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A. H. (Alfred Herbert) Ricketts.

A manual of American mining law online

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BANCROFT LIBRARY

O

THE LIBRARY

OF

THE UNIVERSITY
OF CALIFORNIA



WALTER WADSWORTH BRADLEY

1878-1950

Walter W. Bradley was born in San Jose and
received the degrees of B.S. and E.M. from
the University of California. From 1912 to
1946 he was associated with the California
Division of Mines, serving as State Mineral-
ogist for the last eighteen years of that period.
His published works relate to mining, proc-
essing, and geology. This book is from his
private collection, presented to the Bancroft
Library by Mrs. Alice Roberts Bradley.



THE BLAIR-MURDOCK COMPAN

SAN FRANCISCO, CAL.



A MANUAL



OF



AMERICAN MINING LAW

BY

A. H. RICKETTS

OF THE
SAN FRANCISCO BAR



SAN FRANCISCO

SCIENTIFIC BOOK PUBLISHING CO.

MCMXI



COPYRIGHT 1911
BY A. H. RICKETTS

PUBLISHED OCTOBER, 1911



73162

(BANCROFT

UBRARY



TO MY FRIEND

JOHN HAYS HAMMOND



PREFACE.

My schoolmate and friend, Mr. A. H. Ricketts,
considers it proper that the eldest son of the author
of the first work on American mining law should
write the preface to the latest book on that subject.
But for the sentiment involved, I should hesitate, as
a mere layman, to identify myself even in this small
way, with a work of the technical character of this
book. My father, the late Gregory Yale, as far back
as 1867 wrote his book on "Mining Claims and Water
Rights/ ' before which there was no original contri-
bution on mining law in American legal literature.
Based largely on the now obsolete mining law of
Congress of July, 1866, that work is now mainly of
interest for the historical features connected with
the subject, and has been long out of print.

This latest work on American mining law, by Mr.
Ricketts, brings 'everything on the subject up to date,
as to State and Federal legislation, the decisions of
the courts, and the rulings of the Departments. On
reading the advance sheets one is at once struck by'
the conciseness in which the facts are presented.
There has been no attempt whatever toward elabora-
tion or argument. The author gives w r hat he con-
siders the proper construction of the law and in .each
case cites the authorities. There is therefore nothing
to confuse the layman, while at the same time the book
is of great value for reference to those of the legal
profession. Under each general heading are num-



bered and titled paragraphs, exceedingly brief but
expressive, and containing reference to the footnote
showing the authority and its source. No arrange-
ment could well be handier for reference to the pros-
pector, miner, mine manager or lawyer.

It is to be noted that both the first book on Amer-
ican mining law and the latest one on the same subject
are by Californian authors, practicing attorneys in
the city of San Francisco, where both books were
published.

CHARLES GREGORY YALE.

SAN FRANCISCO, October 2, 1911.



TABLE OF CONTENTS



CHAPTER I.
MINING LAW IN THE UNITED STATES.

1. Local rules, regulations and customs cause of estab-
lishment common law of mining statutory limi-
tations Californian provision absence of rules
and customs when void presumptions construc-
tion evidence effect of non-observance.

j 2. Statutory law lack of uniformity salutary pro-
visions.

j 3. Alaska additional provisions explorations on Beh-
ring Sea dredging beach claims roadway
aliens adverse claims adverse suits adverse
possession.

j 4. Hawaii land department.

5 5. Philippine Islands dissimilar provisions tunnel sites
land department.

5 6. Porto Rico.

CHAPTER II.
COURTS.

j 10. In general jurisdiction state courts federal courts

remand land department stay.

\ 11. Federal question pleadings.

1 12. Union of remedies joinder exception.

\ 13. Dismissal of cause.

\ 14. Appeal federal courts.

i 15. Appeal state courts writ of error.

i 16. Conflicting decisions.

\ 17. Recent legislation.

CHAPTER III.
ACTIONS.

i 19. Possessory actions possessory right pleading
citizenship judgment receivers.

! 20. Adverse suit jurisdiction pleading trial dismis-
sal non-suit judgment final judgment.



8 TABLE OF CONTENTS.

CHAPTER IV.
DISPOSAL OF THE PUBLIC LANDS.

23. Land department powers judgment unassailable
judgment not conclusive Board of Equitable Ad-
judication character of entries to be submitted
procedure appeal termination of jurisdiction.

24. Contests grounds for action procedure notice re-
quired purpose of notice effect of notice default
notice after appearance compromise specific
performance.

