THE PATENTING OF MILL SITES.

100. Mill sites patented with lodes are included in the same survey and in the various lode application papers. The mill site must be carefully described in the papers, and a copy of the notice and one of the plats must be posted on the mill site, as well as upon the lode claim. Proof by affidavit must be furnished of the nonmineral character of the ground.

Mill sites patented separately from lode claims are patented in exactly the same way as lode claims, except that proof by affidavit must be furnished of the nonmineral character of the ground and of the mill site use to which the ground is being put.

When a mill site patent is applied for in connection with a lode, the application may be at the time of the application for patent of the lode or after such patent.81 Where both are applied for at the same time, a survey of both is called for at the same time, and a certified copy of the mill site location certificate, as well as of the lode location certificate, is furnished. The mill site is described in the plat and field notes by the same survey number as the claim; but the claim then has the letter "A" after the survey number and the mill site has the letter "B." For instance, if the survey number is "37," the claim is "Sur. No. 37A," and the mill site "Sur. No. 37B." 82 In the posted and published notices of the application for patent, as much care must be taken to describe the mill site as to describe the lode claim, the plat and field notes must give the course and distance from a corner of the mill site to a corner of the lode claim, and a copy of the plat and notice of application for patent must be conspicuously posted upon the mill site, as well as upon the lode claim, for the statutory period. 83

84

Where a mill site used in connection with a lode for mining or milling purposes is sought to be patented after the lode claim has gone. to patent, or where a mill site claim, independent of any lode ownership, is sought to be patented, the applicant for patent must proceed precisely in the way required for lode mining patents.

The purchase price for mill sites is the same per acre as for lode

81 Eclipse Mill Site, 22 Land Dec. Dep. Int. 496.

82 Land Office Regulations, rule 63.

83 Id. If posting on the mill site is neglected, republication will be required. Silver Star Mill Site, 25 Land Dec. Dep. Int. 165; Peacock Mill Site, 27 Land Dec. Dep. Int. 373.

84 "It is generally advisable to apply for a mill site in connection with a lode claim, and in applying for a lode patent a mill site can be included, and surface for building purposes readily acquired, at a cost of $50 less than if separate applications are made." Morrison's Mining Rights (13th Ed.) 453.

claims. "In every case there must be satisfactory proof that the land claimed as a mill site is not mineral in character, which proof may, where the matter is unquestioned, consist of the sworn statement of two or more persons capable, from acquaintance with the land, to testify understandingly." 85 The application for patent should also show the class of mill site claimed, and proof by the affidavit of two disinterested persons should support the statement in the application that a mill site use is being made of the ground. This proof should be furnished with the first set of papers. The applicant for a mill site patent must make his application in good faith for himself.s

THE PATENTING OF PLACER CLAIMS.

101. With the exception that no survey need be made for placers conforming to government survey subdivisions, and that a special kind of descriptive report by the deputy mineral surveyor is called for by the land department, the proceedings to obtain a patent for a placer claim are the same as those for a lode claim.

Applications to patent placers differ slightly from applications to patent lodes. If the placer claim is located on surveyed land, and conforms to the 10-acre or larger subdivisions of the government survey, no new survey need be made; but application for patent may be made at once in the land office. In such case the proof of $500 worth of im- . provements must be furnished by the affidavit of two or more disinterested witnesses.87 The application for patent must state specifically what 10-acre or other lots are sought to be patented. If the claim is on unsurveyed land, or, being on surveyed land, does not exactly conform to the surveyed subdivisions, an official survey is required,88 unless in the case of surveyed land the failure to conform is due to excluding patented land.89

With the exception just noted, and with the further exception of the descriptive report called for by the land department, the proceedings to obtain a patent for a placer are the same as those to obtain a patent for a lode claim."

85 Land Office Regulations, rule 65.

86 Hamburg Min. Co. v. Stephenson, 17 Nev. 449, 30 Pac. 1088.

87 Land Office Regulations, rule 25.

88 G. A. KHERN, 6 Land Dec. Dep. Int. 580.

89 MARY DARLING PLACER CLAIM, 31 Land Dec. Dep. Int. 64.

* Land Office Regulations, rules 58, 59.

The Descriptive Report.

The descriptive report is called for by the following provisions of the land office rules, viz.:

"Mineral surveyors shall at the expense of the parties make full examination of all placer claims surveyed by them and duly note the facts as specified in the law, stating the quality and composition of the soil, the kind and amount of timber and other vegetation, the locus and size of streams, and such other matters as may appear upon the surface of the claim. This examination should include the character and extent of all surface and underground workings, whether placer or lode, for mining purposes.

"In addition to these data, which the law requires to be shown in all cases, the deputy should report with reference to the proximity of centers of trade or residence; also of well-known systems of lode deposits or of individual lodes. He should also report as to the use or adaptability of the claim for placer mining, whether water has been brought upon it in sufficient quantity to mine the same, or whether it can be procured for that purpose, and, finally, what works or expenditures have been made by the claimant or his grantors for the development of the claim, and their situation and location with respect to the same as applied for.

91

"This examination should be reported by the mineral surveyor under oath to the surveyor general, and duly corroborated, and a copy of the same should be furnished with the application for patent to the claim, constituting a part thereof, and included in the oath of the claimant."

