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Sec. 36a. As soon as practicable, after the entry of the order of determination, a certified copy thereof, together with the original evidence and transcript of testimony filed with, or taken before the state water commission, as aforesaid, duly certified by it, shall be filed with the clerk of the superior court of the county in which said stream system, or any part thereof, is situated. Upon the filing of the certified copy of said order, evidence, and transcript with the clerk of the court in which the proceedings are to be had, the state water commission shall procure an order from said court setting a time for hearing. The clerk of such court shall immediately furnish the state water commission with a certified copy of said order. It shall be the duty of the state water commission immediately thereupon to mail a copy of such certified order of the court, by registered mail, addressed to each known party in interest at his last known place of residence, and to cause the same to be published at least once a week for four consecutive weeks in some newspaper of general circulation published in each county in which such stream system or any part thereof is located, and the state water commission shall file with the clerk of the court proof of such service by registered mail and by publication. Such service by registered mail and by publication shall be deemed full and sufficient notice to all parties in interest of the date and purpose of such hearing. (Amended 1917.).

SEC. 36b. At least ten days prior to the day set for hearing, all parties in interest who are aggrieved or dissatisfied with the order of determination of the state water commission shall file with the clerk of said court notice of exceptions to the order of determination of the state water commission, which notice shall state briefly the exceptions taken, the reasons therefor, and the prayer for relief, and a copy thereof shall be transmitted by registered mail at least ten (10) days prior to such hearing, to the state water commission and to each claimant, who was an adverse party to any contest wherein such exceptor was a party in the procceedings. The order of determination by the state water commission and the statements or claims of claimants and exceptions made to the order of determination shall constitute the pleadings but the court may allow such additional or amended pleadings as may be necessary to a final determination of the proceeding. If no exceptions shall have been filed with the clerk of the court as aforesaid, then on the day set for the hearing, on motion of the state water commission, or its attorney, the court shall enter a decree affirming said order of determination. On the day set for hearing all parties in interest who have filed notices of exceptions as aforesaid shall appear in person, or by counsel, and it shall be the duty of the court to hear the same or set the time for hearing, until such exceptions are disposed of, and all proceedings thereunder shall be as nearly as may be in accordance with the rules governing civil actions. Whenever in the judgment of the court the state is a necessary party to the action, the court shall make an order to that effect and thereupon a copy of all pleadings and proceedings on file with the court in said matter shall be served upon the attorney general who shall represent the state therein. (Amended 1917.)

SEC. 36c. For further information on any subject in controversy, the court may employ one or more qualified persons to investigate and report thereon under oath, subject to examination by any party in interest as to his competency to give expert testimony thereon. The court may take additional evidence on any issue and may, if necessary, refer the case for such further evidence to be taken by the state water commission as it may direct, and may require a further determination by it. After the hearing, the court shall enter a decree determining the right of all persons involved in such proceeding. Said decree shall in every case declare as to the water right by appropriation adjudged to each party, the extent, priority, amount, purpose of use, point of diversion, and place of use of said water; and as to water used for irrigation, such decree shall also declare the specific tracts of land to which it shall be appurtenant, together with such other conditions as may be necessary to define the right and its priority. Upon the hearing the court may assess and adjudge against any party such costs as it may deem just. Appeals from such decree may be taken to the supreme court by the state water commission or any party in interest, in the same manner and with the same effect as in civil cases. (Amended 1917.)

Sec. 36d. A certified copy of the decree of the superior court shall be prepared by the clerk thereof, without charge, and filed for record in the office of the county recorder of each county in which any part of the stream system is situated and also in the office of the state water commission. It shall be the duty of the state water commission to issue to each claimant represented in such determination a certificate to be signed by the president of the state ater commission, and attested under seal of the secretary of said commission, setting forth the name and post-office address of the owner of the right; the priority of the date, extent and purpose of such right; and, if such water be for irrigation purposes, a description of the legal subdivisions of land to which said water is appurtenant. (Amended 1911.)

SEC. 36e. Whenever proceedings shall be instituted for the determination of rights by appropriation of water, it shall be the duty of all claimants interested therein and having notice thereof as in this act provided, to appear and submit proof of their respective claims at the time and in the manner required by law; and any such claimant who shall fail to appear in such proceedings and submit proof of his claim shall be barred and estopped from subsequently asserting any rights theretofore acquired upon, the stream system, embraced in such proceedings, and shall be held to have forfeited all rights by appropriation to said water theretofore claimed by him on such stream system, unless entitled to relief under the laws of this state; provided, that such proceedings shall result in a determination by the state water commission and a decree by the superior court determining the rights on such stream. Such decree shall be conclusive as to the rights by appropriation of all existing claimants upon the stream system lawfully embraced in the determination. (Amended 1917.)

