Sec. Sec. Mineral See Cole v. Ralph 40 S. Ct. 321, 252 U. S. 286, 64 L. Ed. 567; Mason v. U. S. (C. C. A. La.) 273 F. 135. I. SYSTEM OF MINING LAW 2. Customs of miners as part of system.-Rev. St. U. S. §§ 2318-2320, 2324 (Comp. St. §§ 4613-4615, 4620), with reference to the location of mining claims, recognize the validity of local regulations and customs covering locations, and state statutes are construed to have the same force and effect as such regulations. Stock v. Plunkett (Cal.) 183 P. 657. II. OWNERSHIP AND DISPOSAL OF MINERAL LANDS 4. Reservation of mineral lands.Petroleum or mineral oil is within the term "mineral" as used in Act Cong. March 3, 1871, § 23, reserving mineral lands from railroad land grants. Chino Land & Water Co. v. Hamaker (Cal. App.) 178 P. 738. The reservation "mineral land excepted" in grant in patent to railroad company based upon proceedings had under certain land grant legislation, referring to Act Cong. July 27, 1866, Joint Resolution June 28, 1870, and Act right to sell or lease surface of lands. 4640400. Assignment or subletting of leases; relinquishment of rights under leases; conditions in leases as to operation of mines, wells, etc. 46404p. Forfeiture or cancellation of leases. 46404pp. Rules and regulations for enforcement of act; rights of States not affected. 46404q. Oaths required, when. 46404qq. Lands disposed of with reservation of deposits of coal, etc. 46404r. Disposition of moneys received. 46404 rr. Payment of royalties in oil or gas; sale of such oil or gas. 46404s. Disposition of deposits of coal, etc., in Wyoming.‹ 4640488. Fees and commissions registers and receivers. 4644. Intersect or crossing veins. 4645, Patents for non-mineral lands, etc. of 4647. Vested rights to use of water for 'mining; right of way for canals. 4648. Rights subject to vested and accrued water-rights. 4659. Entry of coal-lands. 4665. Rights of entrymen under nonmineral land laws. 4666-4669. [Notes.] 9. Application of term "mineral."— The term "minerals," in its popular and ordinary sense, includes petroleum oils and gas. Lovelace v. Southwestern Petroleum Co. (C. C. A. Ky.) 267 F. 513, affirming judgment (D. C.) Id., 504. 13. Entries for agricultural purposes. -Discovery of a few colors of gold in a stream on public land occupied by an entryman, and which is more valuable for agriculture than for mineral, will not sustain a mining location, as against the prior agricultural entry. Meyers v. Pratt (C. C. A. Alaska) 255 F. 765. Defendant filed a homestead entry, performed all required conditions, made final proof, and received a patent for land of value for agricultural purposes. The land had been prospected for minerals during 50 years, and an ore vein therein had been worked at intervals, but without sufficient production to justify further development. Defendant had resided on the land for 6 years prior to his entry, had filed mineral claims thereon, and at times had taken out and sold some ore. He also produced garden and hay crops and conducted a small dairy business. Held, that the land was nonmineral in a legal sense at the time of entry and final proof, and that defendant's patent was not subject to cancellation for fraud, because of the existence of mineral thereon to the extent described. U. S. v. Dougherty (D. C. Mont.) 277 F. 451. Where, at the time of a homestead entry and final proof, the land was in fact nonmineral and subject to agricultural entry, the patent issued is not subject to cancellation because the entryman made false oath that there was no known mineral thereon, since he secured nothing to which he was not otherwise entitled. Id. § 4614. (R. S. § 2319.) Mineral lands open to purchase by citi zens. II. DISPOSAL OF MINERAL LANDS 7. Minerals lands open to purchase. -This section when read with due regard for the entire title of the public lands of which it is a part, does not embrace all of the lands owned by the United States, but only such lands as the United States has indicated are held for disposal under the land laws, and it never applies where the United States directs that the disposal be only under other laws. State of Oklahoma v. State of Texas, 42 S. Ct. 406, 258 U. S. 574, 66 L. Ed. 771. When a patent of public lands to a railroad was canceled by decree of court, the land was restored to the public domain as of the date of the decree, and it was immediately open to the location of a mining claim, and a location then made was valid, and the claim could be held thereunder indefinitely. where the railroad did not appeal from the decree. Double Eagle Mining Co. v. Hubbard (Cal. App.) 183 P. 282. 