and the designation of the particular tract, in such a manner as to identify it, would necessarily be required of the locator.1

1 Rev. Stat. U. S., § 2331, ante, p. 21.

§ 46. Record. The recording of a placer claim is purely a matter of local regulation. Where the local law requires a record of them to be made, there is no doubt that the description of such as are on surveyed lands by designating them according to legal subdivisions would be sufficient. Indeed, this would be more definite and certain for all the purposes of a record than a description by reference to monuments, however permanent.

CHAPTER VI.

MILL SITES.

SECTION 47-Possessory rights. 48-Extent of mill site.

§ 47. Possessory rights.-Prior to the enactment of the provision of the statute in relation to the location and patenting of mill sites,1 tracts of land were located for such purposes under local regulations, or held under the law of possession. When claimed independently of any local law or district rule by mere possession, the rights of the claimant were subject to all the restrictions and qualifications which attach to mining claims generally when held by possession upon portions of the public domain. It must be a pedis possessionis, a subjugation to the will and control of the claimant, with the evident intention of using a particular portion of the public domain for milling purposes. The declared intention of the claimant to use adjacent land to construct a ditch for the pur

pose of carrying water to a particular point, was held no notice of a claim to the land near the end of the ditch as a mill site. The same duties as to marking boundaries, diligent prosecution of work, or erecting improvements upon the tract selected, as in case of lode or placer claims, when held by possession, are required in order to hold mill sites on public land.3

1 Rev. Stat. U. S., § 2337, ante, p. 23.

2 Robinson vs. Imperial S. M. Co., 5 Nev. 44.

3 Ibid.

§ 48. Extent of mill site.—The provisions of the federal statute are quite meagre in respect to the location of mill sites. The most important provision is as to the amount of ground to be taken for that purpose. This is limited to five acres of non-mineral land. Although this provision is conclusive, all local laws, rules or regulations to the contrary notwithstanding, it does not prevent the local legislatures or mining districts from further restricting claims of this character.

CHAPTER VII.

TIMBER.

$ 49. Timber reserved to government.-The right to occupy and possess the public domain for mining purposes does not necessarily include the right of appropriation of growing timber on the land so occupied. Prior to an act authorizing the cutting of such timber, approved June 3, 1878,1 it was held, under the provisions of a prior statute,2 in an action between an occupant of mineral lands and one who occupied a portion of the public domain for agricultural purposes, that neither could claim a superior right to the other, to the growing

timber, except upon the ground of priority of pos-
session, for the reason that the cutting of timber by
any occupant was expressly prohibited by said statute.3
On an information for cutting timber on the public land
in violation of Section 2461 of the Revised Statutes, filed
November 24, 1877, in the District Court of the United
States for the district of Oregon, the case was submitted
on findings in a special verdict, which were in substance
as follows: (1) That defendant did cut and remove the
timber between January 1, 1875, and November 1, 1877;
(2) that in 1870 defendant claimed the land for the pur-
pose of placer mining, and in August, 1872, caused the
claim to be surveyed and platted; (3) that in 1873 all the
necessary conditions to obtaining a patent were complied
with except paying for the land; (4) that the premises
were "placer mining ground,” and that it was necessary,
to successfully mine the same, to remove the trees stand-
ing thereon, and that it was better, for the purposes of
such mining, that the timber should be removed so far in
advance of the work as to give opportunity for stumps
to rot and so be more easily disposed of; (5) that be-
tween 1870 and 1877 defendant made improvements on
his claim to the amount of $2,500, and worked the ground
during the mining season thereafter; (6) that defendant
expected to make a business of working the claim; (7)
that about one-third of an acre was worked over annu-
ally, and the trees cut and removed were taken from
about four acres of the same. The court construed the
section of the Revised Statutes under which the informa-
tion was filed, and which was enacted March 2, 1831, in
connection with subsequent acts upon the same subject-
the mining, homestead and pre-emption laws-and held
that in so far as the provisions of the subsequent statutes
conflicted with the act of prior date, it was repealed.
The timber act was intended to be modified by the statute

permitting the occupation and enjoyment of public land for mining purposes, in so far as such modification was necessary for the full enjoyment of the right to mine.4 It was held not to be compulsory upon defendant to apply for a patent and pay for the land; but his failure to do so was taken into consideration to determine whether the location as a mining claim was not a cover for the securing of the timber for speculative purposes. It was admitted that the miner might remove the timber in order to facilitate his mining operations, and that when so removed he might dispose of it as he saw fit; but it . was denied that he might remove and sell the timber for acres in advance of his working. To permit such a course under the excuse that the miners wished to give the stumps time to rot, would expose public lands, chiefly valuable for their timber, to be stripped of their trees upon a pretense of mining, and without compensation to the government. It was held that miners, securing claims prior to patent, had no right to the timber growing thereon except for mining purposes, and to such as was necessarily removed in the progress of mining operations.

This case, in many respects, will serve as a judicial construction of the timber act, subsequently passed.5

1 "An act authorizing the citizens of Colorado, Nevada and the territories to fell and remove timber on the public domain for mining and domestic purposes.

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all citizens of the United States and other persons, bona fide residents of the states of Colorado or Nevada, or either of the territories of New Mexico, Arizona, Utah, Wyoming, Dakota, Idaho or Montana, and all other mineral districts of the United States, shall be, and are hereby authorized and permitted to fell and remove, for building, agricultural, mining or other domestic purposes, any timber or other trees growing or being on the public lands, said lands being mineral, and not subject to entry under existing laws of the United States, except for mineral entry, in either of said states,

territories or districts of which such citizens or persons may be at the time bona fide residents, subject to such rules and regulations as the Secretary of the Interior may prescribe for the protection of the timber and of the undergrowth growing upon such lands, and for other purposes: Provided, The provisions of this act shall not extend to railroad corporations.

"§ 2. That it shall be the duty of the register and the receiver of any local land office, in whose district any mineral land may be situated, to ascertain, from time to time, whether any timber is being cut or used upon any such lands, except for the purpose authorized by this act, within their respective land districts; and, if so, they shall immediately notify the commissioner of the general land office of that fact; and all necessary expenses incurred in making such proper examinations shall be paid and allowed such register and receiver in making up their next quarterly accounts.

"§ 3. Any person or persons who shall violate the provisions of this act, or any rules and regulations in pursuance thereof made by the Secretary of the Interior, shall be deemed guilty of a misdemeanor, and upon conviction shall be fined in any sum not exceeding five hundred dollars, and to which may be added imprisonment for any term not exceeding six months." U. S. Stat. vol. 20, p. 88.

2 Act of Congress March 2, 1831

3 Rogers vs. Loggs, 22 Cal. 444.

4 Citing in support, United States vs. Thomas McEntee, 23 Int. Rev. Rec. 368.

5 United States vs. Nelson, 5 Sawyer, 68.

CHAPTER VIII.

EASEMENTS-WATER RIGHTS.

SECTION 50-Local law governs.

51-Water rights.

52-Statute not retroactive.

53-Previous recognition of water rights.

54-How water rights on public domain acquired.

55-Rights acquired by appropriation.

56-How right established, Remedies.

57-Abandonment.

§ 50. Local law governs.-The federal statute delegates to the local legislatures or the mining districts the