This descriptive report must receive the approval of the surveyor general, who thereupon certifies a transcript of that report, as well as a transcript of the field notes. Whenever a survey of a placer is required this descriptive report must be obtained, and the deputy mineral surveyor therefore makes it out without special instructions. If, however, no survey is required, because the claim conforms to surveyed subdivisions, a descriptive report need not be made until required by the land department.93

91 This corroboration should be by affidavit of one or more disinterested persons (see Land Office Regulations, rule 167 [i]), who know the facts, and who swear that they have read the descriptive report, and that it is true In every particular.

92 Land Office Regulations, rules 60, 167. In rule 167 it is further required that the descriptive report shall describe "the true situation of all mines, salt licks, salt springs, and mill sites which come to the surveyor's knowledge, or a report by him that none exist on the claim, as the facts may warrant."

93 Rosina T. Gerbauser, 7 Land Dec. Dep. Int. 390. See Morrison's Mining Rights (13th Ed.) 459.

SAME-KNOWN LODES WITHIN PLACERS.

101a. Known lodes in placers must be located as such by the applicant for placer patent if he intends to claim them in his placer application. Known lodes not claimed by the applicant for placer patent may be patented by third parties after a departmental inquiry establishes that they are known lodes.

94

The application for patent must state that the claim is all placer, and be corroborated by accompanying proofs, or, if the claim contains some known lodes, the application should contain a description of them and a declaration of the intention of the applicant to claim such as he may want. A failure to disclose known lodes in the application will not make the patent cover them, nor prevent the issuance of a subsequent lode patent; for by the express provisions of the statute such failure must "be construed as a conclusive declaration that the claimant of the placer claim has no right of possession of the vein or lode claim." " A placer applicant will not be allowed to amend his application, so as to embrace therein veins or lodes discovered by others after the location of the placer claim, but prior to the application therefor. After placer patent the patentee will not be allowed to patent lodes in the placer which were not known lodes. Where the placer applicant claims the known lodes, he must locate them as lodes and furnish the evidence of title usual on patent applications. Survey is, of course, required; but a survey number separate from the placer survey number seems not to be necessary. In the survey the known lodes are designated simply by their names. 98 The posting of notice of the application for patent. must be done on each known lode, as well as on the placer ground. Where, after a placer patent, a third person wants to apply to patent a lode in the placer as a "known" lode, he must first get a departmental inquiry to establish that the lode was known to exist at the date of the application for placer patent." Because "known lodes" are reserved and excepted from placer patents, the lode claimant does not have to

94 "Where there is no known lode or vein, the fact must appear by the affidavit of two or more witnesses." Land Office Regulations, rule 26.

95 South Star Lode, 20 Land Dec. Dep. Int. 204; Cape May Mining & Leasing Co. v. Wallace, 27 Land Dec. Dep. Int. 676.

96 Rev. St. U. S. § 2333 (U. S. Comp. St. 1901, p. 1433).

97 AURORA LODE v. BULGER HILL & NUGGET GULCH PLACER CO., 23 Land Dec. Dep. Int. 95.

Alice Mining Co., 27 Land Dec. Dep. Int. 661.

98 See Morrison's Mining Rights (13th Ed.) 460.

99 BUTTE & BOSTON MIN. CO., 21 Land Dec. Dep. Int. 125; Cape May Mining & Leasing Co. v. Wallace, 27 Land Dec. Dep. Int. 676.

adverse the placer patent; 100 and because other than known lodes pass by the placer patent, and cannot be taken away from the patentee by departmental proceedings,101 the placer patentee does not have to adverse the "known lode" claimant.102 The issue between the two, if not actually litigated between them in adverse proceedings, may be settled in a suit to quiet title or in an ejectment action after the issuance of the lode patent. It is only where the lode patent is applied for first that adverse proceedings are absolutely required. If, however, the lode claimant does not adverse the placer application, he may find that the land department will not entertain his application, because he does not overcome the presumption in the department against him.103 He really must undergo two trials, one in the department and one before the courts, where one before the courts in adverse proceedings would do. The "known lode" claimant, therefore, ought to adverse the placer application, and to get more than 50 feet in width of surface ground he probably must do so.104

The lodes claimed in a placer application as "known lodes" must be paid for at $5 per acre; but the purchase price of placer ground proper is only $2.50 per acre or fractional part of an acre.105

CONFLICTS OF LODES AND PLACERS WITH OLDER LOCATIONS.

102. The area in conflict between the claim being patented and previously patented claims is excepted from the area applied for, but otherwise does not affect the application for patent, unless the claim sought to be patented is cut in two by the senior and no discovery has been made in one part. In the latter case patent will issue only for the part on which discovery has been made.

It sometimes happens that a lode location is intersected by an already patented mill site or placer. In such case the department formerly held that the lode claim could be patented only to the point where the other claim intersected it, giving the applicant his option which segre

100 Elda Mining & Milling Co. v. Mayflower Gold Mining Co., 26 Land Dec. Dep. Int. 573; Cape May Mining & Leasing Co. v. Wallace, 27 Land Dec. Dep. Int. 676, 679.

101 Alice Mining Co., 27 Land Dec. Dep. Int. 661.

102 Messrs. Morrison and De Soto advise him to do so, however. Morrison's Mining Rights (13th Ed.) 227.

103 The burden of proof is on the lode claimant in the land department. Cripple Creek Gold Mining Co. v. Mt. Rosa Mining, Milling & Land Co., 26 Land Dec. Dep. Int. 622.

104 A protest will not avail. ELDA MINING & MILLING CO. v. MAYFLOWER MINING CO., 26 Land Dec. Dep. Int. 573.

105 Rev. St. U. S. § 2333 (U. S. Comp. St. 1901, p. 1433).