SEC. 369. The state water commission shall have authority and power in making a determination as to the rights by appropriation of the waters of any stream system, to fix a time limit for the completion of all appropriations of water from such stream, where such rights of appropriations were initiated prior to December 19, 1914, and since prosecuted with reasonable diligence, and such appropriators having been duly notified as provided in this act, must appear and submit their proofs of claim, in accordance with section twenty-eight of this act, or they shall be deemed and held to be in default, and to have abandoned or to have no right, title or interest in or to the waters of such stream. In determining rights of such appropriators, the state water commission shall prescribe such a reasonable time for the completion of such appropriations, and the application of the water appropriated to a beneficial use, as will enable such appropriators acting in good faith and with due diligence to complete the same. The findings of the state water commission shall provide for the submission of proof or evidence as to the completion of such appropriation and the amount of water actually applied to beneficial use upon the expiration of such time limit, and shall, in accordance with such proof, enter supplemental findings, establishing and determining such rights of appropriation, in so far as the same shall have been completed ; and certificates of water right shall be issued in accordance with such supplemental findings and order of determination of said commission ; but this section shall not be construed to confer any rights of appropriation upon parties who shall have abandoned their said appropriations or failed to use due diligence in the application of the water to a beneficial use and in the completion of their appropriations; and all such appropriators, who shall fail to complete their said appropriations within the limit of time fixed by the state water commission in said findings, or such further time granted upon application made prior to the expiration of such time limit, as the state water commission shall find equitable and just, shall be deemed to have abandoned their rights of appropriation, and rights acquired by virtue thereof waived, and such appropriators shall be deemed and held to have no right, title or interest in or to the waters of such stream by virtue of their said appropriations. The findings and determination of the state water commission made under the provisions of this section may be reviewed in the manner prescribed by section thirty-six b of this act. (Amended 1917.)

SEC. 37. The power to supervise the distribution of water in accordance with the priorities established under this act, when such supervision does not contravene the

authority vested in the judiciary of the state, is hereby vested in the state water commission.

SEC. 38. The diversion or use of water subject to the provisions of this act other than as it is in this act authorized is hereby declared to be a trespass, and the state water commission is hereby authorized to institute in the superior court in and for any county wherein such diversion or use is attempted appropriate action to have such trespass enjoined.

SEC. 39. Water or the use of water which has heretofore been appropriated or acquired, or which shall hereafter be appropriated or acquired for one specific purpose, shall not be deemed to be appropriated or acquired for any other or different purpose. And any person, firm, association or corporation applying to the state water commission for a license to appropriate water or the use of water shall state in the application for said license the specific purpose to which it is proposed to put such water or the use thereof. Water heretofore or hereafter appropriated for other than domestic use, may be applied to domestic use, in whole or in part, without a separate and distinct appropriation being made therefor. And water appropriated for one purpose under the provisions of this act may be subsequently appropriated for other purposes under the provisions of this act; provided, that such subsequent appropriation shall not injure any previous appropriation.

SEC. 40. The state water commission is also authorized and empowered to investigate any natural situation available for reservoirs or reservoir systems for gathering and distributing flood or other waters not under beneficial use in any stream, stream system or lake or other body of water, and to ascertain the feasibility of such projects, including the supply of water that may thereby be made available, the extent and character of the areas that may be thereby irrigated, and make estimate of the cost of such project.

SEC. 41. Nothing in this act shall be construed as depriving any city, city and county, municipal water district, irrigation district_or lighting district of the benefit of any law heretofore or hereafter passed for their benefit in regard to the appropriation or acquisition of water or the use of water; and nothing in this act shall affect or limit in any manner whatsoever the right or power of any municipality which has heretofore appropriated or acquired water or the use of water for municipal purposes, to use or to sell or otherwise dispose of such water or the use thereof, either within or without its limits for domestic, irrigation or other purposes, in accordance with laws in effect at the time of the passage of this act.

SEC. 42. The word "water" in this act shall be construed as embracing the term or use of water"; and the term “or use of water" in this act shall be construed as embracing the word "water." Whenever the terms stream, stream system, lake or other body of water or water occurs in this act, such term shall be interpreted to refer only to surface water, and to subterranean streams flowing through known and definite channels. But nothing in this act shall be construed as giving or confirming any right, or title, or interest to or in the corpus of any water; provided, that the term “useful or beneficial purposes” as used in this act shall not be construed to mean the use in any one year of more than two and one-half acre-feet of water per acre in the irrigation of uncultivated areas of land not devoted to cultivated crops.

SEC. 43. Nothing in this act shall be construed as depriving any person, firm, association or corporation of the right of appeal conferred under the laws of this state.

SEC. 44. All acts or parts of acts in conflict herewith are hereby repealed.
SEC. 45. This act shall be known as the "water commission act."

SEC. 46. If any section, subsection, sentence, clause or phrase of this act is for any reason held to be unconstitutional, such decision shall not affect the validity of the remaining portions of this act. The legislature hereby declares that it would have passed this act, and each section, subsection, sentence, clause and phrase thereof, irrespective of the fact that any one or more other sections, subsections, sentences, clauses or phrases be declared unconstitutional.




