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in Section one that peaceable and undisputed possession for five years, under claim or color of title, made in good faith, and the payment of legally assessed taxes on the mining claim, shall raise a conclusive presumption of title in the possessor, whether such possession and payment of taxes were by himself or his grantors. By Section two it is provided that the mere payment of taxes for this period, upon unoccupied claims, or the improvements thereon will suffice, where the claim is made in good faith. And the rights of purchasers, devisees and decedents under the taxpayers are the same as by the preceding section; Provided, some one having a better paper title has not paid the taxes for one or more of the five years which constitute the adverse holding. By Section three the two preceding sections are rendered inapplicable to lands or tenements owned by the United States, except as to possessory rights to mining claims; to claims held or owned by persons resting under the disabilities of infancy, insanity, or imprisonment; Provided, that an action be brought for the recovery of the mining claims within one year after removal of the disability, and where the land is unoccupied, reimburse the payer of the taxes, with interest at 25 per cent. per annum; and to mining claims relocated on account of forfeiture under the provisions of the act of Congress of May 10, 1872. By Section four it is provided that the defendant in possession may plead the statute in bar of a recovery by plaintiff in all actions at law or in equity, excepting actions of ejectment.3 But a failure to plead the statute will be deemed a waiver of its benefits.4

1 Ch. lx.

2 Sess. Laws, 1874.

3 This action abolished as a distinct form of proceeding, though the action for the recovery of possession of real estate serves the same purpose.-Code.

4 Gen. Laws, p. 600.

$262. Ore.1-An act to facilitate the recovery of ore taken by theft or trespass-to regulate the sale and disposition of the same, and for the better protection of mine owners,2 provides in Section one that persons engaged in milling, sampling, concentrating, reducing, shipping or purchasing ores, shall keep a book, in which shall be entered the name of the party on whose behalf the ore is delivered; the name of the teamster or packer, and the owner of the train or pack-train by which it is delivered; the weight or amount of each lot; the name and location of mine or claim, and the date of delivery. By Section two, that parties from whom ore has been stolen, having a present interest in the ore, upon making affidavit to the facts before a justice of the peace or police magistrate in the state, on presenting a certified copy of the affidavit, may examine the entries in such book for the fifteen days next preceding the filing of the affidavit. Section three of the act provides in substance that for a violation of the spirit of the preceding section so as to defeat the purposes of the act, the party so offending, whether a person or corporation, shall be subject to a penalty to be paid to the party aggrieved, of not less than flfty, nor more than $300, and in addition an action for damages sustained by reason of the failure of duty, and renders a false entry in the books, prima facie evidence that it was wilfully made. By Section four it is provided that neglect or failure to make the necessary inquiries shall not excuse a failure to make the proper entries in the book. By Section five it is provided that any person knowingly purchasing or contracting for ores, taken from a mine or claim contrary to the penal laws of the state, shall be considered as an accessory after the fact, and subject to the same punishment as the principal. By Section six the persons or corporations dealing in ores mentioned in

the first section, for keeping or using false or fraudulent scales or weights for ascertaining the quantity of ore, or false or fraudulent assay scales or weights, knowing them to be false, are subjected to penalty of not more than $1,000 or less than $100, or imprisonment for not more than one year, or both such fine and imprisonment, at the discretion of the court. By Section seven the same penalties are denounced against the same class of dealers in ores, who knowingly alter or change the true value of ores delivered, substitute other ores, or deliver a false bill or certificate of purchase that fails to show the correct weight, assay value and total amount paid for any lot or lots of ore. Section eight makes the stealing, removing or concealing, or breaking or severing with intent to steal or fraudulently conceal or remove any ore, by any person, lessee, licensee or employe, a felony, punishable as grand larceny.3

1 Ch. lxxiii.

2 Approved February 7, 1877. 3 Gen. Laws, p. 671.

§ 263. Public lands.1-By Section seven of this chapter, which is intended to define the rights of occupants of public land, it is provided that where land is held for other than mining purposes under a recorded declaration, all lodes or diggings shall be excepted and subject to occupancy and enjoyment for mining purposes. Section eight gives a right to bring certain forms of action, including forcible entry and detainer, etc., and by Section twelve the provisions of Section 8 are made applicable to mining claims, with the proviso that the citizens of a mining district may declare abandonment a forfeiture of all rights previously claimed. Section fifteen provides that the owner of improvements on public land held for arable, building, milling or other legitimate purposes,

may demand a bond in double the value of such improvements, to be approved by a justice of the peace of the township, from any one demanding the right to mine on such premises, conditioned that such person will pay all damages accruing to such improvements from such mining operations. Section sixteen provides for the hearing of testimony by the justice of the peace as to the value of the improvements. Section seventeen provides for the justification of the sureties. Section eighteen allows the owner of the improvements to make a weekly demand for compensation from the obligees in the bond as the mining progresses.2

1 Ch. lxxxiii; Rev. Stat., Ch. lxxii.

2 Gen. Laws, p. 713.

§ 264. School of Mines.1-The act incorporating the "School of Mines" at Golden, fixes the number of trustees at five, designates the trustees for the first year, prescribes the oath of office, their powers and duties, declares the object of the school, authorizes the procurement of machinery, etc., enumerates the officers, provides for taxation in aid of the school, together with numerous other provisions for the management of the institution.2 This act was amended by repealing Section twelve, which provided a tax of one-tenth of one mill on the dollar, and prescribing a tax of one-fifth of one mill for the support of the school for the years 1879-80.3 This section was afterwards so amended as to require the tax to be levied and collected annually.4 Section six of the act was also amended, declaring the objects of the school to furnish the same instruction as in other high grade technical schools, and confer degrees.5

1 Ch. xci.

2 Gen. Laws, p. 803.

3 Sess. Laws, 1879, p. 158.
4 Sess. Laws, 1881, p. 220.
5 Sess. Laws, 1881, p. 219.

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§ 265. Weights and measures.1-Section three of this chapter provides with respect to the measurement of water, that "water sold by the inch by any individual or corporation, shall be measured as follows, to-wit: Every inch shall be considered equal to an inch square orifice under five inch pressure, and a five inch pressure shall be from the top of the orifice of the box put into the banks of the ditch to the surface of the water; said boxes, or any dot or aperture through which such water may be measured, shall in all cases be six inches perpendicular inside measurement, except boxes delivering less than twelve inches, which may be square, with or without slides; all slides for the same shall move horizontally, and not otherwise; and said box put into the banks of ditch shall have a descending grade from the water in ditch of not less than one-eighth of an inch to the foot."2 1 Ch. cii., Rev. Stat. lxxxix.

2 Gen. Laws, p. 926.


§ 266. Taxation.-By Section three of Article X, of the Constitution, mines and mining claims bearing gold and silver and other precious metals are exempt from taxation for ten years from the adoption of the constitution. From this exemption is expressly excepted "the net proceeds and surface improvements" of mines. The attempt to tax the net proceeds of mines has been made, but it is found that though not exempt the absence of necessary legislation leaves them practically exempt. The constitution is not self-enforcing, and the nature of the property is such that it cannot be taxed under the general revenue law.2

1 1876.

2 See ante, Ch. xiv., § 157 n. 8, "Taxation."-Opinion of Judge


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