claims in common, made by or under the direction of the United States surveyor-general, showing accurately the boundaries of the claim or claims, which shall be distinctly marked by monuments on the ground, and shall post a copy of such plat, together with a notice of such application for a patent, in a conspicuous place on the land embraced in such plat previous to the filing of the application for a patent, and shall file an affidavit of at least two persons that such notice has been duly posted, and shall file a copy of the notice in such land office, and shall thereupon be entitled to a patent for the land, in the manner following: The register of the land office, upon the filing of such application, plat, field notes, notices, and affidavits, shall publish a notice that such application has been made, for the period of sixty days, in a newspaper to be by him designated as published nearest to such claim; and he shall also post such notice in his office for the same period. The claimant at the time of filing this application, or at any time thereafter, within the sixty days of publication, shall file with the register a certificate of the United States surveyorgeneral that five hundred dollars' worth of labor has been expended or improvements made upon the claim by himself or grantors; that the plat is correct, with such further description by such reference to natural objects or permanent monuments as shall identify the claim, and furnish an accurate description to be incorporated in the patent. At the expiration of the sixty days of publication the claimant shall file his affidavit, showing that the plat and notice have been posted in a conspicuous place on the claim during such period of publication. If no adverse claim shall have been filed with the register and the receiver of the proper land office at the expiration of the sixty days of publication, it shall be assumed that the applicant is entitled to a patent, upon the payment to the proper officer of five dollars per acre, and that no adverse claim exists; and thereafter no objection from third parties to the issuance of a patent shall be heard, except it be shown that the applicant has failed to comply with the terms of this chapter.

Adverse claim, proceedings on.

10 May, 1872, c.

SEC. 2326. Where an adverse claim is filed during the period of publication, it shall be upon oath of the person or persons making the same, and shall show the nature, boundaries, and extent of such adverse 152, s. 7, v. 17, p. claim, and all proceedings, except the publication of notice and mak- 93. ing and filing of the affidavit thereof, shall be stayed until the controversy shall have been settled or decided by a court of competent jurisdiction, or the adverse claim waived. It shall be the duty of the adverse claimant, within thirty days after filing his claim, to commence proceedings in a court of competent jurisdiction, to determine the question of the right of possession, and prosecute the same with reasonable diligence to final judgment; and a failure so to do shall be a waiver of his adverse claim. After such judgment shall have been rendered, the party entitled to the possession of the claim, or any portion thereof, may, without giving further notice, file a certified copy of the judgmentroll with the register of the land office, together with the certificate of the surveyor-general that the requisite amount of labor has been expended or improvements made thereon, and the description required in other cases, and shall pay to the receiver five dollars per acre for his claim, together with the proper fees, whereupon the whole proceedings and the judgment-roll shall be certified by the register to the Commissioner of the General Land Office, and a patent shall issue thereon for the claim, or such portion thereof as the applicant shall appear, from

Description of mining vein lode claims.

14.

or

Patents to con

monuments.

the decision of the court, to rightly possess. If it appears from the decision of the court that several parties are entitled to separate and different portions of the claim, each party may pay for his portion of the claim with the proper fees, and file the certificate and description by the surveyor-general, whereupon the register shall certify the proceedings and judgment-roll to the Commissioner of the General Land Office, as in the preceding case, and patents shall issue to the several parties according to their respective rights. Nothing herein contained shall be construed to prevent the alienation of a title conveyed by a patent for a mining claim to any person whatever.

SEC. 2327. The description of vein or lode claims upon surveyed lands shall designate the location of the claims with reference to the 10 May, 1872, c. lines of the public survey, but need not conform therewith; but where 952, s. 8, v. 17, P. patents have been or shall be issued for claims upon unsurveyed lands, Amended Apr. the surveyors-general, in extending the public survey, shall adjust the 28, 1904 (33 Stat., 545). 'same to the boundaries of said patented claims so as in no case to interfere with or change the true location of such claims as they are form to official officially established upon the ground. Where patents have issued for mineral lands, those lands only shall be segregated and shall be deemed to be patented which are bounded by the lines actually marked, defined, and established upon the ground by the monuments of the official survey upon which the patent grant is based, and surveyors-general in executing subsequent patent surveys, whether upon surveyed or unsurveyed lands, shall be governed accordingly. The Monuments to said monuments shall at all times constitute the highest authority as govern descrip- ' tions. to what land is patented, and in case of any conflict between the said monuments of such patented claims and the descriptions of said claims in the patents issued therefor the monuments on the ground shall govern, and erroneous or inconsistent descriptions or calls in the patent descriptions shall give way thereto.

152, s. 12, v. 17, p.

95.

