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ground will not lie. A public highway is not an adverse claim.7

1 Copp's Min. Dec. [101; 6 Landowner, 73; Sickels' Min. Laws, 252-4-60.

2 2 Landowner, 114, 115.

3 Act Cong. July 9, 1870, ante, p. 21; Copp's Min. Dec. 45.

4 Act Cong. July 26, 1866, § 5, ante, pp. 23–24; Copp's Min. Dec. 42; Sickels' Min. Law, 245.

5 Copp's Min. Dec. 96; 4 Landowner, 3.

6 Sickels' Min. Laws, 194.

7 Copp's Min. Dec. 43; Sickels' Min. Laws, 245.

§ 131. Protests-Which do not assert title in protestant, or otherwise comply with laws in relation to adverse claims, should always be received by the local land officers and forwarded as part of the record, without exacting fees. Protestant is merely amicus curiæ, and has no right of appeal.1

1 Sickels' Min. Law, 313-14.

§ 132. Appeals.-A written statement of the points of exception to the commissioner's decision is required on appeal to the Secretary of the Interior. No new or additional evidence can be submitted to the secretary on appeal.2 An appeal brings up all proceedings had prior to the order appealed from, and all exceptions must be presented at the hearing of such appeal, or in default, they will be considered waived.3 A protestant standing in the relation of amicus curiæ has no right of appeal.4 An appeal of an adverse case, to the Supreme Court of the United States should not further stay patent proceedings. The rule that the ordering of hearings is within the discretion of the commissioner, from whose decision no appeal lies, only applies to rehearings.6 Sixty days are allowed for filing notice of appeal after service of notice of decision. Service of notice on attorneys resident in Washington is sufficient. If notice

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is not served within the time, the case will be closed, and the decision of the commissioner become final. After service of notice the appellant has thirty days additional for filing points of exception and argument. The local land officers have no authority to extend the time for appeal. This can only be done by the commissioner. A paper addressed to the local land officers, notifying them that an appeal was taken from their decision in a particular case, to the commissioner, would not operate as an appeal from the commissioner to the Secretary of the Interior; but, being defective, the appellant should be notified, and upon failure to amend, the appeal should be dismissed, and the case closed.8

1 Copp's Min. Dec. 217. 2 Copp's Min. Dec. 136.

3 Copp's Min. Dec. 181.

43 Landowner, 194; 4 id. 3, 34; 6 id. 3.

5 2 Landowner, 5.

6 6 Landowner, 4.

7 6 Landowner, 124.

8 Sickels' Min. Laws, 509.

§ 133. Easements.-In case a mine is surrounded by other property, and it is necessary to have ingress and egress secured, no specific condition will be inserted in the patent, but the provisions of Section 2338, Revised Statutes of the United States, relative to easements, drainage, etc., will be inserted.1

1 5 Landowner, 146.

$134. Town sites.-No title can be acquired to any known mineral lands or valid mining claim under a town site patent. An application for patent for a town site is no objection to the issuing of a patent for a lode claim embraced within the limits of the town site application.2 But the surface rights of owners of town property will be protected by proper exceptions in the patent for the

mining claim.3 However, land that is mineral is subject to location only under the provisions of the mining law, without reference to the relative value of a portion of the tract for town site purposes.4 A town site is an adverse claim.5

1 1 Landowner, 51; 3 id. 131.

2 2 Landowner, 146.

3 Copp's Min. Dec. 207.

4 6 Landowner, 3.

5 Sickel's Min. Laws, 302.

§ 135. Water rights.-In disposing of public lands upon which water rights have been secured by prior appropriation, and which at the time of such disposal are recognized by local customs, laws, and decisions of the courts, the United States will maintain and protect them as vested rights.1

1 Copp's Min. Dec. 24.

§ 136. Mill sites-Must be located on non-mineral land. They may be located under the mining laws and should be recorded.2 They pass to a railroad as non-mineral land, if located on a railroad section after the grant to the railroad took effect. An applicant for a patent for a mill site on which a lode exists, claimed by other parties, may file an abandonment of the lode claim, and will receive a patent for the remaining part of the mill site location.4 Where a mill site and lode claim are applied for in connection, the $500 expenditure is only required on the lode claim; but when applied for separately the expenditure of that amount must be shown on the mill site.5 Coal lands are not subject to entry under the timber culture laws. Such an entry will be cancelled upon receipt of an affidavit that such lands have been embraced therein.6 The act to provide for the sale of the lands of the United States containing coal relates to all

lands containing any variety of coal, whether anthracite,
bituminous, lignite or cannel.7

14 Landowner, 3.

2 2 Landowner, 114.
3 Copp's Min. Dec, 142.
4 1 Landowner, 82.

5 1 Landowner, 2.

6 5 Landowner, 146.

7 Sickel's Min. Laws, 337.













SECTION 137-Vested rights to mining claims.
138-Right to mine, private property.
139-Certainty of tenure.

140-Distinctions used in designating right and title.
141-Local conditions to acquisition and enjoyment of
miners' rights.

142-Same-Local regulations prior to acts of Congress




145-Amount of work necessary to hold possession.

146-How boundaries defined.

147-Limitation of actions.

148-Easements and drainage.
149-Same-Town lots.

150-Same-Drainage-Ditches-Right of way-Dumps


151-Tenancy in common.

151a-Mining partnership.


153-Mining claims, real estate.

154-Conveyance of mining claims.

155-Mining contracts.

156-Miners' liens.


158-Remedies and Procedure-Trespass, ejectment, forcible entry, etc.-Injunction, actions to quiet title. 159-Pleading.


§ 137. Vested right to mining claims.-While it is true that the mere assertion of a possessory title to portions of the public domain, for mining or other purposes, gives the claimant no indefeasible right to occupy the land as against the general government, and in this respect cannot be called a vested right, it assumes this character as between the possessor and all the world, excepting the superior proprietor. And even as between the government and those who have taken possession under the conditions imposed by law, and assumed the burdens attached to the rights conceded to mineral claimants, something more than a mere license to occupy their claims on sufferance must be intended by the concession. The discovery of valuable mineral, the labor and expense of location, the survey and recording of claims, with the subsequent annual expenditure, — all going to enhance the value of the property,—are of such pecuniary value as to stand in lieu of a consideration paid for the promised security of possession and enjoyment which the mining statutes hold out to the miner as inducements to undertake the development of the mineral resources of a country valueless for other purposes. Therefore, even while the title remains in the government, it is both the policy of the law and the inclination of the courts in construing the law, to regard the rights of miners on the public domain as vested, in that sense that entitles them to full constitutional protection from deprivation or diminution, without due process of law.1

.1 Merced Min. Co. vs. Fremont, 7 Cal. 317; McGarrity vs. Byington, 12 Cal. 426; Hughes vs. Devlin, 23 Cal. 501.

§ 138. Right to mine, private property.—The above views with respect to the rights of miners are confirmed by the numerous decisions in which it has been held that

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