TITLE 42. MINES AND MINING. Su Chapt 14 laws/899. CHAPTER 1. MINING CLAIMS. 1495. Area of mining claim. End lines parallel. A mining claim, whether located by one or more persons, may equal, but shall not exceed, fifteen 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 Repeated bhapt the claim located. 14 the claim located. Any lode mining claim may extend three hundred feet on 1899. Repealed Chapt 14 1699 each side of the middle of the vein at the surface, except where adverse rights 1496. Discovery monument. Posting notice of location. Contents. The locator, at the time of making the discovery of such vein or lode, must erect a monument at the place of discovery, and must post thereon his notice of location, which notice shall contain: 4. If a lode claim, the number of linear feet claimed in length along the course of the vein each way from the point of discovery, with the width on each side of the center of the vein, and the general course of the vein or lode, as near as may be, and such a description of the claim, located by reference to some natural object or permanent, monument, as will identify the claim. 5. If a placer or millsite claim, the number of acres or superficial feet claimed, and such a description of the claim or millsite located by reference to some natural object or permanent monument as will identify the claim or millsite. ['97, p. 57. Title. A party claiming mining ground, not actually possessed and worked, and beyond the possessio pedis, must show his right thereto by constructive possession, and he can show such constructive possession only by physical work or monuments, or by the local mining laws and rules, and compliance therewith. Roberts v. Wilson, 1 U. 292. Mining patents based upon locations made under the act of 1866 grant title to the ground mentioned therein, subject to the right of other locators to follow any other vein or lode held under locations made prior to the act of May 10, 1872. Blake v. Butte Mining Co., 2 U. 54. The terms "lode" and "vein" as used in the acts of congress in reference to the location of mining claims, are such 'lodes" and "veins" as are so called by miners. Harrington v. Chambers, 3 U. 94; 1 P. 362. Affirmed 111 U. S. 350. A patent from the United States is the highest evidence of title, and ordinarily it cannot be varied, contradicted, or controlled by evidence dehors the patent; but after the United States has parted with its title and the individual has become vested with it, the equities subject to which he holds it may be enforced; therefore, where a mineral patent is obtained which fails to state the respective inter ests which the grantees take under the patent, a court of equity will direct that the grantees take thereunder such interests only as they actually claimed and owned at the time of the application for patent. Kimball v. McIntyre, 3 U. 77; 1 P. 167. A patent from the United States for mineral lands may be avoided in equity for mistake, or fraud and misrepresentation practiced upon the government. Parley's Park Mining Co. v. Kerr, 3 U. 235; 2 P. 709. Affirmed 130 U. S. 256. A patent for a mining claim allowing a width of 600 feet is valid under the act of congress of 1872, where it is doubtful under the evidence whether the mining laws of the district prescribed a lesser width. Id. The decision of the land department of the United States that land is non-mineral, or is occupied, is conclusive on the courts when the patent issued in pursuance of such decision is collaterally attacked. Ferry v. Street, 4 U. 521; 11 P. 571. Discovery and appropriation are the sources of title to mining claims, and development by working is the condition of continued possession. O'Reilly v. Campbell, 116 U. S. 418. Location and rights thereunder. Congress has given the local laws and customs of miners the force and effect of laws, so far as they are not in conflict with any superior law. McCormick V. Varnes, 2 U. 355. One who makes a location of a mining claim according to law obtains a vested right to such property. Blake v. Butte Mining Co., 2. 54. The occupant of mining ground on the government domain will be protected in his rights where there has been a substantial compliance with the law. Eilers v. Boatman, 3 U. 159; 2 P. 66. Affirmed 111 U. S. 356. Valid location of a mining claim may be made whenever the prospector has discovered such indications of mineral that he is willing to spend his time and money in following them, in the expectation of finding ore. Harrington v. Chambers, 3 C. 94: 1 P. 362. Affirmed 111 Ü. S. 350. A notice of location should contain a description of the premises located, and the same should be marked upon the ground. Kahn v. Telegraph Mining Co., 2 U. 174. Sec. 2324 R. S. U. S. merely requires that locations shall be distinctly marked, so that their boundaries can be readily traced. Victoria Mining Co. v. Haws, 7 U. 515; 27 P. 695. Affirmed 160 U. S. 