STATUTE OF LIMITATIONS.

Suit to Annul Patent.-Sec. 8. That suits by the United States to vacate and annul any patent heretofore issued shall only be brought within five years from the passage of this act, and suits to vacate and annul patents hereafter issued shall only be brought within six years after the date of the issuance of such patents. * * *-A. C. March 3, 1891, Sup. p. 939.

Section 2332 of the United States Statutes expressly recognizes possession of a mining claim during the period fixed by the State Act as sufficient to establish a right thereto.-420 Mining Co. v. Bullion Co. 1 M. R. 114. And a claim may be sued for under the title so developed.-Glacier Mt. Co. v. Willis, 127 U. S. 472. Such title by continued possession is equivalent to location.-Altoona Co. v. Integral Co. 45 Pac. 1047.

The apparently clear construction of Sec. 2332 is that in ex parte cases an applicant for patent may rely on his continued possession without producing abstract of title, and that a party in like position could adverse on same ground (29 L. D. 401); that in the suit supporting the adverse either could rely on such possession until defeated by the production of some superior title. And such is the import of all the above citations. But in Montana it has been held that such possession gave no title, and that the statute was a mere permission to support patent applications_on possession, in non-contested cases. - McCowan v. McLay, 40 Pac. 602.

Prior to the Act of 1874 (M. A. S. ? 2923-2926), which prescribed the period of five years as the limitation to actions of ejectment for mining claims and other classes of real estate, no express limitation existed in Colorado. In 1893 (Acts p. 327) the time was enlarged to seven years or to twenty years under certain conditions. The period varies in every state,

in Nevada being as low as two years.-South End Co. v. Tinney, 35 Pac. 89; 38 Pac. 401. And in Montana only one year as to possessory claims.-Horst v. Shea, 59 Pac. 364.

The possession of the claim must be open and notorious.-Hamilton v. S. Nevada Co. 33 Fed. 562.

The continuous working of a mine, or even its working during successive seasons with intervening seasons during which the mine is left idle, according to the custom of the country, is as complete an adverse possession as could be gained by agricultural operations or other acts of possession. - Stephenson v. Wilson, 13 M. R. 408; Wilson v. Henry, 1 M. R. 152, 157; 420 M. Co. v. Bullion Co. 11 M. R. 608; Bell v. Denson, 56 Ala. 444.

In the case of Harris v. Equator Co. cited p. 289, it was intimated in the opinion of the court, HALLETT J., that where a party had been in possession of a mining claim for the period of the statute of limitations, such fact raised a presumption, at least against a wrongdoer, that he held under a valid location, without proof of the various acts of location, and such must from the nature of things be the ultimate decision of all courts upon this point.-See p. 66.

As to the running of the statute where money is to be paid out of the proceeds of the mines, see Charter Oak Co. v. Stephens, 15 Pac. 254.

The statute of limitations does not begin to run while the title is in the United States, except as between parties both of whom claim by possessory title only.-King v. Thomas, 12 Pac. 865; Wiebold v. Davis, 14 Pac. 865. Nor until the patent actually issues.-South End Co. v. Tinney, 38 Pac. 401; Clark v. Barnard, Id. 834.

Adverse possession of water for the statutory period gives title.-Cox v. Clough, 70 Cal. 345; Herriman Co. v. Butterfield Co. 57 Pac. 537.

To make adverse possession available there must be: 1. The occupation or use of the land.

2.

Claim and color of title.

The Colorado Supreme Court has ruled that a party following a patented vein on its strike beyond its side lines has not sufficient color of title to maintain such defense.-Lebanon Co. v. Rogers, 8 Colo. 34. Possession under title bond gives claim and color after payment of purchase money.- Woods v. Montevallo Co. 84 Ala. 560; 5 Am. St. R. 393.

In instances the title may ripen without being initiate on any paper.—Minnesota Co. v. Brasier, 45 Pac. 632; Risch v. Wiseman, 59 Pac. 1111.

