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purchasers, " to the extent of his or her mining claim, provided he or she make application for the purchase of the same on or before the first day of January, 1877, if the plat of such survey be already filed in the United States land office; and if not so filed, then within six months after the filing of such plat as aforesaid."1 Section three provides, that in cases of contest the matter shall, within thirty days after application, be referred by the surveyorgeneral or register, unless sooner, at the request of either party to the superior 2 court of the county in which the land is situated. Upon filing a copy of the order of reference with the clerk of the court, either party may commence the action; unless the action be commenced within ninety days, the party making the demand, or where the order is filed without demand, the adverse party, shall be deemed to have waived his claim. Section four prescribes the price of the land at $2.50 per acre, payable, in gold coin, to the county treasurer within fifty days from the approval by the surveyor-general, in default of which the land reverts to the state. Payments to the county treasurer to be paid over and accounted for as other moneys received for state lands. Section five requires the same proceedings as to approving locations, issuing certificates of purchase or patents, etc., as are required in the sale of non-mineral sections, except as is specially provided for in the act. Section six subjects all state patents to the lands in question, to accrued water rights, ditches and reservoirs acquired by prior possession, and confirms all rights of way for ditches, canals, mining and other purposes over all the sixteenth and thirty-second sections. Section seven prohibits the issuing of a patent to lands embracing mining claims, except to the owners thereof ["and not to such owners in excess of forty acres "], and provides for the reimbursement of those who have paid for such lands

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not owning the mining claim embraced therein, and provides, also, that the owner of the claim shall apply to purchase within six months after the township plat is filed in the local land office, or "on or before the first day of January, 1877."4 Owners of such claims who have entered into agreements with purchasers of these lands to secure title to their mining claims are not to have the benefit of the act.5

1 Amend. Act Feb. 3, 1876-Stat. 1875-6, p. 20. Words in italics omitted in original, and applicants were required to apply within six months after filing plat, or ten months after passage of act. 2 Altered by act April 6, 1880, from "district," Stat. 1880, p. 26 3 Omitted in amendment of Feb. 3, 1876.

4 Supplied by Am. Feb. 3, 1876, in lieu of "within ten months after the passage of this act."

5 Stat. 1873-74, p. 766.

§ 197. Liens. An act securing liens to mechanics and others 1 was extended to include bridges, ditches, flumes or aqueducts for mining and other purposes, giving the mechanic, laborer or material man a lien upon such structures.2 This act, however, was repealed April 26, 1862,3 by a general lien law, which was repealed by the general lien law of March 30, 1868.4

1 April 19. 1856.

2 Stat. 1857, p. 84.

3 Stat. 1862, p. 384.

4 Stat. 1867-68, p. 589.

§ 198. Taxation. The law exempting mines from taxation has been repealed so far as it affects mining claims that have become private property by grant from the governments of the United States, Spain, or Mexico.1 1 Stat. 1863-64, p. 471.

§ 199. Easements-Rights of way-Ditches - Drains -Flumes and tunnels-Dumpage. -The following are the provisions of a statute upon the subjects embraced in

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the title of this section: Section one is that owners of
mining claims should have free ingress and egress across
other claims, for all necessary purposes. Section two,
that where a mine cannot be conveniently worked with-
out a road thereto, a ditch or cut to convey water thereto
or therefrom, a flume or tunnel, or a place to dump tail-
ings, either of which must pass across or through, or the
dumping ground be upon, other claims, the owner of the
first mentioned mine shall be entitled to such easement
by complying with the provisions of the act. Section
three, when the right cannot be acquired by private
agreement, the party claiming it shall petition the county
court, or the judge, if in vacation, praying for an award
of the same. The petition is to be verified and contain a
description of the easement sought, the claim of the peti-
tioner, and also those to be affected, show that the right
has not been acquired by agreement, and pray for the
allowance of the right and the appointment of three com-
missioners to assess the damages. Section four provides
for the issuing of a citation to the owners of claims to be
affected, on the filing of the petition, to appear on a day
fixed not less than ten days from service, which service
shall be as provided for summons in ordinary proceed-
ings, and show cause why the prayer should not be
granted. Section five provides that upon hearing proofs
on the return day, or an adjourned day if necessary, the
court or judge, if satisfied of the necessity for the right,
shall make an order adjudging the same, and appointing
three disinterested parties to assess the damages. Sec-
tion six requires the commissioners, being sworn, to pro-
ceed without delay to examine the property, take testi-
mony as to the value of the property and the damages,
and report in writing to the court. Such report shall
designate and describe the proposed easement by course,
magnitude and location, the value of lands appropriated,

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and assign the damages to each servient claim. Section seven provides that for good cause shown, within ten days from the filing of the report, the same may be set aside on motion and a new commission appointed. But where this or any subsequent report is allowed to stand, the court or judge shall make an order in pursuance thereof. Section eight provides for the successful petitioner, after paying the damages awarded, entering into the enjoyment of his privilege. Section nine makes the provisions of foregoing sections applicable to miners wishing to discharge tailings into a water-course upon which water rights have been acquired; but provides that such commission shall not be appointed unless the court or judge be satisfied that the privilege can be enjoyed without especial injury to the riparian proprietors. Section ten requires all costs and expenses, including five dollars a day to the commissioners, to be paid by the petitioner. Stat. 1869-70, p. 569.

§ 200. Water rights. SEC. 1410. The right to the use of running waters flowing in a river or stream, or down a cañon or ravine, may be acquired by appropriation. SEC. 1411. The appropriation must be for some useful or beneficial purpose, and when the appropriator, or his successor in interest, ceases to use it for such a purpose, the right ceases. SEC. 1412. The person entitled to the use may change the place of diversion, if others are not injured by such change, and may extend the ditch, flume, pipe or aqueduct by which the diversion is made to places beyond that where the first use was made. SEC. 1413. The water appropriated may be turned into the channel of another stream and mingled with its water, and then reclaimed; but in reclaiming it the water already appropriated by another must not be diminished. SEC. 1414. As between appropriators, the one first in time is the first in

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right. SEC. 1415. A person desiring to appropriate water
must post a notice in writing in a conspicuous place, at
the point of intended diversion, stating therein: 1. That
he claims the water there flowing to the extent of (giving
the number) inches, measured under a four-inch pres-
sure. 2. The purposes for which he claims it, and the
place of intended use. 3. The means by which he in-
tends to divert it, and the size of the flume, ditch, pipe,
or aqueduct in which he intends to divert it. A copy of
the notice must, within ten days after it is posted, be re-
corded in the office of the recorder of the county in which
it is posted. SEC. 1416. Within sixty days after the no-
tice is posted the claimant must commence the excava-
tion or construction of the works in which he intends to
divert the water, and must prosecute the work diligently
and uninterruptedly to completion, unless temporarily
interrupted by snow or rain. SEC. 1417. By "comple-
tion" is meant conducting the waters to the place of in-
tended use. SEC. 1418. By a compliance with the above
rules, the claimants' right to the use of the water relates
back to the time the notice was posted. SEC. 1419. А
failure to comply with such rules deprives the claimants
of the right to the use of the water, as against a subse-
quent claimant who complies therewith. SEC. 1420. Per-
sons who have heretofore claimed the right to water, and
who have not constructed works in which to divert it,
and who have not diverted nor applied it to some useful
purpose, must, after this title takes effect, and within
twenty days thereafter, proceed as in this title provided,
or their right ceases. SEC. 1421. The recorder of each
county must keep a book in which he must record the
notices provided for in this title. SEC. 1422. The rights
of riparian proprietors are not affected by the provisions
of this title.2