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

14 Landowner, 3.
22 Landowner, 114.

3 Copp's Min. Dec. 142.

41 Landowner, 82.

51 Landowner, 2.

65 Landowner, 146.

7 Sickel's Min. Laws, 337.

CHAPTER XIV.

MINERS' RIGHTS AND REMEDIES.

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

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143-Same-Location.

144-Same-Recording.

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

Tailings.

151-Tenancy in common.

151a-Mining partnership.

152-Corporations.

153-Mining claims, real estate.

154--Conveyance of mining claims.

155-Mining contracts.

156-Miners' liens.

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159-Pleading.

160--Jurisdiction.

157-Taxation.

158-Remedies and Procedure-Trespass, ejectment, for

cible entry, etc.--Injunction, actions to quiet title. § 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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such rights are proprietary in their nature, even when exercised upon land of which the government holds the title. The possessory right is recognized as private property in order to become subject to taxation,1 when not exempt by local laws. It is recognized as property in order to render it subject to execution on an ordinary judgment.2 It is treated as private property, subject to the laws of inheritance and to special execution to satisfy a lien. It is regarded as real estate, or an interest therein, for the purpose of fixing the venue of actions concerning it, and also as to modes of transfer, descent and partition.4 It would, therefore, fall within the protection of the constitutional inhibition of laws which deprive persons of private property without due process of law.5

1 State vs. Moore, 12 Cal. 56.

2 McKeon vs. Bisbee, 9 Cal. 137.

3 Forbes vs. Gracey, 94 U. S. 762.

4 Watts vs. White, 13 Cal. 321; Quirk vs. Folk, 47 Cal. 453; McKeon vs. Bisbee, 9 Cal. 137; Halsey vs. Martin, 22 Cal. 645; Hughes vs. Devlin, 23 Cal. 501; Harris vs. Equator, &c. Co., 2 Col. Law Rep. 63. 5 Const. U. S., Art. V., Amendments.

§ 139. Certainty of tenure.-Rights acquired by a compliance with the mining law are presumed to continue in those by whom they were originally acquired until there is some evidence of transfer or abandonment.1 When such rights attach to a definite portion of the public domain, it requires positive acts or omissions of duty to divest them or reduce the extent of the right so acquired. The tenure by which they are held is not so precarious that they may be divested, or the boundaries of the claim changed so as to reduce the extent of the vested right, by mere declarations of the officers of a corporation which has been clothed with the right, by compliance with all the conditions fixed by law, to its holding.2

1 Mallet vs. Uncle Sam, &c. Co., 1 Nev. 188; Oreamuno vs. Uncle Sam, &c. Co., 1 Nev. 215.

2 Overman S. M. Co. vs. American M. Co., 7 Nev. 312.

§ 140. Distinctions used in designating right and title. And yet, notwithstanding the proprietary nature of this right, a distinction has been made between the manner in which it is characterized and that in which the title to real estate is designated. The words "mining ground," when used in a deed, have been held to have a technical meaning which applied only to the interest which a mere occupant had in the premises-in other words, a claim-and were not the words used when the fee simple or leasehold interest in real estate were intended to be conveyed.1

1 Hale & Norcross, &c. Co. vs. Storey County, 1 Nev. 104; State vs. Real del Monte, 1 Nev. 523.

§ 141. Local conditions to acquisition and enjoyment of miners' rights. --Many of the conditions precedent and subsequent upon which miners become entitled to appropriate portions of the public domain to their exclusive use, and work the same, were prescribed by local rules and customs which had their origin prior to any statutory provisions on the subject,1 were subsequently recognized by both legislatures and courts.2 The acts of Congress subsequently passed, substantially embodied and set forth in the Revised Statutes, have not prescribed with particularity what those conditions should be, but have left them still in a great measure to local regulation. The matters, with respect to which the details are left to local legislatures or district regulation, are (1)-within limits--the width of lode claims;4 (2) location of claims; (3) manner of recording; (4) the

amount of work necessary to hold possession; (5) man-
ner in which boundaries shall be defined;5 (6) statutory
limitation of actions involving the possessory right, and
(7) rules for working mines, involving easements, drain-
age, and other necessary means to their complete de-
velopment.6 The following compilation of state statutes
shows, in part at least, what has been done by the local
legislatures in the way of supplying the deficiencies of
the general law.7

1 Ante, Ch. I., §§ 1-2.

2 Ibid, §§ 2-3.

3 Ante, Ch. II., § 12 et seq.

4 Rev. Stat., § 2320, ante, p. 14.

5 Rev. Stat. U. S., § 2324, ante, p. 15.

6 Rev. Stat. U. S., § 2338, ante, pp. 23-4. 7 Post, Ch. XV.

§ 142. Same-Local regulations prior to acts of Congress-Width. In the early history of lode mining in California, while the length of claims was fixed by district rules with more or less accuracy, considerable latitude seems to have been indulged as to the proper width, so that it often became a question of fact whether the ground taken was excessive in amount; claims being held by a possessory title independent of any statutory authority that could be construed into even a temporary license from the proprietor.1 The proper boundaries of a claim in its lateral extent were often determined by custom in order to ascertain the extent of the claimant's constructive possession; for where such boundaries were described in a deed, and the quantity described was in excess of that allowed by local rules or customs, it was held that the constructive possession of the grantee would not extend to the unauthorized boundaries.2 Where held by actual possession, and the extent of the claim was marked by distinct and visible monuments, the posses

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