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CHAPTER XIII.

THE LOCATION OF MILL SITES.

58. The Two Kinds of Mill Sites.

59. Mill Sites Located by the Proprietor of a Vein or Lode.

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58. Nonmineral unappropriated public land of the United States may be acquired as a mill site (1) where it is not contiguous to the vein or lode with which the claimant wants to use it, and (2) where, without owning a mine in connection therewith, the claimant has put a quartz mill or reduction works on the site.

By section 2337, Rev. St. U. S. (U. S. Comp. St. 1901, p. 1436), mill sites may be acquired in two ways: (1) "Where nonmineral land not contiguous to the vein or lode is used or occupied by the proprietor of such vein or lode for mining or milling purposes"; (2) where, without owning a mine in connection therewith, the claimant has put a quartz mill or reduction works on the site. A mill site acquired in the second way is both technically and actually a mill site; but one acquired in the first way may be devoted to nonmilling purposes, and so may be called a mill site only because that is the name given to it in the statute. Mill sites acquired in these two ways must be nonmineral,1 must not exceed five acres, and must be located in the manner required by the local statutes.

When it is said that the land must be nonmineral, that means that an affirmative answer must be given to the question: "Has the land greater value for mill purposes, or for surface use in connection with a mining claim, than it has as mineral land?" 2 As between a prior mill site claimant and a subsequent lode claimant, the mill site claimant will be given the benefit of the doubt as to mineral values, if he acted bona fide, and the lode claimant will be defeated if he does not show that the land will pay to work. A bona fide prior location of the land for agri

1 Cleary v. Skiffich, 28 Colo. 362, 65 Pac. 59, 89 Am. St. Rep. 207. 2 Id. Compare Tinkham v. McCaffrey, 13 Land Dec. Dep. Int. 517. CLEARY v. SKIFFICH, 28 Colo. 362, 65 Pac. 59, 89 Am. St. Rep. 207. If, as seems true, this case stands for the proposition that a mill site located in good faith as nonmineral land is valid, even though before application for COST.MIN.L.-15

cultural purposes will defeat the mill site; while, of course, a prior mill site location, if it conforms to the statutory requirements, will defeat an agricultural entry of the land.

MILL SITES LOCATED BY THE PROPRIETOR OF A VEIN OR

LODE.

59. To acquire a mill site for use with a lode to which it is not contiguous, any mining use to which the land is bona fide put will justify the mill site.

The requirement that the land acquired as a mill site by the proprie. tor of a vein must not be contiguous to the vein is intended to prevent any increase in the vein-containing area of a mining claim on the pretense that it is wanted as a mill site for those legitimate mining purposes for which the law allows land so acquired to be used. While the land department formerly held that mill sites might abut upon the side. lines of the claim, and in cases where it was clear that the vein departed through the side lines of the claim, and that the land abutting the end lines was nonmineral, the latter land might be selected as the mill site, the presumption was against such a mill site's validity," and the department has finally decided against the validity of mill sites adjacent to the lode claims with which they are to be used. The final ruling applied the old doctrine to mill sites made and perfected prior to January 1, 1904, where mill site patents were applied for and either carried to entry before July 1, 1906, or without fault of the applicant prevented from being carried to entry before that date, while it makes the new construction apply to all other mill sites.*

The mining purposes which will be accepted as the equivalent of milling purposes to sustain a mill site located by the proprietor of

patent, it is shown clearly to contain the apex of a very valuable vein, it cannot be supported beyond the point stated in the text. See 1 Lindley on Mines (2d Ed.) § 525. Where land was being graded for a mill site, but the occupants had not complied with any of the requirements of the federal act for acquiring title thereto, the occupants were held not to be entitled to gold found by others beyond the limits of the graded space. BURNS v. CLARK, 133 Cal. 634, 66 Pac. 12, 85 Am. St. Rep. 233.