Surveyor-gen- SEC. 2334. The surveyor-general of the United States may appoint eral to appoint surveyors of min-in each land district containing mineral lands as many competent ing claims, etc. surveyors as shall apply for appointment to survey mining claims. 10 May, 1872, c. The expenses of the survey of vein or lode claims, and the survey and subdivision of placer claims into smaller quantities than one hundred and sixty acres, together with the cost of publication of notices, shall be paid by the applicants, and they shall be at liberty to obtain the same at the most reasonable rates, and they shall also be at liberty to employ any United States deputy surveyor to make the survey. The Commissioner of the General Land Office shall also have power to establish the maximum charges for surveys and publication of notices under this chapter; and, in case of excessive charges for publication, he may designate any newspaper published in a land district where mines are situated for the publication of mining notices in such district, and fix the rates to be charged by such paper; and, to the end that the Commissioner may be fully informed on the subject, each applicant shall file with the register a sworn statement of all charges and fees paid by such applicant for publication and surveys, together with all fees and money paid the register and the receiver of the land office, which statement shall be transmitted, with the other papers in the case, to the Commissioner of the General Land Office.

10 May, 1872, c. 152, s. 13, v. 17, p.

SEC. 2335. All affidavits required to be made under this chapter Verification of affidavits, etc. may be verified before any officer authorized to administer oaths within the land district where the claims may be situated, and all testimony and proofs may be taken before any such officer, and, when 95. duly certified by the officer taking the same, shall have the same force and effect as if taken before the register and receiver of the land office. In cases of contest as to the mineral or agricultural character of land, the testimony and proofs may be taken as herein provided on personal notice of at least ten days to the opposing party; or if such party can not be found, then by publication of at least once a week for thirty days in a newspaper, to be designated by the register of the land office as published nearest to the location of such land; and the register shall require proof that such notice has been given.

*

to States or corpo

clude mineral

SEC. 2346. No act passed at the first session of the Thirty-eighth Grant of lands Congress, granting lands to States or corporations to aid in the con- rations not to instruction of roads or for other purposes, or to extend the time of grants lands. made prior to the thirtieth day of January, eighteen hundred and 30 Jan., 1865, sixty-five, shall be so construed as to embrace mineral lands, which in Res. No. 10, v. 13, p. 567. all cases are reserved exclusively to the United States, unless otherwise specially provided in the act or acts making the grant.

DISCOVERY. 1

An analysis of the placer law shows its most important requirement to be this: A discovery of mineral must be made before exclusive right of possession and enjoyment attaches. Section 2329 of the Revised Statutes provides for entry and patent of placer claims "under like circumstances and conditions and upon similar proceedings" to those for lode claims. Section 2320 provides that “no location of a mining claim shall be made until the discovery of a vein or lode within the limits of the claim located." A number of authorities might be cited on the necessity of discovery as a prerequisite to location. Only three will be given here. The Supreme Court of California, in McLemore v. Express Oil Co. (112 Pac., 59), stated the rule and outlined some of its difficulties in the case of oil lands:

* the principle has become axiomatic that discovery and appropriation are the source of title to mining claims, and that assessment or development work is the condition of their continued possession (27 Cyc., 588). But this rule applies only when the location is valid and complete. And a location is valid and complete only when, after compliance with other requirements, a discovery of valuable mineral in place has been made. In the case of ordinary minerals, little or no difficulty has been experienced by the courts in this matter. In practice, the miner went upon the public domain, and, before he took the trouble to stake his claim and post and record his notice, he made discovery. The staking of the boundaries of the claim and the posting of notice followed such discovery. When, however, Congress enacted that locations could and should be made of public lands containing petroleum or other mineral oils under the laws relating to placer mining claims (Act Feb. 11, 1897, C. 216,

1 As to the relation of discovery to assessment work, see pp. 38, 39.

See also Hall v. McKinnon, 193 Fed., 572; Donnelly v. United States, 228 U. S., 243; Union Mining Co. v. Leitch, 24 Wash., 585.

15211°-Bull. 623-16-3

29 Stat., 526 [U. S. Comp. St. 1901, p. 1434]), the courts were at once confronted with serious difficulty in their endeavor to obey the congressional mandate, and fit the placer mining laws to the exigencies of oil locations which in their nature were radically dissimilar.

In the case of oil, discovery, in the very nature of things, would rarely or never be made except at the end of much time and after the expenditure of much money, the discovery of oil involving the erection of a derrick and the laborious drilling of a well, frequently to the depth of 3,000 feet and more.

But it is always to be borne in mind that, until the perfection of the inchoate and incomplete location by discovery, the locator has, first, no vested rights which Congress is obliged to recognize.

In the case of Mining Co. v. Tunnel Co. (196 U. S., 337) the Supreme Court of the United States stated the matter clearly and forcefully:

Three things are provided for, discovery, location and patent. The first is the primary, the initial fact. The others are dependent upon it and are the machinery devised by Congress for securing to the discoverer of mineral the full benefit of his discovery. * * The whole scope of the chapter is the acquisition of title from the United States to mines and mineral lands, the discovery of the mineral being, as stated, the initial fact. Without that no rights can be acquired.

