Fed. Rep., 673) the evidence showed that there had not been any seepages of oil upon the tract in controversy, but that sandstone and shale had been discovered thereon as well as on adjoining lands and that there were seepages of oil upon some of the adjoining land as well as wells on the adjoining tracts which were producing more or less oil. This was held not to constitute a discovery. Judge Ross holding that:

"But these were nothing more than indications of existing oil under the surface of the ground in question, which might or might not prove to be true. Mere indications, however strong, are not, in my opinion, sufficient to answer the requirements of the statute, which requires, as one of the essential conditions to the making of a valid location of unappropriated public land of the United States under the mining laws, a discovery of mineral within the limits of the claim."

In Olive Land & Development Co. v. Olmstead et al. (103 Fed. Rep., 568) the answer set up the following statement of facts:

"The answer avers that the land in controversy is of no agricultural value, and of but little, if any, value for grazing purposes, and has no appreciable value for any purpose except for petroleum that may be obtained by boring or drilling therein; that it is in a well-recognized petroleum-producing belt, and that adjacent properties in the belt are actually producing petroleum in large and profitable quantities, and that the surface indications of such producing lands and upon the lands in controversy are the same; that the surface rock and sand and the surface geological formation and stratification upon the lands in controversy are such as would lead any experienced petroleum expert or any practical geologist familiar with petroleumbearing lands in California to pronounce the same oil or petroleum territory, and chiefly valuable therefor; that one of the most pronounced and well-marked anticlinal folds of sandstone and shale formation in Ventura County runs through the land in controversy and has its apex thereon, and that where said anticlinal fold is most exposed, by a declivity which sharply cuts the same, bituminous sand several feet in thickness and 100 or more feet long is clearly visible, which sand, when excavated, gives out a distinct odor of petroleum; that such bituminous sand, in the formation in which it is found, shows the land in controversy to be mineral or petroleum in character, and constitutes such a discovery as would justify any prudent petroleum miner in locating the same as petroleum land and in spending his time and money in developing the same for its petroleum product; that * discovery of bituminous sand in said sandstone and shale formation having been made upon the land in controversy by eight persons, * citizens of the United * * locate * * * States, and over the age of 21 years, they did the lands in controversy as placer petroleum lands and as a placer petroleum mining claim." The court held that this location amounted to nothing "for the reason that no discovery of oil or other mineral had been made, nor, indeed, has yet been made."

*

* *

*

*

*

So in Bay v. Oklahoma Southern Gas, Oil & Mining Co. et al. (73 Pac. Rep., 936) the Supreme Court of Oklahoma, at page 940, expresses the same view:

"Neither will mere surface indications support a location. It is the common experience of persons of ordinary intelligence that petroleum in valuable quantities is not found on the surface of the ground, nor is it found in paying quantities seeping from the earth. Valuable oil is found by drilling or boring into the interior of the earth, and either flows or is pumped to the surface; and until some body or vein has been discovered from which the oil can be brought to the surface, it can not be considered of sufficient importance to warrant a location under the mineral laws."

In New England & Coalinga Oil Co. v. Congdon et al. (92 Pac., 180) the Supreme Court of California held that the following facts under Miller v. Chrisman, supra, did not constitute a discovery:

"Evidence that the land was oil bearing consisted of the testimony of plaintiff's superintendent that he had found on the land 'some oil sand stained with oil and a ridge of fossil,' and that oil had been discovered in neighboring locations, the nearest well being some two miles distant. The geological formation indicated the probable existence of oil-bearing strata in the claim."

The Department in Southwestern Oil Co. v. Atlantic and Pacific R. R. Co. (39 L. D., 335) held (syllabus):

"The disclosure of a stratum of bituminous sandstone or shale from which a small quantity of oil seeps, not sufficient to impress the land with any value for mining purposes, does not constitute a sufficient discovery to support a valid mining location." In the Butte Oil Co. case, from which these quotations are taken, the alleged discoveries were stated as follows (p. 603):

Upon the Lake No. 11 the company drilled a well to the depth of 1,400 feet but struck no oil, after which it discontinued its operations in August, 1904. A small flow of natural gas, however, was developed, insufficient for commercial purposes and without value. One witness testified that by conserving the flow and using small pipes, the gas might be sufficient for a range used by a resident of the near vicinity. Upon the Excess No. 2 there was a seepage of oil beneath a large rock upon the surface of a spring of water which had stained some of the surrounding rocks. It could be skimmed off the surface and collected in a bottle, and one sample so collected by one of the Government's witnesses upon analysis proved to be petroleum oil.

