26 Or. 29 | Or. | 1894
Opinion by
It thus appears that discovery and appropriation are both conditions precedent to the right to occupy the public mineral lands as a mining claim. The right to possession or occupation depends upon a valid location, and a location is made in this state by marking the boundaries of the claim on the ground so they can be readily traced, as provided in the act of congress, and posting a notice on the lode or vein, as required by section 3828 of Hill’s Code. A location thus made carries with it a grant to the person making the same, and confers upon him the right to the exclusive enjoyment and possession of the surface
“Possession within a mining district, to be protected, or to give vitality to the title,” says Chief Justice Wade, “must be in pursuance of the law and the local rules and regulations. Possession, in order to be available, must be properly supported. It must stand upon the law, and be the result of a compliance therewith. Representation of a claim in the manner provided by the law, and the local rules and regulations of the mining district, is the life of the possessory title to such claim. Possession, without a location, carries no title. * * * Possessory titles do not live upon possession alone. They must be supported by proof of a compliance with the law that gives the right to and sustains the possession. 'The mere naked possession of a mining claim upon the public lands is not sufficient to hold such claim as against a subsequent location made in pursuance of the law, and kept alive by a compliance therewith. Hence we say that upon an issue joined as to the forfeiture of the right to the possession of a mining claim, by reason of failure in complying with the rules and regulations of the district, * * * proof of the ac
From these decisions, which are from the two principal mining states in this country, it would seem that the discoverer of a lode or vein of rock in place bearing precious metals, in the absence of some local rule of miners or legislative regulation allowing some time for exploration, must immediately locate his claim by distinctly marking the same on the ground, so that its boundaries can be readily ascertained, in order to hold it against a subsequent valid location peaceably made; and the defendants, having failed to comply with the law in so locating their claim, are not entitled to the possession of the ground in dispute as against the plaintiffs, who made a valid location. Requiring the discoverer of a mine to proceed diligently to complete his location, without waiting to trace the course or strike of the vein or lode, may in some instances work an apparent hardship; but until the matter is provided for by some local rule or regulation, it is better, whatever the effect may be in particular cases, that the rule should be settled, and thus prevent as far as possible the uncertainty in titles to mining claims, and the strife and litigation among miners, which would necessarily fol
Nor do we find anything in the authorities cited by the defendants in conflict with the rule which we have suggested. The decisions in the cases of Iron Silver Mining Company v. Elgin Mining Company, 118 U. S. 196, 6 Sup. Ct. 1177, and Erhardt v. Boaro, 113 U. S. 527, 5 Sup. Ct. 560, were both made under the law of Colorado, which allows the discoverer a specified time for exploration before marking the boundaries of his claim. In Gleeson v. Martin White Mining Company, 13 Nev. 444, there is a dictum to the effect that the act of congress may be susceptible of a construction which will allow the discoverer of a vein a reasonable time to trace its course before being compelled to define his surface claim, and in the mean time be protected in his right to fifteen hundred feet of the vein, but no such question was presented by the record, and further on in the opinion it is distinctly stated that the court does not decide how soon after the discovery of a vein the location must be distinctly marked on the ground, so that its boundaries can be readily traced, as required by the act of congress. The holding in Field v. Grey, 1 Arizona, 404, 25 Pac. Rep. 793, is that the party in possession of a mining claim may hold the surface while he is seeking for a vein or lode believed to exist therein, as against all parties not having
Modified.