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laid down in the statutes where it is employed, nor does it seem ever to have received a definition, from which considerable variation is not made by those using the word for practical purposes. It has been defined by geologists as a fissure in the earth's crust, filled with mineral matter, containing ores.1 This would render the word synonymous with "fissure vein." In one case it is said to be "a Cornish word, nearly synonymous with vein."2 But the geological definition is too narrow to be applied to the term as used in American mining law, and the manner in which it is disposed of in the case cited is too indefinite for practical purposes. Another definition, or rather description of a "quartz lode," is given as "a fissure or seam in the country rock, filled with quartz matter bearing gold or silver. This fissure may be wide or narrow," etc. This is also open to objections, as being applicable only to a limited class of such ore deposits as were doubtless intended to be included. The term receives a somewhat broader signification in a later Nevada case, where it is applied to ore deposits, in a succession of chambers connected by a seam of varying width, and more or less barren of mineral, and where the boundaries or walls of such deposits were of different material.4 These deposits would not conform to the description of a "fissure." But probably the best, and most practical explanation of what this word means, is given in a case decided in the United States Circuit Court, for the Ninth Circuit.5 The opinion was delivered by Mr. Justice FIELD,6 eminently qualified, not only by his acknowledged ability as a judge, but by intimate knowledge of mining interests, gathered from years of experience. In the course of the opinion the learned judge, after remarking that the term is always used in the statutes in connection with the word "vein," goes on to say: "Any definition of the term should, therefore, be sufficiently broad to embrace deposits of

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the several metals or ores here mentioned. In the construction of statutes, general terms must receive the interpretation which will include all the instances enumerated as comprehended by them. Cinnabar is not found in any fissure of the earth's crust, or in any lode as defined by geologists; yet the acts of Congress speak, as already seen, of lodes of quartz, or rock in place, bearing cinnabar. We are of opinion, therefore, that the term as used in the acts of Congress is applicable to any zone or belt of mineralized rock, lying within boundaries clearly separating it from the neighboring rock." After noticing the geological definition above given, he makes, with approval, the following quotation from the testimony of Dr. Raymond, a witness in the case: "The miners made the definition first. As used by miners before being defined by any authority, the term lode simply meant that formation by which the miners could be led or guided. It is an alteration of the verb lead; and whatever the miner could follow expecting to find ore was his lode." If anything were needed to fortify the logical conclusion reached in this case, it might be said that many of the extensive mineral deposits discovered since the acts of Congress were passed were of a character not then known to exist. And while they vary widely from the character of fissures, they are still further removed from what were then known as placer diggings. It was necessary for purposes of location and working that they should be classified, as either lode claims or placer claims, and the fact that they were universally taken up in conformity to the law governing the former class of locations, was an unmistakable indication of what meaning was conveyed to the minds of the miners by the use of this familiar term in the acts of Congress.

1 See Van Cotta's Treatise on Ore Deposits, Prince's transla. tion, 26.

2 Bullion M. Co. vs. Crœsus G. & S. M. Co., 2 Nev. 168.

3 Foote vs. National Mining Co., 2 Mont. 402.

4 Phillpotts vs. Blasdel, 8 Nev. 61.

5 Eureka Con. M. Co. vs. Richmond M. Co., 4 Sawyer, 302. 6 Ibid, p. 310.

§ 15. Possession. -The first recognition by Congress of private rights to mineral lands on the public domain, is of a right based upon mere possession.1 The language of this act, however, comprehends only the control of proceedings in United States courts, and requires that, in possessory actions, in the absence of any showing of superior right by virtue of compliance with the laws of the United States, prior possession shall be recognized as giving the better right. But it is a well recognized rule of decision in all courts, in controversies involving the title to mining property, that proof of prior possession makes a prima facie case for the claimant, which can only be overcome by proof of subsequent abandonment, or other divestiture, and the acquisition of a better right or title by his adversary.2

1 Rev. Stat. U. S. § 910, ante, p. 12.

2 Doran vs. Central Pac. R. Co., 24 Cal. 245; Kimball vs. Gearhart, 12 Cal. 28; Kelly vs. Natoma Water Co., 6 Cal. 105; English vs. Johnson, 17 Cal. 107; Sears vs. Taylor, 4 Col. 38; McCarron vs. O'Connell, 7 Cal. 152; Basey vs. Gallaghear, 20 Wall. 670. But this possessory right can only be asserted by citizens of the United States or those who have declared their intentions to become such-Golden Fleece M. Co. vs. Cable Cons. Co., 12 Nev. 327.

