Mills' Ann. Colo. Stat., § 3149, providing that the width of lode claims located in certain counties shall be seventy-five feet on each side of the center of the vein or crevice, it is held that while the claim may not be more than 150 feet wide neither side line may be distant from the vein or discovery shaft, more, though it may be less than seventy-five feet. Taylor v. Parenteau, 23 Colo. 368 (48 Pac. Rep. 505). Mills' Ann. Colo. Stat., § 3153; Gen. Stat. 1883, § 2402, construed and applied-location of mining claim by setting posts at the corners thereof. Taylor v. Parenteau, 23 Colo. 368 (48 Pac. Rep. 505). U. S. Rev. Stat., §§ 2320, 2324, applied—marking of location on the ground-proof of posting notices. Willeford v. Bell, Cal. (49 Pac. Rep. 6). A discovery notice which describes the claim as joining and being bounded by three other claims on three sides thereof, sufficiently locates the claim with reference to permanent monuments. Riste v. Morton, 20 Mont. 139 (49 Pac. Rep. 656).

Sec. 696. Mining claims-Doing required amount of work. Construing U. S. Rev. Stat., § 2324, requiring an annual expenditure of not less than $100 worth of labor on a mining claim and providing that "Upon the failure of any one of several co-owners to contribute his proportion of the expenditures required thereby, the co-owners who have performed the labor or made the improvements may, at the expiration of the year, give such delinquent co-owner personal notice in writing or notice by publication in the newspaper published nearest the claim, for at least once a week for ninety days, and if at the expiration of ninety days after such notice in writing or by publication such delinquent shall fail or refuse to contribute his portion of the expenditure required by this section, his interest in the claim shall become the property of his co-owners who may have made the required expenditures," it is held that as against a deceased delinquent owner having no administrator, a notice addressed to him, "his heirs, administrators and to all whom it may concern," without individually naming the heirs, is sufficient; a notice may be published or served personally, and the delinquencies for several years may be grouped in one notice. Elder v. Horseshoe Min. & Milling Co., 9 S. Dak. 636 (70 N. W. Rep.

§ 696, 697

PUBLIC LANDS.

638

1060; 62 Am. St. Rep. 895). One seeking to enforce a forfeiture under this statute has the burden of proof and he must establish the facts constituting the forfeiture by clear and convincing proof. Axion Min. Co. v. White, 10 S. Dak. 198 (72 N. W. Rep. 462); Dibble v. Castle Chief Gold Min. Co., 9 S. Dak. 618 (70 N. W. Rep. 1055). The facts constituting the grounds of forfeiture of one's interest in a mining claim on account of his failure to contribute his share of work and expense, under U. S Rev. Stat.,§ 2324, need not appear of record. Riste v. Morton, 20 Mont. 139 (49 Pac. Rep. 656). Particular evidence exa mined and held insufficient to support a finding of forfeiture of the location of a mining claim for failure to do representation work. Strasburger v. Beecher, 20 Mont. 143 (49 Pac. Rep. 740). Utah Laws 1897, ch. 36, providing "the manner of locating and recording quartz and placer mining claims," is not unconstitutional on the ground that it expresses more than one subject in its title; nor does the statute conflict with U. S. Rev. Stat., § 2324, authorizing mining districts to make regulations not inconsistent with the laws of the United States or the laws of the state or territory in which a district is situated, governing the location, manner of recording, and the amount of work necessary to hold possession of mining claims. In re Monk, 16 Utah 100 (50 Pac. Rep 810).

Sec. 697. Mining claims-Abandonment by locator. After a valid location has been made, the locator need not keep an actual possession of the claim; his right to possession will continue until he has in fact abandoned, or has forfeited it for failure to do the requisite amount of work within the prescribed time, and the burden of proving such forfeiture or abandonment is on him who would attack this right. Harris v. Kellog, 117 Cal. 484 (49 Pac. Rep. 708). Abandonment cannot be charged against the locator of a claim, if, while he is in possession, his claim has been seized by another who holds possession of it adversely to him. Abandonment is a question of act as well as intent, and it is also said that it is a question of mixed law and fact. A party's own testimony that he had not intended to abandon is not conclusive upon the jury. The intention to abandon must be determined by

639

EPITOME OF CASES.

§ 697,698 the jury from all the facts and circumstances in the case. Lockhart v. Wills, N. M. (50 Pac. Rep. 318).