303. Trees blazed and squared, rock monuments, and the prospect hole are permanent objects, within the meaning of sec. 2324 R. S. U. S., requiring the notice of the location of a mining claim to describe the same by reference to some natural or permanent monument. Hanson v. Fletcher, 10 U. 266; 37 P. 480. The fact that the description in a notice of location calls for stakes, when in fact the monuments are trees cut off about three feet from the ground, and blazed and squared, is immaterial. Id. A mining claim marked by a discovery monument on which is placed the notice of location, and by a stake at each of the three corners of the claim, and a monument at the center of each end line, leaving one corner of the claim unmarked, is sufficiently marked under sec. 2324 R. S. U. S. Warnock v. De Witt, 11 U. 324; 40 P. 205. The location notice of a claim describing it as being "fifteen hundred feet in length on this ledge € and three hundred feet on each side of the centre of location," and as running east three hundred feet and west twelve hundred feet "from monument," the ledge being "situated ap near the head of the right hand fork of what is known as Tie Canyon, about five miles from" a certain railroad; held, insufficient under sec. 2324 R. S. U. S., which requires such a description of the claim as by reference to some natural object or permanent monument will identify it. Darger v. Le Sieur, 8 U. 160; 30 P. 363. Id., 9 U. 192; 33 P. 701. A locator of a mining claim, in marking his claim on the ground so that its boundaries can be readily traced, is not required to be exact in running the lines or in fixing the corners or other posts. A slight difference between the monuments fixed at the time of location and those fixed by an actual survey for patent is immaterial. Eilers v. Boat man, 3 U. 160; 2 P. 66. A fact that the location of a mining claim as marked on the ground is 300 feet longer and 50 feet wider than is allowed by law, does not render the location void, where the excess was included through mistake, and the notice of location claimed only 600 feet by 1,500 feet, and gave directions. Hanson v. Fletcher, 10 U. 266; 37 P. 480. The location of a vein or lode as running in a certain direction, not marked or developed for years but simply indicated by a notice, is invalid as against a claim subsequently located on ground different from that indicated, after the development of the latter claim without objection, although subsequent explorations of the first locators disclosed the fact that their vein in its true course covers the subsequent claim. O'Reilly v. Campbell, 116 U. S. 418. A locator of a quartz claim, who has allowed his location to lapse for failure to do the annual assessment work, and to become subject to relocation under sec. 2324 R. S. U.S., has the right to make a new location covering the same ground. Warnock v. De Witt, 11 U. 324; 40 P. 205. Sec. 2326 R. S. U. S. authorizes an adverse claimant to commence with an action at law or a suit in equity as may be most appropriate, to determine right of possession. Perego v. Dodge, 9 U. 3; 33 P. 221. Affirmed 163 U. S. 160. In a contest for a mine under sec. 2326 R. S. U. S., whether the notice and description were sufficient to apprise other prospectors of its precise location, is a question of fact. Eilers v. Boatman, 111 U. S. 356. The location of a mining claim should be made along the course of the vein or lode, so as to include the same within its boundaries; otherwise it will only secure so much of the lode or vein as it actually covers. McCormick v. Varnes, 2 U. 355. The notice of location is presumed to refer to the surface ground as well as to the vein or lode located, and the location should be made along the general course or strike of the vein. Id. A location of a mining claim upon a lode or vein of ore should be laid along the same lengthwise of, the course of its apex at or near the surface, as well under the mining act of 1866 as under that of 1872. If located otherwise, the location will only secure so much of the lode or vein as it actually covers. Flagstaff Mining Co. v. Tarbet, 98 U. S. 463. Under the provisions of sections 2 and 4 of the act of 1866 the right to follow a vein claimed under a mining location is expressly confined to depth, and such act cannot by any fair construction be made to apply to the strike or course of the vein. McCormick v. Varnes, 2 U. 355. Prior to the act of congress of May 10, 1872, a locator was entitled to but one vein; since then he is entitled to all veins having an apex within his surface lines. Blake v. Butte S. M. Co., 2 U. 54. The owner of a vein located prior to May 10, 1872, in possession, may follow his vein into the unpatented ground of another. Id. The act of 1866 qualifies and enlarges the common law right by which miners hold their locations, to this extent only: that the owner of a mining claim may follow his lode or vein