and he had made no improvements. He apparently exercised no other acts of ownership, after January 1, than every explorer of the mineral lands of the United States does when he goes on them and uses his pick to search for and examine lodes and veins. As his attempted relocation was invalid, his rights were no more than those of a simple explorer. In two months he had done, as he himself says, "no hard work on the claim,” and he "probably put two days' work on the ground." This was the extent of his possession. He was not an original discoverer, but he sought to avail himself of what others had found. Relying on what he had done in December, he did not do what was necessary to effect a valid relocation after January 1. His possession might have been such as would have enabled him to bring an action of trespass against one who entered without any color of right, but it was not enough, as we think, to prevent an entry peaceably and in good faith for the purpose of securing a right under the act of Congress to the exclusive possession and enjoyment of the property. The defendants having got into possession and perfected a relocation, have secured the better right.

The court also said:

His ultimate right to a patent depended entirely on his keeping himself in and all others out, and if he was not actually in, he was in law out. A peaceable adverse entry, coupled with the right to hold the possession which was thereby acquired, operated as an ouster. He had made no such location as prevented the

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lands from being in law vacant. Others had the right to enter for the purpose of taking them up, if it could be done peaceably and without force. There is nothing in Atherton v. Fowler (96 U. S., 513) to the contrary of this.

This doctrine has been followed in many cases (Lindley on Mines, 3d ed.; § 218, footnote No. 25). In Thallman v. Thomas (111 Fed., 277), the circuit court of appeals for the eighth circuit said:

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*

But every competent locator has the right to initiate a lawful claim to unappropriated public land by a peaceable adverse entry upon it while it is in the possession of those who have no superior right to acquire the title or to hold the possession. * Any other rule would make the wrongful occupation of public land by a trespasser superior in right to a lawful entry of it under the acts of Congress by a competent locator.

In Crossman v. Pendery (8 Fed., 693), it was held:

A prospector on the public mineral domain may protect himself in the possession of his pedis possessionis while he is searching for mineral. His possession so held is good as a possessory title against all the world, except the Government of the United States. But if he stands by and allows others to enter upon his claim and first discover mineral in rock in place, the law gives such first discoverer a title to the mineral so first discovered, against which the mere possession of the surface can not prevail * Lindley summarizes the matter as follows (Lindley on Mines, 3d ed., § 219):

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*

(1) Actual possession of a tract of public mineral land is valid as against a mere intruder, or one having no higher or better right than the prior occupant;

(2) No mining right or title can be initiated by a violent or forcible invasion of another's actual occupancy;

(3) If a party goes upon the mineral lands of the United States and either establishes a settlement or works thereon without complying with the requirements of the mining laws, and relies exclusively upon his possession or work, a second party who locates peaceably a mining claim covering any portion of the same ground, and in all respects complies with the requirements of the mining laws, is entitled to the posses

sion of such mineral ground to the extent of his location as against the prior occupant, who is, from the time said second party has perfected his location and complied with the law, a trespasser.

To this the following further summary may well be added:

1. A claimant who remains in continuous possession and diligently prosecutes work leading to discovery will be protected against forcible, fraudulent, clandestine, or surreptitious entry or intrusion upon his possession-perhaps (Borgwardt v. McKittrick Oil Co., supra) against any entry or intrusion made without his consent. As to whether this protection extends to the limits of the claim or is confined to the pedis possessio-the part of the claim actually covered by possession and diligent work-the courts are not in agreement.

2. If possession is not continuous or work leading to discovery is not diligently prosecuted adverse entry may be made.

3. If a claimant, though in possession and in diligent prosecution of work leading to discovery, allows another claimant to enter upon the claim and there attempt to discover mineral, the claimant first making discovery will, if he has otherwise complied with the law, have a valid location and the unsuccessful claimant will be in trespass. 4. It is not altogether clear what means a prior occupant may take and to what extent he may go in preventing the peaceable and open entry which will, if it ripen into a valid location, dispossess him.

5. Some of the public-land States have enacted laws regarding occupancy prior to discovery, providing, for example, for the recording of claims, or attempting to provide a period during which the occupant may have exclusive possession in order to make discovery. For the interpretation and effect of these statutes or of local decisions regarding rights of occupancy recourse must be had to local authorities.

THE "FIVE CLAIMS ACT” OF FEBRUARY 12, 1903.

