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Woof!

1870 Placer Mining Act

IN THE SENATE OF THE UNITED STATES.
June 28, 1870

AN ACT
To amend "An act granting the right of way to ditch and canal owners over the public lands, and for other purposes."

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,
That the act granting the right of way to ditch and canal owners over the public lands and for other purposes, approved July twenty-six, eighteen hundred and sixty-six, be, and the same is hereby, amended by adding thereto the following additional sections, numbered twelve, thirteen, fourteen, fifteen, sixteen, and seventeen respectively. which shall hereafter constitute and form a part of the aforesaid act.

SEC. 12 And be it further enacted, That claims usually called "placers," including all forms of deposit. excepting veins of quartz, or other rock in place, shall be subject to entry and patent under this act, under like circumstances and conditions, and upon similar proceedings, as are provided for vein or lode claims: Provided, That where the lands have been previously surveyed by the United States, the entry in it's exterior limits shall conform to the legal subdivisions of the public lands, no further survey or plat in such case being required, and the lands may be paid for at the rate of two dollars and fifty cents per acre: Provided further, That legal subdivisions of forty acres may be subdivided into ten-acre tracts; and that two or more persons, or associations of persons, having contiguous claims, may make joint entry thereof: And provided further, That no location of a placer claim hereafter made shall exceed one hundred and sixty acres for anyone person, or association of persons; and nothing in this section contained shall defeat or impair any bona fide pre-emption or homestead claim, or authorize the sale of the improvements of any bona fide settler to any purchaser.

SEC. 13. And be it further enacted, That where said person or association, they and their grantors, shall have held and worked their said claims for a period equal to the time prescribed by tho statute of limitations for mining claims of the State or Territory where the same may be situated, evidence of such possession and working of the claim for such, period shall be sufficient to establish a right to a patent thereto under this act, in the absence of any adverse claim: Provided, however, That nothing in this act shall be deemed to impair any lien which may have attached in any way whatever to any mining claim or property thereto attached prior to the issuance of a patent.

SEC. 14. And be it further enacted, That all affidavits required to be made under this act, or the act of which it is amendatory, may be verified before any officer authorized to administer oaths within the land district where the claims may he situated, and all testimony and proofs may be taken before any such officer, and when duly certified by the officer taking the same, shall have the same force and effect as if taken before the register and receiver of the laud office: Provided, That in all cases of contest such testimony and proofs shall only be taken on at least ten days' personal notice to the opposing parties, when such parties can be found: and if they cannot be found, then by at least forty days' publication in a newspaper published nearest to the location of said claims and the register of the land office shall require proof that such notice has been given.

SEC. 15. And be it further enacted, That registers and receivers shall receive the same fees for services under this act as are provided by law for like services under other acts of Congress; and that effect shall be given to the foregoing act according to such regulations as may be prescribed by the Commissioner of the General Land Office.

SEC. 16. And be it further enacted, That so much of the act of March third, eighteen hundred and fifty-three, entitled "An act to provide for the survey of the public lands in California, the granting of pre-emption rights, and for other purposes," as provides that none other than township lines shall be surveyed where the lauds are mineral, is hereby repealed, and the public surveys are hereby extended over all such lands: Provided, That all subdividing of surveyed lands into lots less than one hundred and sixty acres may be done by county and local surveyors at the expense of the claimants.

SEC. 17. And be further enacted, That none of the rights conferred by sections five, eight, and nine of the act to which this act is amendatory, shall be abrogated by this act, and the same are hereby extended to all public lands affected by this act; and all patents granted or pre-emption or homesteads allowed, shall be subject to any vested and accrued water rights, or rights to ditches and reservoirs used in connection with such water rights as may have been acquired under or recognized by the ninth section of the act of which this act is amendatory.

Passed the House of Representatives March 17, 1870.

Attest: EDWARD McPHERSON, Clerk.
Woof!

1. Did the 1870 Placer act repeal the 1866 Grant?

2. Did the 1870 Placer Act change any part of the 1866 Grant?

3. What is meant by this phrase in Section 12:
Quote:
That where the lands have been previously surveyed by the United States, the entry in it's exterior limits shall conform to the legal subdivisions of the public lands,



Woof!
daubster

1)Did the 1870 Placer act repeal the 1866 Grant?

No, It ammends the 1866 act by granting right of way to canal and ditch owners.

2. Did the 1870 Placer Act change any part of the 1866 Grant?

No, it amends and adds to the 1866 act by granting right of way to canal and ditch owners and adds the same rights and protections to placer claims that lode and vein claims have.