25. Hearings character of land presumption.

26. Testimony rules evidence insufficient evidence
burden of proof.

27. Result of hearing segregation survey judgment not
equivalent to patent subsequent legal proceedings.

28. State lands when title passes when closed to the
prospector rights on state patented lands land
department register of state land office contests
pleading protestant effect of judgment pay-
ment for land statute of limitations recent Cali-
fornian legislation school lands withdrawn from
sale.

28a. Conservation.

29. Railroad lands classification of land inconclusive-
ness of classification subsequent discovery of
mineral rejection of application for patent land
department.

CHAPTER V.
SURVEYS.

35. Public land surveys province of land department
questions of fact duty of surveyor division and
numbering of the public lands meander lines
high-water mark recent Californian legislation.

36. Official surveys lode claims placer claims con-
necting line reference to connecting line maps
map must be supported by evidence testimony of
surveyor fabricated survey map not proof of
lode.

37. Segregation survey when ordered township
records.

38. Adverse claim survey what plat of must show
when survey not necessary not made by surveyor-
general.

5 39. Appeal.

40. Surveys under state laws surface survey record
evidence underground survey service of order.



TABLE OF CONTENTS. 9

CHAPTER VI.
LAND DISTRICTS.

41. Laud district additional land districts and changes
therein.

42. Mineral district.

43. Mining district extent changing boundaries per-
sons corporation regularity of proceedings
officers of district duties of recorder.

CHAPTER VII.
MINERAL LANDS.

45. Land subject to location land valuable for its min-
eral deposits classification of land who may
question character of land.

46. Land not subject to location Indian lands allot-
ments patents.

47. Mineral deposits.

CHAPTER VIII.
VEIN, LODE AND LEDGE.

50. In general interchangeable terms miners' use of
terms common use the miner's vein or lode
miners' distinction between vein and lode vein
within lode synonymous terms statutory mean-
ing judicial definitions general rule no conflict
various definitions no arbitrary definition
approved definition gravel deposits character-
istics of a vein or lode elements of a vein or
lode fissure veinsbroad lodes walls of broad
lode indivisibility of -a broad lode separate veins
within zone blind vein blanket vein secondary
or incidental vein extra-lateral right to secondary
vein single vein intersecting veins apex of in-
tersecting veins cross veins space of intersec-
tion contact vein known vein ledge matter in
place rock in place other rock in place vein or
lode in place vein or lode not in place country
rock horse dykes outcroppings identity of
vein and outcrop outcroppings not essential top
or apex highest point legal top or apex discov-
ery of top or apex location must include top or
apex course or strike determining course or



10 TABLE OF CONTENTS.

strike practical rule following course or strike
dip or downward course measuring dip easement
or servitude following the dip walls of vein or
lode boundaries of vein or lode indications im-
pregnations.

CHAPTER IX.

GRUB-STAKE CONTRACTS MINING PARTNERSHIPS
CO-TENANTS.

57. Grub-stake in general nature of contract trustees
essential requisites consideration termination
accrued rights duty of outfitter duty of pros-
pector what is not a grub-stake.

58. Mining partnerships peculiar rules applicable es-
sential difference between mining and general
partnerships how created general partners
trustees control debts liens accounting dis-
solution sale.

59. Co-tenants not mining partners trustees termina-
tion of trust corporation not co-tenant inchoate
rights divestiture of title exclusion from patent
when rights barred actions questioning title
working the claim accounting contribution lia-
bility for loss and debts adverse possession.

CHAPTER X.
MINING LEASES AND LICENSES.

61. Mining leases in general covenants provision as
to stoping royalty.

62. Licenses in general intent controls test when re-
vocable when irrevocable injunction.

(

CHAPTER XL
OPTIONS DEEDS EXAMINATION OF TITLE.

66. Options distinction between option and contract
consideration sufficient consideration duty of
owner damages default.

67. Deeds what passes by deed unnecessary recital
creation of independent estates effect of quit-
claim deed title of corporation title of associa-
tion attack by grantor agreement for deed
description statute of limitations taxation.



TABLE OF CONTENTS. 11

Examination of title unappropriated land charac-
ter of location form of location cross vein
known vein discovery boundaries annual ex-
penditure receiver's receipt conclusiveness of
patent inconclusiveness of patent.

CHAPTER XII.
POSSESSION ABANDONMENT FORFEITURE.