An act known as the "five claims act," making certain provisions as to assessment work under the placer law, was approved February 12, 1903 (32 Stat., 825), and is as follows:

AN ACT Defining what shall constitute and providing for assessments on oil mining claims. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That where oil lands are located under the provisions of title thirty-two, chapter six, Revised Statutes of the United States, as placer mining claims, the annual assessment labor upon such claims may be done upon any one of a group of claims lying contiguous and owned by the same person or corporation, not exceeding five claims in all: Provided, That said labor will tend to the development or to determine the oil-bearing character of such contiguous claims.

It must be remembered in reading this act that, as already pointed out, assessment work is involved only after discovery, so that prior to discovery this act has no application-there must be a discovery

on each of the five claims. To quote again from the Supreme Court of California in Smith v. Union Oil Co. (135 Pac., 966), in which the disputed claim was an association placer of 160 acres:

the phrase "annual assessment labor," found in the act of 1903 under consideration, can not be construed to include or refer to work done upon a claim to accomplish a discovery thereon in order to perfect the location. The use of that phrase limits the application of the act to claims upon which discovery has been made-claims upon which there has been a valid and completed location.

THE "ASSIGNMENT ACT" OF MARCH 2, 1911.

(36 Stat., 1015.)

AN ACT To protect the locators in good faith of oil and gas lands who shall have effected an actual discovery of oil or gas on the public lands of the United States, or their successors in interest.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That in no case shall patent be denied to or for any lands heretofore located or claimed under the mining laws of the United States containing petroleum, mineral oil, or gas solely because of any transfer or assignment thereof or of any interest or interests therein by the original locator or locators, or any of them, to any qualified persons or person, or corporation, prior to discovery of oil or gas therein, but if such claim is in all other respects valid and regular, patent therefor not exceeding one hundred and sixty acres in any one claim shall issue to the holder or holders thereof, as in other cases: Provided, however, That such lands were not at the time of inception of development on or under such claim withdrawn from mineral entry.

It is to be noted that this act provides for the issuance of patent only if the "claim is in all other respects valid and regular.” It does not validate claims made by "dummies" or otherwise in contravention of the spirit of the mining laws. The Government may inquire into the interest of each locator and where such interest is insufficient may refuse patent in the same manner as if the act had not been passed. It should be noted also that the act is exclusively retrospective and has no bearing cn claims initiated after March 2, 1911.

WITHDRAWAL ACTS.

All oil withdrawals now outstanding are under the authority of the act of June 25, 1910 (36 Stat., 847), as amended by the act of August 24, 1912 (37 Stat., 497). The law as amended is as follows:

AN ACT To authorize the President of the United States to make withdrawals of public lands in certain

cases.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the President may, at any time in his discretion, temporarily withdraw from settlement, location, sale, or entry any of the public lands of the United States including the District of Alaska and reserve the same for waterpower sites, irrigation, classification of lands, or other public purposes to be specified in the orders of withdrawals, and such withdrawals or reservations shall remain in force until revoked by him or by an Act of Congress.

SEC. 2. That all lands withdrawn under the provisions of this Act shall at all times be open to exploration, discovery, occupation, and purchase under the mining laws of the United States, so far as the same apply to metalliferous minerals: Provided,

That the rights of any person who, at the date of any order of withdrawal heretofore or hereafter made, is a bona fide occupant or claimant of oil or gas bearing lands and who, at such date, is in the diligent prosecution of work leading to the discovery of oil or gas, shall not be affected or impaired by such order so long as such occupant or claimant shall continue in diligent prosecution of said work: Provided further, That this Act shall not be construed as a recognition, abridgment, or enlargement of any asserted rights or claims initiated upon any oil or gas bearing lands after any withdrawal of such lands made prior to June twenty-fifth, nineteen hundred and ten: And provided further, That there shall be excepted from the force and effect of any withdrawal made under the provisions of this Act all lands which are, on the date of such withdrawal, embraced in any lawful homestead or desert-land entry theretofore made, or upon which any valid settlement has been made and is at said date being maintained and perfected pursuant to law; but the terms of this proviso shall not continue to apply to any particular tract of land unless the entryman or settler shall continue to comply with the law under which the entry or settlement was made: And provided further, That hereafter no forest reserve shall be created, nor shall any additions be made to one heretofore created, within the limits of the States of California, Oregon, Washington, Idaho, Montana, Colorado, or Wyoming, except by Act of Congress.