3. What is meant by this phrase in Section 12:

It directs placer claimants to use the existing plat survey lines that already exist and no further survey is required.
(I believe the intent was to save confusion, time and money in the establishment of claim boundries)

Bruce
beebarjay

!.  No it re-enforced the 1866 Act and gave further clarity to the issue of Placer claims and their existance/location.  It gave specific language to placers vs lodes, and insured the same rights of placer claims to those of lodes.  Without doing a "right now" analysis of the 1866 Act, there had to be issues arrising that gave cause to addressing issues pertaining to placer claims. So the Placer Act is a re-enforcement of the Grant, and specifically water rights and survey locating methods of the Fed Gov vs those of States.

2.  I will have to give considerable thought to the word "Change" in respect to the aspect of "Grant".  While my current readings make the Grant itself unchanged it does change some criteria by which a placer claim Grant is applicable.  It extends and re-enforces the Grant but creates some specifics by which the Grant is passed to the placer claim miner.

3.  The physical location of placers was extended to the Fed surveys and allowed for those surveys to be used/incorporated into the locating of placers.....unlike lode claims that have different criteria.

Again the placer act was a re-enforcement of the Granted rights.  I will have to study to determine where the ambiguity occured......that resulted in the Congressional need for clarification.

BUT I believe I have located a good source for the answer to that specific question.  I am not sure if that would be considered cheating.  Advise and I will proceed.


bejay
Woof!

Bruce,

Hang in there. I will respond to all the answers once everyone has a chance to reply.

Bejay,

Any materials that are germane to the lesson are welcome.

Woof!
lastchancelarry

1. Did the 1870 Placer act repeal the 1866 Grant?
No, it added to by amending it and I quote “To amend “An act granting the right of way to ditch and canal owners over the public lands, and for other purposes”. “ It kept intact the whole act and added sections 12-17 respectively. It repealed in sec. # 16 the act of 1853.

2. Did the 1870 Placer Act change any part of the 1866 Grant?
No it expanded the act to include placer claims

3. What is meant by this phrase in Section 12:
Quote:
That where the lands have been previously surveyed by the United States, the entry in it's exterior limits shall conform to the legal subdivisions of the public lands,

Where the land in question has already been surveyed, the claim is not to extend past the existing survey lines, basically fall in line with the existing lines.
beebarjay

For those who would like a comprehensive understanding as to the historical review of why things (laws) were passed pertaining to mining. Reading it gives very good reasoning as to the "why".  It is a very good read:
"MINING RIGHTS OF THE PUBLIC DOMAIN 1908 (600P ppgs)."  Lode and Placer Claims: Statutes, Decisions, Forms & Land Office Procedure.

I have not read the whole document but in my reading so far it gives significant information as to why laws were ammended and additional language was considered.

The publication can be found on the SWOMA site and those who want to investigate the document can do so.  I will post my findings when I have found that section that pertains to this classroom discussion.

Enjoy and good luck,

bejay
Glindberg

1. Did the 1870 Placer act repeal the 1866 Grant?
No it did not repeal the 1866 Grant, it added sections 12,13,14,15,16 and 17 to it


2. Did the 1870 Placer Act change any part of the 1866 Grant?
Yes section 14 changed the 1866 Grant:
And be it further enacted, That all affidavits required to be made under this act, or the act of which it is amendatory,may be verified before any officer authorized to administer oaths within the land district where the claims may he situated, and all testimony and proofs may be taken before any such officer, and when duly certified by the officer taking the same, shall have the same force and effect as if taken
before the register and receiver of the laud office:

Also gave a more specific time for claims in contest:
(also sec 14)
Provided, That in all cases of contest such testimony and proofs shall only be taken on at least ten days' personal notice to the opposing parties, when such parties can be found: and if they cannot be found, then by at least forty days' publication in a newspaper published nearest to the location of said claims and the register of the land office shall require proof that such notice has been given.

Section 17 Re-affirms the rights of Sec 5,8 and 9 (though it Did not change them)

And be further enacted, That none of the rights conferred by sections five, eight, and nine of the act to which this act is amendatory, shall be abrogated by this act

ABROGATION, in the civil law, legislation. The destruction or annulling of a former law, by an act
of the legislative power, or by usage. A law may be abrogated or only derogated from; it is abrogated
when it is totally annulled; it is derogated from when only a part is abrogated: derogatur legi, cum pars
detrahitur; abrogatur legi, cum prorsus tollitur. Dig lib.. 50, t. 17, 1, 102. Lex rogatur dum fertur;
abrogatur dum tollitur; derogatur eidem dum quoddam ejus caput aboletuer; subrogatur dum aliquidei adjicitur; abrogatur denique, quoties aliquid in ea mutatur. Dupin, Proleg. Juris, Art. iv


3. What is meant by this phrase in Section 12:
Quote:
That where the lands have been previously surveyed by the United States, the entry in it's exterior limits shall conform to the legal subdivisions of the public lands,

I believe That the placer claim must fall w/i Legal subdivision limits (this I believe is Township, Sectionand Range) not to exceed 160 acres and can be legally subdividedto down to 10 acres from 40 acres

SECTION OF LAND. The lands of the United States are surveyed into parcels of six hundred and forty acres; each such parcel is called a section.
1 Story's L. U. S. 422.