Sec. 698. Mining claims-Conflicting locationsAdversary proceedings. A patent to a mining claim which conveys only a portion of the surface location on account of excepting a previous conflicting claim, is void in so far as it attempts to convey the lode on its strike independently of the granted surface. Montana Ore-Purchasing Co. v. Boston & M. C. C. & S. M. Co., 20 Mont. 336 (51 Pac. Rep. 159). A patent for a mining claim carries with it the right to the surface territory described therein, together with all lodes or veins having their tops or apices within such surface boundaries, except, perhaps, cross lodes. Hence, while the adverse claimant may, to prevent entry, show that the vein relied upon by his adversary departs from the side lines of the claim, he cannot for this reason invalidate a patent after the same has once been issued. Argonaut Consol. Min. & Mill. Co. v. Turner, 23 Colo. 400 (48 Pac. Rep. 685; 58 Am. St. Rep. 245). The prima facie presumption that a lode whose course and strike are substantially parallel with, and run in the same direction as the side lines, continues in the same direction throughout the length of the claim, obtains not only in contests over surface rights, but also where extralateral rights are involved. Wakeman v. Norton, 24 Colo. 192 (49 Pac. Rep. 283). Construing U. S. Rev. Stat., § 2326, it is held that the statute does not provide what form of action shall be brought, yet when it appears that the object of the suit is to adverse the party applying for a United States patent, it is necessary for the plaintiff to both allege and prove that he is a citizen of the United States, or has declared his intention to become such; each party is to establish his right to the mining grant in controversy against the United States, as well as against his adversary; the party filing the contest should allege and prove every step necessary to establish his right to his mining claim that would be required in the land office for a patent, with the exception of advertisement and certificate of surveyor general as to amount of work required before patent can be obtained; and if the proof shows no title or that all the requirements of the law have not been complied with, he can recover no judg

ment.

Schultz v. Allyn, Ariz. (48 Pac. Rep. 960). The provisions of this statute do not apply to an action to recover possession of a mining claim so as to require the plaintiff to allege his citizenship in his complaint, but if his title rests upon a location under the United States Laws, to sustain it, he must make proof of citizenship as required by the statute. Harris v. Kellogg, 117 Cal. 484 (49 Pac. Rep. 708).

Sec. 699. Mining claims-Following "dip" of vein. Construing and applying U. S. Rev. Stat., § 2322, which confines the right of the owner of the apex of a mining vein to follow its dip, to such portions as lie between vertical plains drawn downward through the end lines of the location, it is held that the side lines of a claim will be treated as end lines where a vein enters on one side of the claim and passes out on the same side and does not run approximately parallel to the side line. Catron v. Old, 23 Colo. 433 (48 Pac. Rep. 687; 58 Am. St. Rep. 256). See opinion for collation of authorities on this subject. In the case of Wakeman v. Norton, 24 Colo. 192 (49 Pac. Rep. 283), the supreme court of Colorado say: "While it is true that the locator of a mining claim takes it subject to the right of others to follow and take ore from any vein on its dip through his ground the top or apex of which is included within another valid lode location, yet we think he is entitled to the presumption that what is contained within its surface boundaries is his, until the conditions upon which such extralateral right depends are shown to exist, by the one who seeks to avail himself of such right. In Mining Co. v. Fitzgerald, 4 Morr. Min. Rep. 380 (Fed. Cas. No. 8,158), Judge Hallett thus concisely states what we believe to be the correct rule in such cases: 'Within the lines of each location, the owner shall be regarded as having full right to all that may be found, until some one can show a clear title to it as part of some lode or vein having its top and apex in other territory. To state the proposition in other words, we say that there is a presumption of ownership in every locator as to, the territory covered by his location, and, within his own lines, he shall be regarded as the owner of all valuable deposits, until some one shall show by preponderance of testimony that such deposits

belong to another lode having its top and apex elsewhere.' To the same effect are Doe v. Mining Co., 54 Fed. Rep. 935; Consolidated Wyoming Gold Min. Co. v. Champion Min. Co., 63 Fed. Rep. 540; Duggan v. Davey, 4 Dak. 110 (26 N. W. Rep. 887); Cheezman v. Shreve, 16 Morr. Min. Rep. 79 (37 Fed. Rep. 36); Iron Silver Min. Co. v. Elgin Min. & Smelting Co., 118 U. S. 196 (6 Sup. Ct. Rep. 1177); Iron Silver Min. Co. v. Campbell, 17 Colo. 267 (29 Pac. Rep. 513)."

Sec. 700. Construction of statute excepting "known" vein or lode from placer patent. In the case Casey v. Thieviege, 19 Mont. 341 (48 Pac. Rep. 394; 61 Am. St. Rep 511), the supreme court of Montana, in construing U. S. Rev. Stat., § 2333, follow the case of Migeon v. Railway Co., 23 C. C. A. 163 (77 Fed. Rep. 256), from which the court quotes with approval as follows: "This section (2333) of the statute was primarily intended for the benefit and protection of the locators of placer claims. If a lode is known to exist within the boundaries of a placer claim, the applicant for a patent must state that fact, and then, by paying $5 an acre for that portion of the ground and $2.50 for the balance, a patent will issue to him, covering both the lode and placer ground; but, if the lode is known to exist, and is not included in the application for a patent, then it will be construed as a conclusive declaration that the owner of the placer claim has no right of possession by virtue of his patent for the placer ground to the vein or lode. It matters not whether there is a lode or vein actually within the limits, which subsequent developments may prove; if it is not known to exist at the time of the application, the patent for the placer claim will include such lodeor vein. In such cases the supreme court has repeatedly declared that it is not enough that there may have been some indications, by outcropping on the surface, of the existence of lodes or veins of rock in places bearing gold or silver or other precious metals to justify their designition as 'known veins or lodes; that, in order to meet that designation, the lodes or veins must be clearly ascertained, and be of such extent as to render the land more valuable on that account, and justify their exploitation. Mining Co. v. Reynolds, 124 U. S. 374, 383 (8 Sup. Ct. Rep. 598, 603); U. S. v. Iron Silver Min.