9. Lands valuable for mineral-Mean. ing and proof.-Where land is to be taken out of category of agricultural lands, the evidence of its mineral character should be reasonably clear. Hagan v. Dutton (Ariz.) 181 P. 578. III. MINING LOCATIONS 13. What constitutes location and effect thereof.-"Location" is the act or series of acts whereby the boundaries of a claim are marked, etc. Cole v. Ralph, 40 S. Ct. 321, 252 U. S. 286, 64 L. Ed. 567, reversing judgment (C. C. A. Nev.) Ralph v. Cole, 249 F. 81. An attempted location of a mining claim based upon a discovery within a then valid and subsisting claim is absolutely void for the purpose of founding an adverse claim, and does not attach on the subsequent failure of the first locator to do the required annual assessment work, and a location of a mining claim at a time when a senior locator is not in default under state or federal laws is subordinate to a relocation by a stranger made after the rights of the first locator lapsed because of such default, under this section and Rev. St. U. S. § 2322 (U. S. Comp. St. § 4618). Lehman v. Sutter (Mont.) 198 P. 1100. 15. Number of locations.-There is no law of Congress, or regulation made in pursuance thereof, limiting the number of placer mines an individual or association of individuals can make, and this section, declares that all valuable mineral deposits in lands belonging to the United States are free and open to exploration, etc.; hence fraud or wrongdoing cannot be imputed solely because an association of individuals located a number of claims. U. S. v. California Midway Oil Co. (D. C. Cal.) 259 F. 343. 18. Discovery essential.-In the absence of discovery of oil, the location of mineral lands under the laws of the United States merely authorizes the locators to maintain possession while diligently and in good faith prosecuting the work of endeavoring to discover minerals thereon. Jose v. Utley (Cal.) 199 P. 1037. 20. Possessory rights of locators and owners.-One exploring public lands for minerals under the permission given by this section, but before making the discovery necessary to locate a claim under section 2320 (section 4615) has a right of possession good against forcible, fraudulent, or clandestine intrusions, but which continues only during actual occupation and persistent and diligent prospecting. Union Oil Co. of California v. Smith, 39 S. Ct. 308, 249 U. S. 337, 63 L. Ed. 635, affirming judgment Smith v. Union Oil Co., 135 P. 966, 166 Cal. 217. 23. State regulations of locations.Rev. St. U. S. §§ 2318-2320, 2324 (Comp. St. §§ 4613-4615, 4620), with reference to the location of mining claims, recognize the validity of local regulations and customs covering locations, and state statutes are construed to have the same force and effect as such regulations. Stock V. Plunkett (Cal.) 183 P. 657. IV. QUALIFICATIONS OF LOCA TORS 35. Alienage as ground for attack on title. An alien may own unpatented mining claims and protect his rights therein in adverse proceedings in the Land Department or in the courts, although not qualified to obtain a patent by suit under Rev. St. § 2326 (Comp. St. § 4623). Ginaca v. Peterson (C. C. A. Cal.) 262 F. 904. 37. Agents.-The law permits location of mining claims in the names of persons not present, who may act through an attorney in fact, and when so made all the right or title acquired by the locators may be disposed of. U. S. v. California Midway Oil Co. (D. C. Cal.) 259 F. 343. The fact that one holding powers of attorney to locate mineral claims allowed the use of the names of his principals by others did not invalidate his location of oil-bearing lands, where such location was in good faith. Id. The wrongful conduct of one who located claims on oil-bearing lands under a power of attorney, which occurred after location and discovery, cannot relate back to and render the location itself fraudulent, but is admissible in evidence only in so far as it tends to show a fraudulent purpose at the time of the location. Id. In a suit to cancel and set aside mineral locations on oil-bearing placer mining claims, held, that the original locations which were made by one acting under power of attorney were not fraudulent, nor were they fraudulently used by the attorney in fact for his own benefit, instead of his principals, and hence the locations are not open to attack by the government, having been transferred to a bona fide purchaser. Id. V. MINING CLAIM AS PROPERTY a 39. Ownership and transfer.