2. These sections are divided into half sections, each of which contains three hundred and twenty acres, and into quarter sections of one hundred
and sixty acres each.

SURVEY, The act by which the quantity of a piece of land is ascertained; the paper containing a
statement of the courses, distances, and quantity of land, is also called a survey.

2. A survey made by authority of law and duly returned into the land office, is a matter of record, and of equal dignity with the patent. 3 Marsh. 226; 2 J. J. Marsh, 160. See 3 Greenleaf, 126; 5 Greenleaf, 24; 14 Mass. 149 1 Harr. & John. 20 1 1 Overt. 199; 1 Dev. & Bat. 76.
lastchancelarry

nice job glindberg (and everyone) althoguh I wonder if woof will say changing the 1866 act is defined as adding to and or calrifying...I was wondering if this was a trick question..I chose to "keep it simple" and rely on keeping the 1866 act intact and expanding on it is not changing it..I look forward to being corrected if that is the case..I was looking deeply into each section for changes...
beebarjay

I agree Larry , as my #2 answer gave pause to the word "change".  Modification of a Grant to be specific to include is in a way a change.  But the Grant: per its meaning is not changed.  I have not had time to go to my suggested reading and research the issue, and I will be off line for 2 days.  But there could be a technical legal issue pertaining to the Grant that has significant merit.

Woof would be extremely knowledgable regarding that aspect of "change".  In the back of my mind there has to be something technical to the question regarding "change".  And if there was a strengthening or need for modification the answer to the question could be determined within that concept.  I strongly feel the answer is in my suggested reading but I have had other immediate pending issues to address momentarily.

bejay
Glindberg

I too was wondering about question 2, which took the longest to answer as going over the Grant and the ammendment side by side and change def in bouviers dictionary did not help me on this one. As always am ready to be corrected should my understanding be from a different perspective.

Gary
lastchancelarry

maybe we got caught...did anyone look up "change" in bouviers?
lol
think I will look it up!!!

We are good..
CHANGE. The exchange of money for money. The giving, for example, dollars for eagles, dimes for dollars, cents for dimes. This is a contract which always takes place in the same place. By change is also understood small money. Poth. Contr. de Change, n. 1. (bouviers)

After looking up "may" in the dictionary...one never knows........
EDIT: Nice one gary..you beat me to it and I missed that you did look it up Smile
daubster

In regards to my answer to #2.

The amemdment to the 1866 grant clarifies
right of ways as they apply to water.

I stand by my answer that the grant of 1866
was changed in no way. It was clarified and
established patent rights for placers by the 1870
law. It also gave clarity to the methods used to
establish placer claim boundries.
lastchancelarry

daubster...thumbs up!
beebarjay

To address part of the original question.....excluding the aspect of water rights via ditches and canals, I will attempt to give an essay answer which can bring forth an understanding of what I believe the intent of the other questions leads us to.

A lot of issues were arrising out of "how to locate and mark boundaries of claims".  The earlier act of 1866 addressed a particular system that had been adopted by the United States Governemnt.  "It was in the power of the U.S. Gov to have adopted any one of several different systems in the disposition of its' mineral lands; but at some stage under any system of decision of the conflicting adverse equalities between adverse claimants would have to be reached"  (There is a 3 part method for locating as prescribed......and the 1866 Act only  addressed the 3rd part)

Many issues arrose dealing with lode claim locating methods vs placer claims.  Veins did not always run in true lines.  Placers were a different situation.

Earlier methods of locating claims was creating many conflicting issues: Size of stakes, how they were to be inscribed, distance to monuments, east,vs west,vs north,vs south, even reference to natural objects like stumps etc.
Many issues were arrissing pertaining to patent plats etc. And clarification was needed.
The US Sureveyor General of each State keeps what is called the "Connected Plat" purporting to show every approved survey in relation to each other.  

The 1870 Act was enacted to address the previous conflicting isssues that were resulting in the "locating methods".  By adopting a survey method it created a different scenario that allowed for conflicts to be alleviated......as placers and lodes were two different "ball games".

There may be more to the story.......(remember, much of the location boundaries had to do with Patents and the relevancy of issuing title to lands/claims).... but for now that is as far as I have gotten.  There may be a correlation between how the public domain boundaries for a claim were dealt with per obtaining the Grant in 1866 and a modification of the wording making applicational language extending to "other means of boundaries".....per the 3 part method.....understanding the 1866 Act dealt with only part three.   I know you are all wondering what the 3 part method is.   I'll try to paraphrase it at a later time as it is not on a doc I can copy and paste.

bejay
beebarjay

Further study reveals additional information that is relevant to this classroom study.
It is important to understand that Congressional consideration conserning all mining claims had to do with PATENT.....and isssuing title.  The Mineral "GRANT" of 1866 did not only mean public lands were open to mineral entry but went on to state all the public lands would be subject to patent.