from the apex found within his surface ground, on its dip, to any depth, although in its downward course it may so far depart from a perpendicular as to enter the land adjoining; but he cannot go beyond or outside of his side lines on the course or strike of the vein. McCormick v. Varnes, 2 U. 355. Each locator is entitled to follow the dip of the lode or vein to an indefinite depth, though it carries him outside of the side lines of the location; but his right is based on the hypothesis that the side lines substantially correspond with the course of the lode or vein at the surface; and it is bounded at each end by the end lines of the location, crossing the lode or vein, and extended perpendicularly downwards, and indefinitely in their own direction. Flagstaff Mining Co. v. Tarbet, 98 U. S. 463. The first locator, having the apex of a vein entirely within the surface lines of his claim for a portion of its length, and for the remaining portion partly within and partly without, and within the surface lines of another claim, but never entirely departing from such first location, owns the entire lode within the end lines of his claim. Bullion-Beck Mining Co. v. Eureka Hill Mining Co., 5 U. 3; 11 P. 515. If a location be laid crosswise of a lode or vein, so that its greatest length crosses the same instead of following the course thereof, it will secure only so much of the vein as it actually crosses at the surface, and the side lines of the location will become the end lines thereof for the purpose of defining the rights of the owners. Flagstaff Mining Co. v. Tarbet, 98 U. S. 463. The location of a vein or lode made upon the surface where the vein or lode finds its apex will not be defeated by the secret underground workings and possession by parties having no possession of or right to the surface embracing it. Eilers v. Boatman, 3 U. 59; 2 P. 66. A locator working sub terraneously into the dip of the vein belonging to The government did not intend, by the act of Contracts, etc. Respondent contracted to pay appellant $1,000 upon the completion of each 100 feet of tunnel, and the further sum of $2 per foot at the conclusion of the contract; held, that the payment of $1,000 as agreed was a consideration precedent to further work by respondent. Bennett v. Shaughnessy, 6 U. 273; 22 P. 156. Where the respondent furnished to a mine owned by the appellant certain machinery at the request of its manager and its secretary, who was a director, the working and improving of the mine being carried on to all appearances by the appellant, the appellant claiming, however, that it was not liable because it had a contract with its secretary to furnish the materials sued for; held, that in the absence of notice of this agreement, a finding that the materials were furnished at appellant's request, would not be disturbed. S. L. Foundry & Machine Co. v. Mammoth Mining Co., 6 U. 351; 23 P. 760; 151 U. S. 447. A declaration of trust given as security for sums of money advanced as purchase money for mining property, and to be satisfied out of the rents, issues, and profits of the mine, without qualifying words, creates a lien upon the property itself, and it may be sold to satisfy the lien. Charter Oak Ins. Co. v. Gisborn, 5 U. 319; 15 P. 253. Affirmed 142 U. S. 326. Where a mine was deeded to S., trustee, who executed a declaration reciting that he held such mine upon trust, to receive the rents, issues, and profits, and apply the same, first, to the payment of taxes and all expenses of operating and keeping it in repair, and a large sum of money was expended in fruitless efforts to find the lost vein; held, that such expenditure was properly chargeable upon the property under the terms of the trust, the defendant having approved of such expenditure. Id. Though certain expensive operations carried on by the trustee of a mine at the request of a beneficiary, yield no profit, such expenses are legitimate charges against the trust property. Gallagher v. Yosemite Mining Co., 10 U. 189; 37 P. 264. A parol lease of a mine on shares is valid where the lessee enters thereunder and expends labor and money in preparations for mining. Rufatti v. Société des Mines, 10 U. 386; 37 P. 591. It is no defense to an action by a lessee of a mine to recover damages for wrongful ouster, that up to that time he had not put in sufficient timbers, where no injury has occurred by reason thereof. Id. The defendants having taken possession of plaintiff's mine with its consent, and having sold ores extracted therefrom believing that they had a right to do so, upon a decree returning the mine to the owner, such defendants should be allowed reasonable expenditures for extraction, sampling, transportation, and sale, and of the preservation, development, and improvement of the mine. Wasatch Mining Co. v. Jennings, U.; 46 P. 1106. Where one purchasing a mining claim from a person engaged in litigation concerning it, agrees to pay the price into court at the end of a year if the suit is not then determined, he cannot escape such payment on the ground that his deed failed to include the most valuable part of the claim, when it appears that he has brought an independent suit to reform the deed. Wasatch Mining Co. v. Crescent Mining Co., 7 U. 8; 24 P. 586; 151 U. S. 317. Plaintiff, illegally ousted, seeking to recover possession of the claim held by defendants, may show the expenditures in working the claim prior to the ouster. Victoria Mining Co. v. Haws, 7 U. 515; 27 P. 695. Affirmed 160 U. S. 303. 