CHAPTER XV.

THE LOCATION OF PLACERS AND OF LODES WITHIN PLACERS.

69. The Location of Placers.

70. The Discovery Notice.

71. The Discovery Work.

72. The Marking of the Location on the Ground.

73. The Posting of the Location Notice.

69. A placer is a mineral deposit, which is not a lode, and yet may be located as mineral ground. The essential acts of location of a placer claim vary in the different jurisdictions, but, as in the case of a lode claim, include (1) a discovery notice; (2) discovery work; (3) marking the location on the ground; (4) the location notice; and (5) record.

A placer, as we have already seen, means, under the United States laws, a mineral deposit, which may be located, and yet is not a vein or lode. Placers were not provided for in the act of 1866, but were by the act of July 9, 1870. They have played an important part in mining operations. What deposits are so mineral as to be possible of location as placers has been a subject of dispute and of conflicting departmental rulings, and sometimes statutes have been needed to settle the matter. Oil Lands.

Lands containing deposits of petroleum, for instance, were originally treated by the land department and the courts as subject to the placer laws; but finally the land department ruled that oil was not a mineral, and that oil lands could not be taken up as placers.2 The latter ruling was at once followed by an act of Congress making "lands containing petroleum or other mineral oils and chiefly valuable therefor" subject to entry and patent "under the provisions of the laws relating to placer mineral lands." " That act expressly applied to previous as well as to

1 See Roberts v. Jepson, 4 Land Dec. Dep. Int. 60; Samuel E. Rogers, 4 Land Dec. Dep. Int. 284; GIRD v. CALIFORNIA OIL CO. (C. C.) 60 Fed. 532; Van Horn v. State, 5 Wyo. 501, 40 Pac. 964.

2 Union Oil Co., 23 Land Dec. Dep. Int. 222.

See Dunham v. Kirkpatrick,

101 Pa. 36, 47 Am. Rep. 696. But see Gill v. Weston, 110 Pa. 317, 1 Atl. 921. Act Feb. 11, 1897, c. 216, 29 Stat. 526 (U. S. Comp. St. 1901, p. 1434).

future locations, and under its influence the land department reversed the ruling which called forth the statute.*

Stone Lands.

Building stone lands have also been the subject of controversy;" but since the act of August 4, 1892, lands chiefly valuable for building stone may be located either under the timber and stone act of 1878 or under the placer laws. As the timber and stone act applies only to surveyed lands, building stone unsurveyed lands must still be entered under the placer laws.

Salt Lands.

Still another example of diverse usage is found in regard to saline lands. Prior to the act of January 31, 1901,7 saline lands were disposed of under land grants to states and under the act of January 12, 1877, which authorized in a few states the sale of saline lands at public auction or private sale at not less than $1.25 an acre. While salt deposits might in time have been held locatable under the general placer laws, the act of January 31, 1901, settled the matter by enacting "that all unoccupied lands of the United States containing salt springs or deposits of salt, in any form, and chiefly valuable therefor, are hereby declared to be subject to location and purchase under the provisions of the law relating to placer mining claims; provided that the same person shall not locate or enter more than one claim hereunder." This saline act is applicable to all the public land states and territories, except to states, such as Utah, where all saline lands belonging to the United States were ceded to the state. 10 As the saline act makes subject to location as placers, "deposits of salt in any form," it would seem to be certain that salt rock may be located as a placer, and not as a lode.

The Acts of Location.

In the case of placers, as in the case of lodes, discovery must be followed by the acts of location, if it has not been preceded by them.

4 Union Oil Co., 25 Land Dec. Dep. Int. 351. See McQuiddy v. State of California, 29 Land Dec. Dep. Int. 181; Kern Oil Co. v. Clotfeter, 30 Land Dec. Dep. Int. 583.

5 See Conlin v. Kelly, 12 Land Dec. Dep. Int. 1, holding in 1891 that building stone lands are not placers, though as early as 1884 it was held that they were. H. P. Bennet, Jr., 3 Land Dec. Dep. Int. 116. See, also, Wheeler v. Smith, 5 Wash. 704, 32 Pac. 784.

627 Stat. 348, c. 375, § 1 (U. S. Comp. St. 1901, p. 1434).

731 Stat. 745, c. 186 (U. S. Comp. St. 1901, p. 1435).

819 Stat. 221, c. 18, § 1 (U. S. Comp. St. 1901, p. 1547).

31 Stat. 745, c. 186 (U. S. Comp. St. 1901, p. 1435).

10 The Utah act is Act July 16, 1894, c. 138, § 8, 28 Stat. 107.

The acts of location for placers are generally fixed by the local statutes, and are in the main the same as those for lodes, though only a few states require discovery work on placers. Where there are no local statutes or rules on the question, the essential acts of location would seem to be: (1) Notice of discovery, either posted on the claim or given to prospectors by the nature of the actual possession; (2) the marking of the location on the ground, so that the boundaries may readily be traced. Where record is called for by the local statute, the federal statute requires the location certificate or declaratory statement to describe the claim by reference to some natural object or permanent monument which will identify it.11 The acts of location are as mandatory in the case of placers as in the case of lodes, and a notice of discovery is as much a requirement of mining custom in the case of placers as it is in the case of lodes. As Alaska, California, New Mexico, North Dakota, Oregon, and South Dakota seem to have no statutes specifically naming placers and providing for them, the above requirements, including record, would seem to be all that need be complied with in those states and territories, except where district rules and regulations. which make additional requirements exist.12

THE DISCOVERY NOTICE.