-Under Rev. Laws Nev. 1912, §§ 1038-1040, a contract executed by locators of mining claims, giving other persons right to a specified share in the output of the claim, was good between the parties, though not recorded. Cole v. Ralph, 40 S. Ct. 321, 252 U. S. 286, 64 L. Ed. 567, reversing judgment (C. C. A. Nev.) Ralph v. Cole, 249 F. 81. Where complainant and defendant, joint adventurers, located a mining claim, and defendant, after erasing the name of complainant and substituting that of another, who disposed of a one-fourth interest to a bona fide purchaser, made discovery, held that, as the discovery by defendant inured to the benefit of both parties, and defendant's act alone made possible the conveyance of a one-fourth interest, complainant is entitled to recover a half interest in the claim. Cascaden v. O'Connor (C. C. A. Alaska) 257 F. 930. Where the grantors in a quitclaim deed to mining property represented that they were sole owners, and they in fact held the legal title of record, which they purported to convey, they cannot claim, as against the owner of an equitable interest who affirms the sale, that their deed did not convey such interest. Tjosevig v. Donohoe (C. C. A. Alaska) 262 F. 911. Under Comp. Laws Utah 1917, § 4879, providing that title acquired by a grantor after a conveyance by him in fee simple inures to his grantee, as well as by estoppel, a grantor of mining claims by the number and name given in their surveys, which contained plats designating their boundaries and area, held precluded from claiming any part of the ground so designated as included in an older claim, which he afterwards acquired. Wall v. Utah Copper Co. (C. C. A. Utah) 277 F. 55. Where purchasers acted in utmost good faith in acquiring a locator's interest and paying therefor, without notice, knowledge, or suspicion that there was or could be any question concerning the bona fides of the location, such purchasers are not bound to presume that their vendors were wrongdoers and that the locations were invalid, and, while the bona fides of the purchase would not be a defense, that fact may be considered in a suit to set aside the locations. U. S. v. California Midway Oil Co. (D. C. Cal.) 259 F. 343. An instrument containing an agreement to pay money when certain mining claims and mill sites were sold out of the first money received from the sale, and providing that a special lien was thereby created on the property to secure the payment of the obligation, created an equitable mortgage. Stephen v. Patterson (Ariz.) 188 P. 131. A complaint by all but one of the parties to a joint adventure, seeking a rescission of contract of purchase on the ground that one of them did not share with his coadventurers the profit from a secret agreement, which he made with the vendor of the property which was purchased, held to sufficiently allege damage under the liberal rule of Code Civ. Proc. § 452. Menefee v. Oxnam (Cal. App.) 183 P. 379. A complaint by joint adventurers, seeking rescission of the contract for purchase of a mining claim, held not open to demurrer on the ground that there was not an offer to return some of the bullion extracted from the claim while adventurers were in possession, and before they discovered the fraud which entitled them to rescind. Id. A complaint by joint adventurers seeking to rescind a contract for purchase on ground that the vendor gave one of them an advantage not shared by the others, held to state a cause of action and to be good against demurrer. Id. Cited without definite application, Mining Co. v. Hubbard (Cal. App.) 183 31 Op. Atty. Gen. 433; Double Eagle P. 282. § 4615. (R. S. § 2320.) Length of claims on veins or lodes. II. VEIN OR LODE OR OTHER 3. Definitions.-Under Rev. St. §§ 2320, 2329 (Comp. St. §§ 4615, 4628), a placer discovery will not sustain a lode location, nor a lode discovery a placer location. Cole v. Ralph, 40 S. Ct. 321, 252 U. S. 286, 64 L. Ed. 567, reversing judgment (C. C. A. Nev.) Ralph v. Cole, 249 F. 81. III. MINING LOCATIONS OR CLAIMS 11. Meaning of terms "location" and "mining claim."-"Location" is the act or series of acts whereby the boundaries of a claim are marked, etc. Cole v. Ralph, 40 S. Ct. 321, 252 U. S. 286, 64 L. Ed. 567, reversing judgment (C. C. A. Nev.) Ralph v. Cole, 249 F. 81. 