.

3,000-Foot Act of Congress of 1866.

Sec. 4. ** * No location hereafter made shall exceed two hundred feet in length along the vein for each locator, with an additional claim for discovery to the discoverer of the lode, with the right to follow such vein to any depth, with all its dips, variations, and angles, together with a reasonable quantity of surface for the convenient working of the same as fixed by local rules. And provided further, That no person may make more than one location on the same lode, and not more than three thousand feet

shall be taken in any one claim by any association of persons. July 26, 1866. Repealed May 10, 1872.

Before the Act of Congress of 1866 the length of lode claims was regulated either by district rules or by State or Territorial legislation. It was by no means uniform. Short lengths of 100 or 200 feet, sometimes as low as fifty feet or less, were the limitations under the older district rules. In later years the tendency was to allow longer claims. In Colorado the statute fixed the length of a claim in 1861 at 100 feet. In 1866 at 1,400 feet. The Act of Congress of 1866 allowed 400 feet to the discoverer and a claim of 200 feet to each associate locator, not exceeding 3,000 feet on the lode under one location.

Associates and Side Claims.

It is impossible to understand the limitations on the size of claims without considering a certain custom which originated in the earliest mining camps of California, and became a general practice over the western slope. With slight local modifications this custom was for the discoverer to record a notice that he claimed 50, 100 or 200 feet, as the case might be, on a certain lode. On the same paper, or by a separate paper signed later, other parties, real or nominal associates of the discoverer, would give notice of claim to No. 1 East, No. 1 West, etc., on the same lode. Not only would the associates of the discoverer make such records, but often third parties, without even going on the ground, would file on these side claims -in instances to the extent of several thousand feet on each side from the discovery claim.

Joint Records.

In other districts the discoverer and his associates would file on the discovery claim, No. 1 East, No. 1 West, No. 2 West, etc., indefinitely by a joint location certificate, not attempting to segregate the feet claimed by one from the feet claimed by the other.