Discovery Necessary. There can be no valid location of a mining claim until a sufficient actual discovery of mineral is made on the claim and no question of the doing of annual assessment work is involved, as it is only after such a discovery, when actual possession is no longer necessary to protect the location against subsequent locators, that annual assessment work is essential to prevent a forfeiture. (Borgwardt vs. McKittrick Oil Co., 130 Pac. 417 (Cal.), March, 1913.)

Character of Minerals Subject to Location. In a contest between a placer and a lode locator a court has jurisdiction to determine whether the mineral land in controversy was of a character which entitled it to be located as a placer mine, or whether it could only be entered as a lode mining claim, for the reason that if the land was not subject to location as a placer claim the placer claimant obtained no possessory right thereto. (San Francisco Chemical Co. vs. Duffield, 201 Fed. 830, p. 834, November, 1912.)

Lands Already Appropriated. No right to a mining claim can be initiated while the ground is in possession of another who has the right to its possession under an earlier lawful location, nor can such a claim be initiated by forcible or fraudulent entry upon land in possession of one who has no right either to the possession or to the title. (San Francisco Chemical Co. vs. Duffield, 201 Fed. 830, p. 834.)

Marking Boundaries. The marking upon the ground of the boundaries of a mining location should be made so certain and so plain that any one prospecting in the same locality would have no trouble in locating the exact ground claimed; but any makings on the ground by stakes, monuments, mounds, and written notices whereby the boundaries can be readily traced, are sufficient, and if a third party is intending to locate can readily ascertain from what has been done by the prior locator, the extent and boundaries of the existing location, then the statute has been sufficiently complied with.

(Madeira vs. Sonoma Magnesite Co., 130 Pac. 175 (Cal.), December, 1912.)

Failure to Mark Boundaries. A locator of a mining ground who failed to definitely mark the boundaries of his location and left his claim unmarked from September, 1905, to June, 1906, and knew that another person had located a part of the same ground and performed a large amount of labor thereon without knowledge of such prior location, did not act within a reasonable time in definitely marking his claim on the ground so that its boundaries could be readily traced.

(Madeira vs. Sonoma Magnesite Co., 130 Pac. (Cal.), December, 1912.)

Excessive Ground. A mining location duly made according to the mining laws is not invalid where the locator includes within the boundaries of his claim more than the law permits, as in such case he is entitled to hold to the limit which the law authorizes within the limits he has laid out, and the territory embraced within his boundaries in excess of such limits is to be rejected; but where a locator relies upon the corners established and marked out, a different rule governs, and if the courses are so widely separated


from where they should be as to bear no relation to the lode, and so remote as to justify reasonable inference that they were not intended to apply to the lode in question, they would add little if any force to the claim that the law had been complied with, and especially so where the notice once posted at the discovery point had disappeared or where the lode line was not distinctly marked. (Madeira vs. Sonoma Magnesite Co., 130 Pac. 175 (Cal.), December, 1912.)

Entry on Existing Location. A provisional location can not be made upon an existing mining claim with the intention on the part of the locator that the validity of such provisional location depends on whether or not the prior locator fails to do the annual assessment work and thereby forfeits the existing claim.

(Rooney vs. Barnette, 200 Fed. 700, p. 708, October, 1912.)

Placer Claims. By a placer claim is meant ground within defined boundaries containing mineral in its earth, sand or gravel-ground that includes valuable deposits not in place, nor fixed in rock, but which are in a loose state and that may usually be collected by washing or amalgamation without milling.

(San Franciscoc Chemical Co. vs. Duffield, 201 Fed. 830, p. 836, November, 1912.)

Placer and Lode Claims-Rock Phosphate. Calcium phosphate or rock phosphate found in place having a dip and strike, firmly fixed in the mass of a mountain and occurring between strata of limestone, chert, and shale, where the line of demarcation between veins of such phosphate rock and wall rock of limestone or shale is well defined and distinct, and where the distinction between such phosphate rock, having commercial value, is readily determined by visual inspection, is subject to location under the mining laws only as a vein or lode and not as a placer claim.

(San Francisco Chemical Co. vs. Duffield, 201 Fed. 830, p. 836, November, 1912.)


Mining Claims.


Classification- Meaning of Vein and Lode. In order to determine whether lands containing a given mineral deposit are of the class subject to location and patent under the law applicable to lode claims, resort is to be had to the language of the statute rather than to definitions of the terms "vein," "lode," and "ledge” as given by geologists from a scientific viewpoint; but the statute is to be construed in the light of the prevailing and commonly known use of these terms as defined by miners as the result of their practical experience in mining, and the definitions given by the courts are not those of geologists, but are to be considered and used in the signification which they convey to the practical miner and not in the sense generally used by the scientific men.

(East Titanic Min. Co., In re, 43 Land Dec., 79, p. 81, January, 1914.)


Mine-What Constitutes. A mine is variously defined: An opening or excavation in the earth for the purpose of extracting minerals; a pit or excavation in the earth from which metallic ores or other mineral substances are taken by digging; an opening in the earth made for the

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