21. Number of claims permitted.There is no law of Congress, or regulation made in pursuance thereof, limiting the number of placer mines an individual or association of individuals can make, and Rev. St. § 2319 (Comp. St. § 4614), declares that all valuable mineral deposits in lands belonging to the United States are free and open to exploration, etc.; hence fraud or wrongdoing cannot be imputed solely because an association of individuals located a number of claims. U. S. v. California Midway Oil Co. (D. C. Cal.) 259 F. 343. 27. Form, dimensions, and surface lines-Location and direction of side lines. The discovery vein is the primary vein for the purpose of locating a mining claim and determining which are the end and which the side lines, and where the discovery vein crosses the opposite side lines of the claim as located, the side lines become end lines, not only with respect to such vein, but for determination of extralateral rights in any other vein which apexes within the claim. Northport Smelting & Refining Co. v. Lone Pine-Surprise Consol, Mines Co. (C. C. A, Wash.) 278 F. 719, affirming judgment (D. C.) 271 F. 105. 36: Discovery-Object and nature of requirement. The words "discovery of the vein or lode," as used in this section, owing to the varying conditions to which the expression must be applied, has no rigidly fixed meaning. S. v. Safe Investment Gold Mining Co. (C. C. A. S. D.) 258 F. 872. U. 37. Discovery as initial act.Location confers no right in the absence of discovery, nor will assessment work take the place of discovery. Cole v. Ralph, 40 S. Ct. 321, 252 U. S. 286, 64 L. Ed. 567, reversing judgment (C. C. A. Nev.) Ralph v. Cole, 249 F. 81. 38. Discovery as prerequisite.Rev. St. § 2332 (Comp. St. § 4631),. providing that when applicants for a patent for a mining claim have held and worked the claim for the local period of limitation for mining claims, evidence of such possession and working shall establish the right to the patent in the absence of adverse claim, does not dispense with the necessity of a discovery though the period of limitations has run. Cole v. Ralph, 40 S. Ct. 321, 252 U. S. 286, 64 L. Ed. 567, reversing judgment (C. C. A. Nev.) Ralph v. Cole, 249 F. 81. 39. Basis of rights and sources of title. There is nothing in the federal mining laws which renders fraudulent a lease of a mining location made on the same day as the location in pursuance of an understanding had prior thereto. Mason v. U. S., 43 S. Ct. 200, 67 L. Ed. Locator need not be the first or original discoverer of mineral on the mining claim located. Hagan v. Dutton (Ariz.) 181 P. 578. 42. Discovery within limits of location or claim.-The discovery of mineral within the limits of the mining claim located is a necessary prerequisite to a complete and valid mining location. Hagan v. Dutton (Ariz.) 181 P. 578. 46. Sufficiency of discovery.Evidence held to warrant finding that there had been a sufficient discovery of minerals upon mining claim to satisfy statutory requirement. Hagan v. Dutton (Ariz.) 181 P. 578. When controversy is between two mineral claimants, the rule respecting the sufficiency of a discovery of mineral is more liberal than when it is between mineral claimant and one seeking an agricultural entry, since where land is to be taken out of category of agricultural lands, the evidence of its mineral character should be reasonably clear. Id. 47. Extent and value of discovery. Under this section, the discovery should be such as would justify a person of ordinary prudence in the further expenditure of his time and means in an effort to develop a paying mine. Cameron v. U. S., 40 S. Ct. 410, 252 U. S. 450, 64 L. Ed. 659, affirming decree (C. C. A. Ariz.) 250 F. 943. 49. Discovery as question of fact, and proof.-Whether there had been a discovery of minerals on mining claim was a question of fact for trial court under the evidence. Hagan v. Dutton (Ariz.) 181 P. 578. Priority of discovery, and effect thereof. In advance of discovery, an explorer in actual occupation, and diligently searching for mineral, is treated as a licensee or tenant at will, and no right can be initiated or acquired from a forcible fraudulent or clandestine intrusion upon his possession, but if his occupancy be relaxed, or be merely incidental to something other than a diligent search for mineral, and another enters peaceably and not fraudulently or clandestinely, and makes a mineral discovery and location, the location is valid. Cole v. Ralph, 40 S. Ct. 321, 252 U. S. 286, 64 L. Ed. 567, reversing judgment (C. C. A. Nev.) Ralph v. Cole, 249 F. 81. A mining location based upon discovery gives an exclusive right of possession and enjoyment, is property in the fullest sense, is subject to sale and other forms of disposal, and, so long as it is kept alive by performance of the required assessment work, prevents any adverse location. Id. While in practice, discovery usually precedes location of a mining claim, it is no objection, in the absence of an intervening right, that the usual order is reversed, and in such case the location becomes effective from the date of discovery. Id. 53. State regulations.