mining claim.3 However, land that is mineral is subject to location only under the provisions of the mining law, without reference to the relative value of a portion of the tract for town site purposes. A town site is an adverse claim.5 1 1 Landowner, 51; 3 id. 131. 2 2 Landowner, 146. 3 Copp's Min. Dec. 207. 4 6 Landowner, 3. 5 Sickel's Min. Laws, 302. § 135. Water rights.—In disposing of public lands upon which water rights have been secured by prior appropriation, and which at the time of such disposal are recognized by local customs, laws, and decisions of the courts, the United States will maintain and protect them as vested rights.1 1 Copp's Min. Dec. 24. § 136. Mill sites-Must be located on non-mineral land. They may be located under the mining laws and should be recorded.2 They pass to a railroad as non-mineral land, if located on a railroad section after the grant to the railroad took effect.3 An applicant for a patent for a mill site on which a lode exists, claimed by other parties, may file an abandonment of the lode claim, and will receive a patent for the remaining part of the mill site location. Where a mill site and lode claim are applied for in connection, the $500 expenditure is only required on the lode claim; but when applied for separately the expenditure of that amount must be shown on the mill site.5 Coal lands are not subject to entry under the timber culture laws. Such an entry will be cancelled on receipt of an affidavit that such lands have been raced therein.6 The act to provide for the sale of the ds of the United States containing coal relates to all lands containing any variety of coal, whether anthracite, bituminous, lignite or cannel.7 1 4 Landowner, 3. 2 2 Landowner, 114. 3 Copp's Min. Dec. 142. 4 1 Landowner, 82. 5 1 Landowner, 2. 6 5 Landowner, 146. 7 Sickel's Min. Laws, 337. CHAPTER XIV. MINERS' RIGHTS AND REMEDIES. SECTION 137-Vested rights to mining claims. 140-Distinctions used in designating right and title. 142-Same-Local regulations prior to acts of Congress Width. 143-Same-Location. 144-Same-Recording. 145-Amount of work necessary to hold possession. 147-Limitation of actions. 148-Easements and drainage. 150-Same-Drainage-Ditches-Right of way-Dumps Tailings. 151-Tenarcy in common. 151a-Mining partnership. 152-Corporations. 153-Mining claims, real estate. 154-Conveyance of mining claims. 155-Mining contracts. 156-Miners' liens. 157-Taxation. 158-Remedies and Procedure-Trespass, ejectment, for- § 137. Vested right to mining claims.-While it is true that the mere assertion of a possessory title to portions of the public domain, for mining or other purposes, gives the claimant no indefeasible right to occupy the land as against the general government, and in this respect cannot be called a vested right, it assumes this character as between the possessor and all the world, excepting the superior proprietor. And even as between the government and those who have taken possession under the conditions imposed by law, and assumed the burdens attached to the rights conceded to mineral claimants, something more than a mere license to occupy their claims on sufferance must be intended by the concession. The discovery of valuable mineral, the labor and expense of location, the survey and recording of claims, with the subsequent annual expenditure, — all going to enhance the value of the property,—are of such pecuniary value as to stand in lieu of a consideration paid for the promised security of possession and enjoyment which the mining statutes hold out to the miner as inducements to undertake the development of the mineral resources of a country valueless for other purposes. Therefore, even while the title remains in the government, it is both the policy of the law and the inclination of the courts in construing the law, to regard the rights of miners on the public domain as vested, in that sense that entitles them to full constitutional protection from deprivation or diminution, without due process of law.1 1 Merced Min. Co. vs. Fremont, 7 Cal. 317; McGarrity vs. Byington, 12 Cal. 426; Hughes vs. Devlin, 23 Cal. 501. § 138. Right to mine, private property.-The above views with respect to the rights of miners are confirmed the numerous decisions in which it has been held that such rights are proprietary in their nature, even when exercised upon land of which the government holds the title. The possessory right is recognized as private property in order to become subject to taxation,1 when not exempt by local laws. It is recognized as property in order to render it subject to execution on an ordinary judgment.2 It is treated as private property, subject to the laws of inheritance and to special execution to satisfy a lien.3 It is regarded as real estate, or an interest therein, for the purpose of fixing the venue of actions concerning it, and also as to modes of transfer, descent and partition.4 It would, therefore, fall within the protection of the constitutional inhibition of laws which deprive persons of private property without due process of law.5 1 State vs. Moore, 12 Cal. 56. 2 McKeon vs. Bisbee, 9 Cal. 137. 3 Forbes vs. Gracey, 94 U. S. 762. 4 Watts vs. White, 13 Cal. 321; Quirk vs. Folk, 47 Cal. 453; McKeon vs. Bisbee, 9 Cal. 137; Halsey vs. Martin, 22 Cal. 645; Hughes vs. Devlin, 23 Cal. 501; Harris vs. Equator, &c. Co., 2 Col. Law Rep. 63. 5 Const. U. S., Art. V., Amendments. § 139. Certainty of tenure.-Rights acquired by a compliance with the mining law are presumed to continue in those by whom they were originally acquired until there is some evidence of transfer or abandonment.1 When such rights attach to a definite portion of the public domain, it requires positive acts or omissions of duty to divest them or reduce the extent of the right so acquired. The tenure by which they are held is not so precarious that they may be divested, or the boundaries of the claim changed so as to reduce the extent of the vested right, by mere declarations of the officers of a corporation which has been clothed with the right, by compliance with all the conditions fixed by law, to its holding.2 1 Mallet vs. Uncle Sam, &c. Co., 1 Nev. 188; Oreamuno vs. Uncle Sam, &c. Co., 1 Nev. 215. 2 Overman S. M. Co. vs. American M. Co., 7 Nev. 312. § 140. Distinctions used in designating right and title. And yet, notwithstanding the proprietary nature of this right, a distinction has been made between the manner in which it is characterized and that in which the title to real estate is designated. The words "mining ground," when used in a deed, have been held to have a technical meaning which applied only to the interest which a mere occupant had in the premises - in other words, a claim-and were not the words used when the fee simple or leasehold interest in real estate were intended to be conveyed.1 1 Hale & Norcross, &c. Co. vs. Storey County, 1 Nev. 104; State vs. Real del Monte, 1 Nev. 523. § 141. Local conditions to acquisition-and enjoyment of miners' rights.-Many of the conditions precedent and subsequent upon which miners become entitled to appropriate portions of the public domain to their exclusive use, and work the same, were prescribed by local rules and customs which had their origin prior to any statutory provisions on the subject,1 were subsequently recognized by both legislatures and courts.2 The acts of Congress subsequently passed, substantially embodied and set forth in the Revised Statutes,3 have not prescribed with particularity what those conditions should be, but have left them still in a great measure to local regulation. The matters, with respect to which the details are left to local legislatures or district regulation, are (1)—within limits—the width of lode claims;4 (2) location of claims; (3) manner of recording; (4) the |