71. Possession actual possession actual possession not
required actual possession without boundaries
constructive possession boundaries without dis-
covery presumption as to ownership evidence of
ownership adverse possession general principle
continuity of possession insufficient adverse
possession effect of patent.

72. Abandonment intent controls how effected co-
tenant not abandonment deed proof test
pleading.

73. Forfeiture proof burden of proof reasonable doubt
pleading absence of right.

CHAPTER XIII.
REMEDIES.

76. Condemnation proceedings constitutional provision
limitation of power public use.

76a. Recent Californian legislation.

77. Easements vested rights right of way damages.

78. Laches unlike limitations equitable defense delay
measure of diligence pleading laches plaintiff's
allegations.

Liens not impaired by patent loss of lien me-
chanic's liens purpose contract essential protec-
tion of owner statutory requirement indemnifica-
tion subordinate to mortgage.

Master and servant fellow servants assumption of
risk legislative safeguards limiting hours of
labor constitutionality of act.

80a. Recent Californian legislation.

81. Partition agreed partition arbitration mining
right.

82. Patent bona fide purchaser burden of proof fraud-
ulent patentee not attack upon patent status of
trustor fraud application to sue false testimony
insufficient.



12 TABLE OF CONTENTS.

83. Rescission condition precedent application of rule
grounds for rescission salting unintentional
salting remedies insufficient grounds for rescis-
sion marketable title.

84. Statute of limitations establishes right to patent
controlling factor Californian provisions.

85. Trespass ignorance of boundary test of trespass
injunctional proceedings denial of injunction
right of inspection grounds for order substance
of order damages good faith of trespasser
pleading model.



CHAPTER XIV.
DEFINITIONS.

(For other definitions, see appropriate titles.)

87. Assays assay value value of assay car and mill
samples.

88. Blanket sluices concentrates.

89. Claim application of term perfected claim cotf-
tiguous claims.

90. Conspicuous place penalty.

91. Corporation location rights.

92. Desert lands.

93. Entry preferential right certificate of entry issu-
ance effect of issuance cancellation repayment.

94. Exemptions Californian provision.

95. Fixtures examples Californian provision char-
acter of title immaterial.

96. Location location and mining claim consolidated
locations technical locations illustrations loca-
tion as property incidents of ownership not com-
munity property taxation.

97. Markings.

98. Mine existence determined synonyms descriptive
name want of identity.

99. Mineral mineral substances within purview of
mining laws float ore ore in sight ore per-
sonal property placers placer workings zone.

100. Miner's inch Californian provision.

101. Mining prospecting and mining process of mining
process of milling business of mining instru-
mentalities superintendent shift boss miner.



TABLE OF CONTENTS. 13

102. Mining claim statutory meaning distinction be-
tween mining claim and location distinction be-
tween mining claim and mining ground navigable
river Mexican grant agricultural patent oil
claim ditch unworked placer.

103. Mining right species of trade legal relations
mining title.

104. Public land distinction between public land and
public use unoccupied and unappropriated land
vacant land occupancy and improvements public
mineral land homesteads possession.

105. Salt lick.

106. Scrip written authorizations-selection sale guar-
antee.

107. Tunnel right implied rights.

CHAPTER XV.
COAL LANDS.

108. In general entry preferential right consolida-
tion.

CHAPTER XVI.

LODE CLAIMS.

110. In general top or apex surface rights subsurface
rights presumption departure from surface lines.

111. Limitation of subsurface rights form of location
exceptions priority of location priority imma-
terial.

112. Dip right basis of right identity of vein want of
identity.

113. Unlawful intrusion exception.

CHAPTER XVII.
MILL-SITES.

116. In general limitations character of land mining
and milling purposes who may locate location
annual expenditure patent.

CHAPTER XVIII.
PLACER CLAIMS.

119. In general location rights known vein subse-
quent discovery conflicting locations area of
placer locations discovery, marking and annual
expenditure patent joint entry effect of ex-
cluding known vein limitation.



14 TABLE OF CONTENTS.

120. Petroleum oil claims rights preserved withdraw-
als withdrawals in California the power of the
President act of June 25, 1910 construction of
statute protection under saving clause opinion of
the writer peculiar conditions questions arising
from conditions conflict of authority established
law forcible entry and detainer possessio pedis
conveyance before discovery departmental rul-
ing confusion in land titles rule of property
remedial legislation ambiguity in statute con-
struction of statute validity of withdrawals
discovery insufficient discovery possession while
making discovery good faith single discovery
scripping.

120a. Natural gas definition of.