1497. Boundaries must be marked within thirty days. Monuments. Within thirty days from the date of discovery or establishment, the locator must mark the boundaries of his lode, or placer, or millsite claim by establishing in each corner thereof, and at any angle in the side lines, a monument marked with the name of the claim and the corner or angle it represents. When from any cause a monument cannot be safely planted at the true corner or angle, it must be placed as near thereto as practicable and so marked as to indicate the place of such corner or angle. Monuments may be made of any such material and in such form as will readily give notice; and when of posts or trees, they must be hewn and marked upon the side facing toward the discovery, and must be at least four inches in diameter. Monuments must be at least four feet high above the ground, and trees must be so hewn as to readily attract attention. Monuments and stakes must be kept in such state of preservation as to notify persons of the boundaries of the mining claim. ['97, pp. 57-8. 1498. Copy of location notice must be recorded within thirty days. Fee. Within thirty days from the date of posting the location notice upon the claim, the locator or locators, or his or their assigns, must file for record in the office of the county recorder of the county in which such claim is situated, a substantial copy of such notice of location. Said county recorder shall charge and collect a fee of one dollar for filing and recording such notice; provided, that such notice of location shall not be abstracted unless a subsequent conveyance affecting the same property be filed for record, when said notice shall be abstracted. ['97, p. 58. The notice of location of a mining claim need not be recorded, if, at the time of the location, the rules of the district which require recording have fallen into disuse and are no longer in force, there being no statutory requirement that such notice should be recorded. Victoria Mining Co. v. Haws, 7 U. 515; 27 P. 695. Affirmed 160 U. S. 303. Rep chop 14 1899 Chapt 15 1499. Fifty dollars' worth of work performed within ninety days Notice. Within ninety days from the date of posting the location notice upon the claim, the locator or locators, or his or their assigns, shall do at least fifty dollars' worth of work upon said claim. Every person or company owning a group of claims and the development work for said group at one point, shall post a notice up each claim at the discovery monument stating where 1899-1 such work is being done. ['97, p. 58. 1500. Proof of annual labor. Form of affidavit. Filing. owner of any quartz lode or placer mining claim who shall do or perform, or cause to be done or performed, the annual labor or improvements required by the Repealed laws of the United States in order to prevent a forfeiture of the claim, must, either ha 1. The name of the claim and where situated. 2. The number of days' work done and the character and value of the improvements placed thereon. 3. The date or dates of performing said labor and making said improvements and number of cubic feet of earth or rock removed. 4. At whose instance or request said work was done or improvements made. 5. The actual amount paid for said labor and improvements, and by whom paid, when the same was not done by the owner or owners of said claim. Such affidavits or duly certified copies thereof shall be prima facie evidence of the facts therein stated. ['97, pp. 58-9. Work done outside of a mining claim, if done for the purpose and as a means of developing the same, is as available for holding the claim as if done within the boundaries of the claim itself. One general system of work may be devised, well adapted and intended to develop several contiguous claims, and when such is the case, work in furtherance of the system is work on the claims intended to be developed by it. Harrington v. Chambers, 3 U. 94; 1 P. 362. Affirmed 111 U. S. 350. Sec. 2324 R. S. U. S. requires that some work should be done on every claim to mineral land in every year, from the date of discovery until the issue of the patent. When several claims are held in common and are contiguous, the necessary work to keep them all alive may be done on one of them; but it must equal in value that which would be required on all the claims if they were separate or independent. Id. When the agent of the plaintiff located a valid mining claim for plaintiff, and did the assessment work for the five succeeding years, and received pay from plaintiff therefor, J 1501. County recorder to record mining rules without charge. Repealed Chapt 14 It shall be the duty of each county recorder to record the mining rules and regulations of the several mining districts in his county without fee, and certified copies of such record shall be received in all tribunals and before all officers of 199 this state as prima facie evidence of such rules and regulations. ['97, p. 59. 