a good location. Terrible M. Co. v. Argentine | exceptions of mineral lands from pre-emption M. Co., 5 McCrary, 639. 299. An applicant for a placer patent, who has given due notice thereof and made entry, may maintain a suit to quiet title against one claiming under a conflicting lode location. Dahl v. Raunheim, 132 U. S. 260. 300. When plaintiff's ownership and right of possession are put in issue by answer, he must show affirmatively a compliance with the act of Congress and local rules and regulations, and that he had thereby made a valid location. Garfield M. & M. Co. v. Hammer, 130 U. S. 291. See S. C., 6 Mont. 53; 8 Pac. Rep. 153. 301. It is a general rule of law that a certificate of entry, like a patent, is conclusive of legal title, but this rule will not be followed where entry was made by defendant in an adverse suit, after the dismissal of such suit, where the suit was thereafter reinstated, and the cause will be tried as though it had never been dismissed. McEvoy v. Hyman, 25 Fed. Rep. 539; 15 Mor. Min. Rep. 300. 21. Town Site. (See TOWN SITE, p. 451.) 302. "Where mineral veins are possessed, which possession is recognized by local authority, and to the extent so possessed, and recognized, the title to town lots to be acquired shall be subject to such recognized possession and the necessary use thereof; but nothing contained in this section shall be so construed as to recognize any color of title in possessors for mining purposes as against the United States." (Sec. 2386, U. S. Rev. Stat.) "No title shall be acquired, under the foregoing provisions of this chapter, to any mine of gold, silver, cinnabar, or copper, or to any valid mining claim or possession." (Sec. 2392, U. S. Rev. Stat.) "Thus read they must be held, we think, merely to prohibit the passage of title under the provisions of the Town Site Laws, to mines of gold, silver, cinnabar, or copper, which are known to exist, on the issue of the town site patent, and to mining claims and mining possessions, in respect to which such proceedings have been taken under the law or the custom of miners, as to render them valid, creating a property right in the holder, and not to prohibit the acquisition for all time of mines which then lay buried unknown in the depths of the earth. The and settlement and for grants to States for universities and schools, for the construction of public buildings and in aid of railroads and other works of internal improvement, are not held to exclude all lands in which minerals may be found, but only those where the mineral is in sufficient quantity to add to their richness and to justify expenditure for its extraction, and known to be so at the date of the grant. There are vast tracts of country in the mining States which contain precious metals in small quantities, but not to a sufficient extent to justify the expense of their exploitation. It is not to such lands that the term 'mineral' in the sense of this statute is applicable." Davis' Adm'r v. Weibbold, 139 U. S. 507. (Citing and approving Pacific Coast M. & M. Co. v. Spargo, 8 Sawy. 645; 16 Fed. Rep. 348; Cowell v. Lammers, 10 Sawy. 246; 21 Fed. Rep. 200; 3 West Coast Rep. 504; United States v. Reed, 12 Sawy. 99; 28 Fed. Rep. 486; Alford v. Barnum, 45 Cal. 482; 10 Mor. Min. Rep. 422; Merrill v. Dixon, 15 Nev. 401; Dughi v. Harkins, 2 L. D. 721; Cleghorn v. Bird, 4 L. D. 478; Commissioner of Kings County v. Alexander, 5 L. D. 126; Samuel W. Spong, 5 L. D. 193; Magalia G. M. Co. v. Ferguson, 6 L. D. 218; Nicholas Abercrombie, 6 L. D. 393; John Downs. 7 L. D. 71; Cutting v. Reininghaus, 7 L. D. 265; Creswell M. Co. v. Johnson, 8 L. D. 440; Thomas J. Laney, 9 L. D. 83.) 303. Where the applicant for patent for a lode claim situate within a patented town site shows such lode to have been known at the date of the town site entry, he may proCure a reconveyance of the conflict by the town site to the United States, and thus reinvest the Land Department with jurisdiction to patent the claim. Pederson Lode v. Black Hawk Town Site, 14 L. D. 186. 