4 Hamburg Mining Co. v. Stephenson, 17 Nev. 450, 30 Pac. 1088; Adams v. Simmons, 16 Land Dec. Dep. Int. 181.

5 In re Freeman, 7 Copp's L. O. 4.

6 National Mining & Exploration Co., 7 Copp's L. O. 179; In re Long, 9 Copp's L. O. 188.

7 Id. See Mabel Lode, 26 Land Dec. Dep. Int. 675; Paul Jones Lode, 31 Land Dec. Dep. Int. 359.

*Brick Pomeroy Mill Site, 34 Land Dec. Dep. Int. 320; Alaska Copper Co., 32 Land Dec. Dep. Int. 128.

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a vein or lode as such are pretty well settled. Any mining use to which it is bona fide put would comply with the statute, and hence it may be used for the erection of miners' bunk houses and boarding houses and for ore houses, for pumping works to get water to the mining claim,10 for a dumping place for waste rock from the claim, etc. It has, however, been held by the land department that land cannot be located as a mill site simply to get the timber on it to use in the mine. It would seem unquestionable that, where the ground is located by the proprietor of a lode, its use as a dumping place for waste rock thrown away in excavating and sorting the ore is a proper mill site use.

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It has been supposed by some that there is nothing to prevent one who owns several lode claims from acquiring a separate mill site for each claim so long as the ground acquired is actually used for the statutory purposes in connection with the lode for which it was located;12 but the land department has decided that, where a group of contiguous lode claims are held and worked under a common ownership, only a reasonable number of mill site locations can be made for use therewith.13 The department says: "Whilst no fixed rule can well be established, it seems plain that ordinarily one mill site affords abundant facility for the promotion of mining operations upon a single body of lode claims." 14

8 SILVER PEAK MINES v. VALCALDA (C. C.) 79 Fed. 886; VALCALDA v. SILVER PEAK MINES, 86 Fed. 90, 29 C. C. A. 591; HARTMAN v. SMITH, 7 Mont. 19, 14 Pac. 648.

9 Charles Lennig, 5 Land Dec. Dep. Int. 190. See Satisfaction Extension Mill Site, 14 Land Dec. Dep. Int. 173. But see Alaska Copper Co. 32 Land Dec. Dep. Int. 128, where it was held that "a boarding house, store, sawmill, and wharf" did not sufficiently evidence mining or milling use or occupation, within the meaning of the mill site statute. So far as the report shows, however, these structures were not used in connection with the mining claim for mining purposes. If they were, they should have been held sufficient to support the mill site. See VALCALDA v. SILVER PEAK MINES, 86 Fed. 90, 29 C. C. A. 591.

10 Sierra Grande Mining Co. v. Crawford, 11 Land Dec. Dep. Int. 338. 11 Two Sisters Lode & Mill Site, 7 Land Dec. Dep. Int. 557. But see Tartar v. Spring Creek Water & Mining Co., 5 Cal. 395.

12 See 1 Lindley on Mines (2d Ed.) § 520.

13 Alaska Copper Co., 32 Land Dec. Dep. Int. 128; Hard Cash and Other Mill Site Claims, 34 Land Dec. Dep. Int. 325.

14 Alaska Copper Co., 32 Land Dec. Dep. Int. 130.

SAME-USE NECESSARY TO HOLD SUCH MILL SITES.

59a. A mill site acquired by the proprietor of a lode is retained by its reasonable use in good faith for a mining purpose in connection with the mining claim.