Much concern was needed to deal with water and location on placers.  
Legislation Concerning Placers:  The placer claims were not covered by the original act of 1866.  The act of 1870 brought them within the Congressional Recognition and made them open to patent.  Placers since have been regulated at all times as to size, labor, mode of location etc. by the district rules to a much greater extent than lode claims.

In 1908 many States had (and still have) statutory requirements for placer locations.  Ariz., Idaho, Montana, Nevada, Utah, Wash, Wyoming have them.
Alaska, Calif., New Mexico, N & S Dakota, and Oregon do not. (1908)
Lode claims had a whole different statuatory requirement except for Calif which has none....where Congressional law provides the location requirement. (1908)  

Open to location and patent:
R.S. Sec 2329 - Claims called "Placers" including all forms of deposits, excepting veins of quartz, or under like circumstances and conditions, and upon similar proceedings as are provided for vein or lode claims; but where the lands have been previously surveyed by the United States, the entry in its exterior limits shall conform to the legal subdivions of the public lands Sec 12 July 9 1870.

The 1870 act speaks of making placer claims conform as near as possible with the rectangular subdivisions of the public lands, but under the early practice in the "Land Office" it was uterly disregarded.  Understanding the need to address the patent application gives high value to 1870 Congressional action pertaining to "Placers"

Today the "Strict" practice of conformity is required for placers and the strict act for lode claims is different.

It should be Noted there is information conveying that parties made locations valid to the extent of Congressional requirements but failed to comply with the State Statutes then in force.

Now the 3 methods of US Government land patents:

First - A system based on rectangular surveys on which a block book could ber platted, which would, on its face, establish the priority of any assertion of title to the block representing any certain mining claim, the same as adopted in the disposition of agricultural lands by 1/4 sections.

Second - A system under which every applicant would receive a patent upon an "ex parte" proceeding without regard to priority or adverse rights, leaving the several patentees to contest their equyities in the courts upon an equal footing analogus to the old land system of Virginia.  

"EX PARTE". "Of the one part. Many things may be done ex parte, when the opposite party has had notice; an affidavit or deposition is said to be taken ex parte when only one of the parties attends to taking the same. Ex parte paterna, on the side of the father, or property descended to a person from his father; ex parte materna, on the part of the mother."



Third - A system based on making to obtain patent a proceeding "in rem", compelling the applicant to give notice of his application and forcing an adjudication of all adverse titles before the issue of the patent, which was the Pennsylvania system.

"IN REM", remedies. "This technical term is used to designate proceedings or actions instituted against the thing, in contradistinction to personal actions which are said to be in personam. Proceedings in rem include not only judgments of property as forfeited, or as prize in the admiralty, or the English exchequer, but also the decisions of other courts upon the personal status, or relations of the party, such as marriage, divorce, bastardy, settlement, or the like. 1 Greenl. Ev. 525, 541."


The last is the system adopted by the government by the original act of 1866, and continured in all ammendments.

But as stated earlier the issue of "patent" on placer claims was not achieved until the 1870 act when congressional authority became possible.

Further investigation has revealed information pertaining to water rights, ditches, etc,

The 1870 act brought forth conformational language  pertaining to placer claims. Cases can be found on record.  Such cases have been heard that hold that a placer location is of itself an appropriation of all water flowing across it to the extent needed for working the placer claim.  Schwab v Beam 86 F. 41.
Placer water rights so appropriated may be transferred like other property.  A ditch is real estate and is conveyed by deed.  Smith v O'hara 1 M.R. 671: 43 Cal. 371 & Bradley v Harkness, 26 Cal. 69: 11 M.R. 389 & Burnham v Freeman, 11 Colo 601; R.S. Colo 669.

Regarding the question did the 1870 act change the "ESTATE" Grant?  I think further study has shown that the grant was not applicable to placer claims.  BUT the question would be is the Mineral Estate Grant the process by which "Patent" can be obtained.  At issue is the meaning of the word Grant.  Remember the whole concept pertains to obtaining "title" which the Gov holds in trust for the miner until the patent process is complete........achieving title.  Placer claims were not subject to "patent" Until the 1870 placer act.  So was the Grant repealed?  No it could not repeal what was already there..... regarding placers.  Did it change the grant?   My answer today would be it was extended to include.......the aspect of patent.  

More information to come.

bejay
beebarjay

"The 1870 Placer Act clarified rights of way grants burdened subsequently patented private land as easement."  So this "may" be considered a change.  The Mineral GRANT of 1866 had specific language.  By creating clarificational language one could argue a change occurred.  It would have to depend on what is being asked regarding "change".

Definition:

burden...... n. anything that results in a restrictive load upon something.