304. As sections 2386 and 2392, United States Revised Statutes, provide that no title shall be acquired under the town site laws to known mines or to valid mining claims or possessions, if it is shown that a mine or valid mining claim was known within a town site at date of the town site entry, patent may issue therefor, as title thereto never passed from the United States. (Following principle of South Star Lode, 20 L. D. 204.) Com'r to Denver Office, Nov. 16, 1895, In re Antediluvian Lode; Town Site of Butte, 3 C. L. O. 114-131. 22. Trespass. (See TRESPASS, p. 454.) 305. A possessio pedis of mining land is good as against a mere trespasser, but, in the absence thereof, claimant must show a legal location to succeed in a suit against a trespasser. Funk v. Sterrett, 59 Cal. 613. 306. In an action of trespass on a mining claim, plaintiff need show only that he has possession, unless defendant shows some sort of title superior to that of mere possession. Courchainer v. Bullion M. Co., 4 Nev. 369; Patchen v. Keeley, 19 Nev. 404; 14 Pac. Rep. 347. 307. To support an action of trespass, personal possession on the ground (possessio pedis) is not necessary. McFetters v. Pierson, 15 Colo. 201: 24 Pac. Rep. 1076; Neuebaumer v. Woodman, 89 Cal. 310; 26 Pac. Rep. 900. 308. Entry on land of another under assertion of title is an ouster, otherwise a mere trespass. West v. Lanier, 9 Humphreys, 762; 12 Mor. Min. Rep. 184. 309. A mine owner holding under possessory right in compliance with law may maintain an action of trespass against one who removes timber from the claim. McFetters v. Pierson, 15 Colo. 201; 24 Pac. Rep. 1076. 310. The complaint in a mere action of trespass need only allege in general terms ownership in the mining property. Allega. tions of location, etc., are not required. McFetters v. Pierson, 15 Colo. 201; 24 Pac. Rep. 1076. 23. Water Rights. (See WATER RIGHTS, p. 360.) Scam. 67; S. C., 33 Am. Dec. 441; Davis v. Cowles v. Kidder, 24 N. H. 378; Stillman v. 312. The doctrine as to water rights, etc., under the act of July 26, 1866, applies only to public lands. No rights can be acquired thereunder where the title to the lands upon which the stream is situated has passed from the government, but the owner of the land is the owner of the stream, and the commonlaw rule prevails. Union Mtn. M. Co. v. Ferris, 2 Sawy. 176; 8 Mor. Min. Rep. 90; Van Sickle v. Haines, 7 Nev. 249. (Overruled in Jones v. Adams, 19 Nev. 78.) Crandall v. Woods, 8 Cal. 136; Leigh v. Independent 311. The common-law doctrine that prior appropriation of water of a stream by a riparian proprietor confers no exclusive right to the use of it as against another riparian proprietor, unless the latter's rights are impaired by grant or license, or the prior appropriation has continued adversely for more than twenty years, has been modified by local usage and by statutory enactment (Palmer v. Mulligan, 3 Caines, 307; Platt v. Johnson, 15 Johns. 213; Martin v. Bigelow, 2 Aikens, 184; S. C., 16 Am. Dec. 696; Hoy v. Sterrett, 2 Watts, 327; S. C., 27 Am. Dec. 313; Stout v. McAdams, 2 | Ditch Co., 8 Cal. 323. 313. A water right may be lost by the adverse possession of another; but in such cases non-user by the owner, and adverse possession by another, for a period equal to that fixed by the statutes of limitation relating to real property, are necessary to divest title. Wimer v. Simmons, 27 Oreg. 1; 39 Pac. Rep. 6. 314. Under the act of July 26, 1866 (14 Stat. 253), section 2339, United States Revised Statutes, no title is acquired to a right of way for a ditch until actual possession is taken. Bybee v. Oregon & California R. R. Co., 139 U. S. 663. the land thus occupied, but that the act legalized what would otherwise have been a trespass, and could not be extended by implication to a class of cases not specifically provided for. Accordingly, ditches thus constructed over lands thus held, without the consent of the occupant, though designed to convey water to mining localities for the purpose of mining, were held to be nuisances, and upon the complaint of the occupant were ordered to be abated. Stokes v. Barrett, 5 Cal. 37; McClintock v. Bryden, 5 Cal. 97; Fitzgerald v. Urton, 5 Cal. 308; Burdge v. Underwood, 6 Cal. 46; Weimer v. Lowery, 11 Cal. 104. 