Maxim, qui prior tempore potior est jure, applied by Courts of California. Sutro Tunnel Act of July 26, 1866, conferred a licence revok able by U. S. Act of July 9, 1870. this without the permission of Congress they were trespassers, but, nevertheless, the State Courts were frequently called upon to settle disputes among the miners, especially as to their titles. At first these Courts attempted to apply the Common Law doctrine that a plaintiff who seeks to recover in ejectment must rely on the strength of his own title, and by so doing the plaintiff had to be nonsuited, as he himself was but a mere trespasser. But as such a technicality did not satisfy the requirements of justice, the Courts afterwards presumed a grant from the Government, and applied the maxim qui prior est tempore potior est jure, holding that the prior possessor had the better title, and in 1865 (in an Act constituting Nevada a state) Congress recognised these decisions, and enacted that " no possessory action between persons in any Court of the United States for the recovery of any mining title, or for damages to any such title, shall be affected by the fact that the paramount title to the land in which such lands lie is in the U. S.; but each case shall be adjudged by the law of possession." (U. S. Revised Statutes, § 910). In the next year, on the 25th of July, 1866, Congress passed the Sutro Tunnel Act, by which, for the first time, a title in fee is granted to mines of the precious metal to an individual. This Act granted a right of way and other privileges to Adolph Sutro and his assigns to aid in the construction of a draining and exploring tunnel to the Comstock Lode; it in fact assumed the function of regulation of the mines in recognising the necessity of drainage. (See p. 67.) But at length, on the following day, Congress passed the first General Mining Law, intituled " An Act granting the Right of Way to Ditch and Canal Owners over the Public Lands, and for other Purposes." It gave to certain qualified parties a licence from the Government to go upon the land and search for minerals, and, in fact, conferred a right to commit an act which, before that date, was clearly a trespass. No estate was granted in the land, or minerals, by this licence, which was not a lease, but was in the nature of a tenancy at will, revokable at pleasure, until the claim had been purchased and patent issued therefor. (See p. 73, infra.) On the 9th of July, 1870, an Act was passed with the same title as that of the 26th of July, 1866, but relating more particularly to placer claims and water rights, and on the 3rd of March, 1873, an Act وو 1872. relating to coal lands became law, and on the 10th of May, 1872, Act of May 10, “An Act to promote the Development of the Mining Resources of the U. S. was passed, which repealed many of the provisions (sections 1, 2, 3, 4, and 6) of the Act of the 26th of July, 1866 (see p. 73). Finally, all the mining statutes of the U. S. in force prior to the 1st of December, 1873, were codified, and are now found in the Revised Statutes of the U. S. 1875. Since December, 1873, only one mining law has been enacted, February 11, viz., that of the 11th of February, 1875, and it relates to tunnel rights exclusively. (See p. 63, infra.) SEC. 2319. All valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States and those who have declared their intention to become such, under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States. Mineral lands chase by open to pur citizens. 10 May, 1872, U. S. v. Gear, 3 How. 120. See § 2329. The following deposits may be patented under this Act: diamond Mineral deposits, fire-clay, iron ores, cinnabar, copper, sulphur, borax, soda, deposits. alum, asphalte, auriferous cement, salt springs (Decisions of Land Office). "Citizens, and those who have declared their intention to become citizens," that is, only two classes of persons, may occupy, explore, and purchase the mineral lands of the U. S. under this Act, viz. citizens and those aliens whom we may call inchoate citizens. Hence aliens who have not taken the first step towards naturalization cannot secure any of the advantages offered by this Act until a patent has issued from the U. S., but any person who has purchased the patent may hold the claim thereby conveyed (§ 2326); but nothing in this Act prevents aliens from holding claims by possession only, although when doing so they are mere trespassers as against the Government. Citizens and inchoate citizens only may occupy and purchase U. S. mineral lands. SEC. 2320. Mining-claims upon veins or lodes of quartz or other rock in place bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposits, heretofore located, shall be governed as to length along the vein or lode by the customs, regulations, and laws in force at the date of their location. A mining-claim located after the tenth day of May, eighteen hundred and seventy-two, whether located by one or more persons, may equal, but shall not exceed, one thousand five hundred feet in length along the vein or lode; but no location of a mining-claim shall be made until the discovery of the vein or lode within the limits of the claim located. No claim shall extend more than three hundred feet on each side of the middle of the vein at the surface, nor shall any claim be limited by any mining regulation to less than twenty-five feet on each side of the middle of the vein at the surface, except where adverse rights existing on the tenth day of May, eighteen hundred and seventy-two, render such limitation necessary. The end-lines of each claim shall be parallel to each other. The words "rock in place" as used in this section, include every class of claims, that, either according to scientific accuracy, or popular usage, can be classed or applied for as a vein or lode (L. O. July, 1871). 