Subsequently...Variant of subsequent....adjective:.......coming after; following in time, place, or order
(Related Forms: •subsequently adverb)

EASEMENTS, estates. An easement is defined to be a liberty privilege or advantage, which one man may have in the lands of another, without profit; it may arise by deed or prescription. Vide 1 Serg. & Rawle 298; 5 Barn. & Cr. 221; 3 Barn. & Cr. 339; 3 Bing. R. 118; 3 McCord, R. 131, 194; 2 McCord, R. 451; 14 Mass. R. 49 3 Pick. R. 408.

SO LETS SEE IF THIS MAKES SENSE:

The 1870 Placer Act clarified rights of way "GRANTS" having a restrictive load upon them following in time by patented private land with a privilage or advantage, which one man may have (had) over another.

bejay
Glindberg

For new members, this is the current classwork assignment. Those wishing to participate are encouraged to do so.

Gary
Woof!

Hello everyone,

I am sorry it has taken me so long to return to the forum. For the last week I had virtually no connection and before that I had none.

I'm back for a while now but I've come down with a nasty bug so I will keep it short for today. I will address all your answers individually over the course of the next few days. I must say I am impressed at the thoughtfulness and study that has gone into your answers - good work!

Question two was a sort of trick question. The answer is YES the 1866 Act was amended by the 1870 Act. The amendment was in the form of an addition to the 1866 Act.

This is going to become an important point as we advance in the study of the Acts. Many times I have heard it said that the Acts establishing the Mineral Estate Grant are old law that have been "overridden" or "made ineffective" by later lease and sale Acts. This is simply not true. Congress has never declared the Acts to be repealed or amended by Acts subsequent to the 1872 Act except for the informational filing requested in the FLPMA.

It is a basic maxim of law that Congressional Acts are never repealed by implication. Although subsequent Congresses can not be bound by the Acts of previous Congresses they must make their intent very clear should they wish to repeal existing law.

The Supreme Court wrote:
“We have repeatedly stated . . . that absent a clearly established congressional intention, repeals by implication are not favored. An implied repeal will only be found where provisions in two statutes are in irreconcilable conflict, or where the latter Act covers the whole subject of the earlier one and is clearly intended as a substitute.” Branch v. Smith, 538 U.S. 254, 273 (2003)


I gave you a recent Supreme Court decision so the naysayers can not rely on the silly idea that laws just wear out or lose their effect over time. You can find Supreme Court rulings that state that same principle throughout the history of the Union.

I will return soon. In the meantime you might wish to supplement your understanding by looking up some of these words and phrases relating to the permanence of laws that have not been "repealed" or "amended".

Woof!
beebarjay

IMPLICATION. An inference of something not directly declared, but arising from what is admitted or expressed.

2. It is a rule that when the law gives anything to a man, it gives him by implication all that is necessary for its enjoyment.

3. An estate in fee simple will pass by implication; such implication must not only be a possible or probable one, but it must be plain and necessary that is, so strong a probability of intention that an intention contrary to that imputed to the testator cannot be supposed

implied

adj., adv. referring to circumstances, conduct or statements of one or both parties which substitute for explicit language to prove authority to act, warranty, promise, trust, agreement, consent or easement, among other things. Thus circumstances "imply" something rather than spell it out.

intent

n. mental desire and will to act in a particular way, including wishing not to participate. Intent is a crucial element in determining if certain acts were criminal. Occasionally a judge or jury may find that "there was no criminal intent." Example: lack of intent may reduce a charge of manslaughter to a finding of reckless homicide or other lesser crime.

repeal

1) v. to annul an existing law, by passage of a repealing statute, or by public vote on a referendum. Repeal of constitutional provisions requires an amendment, as with the repeal of prohibition in which the 21st Amendment repealed the 18th Amendment. 2) n. the act of annulling a statute.

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I guess this specifically does not replace the 1872 Act per the US Supreme court consideration: "WHERE THE LATTER ACT COVERS THE WHOLE SUBJECT OF THE EARLIER ONE"  or even:  "An implied repeal will only be found where provisions in two statutes are in irreconcilable conflict,"

I don't see any conflict.  Show me the conflict?

Where both the Forest Service and the BLM are required to adhere the congressional public land management mandates
of the Federal Land Management Policy Act, FLPMA, which expressly states at 43 USC 1732 (b), that, “.. . no provision of this section or any other section of this Act shall in any way amend the Mining Law of 1872 or impair the rights of any locators or claims under that Act, including, but not limited to, rights of ingress and egress” -- any assertion of federal authority by agency, such as the BLM or the Forest Service, impairing, obstructing or closing access against, or managing the surface of Locatable mineral deposit property on public domain
in-holding the public land, or otherwise interfering in any way is committed contrary to the laws of the United States of America, a breach of fiduciary duty, and an intentional and negligent trust tort.


tort: Legal Deffinition

n. from French for "wrong," a civil wrong or wrongful act, whether intentional or accidental, from which injury occurs to another. Torts include all negligence cases as well as intentional wrongs which result in harm. Therefore tort law is one of the major areas of law (along with contract, real property and criminal law) and results in more civil litigation than any other category. Some intentional torts may also be crimes, such as assault, battery, wrongful death, fraud, conversion (a euphemism for theft) and trespass on property and form the basis for a lawsuit for damages by the injured party. Defamation, including intentionally telling harmful untruths about another-either by print or broadcast (libel) or orally (slander)-is a tort and used to be a crime as well.