24. Work. (See EXPENDITURE, p. 224.) 316. The laws and customs which point conditions precedent to the right to possess 315. An owner of a mining claim and the owner of a water right in California hold their respective properties from the dates of their appropriation, the first in time being the first in right; but where both rights can be enjoyed without interference with or material impairment of each other, the enjoy-out the manner of locating mining claims are ment of both is allowed. Jennison v. Kirk, 98 U. S. 453. (Affirming Titcomb v. Kirk, 51 and mine a claim; and no such right can be Cal. 288; 5 Mor. Min. Rep. 10.) NOTE.- Justice Field, in a note appended to the opinion been complied with. The requirements as to acquired until such conditions precedent have as published, states "that the customary law of miners is not applicable in California to performance of annual labor, however, are conditions subsequent, the mere breach of controversies arising between them or ditch which is not, per se, sufficient to cause a forowners, and occupants of the public lands for agricultural or grazing purposes. It has been feiture, which must result from entry by the the general policy of the State to permit set-under it, i. e., a relocation of the claim under grantor (the United States), or one claiming tlers in all capacities to occupy the public the mineral land laws. King v. Edwards, 1 lands, and by such occupation to acquire the Mont. 235; 4 Mor. Min. Rep. 480. right of undisturbed enjoyment against all the world but the true owner. Tartar v. Spring Creek Co., 5 Cal. 398. But at an early day an exception was made to this policy in cases where the interests of agriculturalists and of miners conflicted. By an act passed April 20, 1852, a right of action was given to any one settled upon the public lands for the purpose of cultivating or grazing against parties interfering with his premises, or injuring his lands where the same were designated by distinct boundaries, and did not exceed one hundred and sixty acres in extent: with a proviso, however, that if the lands contained mines of precious metals the claim of the occupant should not preclude any persons desiring to do so from working the mines as fully and unreservedly as they might or could do had no possession or claim been made for grazing or agricultural purposes. Stat. at L., 1852, p. 158. Under this act the Supreme Court of the State held that miners, for the purpose simply of mining, could enter upon! 317. A locator's only right to possession of a mining claim is conditional upon the performance annually of the required amount of labor; and if such labor is not performed the ground is subject to relocation under section 2324, United States Revised Statutes, and the occupation of the ground by the original owner will not prevent relocation. Du Prat v. James, 65 Cal. 555; 4 Pac. Rep. 562; 3 West Coast Rep. 108; 15 Mor. Min. Rep. 341. (Refusing to follow Eilers v. Boatman, 3 Utah, 159; 2 Pac. Rep. 66; 1 West Coast Rep. 632; 15 Mor. Min. Rep. 462; Weise v. Barker, 7 Colo. 178; 2 Pac. Rep. 919; 2 West Coast Rep. 108.) 318. Improvements made by trespassers upon a mining claim may not be purchased by a claimant after suit brought to determine the right of possession, and considered as having been made, originally, by claimant. Little Gunnell M. Co. v. Kimber, 1 Mor. Min. Rep. 536. 320. The title of a successful plaintiff in an adverse suit is a possessory one, and may be lost by failure to make the required expenditure followed by relocation by a third person. Com'r to Leadville Office, Feb. 24, 1896, In re Kennedy v. Johnston. 