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way and

2565. Annual proof of labor. Contents

of affidavit. Effect as evidence.

Fees. 2566. Amended locations. 2567. Dedputy mining recorder. 2568. Location notice, where filed. Fees. 2569. Duty of deputy recorder to trans

mit notices to recorder. Record

of recorder.
2570. Restrictions on duty recorder.
2571. When right to mine is separate

from ownership of surface


2572. Right of way may be had and ac-

quired. 2573. Right of

easements, right to. 2574. General reference. 2575. Right to drive tunnel through an.

other's claim. 2576. Rights of owners of intersectel

claim. 2577. Ownership of ore extracted.

Damages. 2578. Actions involving right to vein.

Burden of proof.

WHO MAY TAKE, HOLD AND DISPOSE OF. Section 2555. Any Person Except Chinese May Take and Hold: Any person, whether citizen or alien, (except as hereinafter provided) natural or artificial, may take, hold and dispose of mining claims and mining property, real or personal, tunnel rights, mill sites, quartz mills and reduction works used or necessary or proper for the reduction of ores, and water rights used for mining or milling purposes, and any other lands or property necessary for the working of mines or the reduction of the products thereof: Provided, That Chinese, or persons of Mongolian descent not born in the United States, are not permitted to acquire title to land or any real property under the provisions of this title.

1899 5th Ses. p. 71, Sec. 2; 1891 1st who is in or out of possession. The Ses. p. 118, Sec. 1.

proceeding is simply to determine OWNERSHIP AND ADVERSE which party, if either, is entitled to a CLAIMS: Mining property acquired in patent and in such case, where the this state under the laws of the United claim asserted under a location. States during coverture is community actual possession is

material property. Under the laws of Idaho question. Buck, J. dissenting.-Burk territory as they existed in July, 1886, 1. McDonald, 2 Idaho, 310, 13 Pac. 351. all property acquired by the husband In an action to decide an adverse claim in said territory during coverture, ex- to a mining claim, a verdict simply cept such as was acquired by gift, be- finding that the plaintiffs are entitled to quest, devise, or descent, was commun- possession, and which does not allege ity property, and this, althought the that they have such right by reason of wife may never have been a resident compliance with the absolute requireof the territory.--Jacobson v. Bunker ments of the law, or that they have it Hill & Sullivan Mining Co. 2 Idaho, 863, as against the government as well as 28 Pac. 396. In proceedings under Rev. against the defendants, is bad and will St. U. S. Secs. 2325, 2326, to determine operate to reverse a judgement based the rights of adverse claimants to mini- thereon, since the Act of Congress o eral locations, where the complaint is March 3, 1881, provided that if no title open to the objection that it states two to the ground in controversy be rstalıcauses of action, one legal ann

lished by either party, the jury still equitable, and the defendant does not so find.—Burke v. McDonald, 2 Idaho,




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omitted by mistake, it appeared that the lessors desired to limit the area of the lease that the ground was suggested by A., one of the lessees, as the limit; that a lease was written out and handed to the lessees who kept it for a week; that it was then altered in sine minor details; that A. was familia. with the premises and it was held that the evidence was not sufficient to warrant a reformation.-Houser v. Austin, 2 Idaho, 188, 10 Pac. 37. In such case, an instruction that, “if the jury find that the lessors told the lessees that the lease extended to the ground in cispute, and the lessees, so believing, weni to work therein with the knowledge of the lessors, and the lessors received a royalty from the ore sold therefrom, then the lessors would be estopped fro!r. claiming that the lease did not include the land in dispute,” is error, in thut it fails to state that the party to be estopped must have had knowledge that his representations were false and that the party claiming the benefit of the estoppel was ignorant of the truth, and honestly acted on the statement.--Id. Construction of lease and option for purchase; effect of payment and part performance and offer to pay after expiration of time.-Settle v. Winters, 2 Idaho, 199, 10 Pac. 216. Prior to the act of Congress of March 3, 1887, known as the "Alien Act," there was nothing in the laws of the United States, nor of the Territory of Idaho, prohibiting aliens from holding and working mining ground under lease from one qua!ified, and who had made a proper location of such mining ground.--Ah Kle et al. v. McLean et al. 32 Pac. 200 (Idaho.)