SEC. 3. That the Secretary of the Interior shall report all such withdrawals to Congress at the beginning of its next regular session after the date of the withdrawals. The black-face type has been introduced to indicate the material changes made by the amending act. These were the substitution of the words "metalliferous minerals" for the words "minerals other than coal, oil, gas, and phosphates" in the first clause of section 2 and the introduction of "California" into the last proviso of section 2.

Prior to the passage of the act of June 25, 1910, withdrawals were made under the executive authority of the President, and the first proviso to section 2 of the act is so drawn as to apply to withdrawals both theretofore and thereafter made. Thus in the case of L. W. Lowell et al. (40 L. D., 303) it was held (syllabus):

A placer location of oil lands, not preceded by discovery, and upon which no work which led to the discovery of oil was being prosecuted at the date of departmental withdrawal No. 5 of September 27, 1909, does not except the land covered thereby from the force and effect of such withdrawal, regardless of the subsequent discovery of oil thereon.

It is evident that many questions will arise as to what constitutes "diligent prosecution of work leading to the discovery of oil or gas." In McLemore v. Express Oil Co. (112 Pac., 59), already cited many times, is perhaps the clearest judicial expression. The facts as stated by the court were:

A cabin was constructed upon the claim, its boundaries were marked, some bits of road built, and, in the language of appellant's brief, work had been done and improvements made upon the claim "far in excess of the requirements of the United States statutes with respect to assessment work, and before any claim had been ini

1 See letter of Oct. 11, 1912, from President to Secretary, p. 288.

* See United States v. Midwest Oil Co., 236 U. S., 459.

15211°-Bull. 623-16

4

tiated by the plaintiff they had expended in a direct and legitimate way many times over the amount required in the way of assessment work."

The court held:

This diligent prosecution of the work of discovery does not mean the doing of assessment work. It does not mean the pursuit of capital to prosecute the work. It does not mean any attempted holding by cabin, lumber pile, or unused derrick. It means the diligent, continuous prosecution of the work, with the expenditure of whatever money may be necessary to the end in view. Of such work defendant's grantors were not in the prosecution up to April 12, 1907. They were not only not in the actual possession of the land, as the court finds, but the evidence discloses that what they had done was no more than an attempt to hold the land under the theory that assessment work was adequate for that purpose.

SEPARATION ACTS.

The withdrawals, especially those from all entry, beginning with that of September 27, 1909, inevitably included some lands having agricultural value and brought a demand for legislation which would permit agricultural development without loss of the objects for which the withdrawals were inaugurated. The first step in this direction was the "Utah act" of August 24, 1912 (37 Stat., 496), which was as follows:

AN ACT To provide for agricultural entries on oil and gas lands.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That from and after the passage of this Act unreserved public lands of the United States in the State of Utah, which have been withdrawn or classified as oil lands, or are valuable for oil, shall be subject to appropriate entry under the homestead laws by actual settlers only, the desert-land law, to selection by the State of Utah under grants made by Congress and under section four of the Act approved August eighteenth, eighteen hundred and ninety-four, known as the Carey Act, and to withdrawal under the Act approved June seventeenth, nineteen hundred and two, known as the reclamation Act, and to disposition in the discretion of the Secretary of the Interior under the law providing for the sale of isolated or disconnected tracts of public lands, whenever such entry, selection, or withdrawal shall be made with a view of obtaining or passing title, with a reservation to the United States of the oil and gas in such lands and of the right to prospect for, mine, and remove the same. But no desert entry made under the provisions of this Act shall contain more than one hundred and sixty acres: Provided, That those who have initiated nonmineral entries, selections, or locations in good faith, prior to the passage of this Act, on lands withdrawn or classified as oil lands, may perfect the same under the provisions of the laws under which said entries were made, but shall receive the limited patent provided for in this Act.

SEC. 2. That any person desiring to make entry under the homestead laws or the desert-land law, and the State of Utah desiring to make selection under section four of the Act of August eighteenth, eighteen hundred and ninety-four, known as the Carey Act, or under grants made by Congress, and the Secretary of the Interior in withdrawing under the reclamation Act lands classified as oil lands, or valuable for oil, with a view of securing or passing title to the same in accordance with the provisions of said Acts, shall state in the application for entry, selection, or notice of withdrawal that the same is made in accordance with and subject to the provisions and reservations of this Act.