321. Work done on a claim by one holding the equitable title thereto is as effectual to maintain the location as if done by the legal owner. Jupiter M. Co. v. Bodie Cons. M. Co., 7 Sawy. 96; 11 Fed. Rep. 666; 4 Mor. Min. Rep. 411; Book v. Justice M. Co., 58 Fed. Rep. 106. 322. Wrongful adverse possession relieves the owner from the necessity of performing assessment work, so far as the adverse possessor is concerned. Utah M. & Mfg. Co. v. Dickert & Myers Sulphur Co., 6 Utah, 183; 21 Pac. Rep. 1002. 323. The owner of a placer mining claim does not forfeit his right thereto, so as to render it subject to relocation, by a failure to perform the annual assessment work during the time when adverse possession is held by another, where he commences action for its recovery within the statutory time. Trevaskis v. Peard, 44 Pac. Rep. 246 (Cal.). 25. General. 324. No two or separate estates (of surface ground and of lode, wherever the latter might be found to run in its course, without regard to surface ground) are recognized by the act of July 26, 1866. McCornick v. Varnes, 2 Utah, 355; 9 Mor. Min. Rep. 505. 325. The fee in the land on which mining claims are located remains in the United States; but the rights of miners are incident to the fee and have been carved out of it. Robertson v. Smith, 1 Mont. 410; 7 Mor. Min. Rep. 196. 326. Questions as to entryman's title may be raised before the Land Department by a protestant as amicus curia. Bradstreet v. Rehm, 21 L. D. 544 (on review). | 327. One having no title to a mining claim will not be heard to attack the title of another thereto. Omar v. Soper, 11 Colo. 380; 18 Pac. Rep. 443; 15 Mor. Min. Rep. 496. 328. The title of a mineral claimant may be questioned only by one claiming adversely. Lorenz v. Waldron, 96 Cal. 243; 31 Pac. Rep. 54. 329. One who bases his title upon the forfeiture of the claim of another has the burden of clearly establishing such forfeiture. Hammer v. Garfield M. & M. Co.. 130 U. S. 291; Oreamuno v. Uncle Sam G. & S. M. Co., 1 Nev. 215; 1 Mor. Min. Rep. 32. 330. The exclusion from entry and patent of a mining claim of conflict with another claim does not preclude the patentee from holding the excluded ground under his possessory title and raises no presumption against such title. Van Zandt v. Argentine M. Co., 2 McCrary, 159; 4 Mor. Min. Rep. 441. 331. An applicant for a mineral patent may make entry of his claim exclusive of land covered by an adverse claim and take patent for the land not in conflict, without waiving his possessory right to the excluded portion. Black Queen Lode v. Excelsior No. 1 Lode, 22 L. D. 343. 332. The moment mineral or ore becomes detached from the soil of the public lands in which it is imbedded, it becomes personal property, the ownership in which is in the man whose labor, capital and skill has discovered and developed the mine and extracted the ore. It is then free from any lien, claim or title of the United States, and is rightfully subject to taxation by the State as any other personal property is. Forbes v. Gracey, 94 U. S. 762; 14 Mor. Min. Rep. 183. 333. A corporation some of the stockholders of which had exhausted their rights under the coal land laws procured various persons individually qualified to make entry of coal lands for the purpose of transferring title acquired by such entry to the corporation. Held, that the transaction was in violation of the law governing the disposal of public lands containing coal, and that patents so obtained were voidable for fraud in their procurement. United States v. Trinidad Coal & Coking Co., 137 U. S. 160. (Reversing S. C., 37 Fed. Rep. 180.) 334. There can be no color of title in an occupant who does not hold under any instru ment or law purporting to transfer to him the title or give to him the right of possession. Deffeback v. Hawke, 115 U. S. 392. 335. Where, in payment for a mining claim held by possessory title, notes are given, the maker cannot object when they fall due that subsequent to the purchase the claim was abandoned. The grantor sold only a possessory title, and the duty of maintaining the claim fell upon the grantee. Corbett v. Berryhill, 29 Iowa, 157; 14 Mor. Min. Rep. 671. 