*

And again in Waskey v. Hammer (223 U. S., 85):

The mining laws, Rev. Stat. §§ 2320, 2329, make the discovery of mineral “within the limits of the claim" a prerequisite to the location of a claim, whether lode or placer *

Judge Lindley, in discussing the subject, makes the following statements (Lindley on Mines, 3d ed., § 437):

Discovery is just as essential in case of placers as it is in lode locations.1 The Supreme Court of California at one time expressed the view that neither the Federal laws nor the local rules and customs of miners required that a discovery should be made as a prerequisite to a placer location, but this was obviously a mere dictum; it was also opposed to the current of judicial authority, as was subsequently so determined by the same court.3 The land department has uniformly held that discovery is essential in the case of placers, going so far at one time as to hold that such discovery was essential in each twenty-acre tract within a location of one hundred and sixty acres located by an association of persons.

In the case of petroleum deposits the courts in California have in recent years been confronted with some serious problems upon the subject of what constitutes a sufficient discovery which will sanction a location of oil lands under the laws applicable to placers. It is well known that the natural habitat of this class of mineral hydro

1 Nevada Sierra Oil Co. v. Miller, 97 Fed., 681, 688; Nevada Sierra Oil Co. v. Home Oil Co., 98 Fed., 673, 676; Olive L. & D. Co. v. Olmstead, 103 Fed., 568, 573; Cosmos Exploration Co. v. Gray Eagle Co., 112 Fed., 4, 14, 50 C. C. A., 79; Miller v. Chrisman, 140 Cal., 440, 98 Am. St. Rep., 63, 73 Pac., 1083, 1084, 74 Pac., 444; affirmed 197 U.S., 313, 320, 25 Sup. Ct. Rep., 468, 49 L. ed., 770; New England & Coalinga Oil Co. v. Congdon, 152 Cal., 211, 92 Pac., 180, 181; Whiting v. Straup, 17 Wyo., 1, 129 Am. St. Rep., 1093, 95 Pac., 849, 853; Steele v. Tanana Mines R. Co., 148 Fed., 678, 679, 78 C. C. A., 412; Garabaldi v. Grillo, 17 Cal. App., 540, 120 Pac., 425; Hall v. McKinnon, 193 Fed., 572, 576.

2 Gregory v. Pershbaker, 73 Cal., 109, 117, 14 Pac., 401.

3 New England & Coalinga Oil Co. v. Congdon, 152 Cal., 211, 92 Pac., 180, 181.

carbons is in stratified rocks some distance below the surface, and except for the occasional appearance at the surface in the form of oil seepages, springs, or other indications of the subterranean existence of petroleum, there is nothing to guide the miner in making his location. It requires more or less extensive development in the nature of well-drilling and prospecting to determine the nature, extent, and permanency of the deposit.

Of course exploitation on adjacent lands might raise a strong presumption that a given tract contained petroleum. An oil-producing well within each of four sections of land surrounding a fifth would produce a conviction that the oil deposit was underneath the fifth section. This fact might justify the land department in classifying the section in the category of mineral lands,' or the government surveyor in returning it as such, but it would not dispense with the necessity of making a discovery.3

What constitutes a valid discovery? Oil in large quantities is seldom if ever found in nature on the surface of the ground. The natural laws under which it accumulates require a superincumbent rock covering of considerable thickness and density. With the exception of negligible quantities gathered from seepages and springs all the oil produced in the United States comes from wells of greater or less depth, and it is only by means of such wells that discovery can be made. As stated in McLemore v. Express Oil Co. (112 Pac., 59), already quoted:

In the case of oil, discovery, in the very nature of things, would rarely or never be made except at the end of much time and after the expenditure of much money, the discovery of oil involving the erection of a derrick and the laborious drilling of a well, frequently to the depth of 3,000 feet and more.

In Miller v. Chrisman (73 Pac., 1083) the court says:

To constitute a discovery, the law requires something more than conjecture, hope, or even indications. The geological formation of the country may be such as scientific research and practical experience have shown to be likely to yield oil in paying quantities. Taken with this there may be other surface indications, such as seepage of oil. All these things combined may be sufficient to justify the expectation and hope that, upon driving a well to sufficient depth, oil may be discovered, but one and all they do not, in and of themselves, amount to a discovery. This view finds support in the Nevada Sierra Oil Co. v. Home Oil Co. (C.C.), 98 Fed., 673, where the circuit court was dealing with this precise question, in regard to this precise piece of land, under these identical circumstances. While perhaps it would be stating it too broadly to say that no case can be imagined where a surface discovery may be made of oil sufficient to fill the requirements of the statute, yet it is certainly true that no such case has ever been presented to our attention, and that in the nature of things such a case will seldom, if ever, occur. A review of indications which have been held not to constitute discovery is given in the case of the Butte Oil Co. (40 L. D., 602), from which the following is quoted:

The question of what constitutes a discovery of oil has been considered by the various courts and the Department. In Nevada Sierra Oil Co. v. Home Oil Co. (98

1 Kern Oil Co. v. Clotfelter, 33 L. D., 291; Hirshfeld v. Chrisman, 40 L. D., 112.

State of Washington v. McBride, 25 L. D., 169, 181.

Reins v. Murray, 22 L. D., 409.