ALIENS: Prior to the Act ofCongress of March 3, 1887, known as the "Alien Act," there was nothing in the laws of the United States nor of the Territory of Idaho, prohibiting aliens from holding and working mining ground under lease from one qualified and who had made a proper location of said mining ground.—Ah Kle v. MeLean (Idaho), 32 Pac. 200. Under the Rev. St. U. S. Sec. 2319, declaring mineral deposits on public lands open to exploration and purchase by citizens, an alien cannot take and hold the possessory title to an unpatented claim which has been conveyed to him by a citizen as against another citizen who has subsequently located and demands possession of such claim, and such con

768. But this case cites Ferguson v. Neville, 61 Cal. 356, which is in accord with the dissenting opinion and holds that aliens, bona fide residents, cannot locate but may purchase m!!:ing claims properly located, and they can only be dispossessed by the state after "office found," and that they can also convey the title, and the claims ac. quired by resident aliens are not open to relocation. S. Dak is in accort with the latter case. -Gorman Min. Co. V. Alexander, 2 S. Dak. 566, 51 N. W. 346. Under Rev. St. U. S. Sec. 2319, providing that all mineral deposits on public lands shall be free and open to exploration and purchase in the lands in which they are found, to occupation and purchase by citizens of the United States and those who have declared their intention become such, one who is not citizen and has not declared his intention to become such, acquires no right by posting a notice of claim.-Anthony Jillson (Cal.), 23 Pac, 415, Rev. St. U. S. Secs. 2319, 2321, 2325. A corporation, all of whose members are citizens of the United States, is competent to locate a mining claim.-Thomas V. Chisholm (Colo.), 21 Pac. 1019. Under the Act of Congress of May 10, 1872, only citizens of the United States and persons who have declared their intention to become such, can acquire any right of possession by location or otherwise, of mineral lands on the public domain. And in an action for trespass upon mining ground and for damages where the legal title to the ground is in the United States, and the right of possession is made by the pleadings a material issue, the plaintiff in order to recover, must plead and prove that he is a citizen of the United States or that he has declared his intention to become such.-Bohanon V. Howe, 2 Idaho, 417; c. f. Ferguson v. Ah Tong, supra. So, in an action to determine the right of possession to a mining claim, the failure of the court to find as to citizenship of the party for whom judgment was rendered is error, even though the citizenship of such party is limited by the pleading.-Rosenthal v. Ives, 2 Idaho, 244, 12 Pac. 904. The naturalization of an alien during trial will not retroact so as to validate his claim.--Wulffv. Manuel (Mont.), 23 Pac. 723. Proof of birth within the l'nited States is sufficient to establish the citizenship of one setting up



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Section 2556 Width of Claim. Marking Lines, Erfect of: Mining claims hereafter located upon veins or lodes of quartz, or other rock in place bearing any of the metals or other valuable deposits mentioned in section 2320 of the Revised Statutes of the United States, may extend to three hundred feet on each side of the middle of the vein or lode: Provided, That when the locators have set stakes, posts or monuments described in section 2557 of this chapter, to indicate the line of the vein, ledge or lode, such stakes, posts or monuments must be taken for the purpose of such location, to mark correctly the line thereof, and such line must not afterwards be changed so as to affect rights acquired or interfere with any locations made subsequent thereto.

1899 5th Ses. p. 237; 1895 30 Ses. p. 25, daries between plaintiff's and defendSec. 1, amending laws 1887 R. S. Sec. ants' mines, defendants' measurements 3100; 1881 11th Ses. p. 262, Sec. 1. being claimed to be excessive and void, LODES AND VEINS: Though to

the decision of which would determine constitute a vein, it is not required that

whose location was prior in charging well defined walls be developed or pay

the jury that, “thre is really but one ing ore found within them, there must question in this case, and that is, who be rock, clay or earth, so colored or de- first made a valid location on this composed by the mineral elements as ground?"-Id. From the time that it to mark and distinguish it from the in- lawful location of a quartz claim has closing country.-Burke v. McDonald been made, being a space of two hun(Idaho), 33 Pac. 49. A "lode" or "vein" dren feet in length, and fifty feet within the meaning of those terms as each side of the stakes, the claimant used in the mining acts, is that which

becomes the owner as against any other is so called by miners.-Harrington v. claimant, of the soil embraced in those Chambers (Utah), 1 Pac. 362. The limits.--Atkins v. Hendree, 1 Idaho, 95. word “lode" is properly defined as a