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Oh and by the way we might remember this:

The nature of a grant is that it is made once. Once given it can not be taken back. Congress can not take back what it has already given away.

Originally posted by The Supreme Court in Fletcher v. Peck

"When a law is in the nature of a contract, when absolute rights have vested under that contract, a repeal of the law cannot devest those rights.

A party to a contract cannot pronounce its own deed invalid, although that party be a sovereign State. A grant is a contract executed.

A law annulling conveyances is unconstitutional because it is a law impairing the obligation of contracts within the meaning of the Constitution of the United States."

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Then of course if the shoe fits wear it:
This vested granted possession further saved from management discretion or management authority in the FLPMA at 43 USC 1732 (a), (b), and (c)  “That, where other applicable law contains specific provisions” “or other authorization to use, occupy, or develop the public lands, the specific provisions of such law shall prevail”,

bejay
Glindberg

AMENDMENT, legislation. An alteration or change of something proposed in a bill.

ALTERATION. An act done upon an instrument in writing by a party entitled under it, without the consent of the other party, by which its meaning or language is changed; it imports some fraud or design on the part of him who made it. This differs from spoliation, which is the mutilation of the instrument by the act of a stranger.

2. When an alteration has a tendency to mislead, by so changing the character of the instrument, it renders it void; but if the change has not such tendency, it will not be considered an alteration. 1 Greenl. Ev. 566.

3. A spoliation, on the contrary, will not affect the legal character of the instrument, so long as the original writing remains legible; and, if it be a deed, any trace of the seal remains. 1 Greenl. Ev. 566. See Spoliation.
lastchancelarry

both instructors are very busy and this is a voluntary forum so lets be patient..This forum is just stalled not died everyone..Woof gave the answers for this assignment he just hasnt individyally commented on each of our responses..So we can grade ourselves....I think Ill pick something on here and get busy hashing it out..any suggestions as to what we want to explore???
lastchance
there are so many postings here so we have plenty to choose from...
lastchancelarry

class will resume shortly towards the end of the week...remember the instructors are miners mining and very busy with other endeavers as well, such as life, families dogs whatever and everyone on here is here voluntarily...thanks fr your patients....it is awsome seeing the results of this collaboration on other forums......
Woof!

And we begin again.  Very Happy

Thank all of you for your patience. I will begin my response to your answers at the beginning. I will try to give the same consideration and effort to my replies as you did in your answers. Please bear with me as this may take a while. I type slowly with one finger Embarassed and, as you may have noticed, I tend to be a little bit wordy.  Rolling Eyes

All in due time. Please feel free to interject your thoughts in response to my writing. I hope to inspire a true understanding of the method and subject matter of the mining acts and your responses help to build a record for others that follow us down this path.

In the midst of this process I will post the next subject for our future class. Feel free to study this material but also please refrain from comment or questions on the new material until we have finished this lesson and the questions for the next class have been posted.

Woof!
Woof!

daubster wrote:
1)Did the 1870 Placer act repeal the 1866 Grant?

No, It ammends the 1866 act by granting right of way to canal and ditch owners.

2. Did the 1870 Placer Act change any part of the 1866 Grant?

No, it amends and adds to the 1866 act by granting right of way to canal and ditch owners and adds the same rights and protections to placer claims that lode and vein claims have.

3. What is meant by this phrase in Section 12:

It directs placer claimants to use the existing plat survey lines that already exist and no further survey is required.
(I believe the intent was to save confusion, time and money in the establishment of claim boundries)

Bruce



Hi Bruce,

Answer 1:
Correct in that it did not repeal the 1866 Act.

Answer 2:
Technically an amendment is a change but you are correct in that it only added to the grant as it was expressed in the 1866 Act.

That addition was not the "granting right of way to canal and ditch owners" however. That grant was original to the 1866 Act and already existed as is evidenced by the title of the 1866 Act "An Act granting the Right of Way to Ditch and Canal Owners over the Public Lands, and for other Purposes" and specifically in Section 9 of that same Act.

The only reference to the water rights already granted under Section 9 of the 1866 Act was the extension of those water rights "to all public lands affected by this act". In other words the Placer Claims described in this 1870 Act. The rest of the wording in Section 17 of the 1870 Act are in the form of a savings clause to make doubly sure that the intent of the 1870 Act would not be misconstrued as an infringement on the grant expressed in the 1866 Act.