121. Mining for oil no limit unlawful drainage pos-
session of land not possession of oil nuisance
Californian provision commencing operations
diligence test well partnership limitation par-
tition damages.

121a. Recent Californian legislation.

122. Oil land leases implied covenants forfeiture
vested right paying quantity taxation.

123. Hydraulic claims restriction constitutionality of
act mining without restriction.

124. Dredge claims in general location.

124a. Recent Californian legislation uplands.

125. Stone claims in general character of location
timber and stone act agricultural entry sale by
entryman return of fees.

126. Salt claims character of deposit limitation ni-
trate and borate land.

127. Tailings deposition of tailings.



CHAPTER XIX.
TIMBER LANDS.

129. In general mineral lands mineral location sub-
sisting location subsequent discovery.

130. Timber cutting on mineral lands purposes restric-
tion exceptional right.

131. Timber cutting in forest reserves.

132. Timber cutting on Indian lands criminal offense.

133. Timber cutting on abandoned military reservations.

134. Damages bona fide purchaser.



TABLE OP CONTENTS. 15

CHAPTER XX.
TOWN SITES.

135. In general corporate authorities county judge

trust mineral reservation insufficient mineral
rights.

1 136. Adverse suits.

CHAPTER XXL
TUNNEL-SITES.

5 138. In general beyond boundaries assessment work
location of tunnel location of blind veins prior
location adverse location line of tunnel no an-
nual expenditure abandonment patent.

1 139. Dump.

CHAPTER XXII.
WATER RIGHTS.

1 141. Real property what may be appropriated volume
and extent public grants private grants.

i 142. Rights of way.

1 143. Appropriation different systems compliance with
local statute no constructive appropriation meas-
ure of right non-user adverse user interruption
of right prescriptive right.

i 144. Diversion of water adjacent water pollution of
water.

i 145. Nuisance.

i 146. Tide lands not subject to location temporary pos-
session.

CHAPTER XXIII.
NATURAL OBJECT PERMANENT MONUMENT.

i 149. Natural objects reference.

i 150. Permanent monuments.

: 151. Purpose record presumptions burden of proo'r.

CHAPTER XXIV.
DISCOVERY.

i 154. In general location not complete without discovery
requisites of discovery discovery may be insuf-
ficient bisected discovery single discovery in



16 TABLE OF CONTENTS.

155. Character of lode discovery.

156. Development of discovery local provisions essen-
tial act of location discovery shaft.

157. Proof of discovery rule between rival claimants
reason for rule test contests between mineral
claimants mineralogical and geological conditions
supplementary, evidence testimony discovery
point expert testimony conclusive testimony
negative testimony.

158. Loss of discovery sale before discovery sale after
discovery.

CHAPTER XXV.
LOCATORS.

162. Rights of locators basis of possession forfeiture

abandonment.
163. Citizens and aliens location by alien rights of

alien patent proceedings presumption.
164. Agents no divestiture of title.
165. Who can not be locators.



CHAPTER XXVI.
ORIGINAL LOCATIONS.

i 168. In general possessory title priority of title inde-
pendent locations invalid locations form of lode
location iorm of placer location must conform to
law time of location qualification of locator.

i 169. Equivalent of location right to patent.

i 170. Fraudulent placer location innocent participants.

i 171. Voidable locations.

i 172. Void locations absence of discovery boundaries
illustrations timber trespass.

i 173. Size of lode claims measurement presumption
excessive size segregation reasonable time to
cast off.

i 174. Size of placer claims excessive size.

i 175. Size of tunnel sites excessive location.

1 176. Size of mill-sites form.

1 177. Acts of location acts incumbent on locator order

of performance original discoverer re-locator not
discoverer limitation boundaries time and man-



TABLE OF CONTENTS. 17

ner of marking boundaries essential acts of loca-
tion possible insufficiency of acts question of
fact what controls monuments as boundaries
position of lode claim monuments consent of
owner limitation monuments as boundaries
position of placer claim monuments possible dis-
crepancy changing position of marks oblitera-
tion of marks no presumption by whom the
marks may be placed end lines effect of estab-
lishing end lines question of fact constructive
end lines side lines irregularity of, side lines
agreed lines.

CHAPTER XXVII.
SUBSEQUENT LOCATIONS.

178. Amended or additional location basis office of
amendment contents of notice one instrument.

179. Re-location when void assumption of risk statu-
tory bar to re-location fraudulent re-location ex-
ception improvements.

180. Overlapping locations basis boundary marks
consent of owner re-location application for pat-
ent laches and limitation.

