CHAPTER XXXIII. MINING CLAIMS BEFORE COURTS. MINING LAWS. All Mineral Lands Open to Exploration and Purchase. § 600. § 601. § 602. § 603. Miners' Rules and Regulations. § COO. All Mineral Lands Open to Exploration and Purchase.— All valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, are free and open to exploration and purchase by citizens of the United States, and those wo have declared their intention to become such; and proof of citizenship may consist, in case of an individual, of his own affidavit thereof; in case of an association of persons unincorporated, of the affidavit of their authorized agent; and in the case of a corporation organized under the laws of the United States, or of any state or territory thereof, by the filing of a certified copy of incorporation. R. S. 2319, 2321. § 601. Definition of the Words "Mining Claim."-A mining claim is the name given to that portion of the public mineral lands which the miner takes up and holds in accordance with mining laws, local and statutory, for mining purposes, and the term includes the vein specifically located, all the surface ground located on each side of it, and all other veins or lodes having their apex inside the surface lines. Mt. Diablo Mining Co. v. Gallison, 5 Saw. 439. The claim must be located on land valuable for mineral, such as slate, fire-clay, borax, mica, umber, petroleum, coal, salt springs and salines, diamonds. gold, silver, cinuabar, lead, tin, and copper, whether in place or placers. Morton v. Nebraska, 21 Wall. 660; Opinion Attorney General U. S. As to the manner of locating claims upon viens or lodes, and the steps necessary to be taken to hold the same, see Mining Claims before the Land Offices." $602. Definition of the Words "Vein or Lode."-The terms "vein or lode" as used by miners, and in the mining acts of Congress, are applicable to any zone or belt of mineralized rock lying within boundaries clearly separating it from the neighboring rock. Flagstaff Co. v. Torbett, 8 Otto, 463; Eureka M. Co. v. Richmond, 4 The definition given by Van Cotta on ore deposits (supposed to be the highest scientific authority upon this subject) is as follows: "A fissure in the earth's crust filled with mineral matter; or more accurately, aggregations of mineral matter containing ores in fissures." Prim's Translation, p. 26. § 603. Miners' Rules and Regulations.-It is provided by the revised statutes, section 2324, that the miners of each district may make rules and regulations, not in conflict with the laws of the United States, or of the state or territory in which such districts are respectively situated, governing the location, manner of recording, and amount of work necessary to hold possession of a claim. These miners' laws have played a conspicuous part, not only in the material development of the country, but in its social, political, and judicial history. They have protected millions of property, and aided in opening a region of incalculable wealth. Prospectors, under this code of laws, with pick, pan, and shovel, on mountain side, amidst winter's rugged grasp, on the plains, under sunny skies, in the quiet nooks and flowery ravines of the lower slopes of the sierras, lifted from the matrix of nature the golden treasure, and toiled on as safely protected in their property, as if in the midst of the highest civilization. Prior to the organization of the state government in California, these rules were the only laws. They assumed both civil and criminal jurisdiction. This is shown in certain rules and regulations adopted by the miners at Jackson, California, on the twentieth of January, 1850. After providing for the election of an alcalde and sheriff, also the manner in which both civil and criminal cases should be tried before the alcalde, and giving the accused in criminal cases the right to a jury trial, and providing for some other things, the twelfth "article," as it is termed, reads as follows: "Article XII. Any person who shall steal a mule or other animal of draught or burden, or shall enter a tent or dwelling, and steal therefrom gold-dust, money, provisions, goods, or other articles, amounting in value to one hundred dollars or over, shall, on conviction thereof, be considered guilty of felony, and suffer death by hanging. Any aider or abettor therein shall be punished in like manner." Of course no such rules or regulations were made after the organization of the state government (except by vigilance committees), but miners' laws in reference to mining claims are being constantly made in the mineral regions of the public domain; and so long as the miner complies with these laws, and the laws of congress, and of the state or territory, he has a right to protect his possession of a mining claim against all intruders while he is searching for mineral, even though he has as yet found no mineral in place. But if he stands by and allows others to enter upon his claim and first discover mineral in place, the law gives such discoverer a title to the mineral so first discovered, against which the mere possession of the surface can not prevail. Crossman v. Pendary, U. S. Cir. Ct. for Colorado; Copp's Mineral These rules and regulations are a part of the common law of mining states and territories. Cooley's Const. Lim., 5th ed., 35, note. The fact that mining laws and regulations were passed on a different day from that advertised