§ 16. Possession prior to location. - Not only may prior possession be invoked to restore one who has been ousted, or to secure one in the occupancy and enjoyment of a mining claim from which it is sought to eject him, but it will serve to protect one who has not yet taken the incipient steps to secure a mining claim-who has not at least accomplished the first essential requisite to a location by the discovery of mineral. The mere fact that he is in actual possession of a portion of the public domain, prosecuting a search for mineral, gives him a right superior to anyone who may come upon the same ground for the same or any other purpose inconsistent with the possessory right of the first occupier.1 And one in possession of such land for agricultural purposes may so hold it, subject only to the rights of others to enter in search of minerals.2

1 Pennsylvania M. Co. vs. Owens, 15 Cal. 135; English vs. John. son, 17 Cal. 107; Sears vs. Taylor, 4 Col. 38; McCarron vs. O'Con nell, 7 Cal. 152; Crossman vs. Pendry, 1 Col. Law. Rep. 496; Staininger vs. Andrews, 4 Nev. 159. But if one in possession stands by and allows others to enter and sink a shaft within his boundaries, and first discover mineral in rock in place, the law gives the mineral to the first discoverer. Crossman vs. Pendry, 1 Col. Law Rep. 496. Opinion by MILLER, J. (U. S. Cir. Ct.). 2 Lentz vs. Victor, 17 Cal. 272.

§ 17. What constitutes possession. -The character of possession which will give the miner a right to the claim, independent of his location, pursuant to law or miners' rules, may be either actual occupation (possessio pedis), or constructive possession. When he claims the right to occupy without having any well defined boundaries or monuments, showing the extent and limits of his claim, his possession must be of the former kind, and must be shown by actual physical workings.1 In one case it is stated that the possession of a mining claim need not be "the actual possession which is applied to agricultural lands, and which is understood to be possessio pedis; "2 but this is only when the limits are defined by physical marks or monuments. The possession will constructively extend to the limits of the claim when they are so defined, 4 or are fixed by mining regulations in force.5 But mere assertion of title and marking the boundaries will not suffice. It must be actual occupation, a complete subjection to the will and control of the claimant.6 Another kind of constructive possession is where one enters under

color of title, with no one claiming adversely. In such case his possession will extend to the limits fixed by his deed, regardless of whether it be a valid conveyance or not.7 But possession under color of title cannot be shown to establish adverse possession where the deed is under a void judgment and execution sale, but the entry must be made in good faith under the deed. A conveyance of an entire tract to one in possession of a part will not operate to extend his prior possessory rights to the whole of the tract. But an insufficient description in the deed will be aided by a location certificate on record, which is referred to, and the possessory right will extend to the limits therein described, although the certificate be otherwise defective. This exception to the rule of strict conformity is made only in favor of purchasers.10 The possession may be by one or more of several tenants in common, and will inure to the benefit of all.11 But occasional occupancy for the purpose of prospecting will not constitute such possession as the law will recognize, 12 nor will work done for other than mining purposes give one a right to claim to the boundaries of a mining claim.13

1 Hess vs. Winder, 30 Cal. 349-55; Robinson vs. Imperial S.M. Co., 5 Nev. 44.

2 Atwood vs. Fricot, 17 Cal. 37.

3 Roberts vs. Wilson, 1 Utah, 292.

4 Ibid; Crossmar vs. Pendry (U. S. Cir. Ct.), 1 Col. Law Rep. 496; Hicks vs. Bell, 3 Cal. 219; Weimer vs. Lowery, 11 Cal. 104; English vs. Johnson, 17 Cal. 107; Patterson vs. Keystone M. Co., 23 Cal. 575; Hawxhurst vs. Lander, 28 Cal. 331; Golden Fleece Co. vs. Cable 'Con. Co., 12 Nev. 312.

5 Correa vs. Frietas, 42 Cal. 339; Hicks vs. Bell, 3 Cal. 219. 6 Robinson vs. Imperial, &c. Co., 5 Nev. 44-66; Murphy vs. Wallingford, 6 Cal. 648. But setting a stake with notice containing name of lode, date of discovery, and names of discoverers, and notice of intention to locate, held as equivalent to actual possesssion for the time allowed by law to complete the location.-Erhardt vs. Boaro (U. S. Cir. Ct.), 1 Col. Law Rep. 497.

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