With reference to the use for mining purposes necessary to hold a mill site acquired in connection with a lode, the following language of the Montana court is important: "We cannot say, under this statute, what shall be the extent of the use-whether much or little-or the particular character of the use. The phrase 'mining purposes' is very comprehensive, and may include any reasonable use for mining purposes which the quartz lode mining claim may require for its proper working and development. This may be very little, or it may be a great deal. The locator of the quartz lode mining claim is required to do only $100 worth of work each year until he obtains a patent therefor. But if he does only this amount, and uses the mill site in connection therewith, is not this the use of a mill site for mining purposes in connection with the mine? Who shall prescribe what shall be the kind and extent of the use under this statute, so long as it is used in good faith in connection with the mining claim for a mining purpose?" 15

15 HARTMAN v. SMITH, 7 Mont. 19, 28, 14 Pac. 648. That a use which would justify one mill site may be inadequate to sustain four mill sites, and so none be allowed, was held in Hard Cash and Other Mill Site Claims, 34 Land Dec. Dep. Int. 325. In that case the land department said: "The statute clearly contemplates that at the time the application for patent is made the land included in the mill site claim is used or occupied for mining or milling purposes. Some step in or directly connected with the process of mining or some feature of milling must be performed upon, or some recognized agency of operative mining or milling must occupy, the mill site at the time application for patent is filed. Alaska Copper Company, 32 Land Dec. Dep. Int. 128, 131. So far as the record in this case shows, aside from the digging of three wells, nothing has been done on the mill sites. The design to use all of them for the purpose of a reservoir for water, and the building of a reduction works, is not the present active employment of any mining agency upon the land or the direct use of it for milling purposes. Neither is the storing of ore upon each mill site, under the circumstances of this case, such a use of the land as to warrant the entry and patent of the four mill sites. It was stated in the Alaska Copper Company Case, supra, p. 130, that 'whilst no fixed rule can well be established, it seems plain that ordinarily one mill site affords abundant facility for the promotion of mining operations upon a single body of lode claims.' It follows that, if more than one mill site is applied for in connection with a group of lode claims, a sufficient and satisfactory reason therefor must be shown. The storage of a quantity of ore upon each of the four mill sites in this case, where there is nothing to show but that the area embraced in one of them would be ample for such storage, is but a mere colorable use of the mill sites,

And as showing what is an actual possession and use of a mill site, justifying ejectment because of ouster, the following language of the United States Circuit Court of Appeals, Ninth Circuit, may be quoted: "It would seem that a tract of five acres claimed for a mill site, as this was, may in general be said to be in the possession of the locator when its corners are marked with painted posts, as is the custom and rule in locating such mill sites, and as required by the regulations of the general land office. In a mining country the presence of the boundary posts is as significant of occupation as an inclosure would be of agricultural lands. In the present case there were, in addition to the boundary posts, the house, the stable, and the springs, together with the graded wagon road leading from the mill site to the mines of the plaintiff, all indicating a present and continuous use. Failure to use a mill site for the purposes for which it is located may, indeed, become evidence of abandonment; but there was no evidence, so far as the record goes, tending to show that the locator had failed or ceased to use the property for the purposes for which it was claimed."

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Because lode claims in connection with which mill sites are acquired may be patented before the mill sites are, it must not be supposed that the patented lode claims can be allowed to remain idle and the unpatented mill site remain valid. Reasonable use of the mill site in good faith is always required,

MILL SITES CLAIMED BY MILLS.

60. To acquire a mill site apart from lode ownership, nothing short of a mill or reduction works on the ground will serve.

With reference to those mill sites acquired because quartz mills or reduction works are placed on the ground located for a mill site, it seems clear that as many locations may be made as there are mills erected. Nothing short of mills or reduction works will do,17 however, and, while both a water right and a mill site may be located on the same

which does not satisfy the requirements of the statute. It thus appearing that the mill site claims are not used or occupied for mining or milling purposes in connection with the lode claim as required by law, the entry must be canceled." Hard Cash and Other Mill Site Claims, 34 Land Dec. Dep. Int. 325, 327, 328. On dumping as a mining use to hold a mill site, see chapter XIV, § 64, infra.

16 Valcalda v. Silver Peak Mines, 86 Fed. 90, 94, 95, 29 C. C. A. 591.

See chapter XVIII, § 100.

17 Le Neve Mill Site, 9 Land Dec. Dep. Int. 460; Brodie Gold Reduction Co., 29 Land Dec. Dep. Int. 143. An attempt to locate and hold two mill sites by

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