for a meeting of miners does not invalidate them. Courts will not inquire into the regularity of the modes in which these local legislatures or primary assemblages act. They must be the judges of their own proceedings. It is sufficient that the miners agree, whether in public meeting or after due notice, upon their local laws, and that these are recognized as rules of the vicinage, unless fraud be shown, or other like cause for rejecting the laws. Gove v. McBrayer, 18 Cal. 582. If a record is provided for by local rules, it must, under the provisions of the mining laws of the United States, contain an accurate description of the locus of the claim by reference to natural objects or permanent monuments. Golden Fleece Co. v. Consolidated, 12 Nev. 312. Local mining customs, whether written or unwritten, must be observed; and if a mining custom allows a person to locate a vein or lode for himself and others by placing thereon a notice, with his own name and the names of those whom he may choose to associate with him appended thereto, designating the extent of his claim, and one person thus locates a lode for himself and several others, some of whom have no knowledge of the location, the persons who have no knowledge of the location become tenants in common with the locator and the others, and can not be divested of their interest by the act of the locators tearing down the notice and posting up another omitting their names, unless this is done with their knowledge and consent. Morton v. Copper M. Co., 26 Cal. 527. So long as miners' rules and regulations are generally regarded, they have all the force of customs sanctioned for ages; but whenever they fall into disuse, or are generally disregarded, they are void; and this is a question of fact for the jury. But when shown to have been in force, the presumption is that they continue in force until the contrary is shown. North Noonday M. Co. v. The Orient, Copp's Mineral Lands, p. 270; The requirements of these rules that locators do a certain amount of work upon their claims are conditions subsequent, and the law presumes that such locators forfeit their rights to possess and mine the same by a failure to comply therewith, although no penalty is specified in such rules and customs. King v. Edwards, 1 Mont. 235. § 604. Location of Mining Claims.-Mining claims located. since the tenth day of May, 1872, whether located by one or more persons, may equal, but can 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. The end lines of each claim must be parallel with each other, and no claim can extend more than three hundred feet on each side of the middle of the vein on the surface. And the description of vein or lode claims upon surveyed lands must designate the location of the claim with reference to the lines of the public surveys, but need not conform therewith. R. S. 2320, 2327. All locations except those made in the name of some person, or association of persons, are void ab initio. Sickels' Mining Laws, p. 322. In regard to location notices, it is generally held, both by courts and the land department, that they should be liberally construed; and if they are sufficiently certain to put an honest inquirer upon his guard, and the locators have complied with the rules and laws in other respects, they will be held sufficient. But in order to prevent litigation, great care should be exercised in locating and monumenting mineral claims. Letter of Secretary Delano, Sickels' Mining Laws, pp. 100, 162. Aliens.-Under the act of Congress of May 10, 1872, relating to the public mineral lands, none but citizens of the United States, or those who have declared their intention to become such, can acquire any right to such lands by location. But if in the attempt to locate a claim an alien performs all the acts necessary to a valid location by a citizen, and then conveys such claim to a citizen who takes possession and continues to perform all the conditions required by law to hold such claim, such citizen thereby acquires and holds a valid title to the claim so located by the alien as against all persons having acquired no right therein before such conveyance by the alien. And if a citizen and an alien jointly locate a claim not exceeding the amount of ground allowed to one locator, such location is valid as to the citizen, and a conveyance from both of said locators to a citizen gives a valid title. Judge Sawyer's charge to the jury in North Noonday M. Co. v. The failure of a party to comply with a mining rule or regulation can not work a forfeiture thereto unless the rule itself so provides. Bell v. Bed Rock Co., 36 Cal. 214. § 605. Locators' Rights of Possession. -The locators of all mining locations heretofore made, or which shall hereafter be made, on any mineral vein, lode, or ledge situated on the public domain, their heirs and assigns (where no adverse claim existed on the tenth day of May, 1872), so long as they comply with the laws of the United States, and with state, territorial, and local regulations, if any there be, are entitled to 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 extended downward vertically, although such veins, lodes, or ledges may so far depart from a perpendicular in their course downward as to extend outside the vertical side lines of such surface locations. But their right of possession to such outside parts of such veins or ledges is con |