The mere fact that in marking the "zone or belt of mineralized rock lying

boundaries of their location, the dewithin boundaries clearly separating it.

fendants' grantors set their stakes from the neighboring rock," and does more than 1500 feet in length and 600 not apply to a bed of gravel from feet in width does not invalidate the which particles of gold may be washed, location, except as to the excess, where although such gravel may be within such excessive measurements were defined boundaries.—Gregory v. Persh- made by mistake and without fraud, baker (Cal.), 14 Pac. 401.

and were duly corrected before the

rights of third parties attached.MINING REGULATIONS AND

Stem Winder Mining Co. v. Emma & CUSTOMS: Where a mining regula

Last Chance Mining Co. supra. Easttion is shown to have existed, such

erly of the discovery point the M. claim regulation is presumed so to exist until

was marked 150 feet longer than the the contrary appears.-Riborado

calls of the notice, and was wider than Quang Pang Mining Co. 2 Idaho, 131,

allowed by law, but the westerly 1000 6 Pac. 125.

feet was marked substantially correct BOUNDARIES: The testimony of in size. Held that where the ground an engineer who surveyed the defend- was of such a character that accuracy ants' mining claim, that a certain com- of measurement was very difficult, and promise monument was pointed out to the L. claim was discovered and lohim by the parties who then claimed cated mostly on the westerly end of the the ground, established by them for M., where the latter

correctly the


purpose of showing where marked, the location of the L. would they understood the location to be, and not be deemed to have been misled by that he referred to such mounment the inaccurate marking of the M., and only to show how and in what manner the M. was not void for inaccuracy of he had made the survey, was admissi- boundaries.--Burke v. McDonald (Idable, no attempt being made to establisi ho), 33 Pac. 49 It is immaterial that



-Howeth v. Sullenger, 113 Cal. 547, 45
Pac. 841.

Rev. St. U. S. Sec. 2322, provides that the owners of mining claims "shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations, and of all veins, lodes and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines, extend downward vertically, although such veins, lodes or ledges may so far depart from a perpendicular from their course downward

to extend outside of the vertical side lines of such surface locations." Held, that an owner of a mining claim has no right to follow a vein into an adjoining claim unless such vein has its apex within its own side lines.-Gilpin v. Sierra Nevada Consolidated Mining Co. 2 Idaho, 662, 23 Pac. 547, 1014,

On a bill to enjoin an adjoining owner from working a vein on the plaintiff's claim, the defendant alleged that such vein had its apex on his claim. Defendant's claim adjoined plaintiff's claim on the east of the latter; and it appeared that the plaintiff sank shaft near his eastern line in ledge matter consisting of various substances, including some ore. Following the dip of the ledge matter, and de. flecting to the south about 150 feet, he struck the defendant's underground workings, finding some ore before doing so. The ledge matter was continuOus. The defendant's ore

of kind somettimes found in "blanket veins," without apices or dips, and it

was doubtful if the vein was a fissure vein. The dip was nearly at right angles with the north side of the plaintiff's claim, and deflected little, ii at all, from the lead of the defendant's ledge. The true average dip of a vein is always at right angles to the lead. All the defendant's tunnels were on the bed-rock or floor of the ore deposits, rose slightly as they receded from their mouths on the defendant's claim, were at right angles with a line formed by their mouths, and pursuel an almost due westerly course. The mouths were at an outcrop of a deposit, nearly horizontal in position, on a mountain side. The dip of the floor of the ore deposits was from north to south. Held, that it was not shown that the apex of the vein was on the defendant's claim, and hence the defendant had no right to extend its works into and extract ore from the plaintiff's claim.-Gilpin V. Sierra Nevada ('onsolidated Mining Co. supra. Held also, that an injunction would lie to restrain continuance of the unlawful removal of

ore from the plaintiff's mine, whether or not the injury, if consummated, would be irreparable.--Id.

The claimant is allowed to hold but one ledge by location, but the fact that other ledges may exist within those limits must first be established before a subsequent claimant has any lawful right to pass into those boundaries which otherwise must be sacred to the first location.--Atkins v. Hendree, 1 Idaho, 95: but see Gilpin v. Sierra Nevada ('onsolidated Mining Co. supra.