Answer 3:
Your answer to this is essentially correct if you eliminate the words you added in and your own speculation.

Conforming to the Public Lands Survey did indeed mean locating a placer claim in an east/west - north/south direction using the survey as guidance when a survey existed. This was a pretty big WHEN at the time as most of the public lands were not yet surveyed.

You might note that the Public Land Survey only included Township, Range, Section and Quarter Section. The smallest of those were the Quarter Section. The normal Quarter Section is 160 acres in area. The largest placer claim allowed under the 1870 Act is 160 acres so anything smaller could not truly conform to the survey even if it existed where the valuable mineral deposit was found.

To try to account for this discrepancy there are two portions of the 1870 Act that address these problems. First there is the additional provision in section 12 that:
Quote:
legal subdivisions of forty acres may be subdivided into ten-acre tracts


and an attempt to allow local government entities and locators to help out in the survey with Section 16:
Quote:
public surveys are hereby extended over all such lands: Provided, That all subdividing of surveyed lands into lots less than one hundred and sixty acres may be done by county and local surveyors at the expense of the claimants.


Where you added words and concepts outside the Act is where you stumbled on this answer. Although the Act does mention plats that mention is a clarification of the lack of need for a plat. The public Land Survey is not a plat as it describes an area of land as opposed a plat describing the boundaries associated with a parcel of land. The distinctions are subtle but these are the sort of slips that get miners in big trouble when dealing with the laws of mining. Law is always specific and words that may appear to be of the same meaning never are.

"The interpretation or meaning attributed to a word or phrase in a statute, court rule, administrative regulation, business document, or agreement often determines rights, duties, obligations, and liabilities of the parties. Many court decisions are based on the meaning attributed by an appellate court to a single word or phrase."

This is an important point going forward. It is human nature to try to redefine words to fit our own intent but to do so when discussing law is misleading. In a Court proceeding or administrative hearing it can easily lead to disaster. Often miners are left wondering why the Court would make a decision in a way contrary to their understanding of the law. The words used to make a case are all the court has to rely on and a prosecutor will quickly jump at the chance if you choose to define your case in a way contrary to the words used in the law.

If a word, as used in an Act of Congress, is not to be construed by it's well known meaning Congress itself will provide the intended definition in the Act itself. "Well known meaning" is all about their understanding - not yours. Don't fall into the trap of assuming you know the meaning of a word, look it up with the knowledge that no two words can have the same meaning under the law... unless Congress has specifically stated those two words can be considered to have the same meaning.

Your addition of an assumed reason for the intent behind section 12 is very likely incorrect as we will learn in our next lesson. Section 12 was a disaster and a large part of the reason for the passage of the 1872 Act. We will get to that later. No points off for trying though Bruce. Even if you are wrong it is a good exercise to try to discover the reasoning behind Congress' Acts - it is exactly what a Court will do should there be a question to what was intended by Congress. Just remember that even the Supreme Court is barred from putting words into meaning when those words were not used in the Act itself.

Woof!
daubster

Thank you for bringing clarity to my interpretations in such a clear
an concise manner. I will study harder and try to keep to the laws
as written.

Bruce
Woof!

Hi bejay,

beebarjay wrote:
!.  No it re-enforced the 1866 Act and gave further clarity to the issue of Placer claims and their existance/location.  It gave specific language to placers vs lodes, and insured the same rights of placer claims to those of lodes.  Without doing a "right now" analysis of the 1866 Act, there had to be issues arrising that gave cause to addressing issues pertaining to placer claims. So the Placer Act is a re-enforcement of the Grant, and specifically water rights and survey locating methods of the Fed Gov vs those of States.

2.  I will have to give considerable thought to the word "Change" in respect to the aspect of "Grant".  While my current readings make the Grant itself unchanged it does change some criteria by which a placer claim Grant is applicable.  It extends and re-enforces the Grant but creates some specifics by which the Grant is passed to the placer claim miner.

3.  The physical location of placers was extended to the Fed surveys and allowed for those surveys to be used/incorporated into the locating of placers.....unlike lode claims that have different criteria.

Again the placer act was a re-enforcement of the Granted rights.  I will have to study to determine where the ambiguity occured......that resulted in the Congressional need for clarification.

bejay


You are pretty much right on in these answers bejay. I'm am going to take this opportunity to write a bunch of words in an attempt to bring the two Acts into alignment. Besides I don't want others to think you might be a "teachers pet" and beat up on you at recess.  Laughing

Please keep in mind that pretty much all of the 1870 Placer Act we are discussing here will be abandoned in the later 1872 Act. I think it is important to understand why that would be so we can better understand the whole of the 1872 Act when we come to it.


First of all let's determine whether placer claims even existed under the 1866 Act.