66 Heretofore located," that is either under the U. S. Law of the 26th of July, 1866, or the state or territorial laws, or miners' regulations. "Or more persons." By the Act of the 26th of July, 1866, 200 feet (with an additional 200 feet for the discoverer) were allowed to each locator, but no one "claim was to exceed 3000 feet. The word "claim" refers to the surface ground, as well as to the lode beneath. Discovery of lode a condition precedent to It will be noticed that no location was allowed unless the lode had been actually discovered," the discovery being a condition precedent to the location; hence surface ground cannot be located location. unless the lode is first discovered. The previous section provides that all valuable mineral deposits are free and open to exploration and purchase, under regulations prescribed by law (i.e., of the State or Territory), and according to the local customs or rules of miners in the several mining districts not inconsistent with this Act, but the Act itself is silent on the subject of the State laws and the miners' rules. The appropriation of a lode consists in (a) its discovery, (b) loca- Appropriation tion, (c) record. of a lode. The root of title to a mining claim, therefore, is the discovery of Discovery of lode. the lode. This consists in sinking a shaft upon the lode to a depth fixed by the State laws or miners' rules until the ore-bearing vein itself is discovered. Mere indications will not suffice. In Colorado this shaft must be at least ten feet deep, and at the same time a well-defined crevice must be disclosed. It does not appear under this Act that the discovery shaft must be in the centre of the claim, although the State laws sometimes require it, but it must be within the surface boundaries; and where a tunnel is run for the discovery of lodes (§ 2323) a shaft is not necessary. Location of claim. The location consists in distinctly defining the position and marking out the boundaries of the claim. Its position is defined by affixing a notice somewhere on or near (Phillpots v. Blasdel, 8 Nevada, 77) the claim, which notice sets forth the name of the lode, and the locators and the date of location. The discovery shaft is the essential point of this position, and should be ascertained by bearings and distances from the boundaries. A survey is always desirable, and if the end lines are not parallel, as required by § 2320, the party may make them so, and comply with the law by abandoning a part (L. O. Sept. 1876). Any person entitled to locate a claim may do so by his agent (Murley v. Ennis, 2 Col. T. 300). The boundaries are marked by substantial posts at each Boundaries corner of the claim, or by blazed trees, or other natural objects (§ 2324, infra). The State laws or the district rules are generally explicit on this point and their requirements have to be followed, how marked. Record of location. Record is root of written title. Proof of citizenship. 10 May, 1872, c. 152, s. 7, v. 17, p. 94. See § 2335. although technical accuracy and certainty are not required of miners, and although parol evidence is admissible to shew what track is meant (L. O. April, 1875; Kelley v. Taylor, 23 Cal. 14). But it seldom happens that lodes disclose their course along the surface, hence it follows that either time must be allowed for proving the lode after discovery for some distance along the claim, or else it cannot be necessary that the surface ground should directly overlie or include within its boundaries the lode throughout the entire length of the claim. The surface ground appears to be intended as a mere adjunct of the lode for convenience of working, for, per se, the surface is of no value whatever. The record of the location is the third and last step in the appropriation of a lode. This record is a notification to all the world of the location, and is sometimes called "the location certificate." This certificate must contain a description of the lode sufficient to identify it and the locator with the date of location (§ 2324, infra), and such other particulars as the State law or miners' regulations require. These records were formerly filed with the recorder of the district in which the mine was situate, who was himself a miner, but now under the State laws they are kept by the clerk of probate or the recorder, or some other officer of the county in which the mining district is situated. The record of the location, thus, is the commencement of the written title to a mining claim, but the actual title relates back to the discovery. SEC. 2321. Proof of citizenship, under this chapter, may consist, in the case of an individual, of his own affidavit thereof; in the case of an association of persons unincorporated, of the affidavit of their authorized agent, made on his own knowledge, or upon information and belief; and in the case of a corporation organised under the laws of the United States, or of any State or Territory thereof, by the filing of a certified copy of their charter or certificate of incorporation. |