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Section 2557. Time and Manner of Making Location: The locator, at the time of making the discovery of such vein or lode, must erect a monument at such place of discovery, upon which he must place his name, the name of the claim, the date of discovery and distance claimed along the vein each way from such monument. Within ten days from the date of discovery, he must mark the boundaries of his claim by establishing at 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; also at the time of so marking his boundaries, he must post at his discovery monument his notice of location in which must be stated: First, the name of the locator : second, the name of the claim: third, the date of discovery: fourth, the direction and distance claimed along the ledge from the discovery: fifth, the distance claimed on each side of the middle of the ledge: sixth, the distance and direction from the (liscovery monument, to such natural object or permanent monument, if any such there be, as will fix and describe in the notice itself. the location of the claim, and seventh, the name of the mining district, county and state. When from any cause, a monument can

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not be safely planted at the true corner or angle, it may 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 or form as will readily give notice, and when of posts or trees, they must be hewn and marked upon the side facing towards the discovery, and must be at least four inches square or in diameter. Monuments must be at least four feet high above the ground, and trees must be so hewn as to readily attract attention. At the time the locator so marks the boundaries of his claim, he may do so in any direction that will not interfere with rights or claims which existed prior to his discovery.

1889 5th Ses. p. 440; 1899, 5th Ses. p. marking of boundaries according to 237. 1895, 3d Ses. p. 26, Sec. 2, amend- law on the 18th, his discovery and loca ing laws of 1887 R. S. Sec. 3101; 1881, tion will date from the 16th of Septem11th Ses, p. 263, Sec. 2.

ber.—Burke v. McDonald, 2 Idaho, 102?, WHAT LANDS OPEN TO LOCA- 29 Pac. 98, but a discovery after locaTION: Where parties in possession tion of a mining claim which is void and those under whom they held had for want of previous discovery, can worked the ground for a period of not relate back and make such location nearly thirty years, the land having valid.—Upton Larkin (Mont.), 6 been located in 1862, other parties can Pac. 66; however, one in possession not come in and claim the ground by of a claim, under such circumstances, location of the premises under the laws can hold possession of the surface as of the United States.-Ah Kle v. Greg- against one possessing or claiming no ory (Idaho), 34 Pac. 812. The fact that better right.--Field v. Gray (Ariz.), 25 land on which the discovery and loca- Pac. 793. tion of a mining claim are made is DISCOVERY: A valid location of a within the patent limits of a town, will mining claim may be made whenever not affect the title of the locator, where the prospector has discovered such init was known prior to the patent to the dications of mineral as he is willing to town that a mineral vein existed where spend his time and money in following the discovery and location were made. with the expectation of finding ore, is --Moyle v. Bullene (Colo.), 44 Pac. 69. a proper instruction, and changing the

LOCATION BY AGENT: Where the word "willing" to "justified," radically complaint alleges that a mining claim changes the instruction and is an imwas located on behalf of the owner by proper modification.-Burke v. McDona duly authorized agent, and the an- ald, 2 Idaho, 1022, 29 Pac. 98. At the swer admits the fact, it is error for time of a mining location, the measthe court to refuse to give an instruc- urement must be from the point of tion to the effect that one might in- discovery (the middle of the point of itiate the location of a mining claim discovery), unless there is evidence through an agent.--Schultz v. Keeler, that the vein had been actually estab2 Idaho, 532, 21 Pac. 418. The law im- lished and run, but if the evidence is plies an authority in one person to lo- simply that there is a point of discovcate a mining claim in the name of an- ery, then the only knowledge one can other from the fact of making such lo- have of the vein is of that part which cation; and it is error to instruct that crops out at the point of discovery, and some express authority is necessary.--- the parties must be entitled to 300 feet Rush v. Frech (Ariz.), 25 Pac. 816. on each side of the middle of the vein Under Rev. St. U. S. Sec. 2322, vesting at the point of

discovery.--Stem in the locator of a mining claim the Winder Mining Co. v. Emma and Last exclusive right to its possession, a lo- Chance Consolidated Mining Co. 2 cation of a mining claim may be mad.. Idaho, 421, 21 Pac, 1040. The locaby one person in the name of another. tion is void when its discovery is -Moore v. Hammerslag (Cal.), 41 Pac. placed within an existing valid claim.

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