The Department held (p. 606):

The slight flow of gas and the small seepage of oil were indications that there possibly is a reservoir of oil lying at an unknown depth and situated at some unknown distance from the land and can not be regarded as a discovery of oil as a basis of a placer mining location under the act of February 11, 1897.

Thus it appears that no "mere surface indications," nor seepages on the claim or on adjoining lands, nor outcrops of oil sands, even under favorable geologic conditions, nor producing wells on adjacent lands, nor gas flows too small to be of substantial value can be considered as constituting valid discovery. It is difficult to frame a definition which will cover all cases, and such a definition in advance of court or departmental interpretation should not be given much weight, but it is safe to say that a discovery, to validate an oil location under the placer law, should consist of oil or gas in sufficient quantity to justify a man of ordinary prudence in the expectation of developing such a paying supply as to make the land chiefly valuable therefor. It would perhaps seem reasonable to add, especially in view of the words of the court in Bay v. Oklahoma Southern Co., quoted above, that the discovery of oil or gas should be made at the geologic horizon from which production is expected or hoped for. Not only is a discovery essential, but it must be made before application for patent. If it is made after the other acts of location have been performed the location will date from the time of discovery (Lindley on Mines, 3d ed., § 335), but if it is made after application for patent the application is without legal foundation and can not be recognized as a basis for mineral entry or patent (Bay City Oil Co. v. Alvarado Oil Co., 43 L. D., 397).

OTHER PREREQUISITES TO LOCATION AND PATENT.

UNITED STATES, EXCLUSIVE OF ALASKA.

Aside from the requirement that the locator shall be a citizen of the United States or have declared his intention to become such (R. S., 2319), the only essential to a valid location in addition to a discovery of mineral is, so far as the Federal mining law is concerned, that the claim be "distinctly marked on the ground so that its boundaries can be readily traced" (R. S., 2324). State laws and local regulations prescribe other requirements, such as posting a location notice on the claim and recording the location with a specified district or county officer. Once these requirements have been met, the locator has "the exclusive right of possession and enjoyment of all the surface included within the lines" of his claim (R. S., 2322). The claim may comprise 20 acres if located by an individual or, if made by an association, 20 acres for each member thereof (R. S., 2321), but in no case may it exceed 160 acres (R. S., 2320). There is no limit upon the number of claims which may be located by a single individual or association.

Having complied with all the requirements necessary to a valid location, and having thus become entitled to exclusive right of possession, the claimant, in order to continue the right, must expend not less than $100 worth of labor or improvements upon the claim during each year (R. S., 2324). Upon failure to perform the required assessment work, as this $100 worth of labor or improvements is called, the right to exclusive possession is subject to forfeiture, and the claim becomes "open to relocation in the same manner as if no location * * * had ever been made" (R. S., 2324). The present law gives the claimant until the end of the calendar year succeeding his location in which to perform his first assessment work (21 Stat., 61), and thereafter the calendar year is the period for which such work is required.

It is important to note that assessment work gives "exclusive right of possession and enjoyment" only after discovery. In Smith v. Union Oil Co. (135 Pac., 966) the Supreme Court of California

says:

The word "assessment," when used in connection with the right to a mining claim, was universally understood to mean the annual labor required by that section in order to hold the right to the possession of a mining claim after a discovery and complete location had been made. 1 Snyder on Mines, § 475. It had acquired this technical meaning in mining law. It was never used or understood to indicate work done to make a discovery on a claim where none had been made. It was applied only to work done to hold a claim after discovery-work that had no necessary relation to a discovery, although, of course, such work might lead to further or more comprehensive discoveries.