1502. County recorder to perform duties of district recorder. Penalty for failure. The county recorders of the respective counties shall per form the duties heretofore performed by the district mining recorders in such Rep counties, respectively; and the district mining recorders of each county shall, within thirty days after this chapter shall take effect, deposit the books and Chap 14 records pertaining to their offices with the county recorder of the county in which the district or the greater part thereof is situated; provided, that said books and /99 records shall not be required to be abstracted by the county recorder. Any dis trict mining recorder who shall fail to deposit as aforesaid the books and records pertaining to his office, shall be deemed guilty of a misdemeanor. ['97, p. 59. 1503. Papers heretofore certified by mining recorders receivable -in evidence. Copies of notices of location of mining claims, millsites, and tunnel sites, heretofore recorded in the records of the several mining districts. and of the mining rules and regulations in force in the several mining districts, in like manner recorded, heretofore duly certified by the mining recorder, shall be receivable in all tribunals and before all officers of this state, as prima facie evidence. ['97, p. 59. Rip hop district mining 1504. County recorder to certify copies from mining records. Evidence. Where books, records, and documents pertaining to the office of recorder have been or shall hereafter be deposited in the office 14 of any county recorder of this state, such county recorder is authorized to make and certify copies therefrom, and such certified copies shall be receivable in all tribunals and before all officers of this state in the same manner and to the same effect as if such records had been originally filed or made in the office of the county recorder. ['97, p. 60. Rep chap 1505. Transportation charges on records paid by county. The board of commissioners of each county shall provide ways and means for the 14-1899 transportation of all books and records pertaining to the office of the respective mining recorders, to the office of the respective county recorder. ['97, p. 60. Repchapt 1506. Upon petition, records to be copied and returned to mining district. Upon receipt of a petition signed by not less than one hundred bona fide miners residing in any mining district, petitioning for the return of the records of such mining district, the board of county commissioners shall cause the records of such district to be copied by the county recorder with the joint 1499 assistance of the district recorder of such mining district, if the said district recorder wishes to render such assistance, and shall cause the original records, to be sent to such mining district recorder; the copy so made shall remain in the office of the county recorder and shall be considered the original record. Onehalf of the expenses of copying the said records shall be paid out of the county treasury and one-half shall be paid out of the state treasury. ['97, p. 60. CHAPTER 2. COAL MINES. 1507. State coal mine inspector. Term. The governor, with the advice and consent of the senate, must appoint a state coal mine inspector, who shall hold office for the term of four years and until his successor is appointed and has qualified; provided, that such inspector may be removed at the pleasure of the governor. The present incumbent shall hold office for the period of his appointment unless sooner removed. ['96, pp. 346–7*. Qualifications. 1508. Id. Qualifications. The coal mine inspector shall be a coal miner of not less than five years' practical experience, and he shall have been a coal miner in this state for at least two years prior to his appointment. No person interested in the operation of a coal mine in this state, nor any employee of a coal mining company, shall be qualified to hold such office. ['96, p. 347*. 1509. Id. Bond. The inspector shall give bond to the state, to be approved by and delivered to the secretary of state, in the sum of five thousand dollars, conditioned for the faithful discharge of his duties. ['96, p. 346. 1510. Id. Duties. It shall be the duty of the coal mine inspector to make careful and thorough inspection of each coal mine operated in the state, at |