336. The owners of a mining claim holding by possessory right may not, after mortgaging the same, abandon the claim and allow it to be relocated, and thereby defeat the mortgage. (In this case, however, though there was an attempted abandonment, there | was no forfeiture, as annual labor was performed by the mortgagors during the year of relocation.) Alexander v. Sherman, 16 Pac. Rep. 45; 15 Mor. Min. Rep. 638. See Saunders V. Mackey, 5 Mont. 523; 6 Pac. Rep. 361. 337. Continuous possession and performance of annual assessment work are sufficient to disprove the charge of abandonment. Souter v. Maguire, 78 Cal. 543; 21 Pac. Rep. 183. 338. Possessory title to a mining claim is such property as is subject to taxation by the State. Forbes v. Gracey, 94 U. S. 762; 14 Mor. Min. Rep. 183; State v. Moore, 12 Cal. 56; 14 Mor. Min. Rep. 110; Seymour v. Fisher, 16 Colo. 188; 27 Pac. Rep. 240; Hale & Norcross G. & S. M. Co. v. Story County, 1 Nev. 104; 14 Mor. Min. Rep. 115. 339. Possessory title to a mining claim may not be held by a State or Territory, as it is not one of the persons named in section 2325, United States Revised Statutes. Territory v. Lee, 2 Mont. 124; 6 Mor. Min. Rep. 248. 340. The United States cannot enter upon nor author an entry upon private property for the purpose of extracting minerals. Boggs v. Merced M. Co., 14 Cal. 279: 10 Mor. Min. Rep. 334 (1859-60); S. C., 3 Wall. 304. 341. Mining of a claim may be temporarily restrained pending a settlement of a controversy as to title in a court of law. Bishop v. Baisley, 41 Pac. Rep. 936. 342. One holding a mining claim by possessory title may remove timber therefrom when necessary for mining purposes, but not for the purpose of sale. United States v. Nelson, 5 Sawy. 68; 14 Mor. Min. Rep. 381. 343. While the general rule is that the decisions by the Land Department on questions of fact preliminary to the issuance of a patent are conclusive after the issuance of patent, "where each party has a patent from the government, and the question is as to the superiority of the title under those patents, if this depends upon extrinsic facts not shown by the patents themselves, we think it is competent, in any judicial proceedings where this question of superiority of title arises, to establish it by proof of those facts." Iron Silver M. Co. v. Campbell, 135 U. S. 286. 344. One who was the owner of a vein prior to May 10, 1872, and who was in possession thereof at said date, has the right to follow his vein within the patented surface ground of another on its dip. Blake v. Butte S. M. Co., 2 Utah, 54; 9 Mor. Min. Rep. 503. 345. Prior to the act of 1866 no right to a mining claim could be acquired as against the United States. Lee Doon v. Tesh, 68 Cal. 43; 8 Pac. Rep. 621. 346. One whose title is declared bad under one mining location may relocate the claim and base his title on such relocation. Meyendorf v. Frohner, 3 Mont. 282; 5 Mor. Min. Rep. 559. 347. The supreme court does not interfere with the title of a patentee on an alleged mistake of fact, or from wrong conclusions drawn from the testimony by the Land Department. It is only a case of fraud that will warrant a court in looking into the evidence. Lee v. Johnson, 116 U. S. 48. ment of an application for patent to a min348. The rejection by the Land Departing claim cannot affect the possessory right of the applicant. Clipper M. Co., 22 L. D. 527. 349. Where the owner of a mining claim, which was erroneously included in a sale under a decree of court, moved his effects from the claim and absented himself for two years, allowing the purchasers to work it without objection, while knowing that their title was invalid, and intending to claim it only in case their development rendered it profitable to do so, his acts will constitute an abandonment. Trevaskis v. Peard, 44 Pac Rep. 246 (Cal.). |