In an earlier case to which reference has already been made (McLemore v. Express Oil Co., 112 Pac., 59), the same court said:

*

*

*

And a location is valid and complete only when, after compliance with other requirements, a discovery of valuable mineral in place has been made. But where the location is incomplete no question of assessment work is involved. And again, in the case of Borgwardt v. McKittrick Oil Co. (130) Pac., 417), the same court used the following language:

Until a sufficient actual discovery of mineral is made on such a claim, a location is not perfected, and no question of the doing of annual assessment work is involved. It is only after such discovery, when actual possession is no longer necessary to protect the location against subsequent locators, that annual assessment work is essential to prevent a forfeiture.

If the claimant has made a valid discovery and has expended not less than $500 worth of labor or improvements upon the claim (R. S., 2325), he is, upon compliance with certain requirements as to application, posting notices, publication, and survey if necessary (R. S., 2325), and upon payment of $2.50 an acre (R. S., 2333), entitled to a patent conveying a title in fee to the area covered by his claim. The right to patent may also be established by holding and working a placer claim for the period prescribed by the statute of limitations of the State in which the claim is situated (R. S., 2332).

ALASKA.

Although the act of June 6, 1900 (31 Stat., 321), provides that "the laws of the United States relating to mining claims, mineral locations, and rights incident thereto are hereby extended to the District of Alaska," the act of August 1, 1912 (37 Stat., 242), here given in full, modified the placer law in certain important particulars:

AN ACT To modify and amend the mining laws in their application to the Territory of Alaska, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That no association placer-mining claim shall hereafter be located in Alaska in excess of forty acres, and on every placer-mining claim hereafter located in Alaska, and until a patent has been issued therefor, not less than one hundred dollars' worth of labor shall be performed or improvements made during each year, including the year of location, for each and every twenty acres or excess fraction thereof.

SEC. 2. That no person shall hereafter locate any placer-mining claim in Alaska as attorney for another unless he is duly authorized thereto by a power of attorney in writing, duly acknowledged and recorded in any recorder's office in the judicial division where the location is made. Any person so authorized may locate placermining claims for not more than two individuals or one association under such power of attorney, but no such agent or attorney shall be authorized or permitted to locate more than two placer-mining claims for any one principal or association during any calendar month, and no placer-mining claim shall hereafter be located in Alaska except under the limitations of this Act.

SEC. 3. That no person shall hereafter locate, cause or procure to be located, for himself more than two placer-mining claims in any calendar month: Provided, That one or both of such locations may be included in an association claim.

SEC. 4. That no placer-mining claim hereafter located in Alaska shall be patented which shall contain a greater area than is fixed by law, nor which is longer than three times its greatest width.

SEC. 5. That any placer-mining claim attempted to be located in violation of this Act shall be null and void, and the whole area thereof may be located by any qualified locator as if no such prior attempt had been made.

Thus in Alaska an association placer is limited to 40 instead of 160 acres, assessment work must amount to $100 for each 20 acres of the claim or fraction thereof instead of for the whole claim, assessment work must be performed for the calendar year during which location is made, and the number of claims which may be located on behalf of any one person in any one calendar month is limited to

two.

The act of June 6, 1900, supra, also contains provisions as to recording, location notices, and the like; but these provisions, being equivalent in their nature to the enactments on similar subjects in the various States, are not here given.

STAGES OF DEVELOPMENT OF TITLE.

It is evident that there are three stages of development of the title which a claimant under the placer law acquires to the land included within his claim-first, the period between his physical occupation of the claim and the perfecting of his location, which may be called the "occupancy period"; second, the period between his location and patent, which may be called the "location period"; and third, the period after patent, or "patent period."

PATENT PERIOD.

The period after the issuance of patent requires no discussion. The patent is a grant of title in fee simple, good against the grantor and all adverse claimants, and subject to attack only upon the ground of fraud.

LOCATION PERIOD.

The character of title during the period between location and patent is such as to protect the claimant in the exclusive possession and enjoyment of his claim so long as he performs his annual assessment work and complies with State and local regulations. It is not necessary for the locator to remain in continuous possession or occupancy or to engage in diligent development work. Of the numerous authorities on this point but one will be cited. In McLemore v. Express Oil Co., supra, the court said:

When the location is valid and complete, the law exacts the doing of but $100 of work per year, and when that is done all of the locator's rights are fully protected, whether he remains in possession longer than is necessary to do that work or not.