70. The discovery notice required is just like that for lodes, except, of course, that instead of distance along the vein being stated the number of acres should be given.

What has been said as to discovery notices in the case of lode claims applies to placers.13 A sufficient discovery notice, where the state statute does not require, as the Idaho statute does, the dimensions of the claim to be stated and the distance from the post or monument containing the notice to a natural object or permanent monument that will

11 Compare instructions quoted and approved in Walton v. Wild Goose Mining & Trading Co., 123 Fed. 209, 60 C. C. A. 155.

12 Placer claims "have been at all times regulated as to size, labor, mode of location, etc., by the district rules to a much greater extent than lode claims." Morrison's Mining Rights (13th Ed.) 210.

13 It is interesting to note that Messrs. Morrison and De Soto come out stronger for a discovery notice in the case of placers than of lodes. Of the placer discovery notice they say: "We do not consider that the above notice is essential in all cases, but it is customary. If the claimant was the actual first discoverer of the mineral, it might not be required; but, if the existence of the gold or other deposit had been a matter of common notoriety, we do not see why one person more than another could claim the time allowed to a discoverer without some such notice." Morrison's Mining Rights (13th Ed.) 216.

fix and describe in the notice itself the location of the claim, would be as follows:

"Keystone Placer Claim.

"The undersigned claims the statutory time to complete location of twenty acres for placer mining. Discovery date, February 1, 1908. "John Smith."

Any stronger notice would have to be like the location notice, discussed later, to which reference is hereby made.

THE DISCOVERY WORK.

71. Discovery work is required in a few states, and its amount and character varies in the different jurisdictions.

In Idaho the discoverer must, within 15 days after making the location, make an excavation on the claim to prospect it, the excavation to be of not less than 100 cubic feet. In Montana the same amount of work has to be done on the claim within 60 days from the date of posting notice of location as has to be done in the case of a lode claim. In Nevada the locator within 90 days after posting notice of location must perform not less than $20 worth of development labor. In Washington, in the case of placers other than oil, gas, and other natural oil products, the locator within 60 days from discovery must perform labor equivalent in the aggregate to at least $10 worth for each 20 acres, and upon the completion of that labor he must file with the county auditor an affidavit showing the nature and kind of work done.

The above four states seem to be the only ones requiring discovery work in the case of placers, probably because the other states have felt that the character of the deposit would either be apparent at the start or require such a large expenditure to ascertain that there would not be any danger of bad faith in placer locations.14 The relative un

14 "A discovery pit or shaft on a vein shows to the eye a mineral formation specifically distinct from the surrounding country. A pit or shaft on placer gravel shows nothing of that sort. A pit or shaft on any of the various minerals claimed as placers might or might not show such indication. Such working is not essential to the disclosure of mineral value on this class of claims. But it is clear from the implied requirements of knowledge or discovery of mineral character that the ground about to be located must have a special value as either placer proper or for some special deposit treated as placer ground under the statute, and that merely surveying [marking] and recording vacant land as and for placer ground, without known value under either class, is a void proceeding, when properly contested or attacked." Morrison's Mining Rights (13th Ed.) 214.

importance of placer claims seems to be partly responsible for the failure of some states to require discovery work for placers, though they require it for lode claims.

MARKING THE LOCATION ON THE GROUND.

72. The federal requirement that the location must be marked on the ground, so that its boundaries may readily be traced, is seemingly complied with by posting a notice on the placer claiming it by proper survey subdivision; but this is wrong in principle, unless the original survey stakes which bound the claim are in place. The local statutes about the placing of boundary stakes, where there are any such statutes, must, of course, be complied with. Where 160 acres is located by an association of persons, it is not necessary to mark the boundaries of each 20-acre tract; but, if the exterior boundaries of the 160-acre tract are marked, that is sufficient.

The federal statutory requirement that a placer mining location shall conform as nearly as practicable to the subdivisions of the public surveys is being given increasingly strict construction by the land department, which insists that even placers located on unsurveyed lands shall in general be rectangular in shape.

The time within which to mark the location and boundaries varies in the different jurisdictions.

As in the case of lode claims, so in placers, the mining claim or location must be so marked upon the ground that its boundaries may readily be traced.15 This requirement is complicated in the case of placers by the further requirement that placer claims upon surveyed lands "shall conform as near as practicable with the United States system of public land surveys and the rectangular subdivisions of such surveys." 16 Because of this latter requirement it has been contended that where a placer claim has been located according to subdivisions of the public surveys, as, for instance, "the N. W. quarter of Sec. No. 1," etc., it is not necessary to mark the boundaries on the ground, but that the description in the posted or in the recorded notice in words such as those used above, giving also the township and range, will dispense with the necessity of marking the boundaries. In the case where the placer claim covers a whole quarter section there is some sense in this argument, since the United States government sets stakes at the quarter section corners, and the locator may properly be said, therefore, to

18 Anthony v. Jillson, 83 Cal. 296, 23 Pac. 419; Sweet v. Webber, 7 Colo. 443, 4 Pac. 752.

16 Rev. St. U. S. § 2331 (U. S. Comp. St. 1901, p. 1432).