As to actions for trespass for coal or ore taken but the fact not ascertained by plaintiff within the statutory period-see Lewey v. Frick Co. 31 Atl. 261; Williams v. Pomeroy Co. 6 M. R. 195.

BUREAU OF MINES-COMMISSIONER

INSPECTOR.

By Art. 16, Sec. 1, of the Constitution of Colorado, the office of Commissioner of Mines was authorized, and the session of 1877 provided for the appointment of a person to fill the office. By Act of 1889 the office of inspector of metalliferous mines was established. Both Acts became inoperative for want of appropriations, until the Act of March 30, 1895, which created a Bureau of Mines.

Such Act provides for the supervision and safe guarding of mines and the protection of miners, unites the duties of commissioner and inspector, and undertakes a general systematization of mining as a science and an economic industry.

It is the inspector's duty to inquire into accidents and to make examination when proper complaint is made. Acts 1895, p. 211.

ASSAYS.

An assay is the test of the value of a specimen or quantity of ore by the extraction of the amount of silver, gold or other metal, contained in a minute but exact fraction, which amount is supposed to be proportionate to the whole amount found in the quantity from which the fraction was obtained. Supposing the assay to be correct, its importance in determining the quantity of metal in the ore of the mine, or the value of the mine as deduced from its ore product, depends on the size of the lot from which it was obtained, and the manner in which such lot was selected. What are called specimen assays are of no value whatever, further than to show the contents of the identical specimen from which made, but are often used to deceive persons ignorant in such matters.

While the assay shows only the contents of that portion of ore that has been assayed, its importance lies in its acceptance as indicating the contents of other ore, of which the portion assayed was a

"sample."

Between buyer and seller ore is usually sampled by the former, under supervision of the latter, if he choose to be present. The sample taken (pulverized) is divided into portions-one for the buyer, one for the seller, and one to be kept for reference in case of difference between the other two. After division, each portion is in itself a sample. Both buyer and seller have a control assay (assay in duplicate) made of their respective samples. The sale is customarily made on the assay of the buyer, and the sample of the seller is intended for a check on the assay of the buyer.

The results of carefully made assays should not differ more than one per cent. except where the ore con

tains much free gold, native silver or silver glance, the particles of which cannot be reduced to exact evenness, and make assays of these classes of ore treacherous. Samples of the same lot of commercial ore should not differ more than two per cent. in ordinary cases, and usually come within one per cent. In case of disagreement, the third portion of the original sample, called the umpire, is tested by a third party for a control, and this assay is final unless there be such unusual and excessive variation as to suggest the necessity of resampling.

The intent of an assay is to show the true value of the ore, and if it is so taken as not to show such value, proof of assays otherwise taken may be given in evidence. - Phipps v. Hully, 18 Nev. 133; 15 M. R. 350. Distinction in results of wet and fire assays.-In re Puget Co. 96 Fed. 90.

Sales based on assay are not bound by the assay in case of gross error.-Cox v. Prentice, 3 M. & S. 344. And as to the custom of assayers, and of whom, if of either, he is the agent, see this case and Trotter v. Heckscher, 40 N. J. Eq. 612; 42 Id. 251. As to deductions for moisture see this litigation continued in Lehigh Co. v. Trotter, 42 N. J. Eq. 661. Sufficient proof by assay that samples were salted with powdered silver.-Mudsill Co. v. Watrous, 61 Fed. 163. By assay with litharge, a trace of silver may be shown in any kind of rock.-Ormond v. Granite Mt. Co. 28 Pac. 289. An assay of two lots is no proof of the value of a series of shipments.-Pittsburgh Co. v. Glick, 42 Pac. 188.

Mill samples control car samples.-Vietti v. Nesbitt, 41 Pac. 151. The "Assay value" of gold means its universal standard value and not the value of local gold bullion.-Id. But a contract to pay 95 per cent. of the silver contents of the "product of said ore" does not mean 95 per cent. of the assay value of the raw ore.-Silver Co. v. N. C. Sm. Co. 29 S. E. 940.