181. Lode location within placer claim presumption
t trespass not trespass limitation of area.

182. Location of cross lodes.

CHAPTER XXVIII.
NOTICE OF LOCATION.

185. In general supplementary legislation contents of
record additional recitals not necessarily part of
location substantial- compliance oral testimony
importance of boundaries construction of notice
sufficiency of notice purpose fulfilled.

186. The posted notice evidence of discovery and appro-
priation recitals question of fact description
name of lode errors in description surplusage
where posted miner's devices presumption.

187. The amended notice intervening rights evidence.

188. The re-location notice void notice effect of state-
ment proof.

189. Ante-dated notice felony.

190. Where recorded county recorder district recorder
failure to make record description what rec-



18 TABLE OP CONTENTS.

ord need not show question of fact record as
notice record not notice record as title effect of
record record as evidence does not preclude
parol evidence when prima facie evidence color
of title.

CHAPTER XXIX.
ANNUAL EXPENDITURE.

193. Provisions of the mining act district rule.

194. Place of performance character of labor and im-
provements personal services group of locations
labor upon group burden of proof.

195. Sufficiency of performance compliance with local
statute or district rule payment not conclusive
payment bears upon value payment not essential.

196. Proof of performance not mandatory laws effect
of filing neglect to file not fatal.

197. Non-performance when claim forfeited claim of
forfeiture adverse possession what is not excuse
for non-performance.

198. Resumption of labor time for resumption effect of
resumption what is not resumption trespass.

199. Who may make expenditure presumption.

200. Failure to contribute effect of demand character
of title basis of notice right to give notice
contents of notice personal service publication.

CHAPTER XXX.
PATENTS.

206. In general mining rights agricultural patent lode

patent placer patent equivalent to patent void

patents voidable patents.
207. Legal title equitable title superiority of title

priority of title evidence facts settled by patent

presumptions.
208. State legislation.

CHAPTER XXXI.
PATENT PROCEEDINGS.

211. In general manner of obtaining patent limitations
survey of claims all placer mixed lode and
placer waiver adverse claimant time to apply
for a patent place of filing time to complete ap-



TABLE OF CONTENTS. 19

plication completion payment divers patents
erroneous description.

i 212. The survey accompanying papers deputy surveyor
duties of deputy errors of deputy expenditure
upon the claim conclusiveness of certificate
equivalent of certificate basis of deputy's report
sufficient expenditure insufficient expenditure
plat and field notes.

} 213. Posting plat and notice proof of posting time for
filing.

I 214. Proceedings in the local land office application for
patent citizenship appointment of attorney ab-
stract of title subsequent transfers the notice
contents of notice insufficient notice publication
of notice charges for publication proof of publi-
cation proof of continuous posting statement of
fees and charges application to purchase receiv-
er's receipt transmission of record protest
grounds of protest waiver of protest delayed pat-
ent cancellation of entry.

} 215. Adverse claim distinction contents of adverse
claim time for filing adverse computation of time
no extension of time effect of filing adverse
evidence of waiver appeal.

} 216. The adverse suit subsequent proceedings duty of
register proceedings in general land office.



CHAPTER XXXII.
TAXATION OF MINING CORPORATIONS.

! 220. Federal taxation returns filing return principal
place of business penalty.

i 221. Commissioners' decisipns oil wells dry wells
timber cutting depreciation of minerals exhaus-
tion of deposits unearned increment market
value of minerals determination of value
unit value record of estimates compilation of
values immaterial question excess in develop-
ment memorandum of exclusion deduction for
depreciation royalties leasehold investment
limited deduction no deduction.

I 222. Undetermined questions.

i 223. State taxation graduated tax time of payment
forfeiture revival penalty trustees settlement
of affairs popular fallacy consent not necessary.

i 224. Recent legislation.



CHAPTER I.

MINING LAW IN THE UNITED STATES.

1. Local rules, regulations and customs cause of estab-
lishment common law of mining statutory limita-
tions Californian provision absence of rules and cus-
toms when void presumptions construction evi-
dence effect of non-observance.

2. Statutory law lack of uniformity: salutary provisions.

3. Alaska additional provisions explorations on Behring
Sea dredging beach claims roadway aliens ad-
verse claims adverse suits adverse possession.

4. Hawaii land department.

5. Philippine Islands dissimilar provisions tunnel sites



Online LibraryA. H. (Alfred Herbert) RickettsA manual of American mining law → online text (page 1 of 39)