-Rev. St. U. S. §§ 2318-2320, 2324 (Comp. St. §§ 46134615, 4620), with reference to the location of mining claims, recognize the validity of local regulations and customs covering locations, and state statutes are construed to have the same force and effect as such regulations. Stock v. Plunkett (Cal.) 183 P. 657. Cited without definite application, Union Oil Co. of California v. Smith, 39 S. Ct. 308, 249 U. S. 337, 63 L. Ed. 635, affirming judgment Smith v. Union Oil Co., 135 P. 966, 166 Cal. 217; U. S. v. Bellingham Bay Improvement Co. (C. C. A. Wash.) 281 F. 522. § 4618. (R. S. § 2322.) Locators' rights of possession and enjoy ment. II. MINING LOCATIONS OR CLAIMS 2. Location as basis of title.-Priority of right in mining claims is not determined by date of entries or patents of the respective claims, but by discovery and location, which may be shown by testimony other than the entries and patents. Butte & Superior Copper Co. v. Clark-Montana Realty Co., 39 S. Ct. 231, 249 U. S. 12, 63 L. Ed. 447, affirming decree (C. C. A. Mont.) 248 F. 609, which affirmed decree (D. C.) Clark-Montana Realty Co. v. Butte & Superior Copper Co., 233 F. 547. 7. Discovery essential.-Priority of right in mining claims is not determined by date of entries or patents of the respective claims, but by discovery and location, which may be shown by testimony other than the entries and patents. Butte & Superior Copper Co. v. Clark-Montana Realty Co., 39 S. Ct. 231, 249 U. S. 12, 63 L. Ed. 447, affirming decree (C. C. A. Mont.) 248 F. 609, which affirmed decree (D. C.) Clark-Montana Realty Co. v. Butte & Superior Copper Co., 233 F. 547. Location confers no right in the absence of discovery, nor will assessment work take the place of discovery. Cole v. Ralph, 40 S. Ct. 321, 252 U. S. 286, 64 L. Ed. 567, reversing judgment (C. C. A. Nev.) Ralph v. Cole, 249 F. 81. III. POSSESSORY RIGHTS II. Effect of location as grant and bar to subsequent location.-Locator of mining claim, claiming rights conflicting with adjoining claim having priority of location, but subsequent patent, could not, having knowledge of the possession and working of the claim, base any rights on failure of prior locator to comply with a Montana territorial stat ute relating to declaratory statement. Butte & Superior Copper Co. v. ClarkMontana Realty Co., 39 S. Ct. 231, 249 U. S. 12, 63 L. Ed. 447, affirming decree (C. C. A. Mont.) 248 F. 609, which affirmed decree (D. C.) Clark-Montana Realty Co. v. Butte & Superior Copper Co., 233 F. 547. A prior locator of a mining claim, after a valid discovery, has title to veins and lodes whose tops or apices are within location, though subsequent adjoining locator obtained a prior patent. Id. Where the location of a mining claim on United States government land has been perfected, it is tantamount to a government grant of present and exclusive possession. Copper State Mining Co. v. Kelvin Lumber & Supply Co. (Tex. Com. App.) 227 S. W. 938, reversing judgment (Civ. App.) Kelvin Lumber & Supply Co. v. Copper State Mining Co., 203 S. W. 68. 15. Locations on existing claims-Relocation of claims.-An attempted location of a mining claim based upon a discovery within a then valid and subsisting claim is absolutely void for the purpose of founding an adverse claim, and does not attach on the subsequent failure of the first locator to do the required annual assessment work, and a location of a mining claim at a time when a senior locator is not in default under state or federal laws is subordinate to a relocation by a stranger made after the rights of the first locator lapsed because of such default, under this section and Rev. St. U. S. § 2322 (U. S. Comp. St. § 4614). Lehman v. Sutter (Mont.) 198 P. 1100. An attempted relocation of a mining claim, which was void because the claim was then held under a valid location |