Some points to consider:
__________________________________

The 1866 Act does not even have the word "placer" in it. One could presume that what is described could include placers because a discovery includes the words "rock in place":

1866 Act wrote:
a vein or lode of quartz, or other rock in place, bearing gold, silver, cinnabar, or copper,


__________________________________

When you consider the method of making a patent application placers lose out again. The survey for the patent must include:

1866 Act wrote:
the character of the vein exposed


So it would seem that placers are not available for patent in the 1866 Act.

__________________________________

Even if placers could be claimed under the "rock in place" clause the resulting claim would be pretty limited because of the size of claim permitted under the 1866 Act:


1866 Act wrote:
no location hereafter made shall exceed two hundred feet in length along the vein for each locator


To say nothing of the lack of a vein to define the course of the placer claim.

_________________________________

From what we have seen of the two Acts so far it appears there may have been no defined right to make a placer claim under those Acts.

But Congress was not unaware that they were ignorant of the specifics of mining and did leave quite a bit of wiggle room by including the miners themselves as the ones to fill in the details:

1866 Act wrote:
exploration and occupation... subject also to the local customs or rules of miners in the several mining districts


1866 Act wrote:
claim... according to the local custom or rules of miners in the district where the same is situated


1866 Act wrote:
location and entry... as to conform to the local laws, customs, and rules of miners


1866 Act wrote:
location...  together with a reasonable quantity of surface for the convenient working of the same as fixed by local rules


1866 Act wrote:
rights to the use of water for mining... and the same are recognized and acknowledged by the local customs


As we know today, placer mining did take place between the years 1866 and 1870 so it's probably safe to say that the miner's took matters into their own hands as they had since long before the 1865 Grant was made law.

That is part of your inheritance as prospectors and miners - an important point often ignored today but just as much a part of law now as it was then.

You think maybe "miner's customs" need to be developed along with a knowledge of the Mining Acts?  Wink  Very Happy
________________________________

It should be pointed out that Congress obviously flubbed many of the provisions of this 1870 Act in comparison to the earlier 1866 Act and the subsequent 1872 Act:

Although the the Act relies on the Public Lands Survey there is no definition of what is being surveyed or how to deal with those lands that have not been surveyed.

Up to 160 acres may be claimed by one person OR an association in a single claim but as I mentioned before there is no explanation of how to fit smaller claims to the land survey. They obviously contemplated smaller claims by declaring:
1870 Act wrote:
legal subdivisions of forty acres may be subdivided into ten-acre tracts


but left out how the requirement that claims conform to the survey would be applied to these portions (aliquots). "Ten acre tracts" can not "conform" to a larger portion.

These problems are minor but minor problems are the tools of crooked lawyers who take valuable mineral deposits by deception and court orders rather than the lawful discovery of valuable minerals. The Congress was fully aware of this problem of "claim jumpers" and much of the impetus of passing laws for mineral claims was brought about by this very problem.

Woof!
Glindberg

CUSTOM. A usage which had acquired the force of law. It is, in fact, a lex loci, which regulates all local or real property within its limits. A repugnancy which destroys it, must be such as to show it never did exist. 5 T. R. 414. In Pennsylvania no customs have the force of law but those which prevail throughout the state. 6 Binn. 419, 20.

2. A custom derives its force from the tacit consent of the legislature and the people, and supposes an original, actual deed or agreement. 2 Bl. Com. 30, 31; 1 Chit. Pr. 283. Therefore, custom is the best interpreter of laws: optima est legum interpres consuetudo. Dig. 1, 8, 37; 2 Inst. 18. It follows, therefore, there; can be no custom in relation to a matter regulated by law. 8 M. R. 309. Law cannot be established or abrogated except by the sovereign will, but this will may be express or implied and presumed and whether it manifests itself by word or by a series of facts, is of little importance. When a custom is public, peaceable, uniform, general, continued, reasonable and certain, and has lasted "time whereof the memory of man runneth not to the contrary," it acquires the force of law. And when any doubts arise as to the meaning of a statute, the custom which has prevailed on the subject ought to have weight in its construction, for the manner in which a law has always been executed is one of its modes of interpretation. 4 Penn. St. Rep. 13.

3. Customs are general or, particular customs. 1. By general customs is meant the common law itself, by which proceedings and determinations in courts are guided.

2. Particular customs, are those which affect the inhabitants of some particular districts only. 1 Bl. Com. 68, 74. Vide 1 Bouv. Inst. n. 121 Bac. Ab. h. t.; 1 Bl. Com. 76; 2 Bl. Com. 31; 1 Lill. Reg. 516; 7 Vin. Ab. 164; Com. Dig. h. t.; Nelson's Ab. h. t. the various Amer. Digs. h. t. Ayl. Pand. 15, 16; Ayl. Pareg. 194; Doct. Pl. 201; 3 W. C. C. R. 150; 1 Gilp. 486; Pet. C. C. R. 220; I Edw. Ch. R. 146; 1 Gall. R. 443; 3 Watts, R. 178; 1 Rep. Const. Ct. 303, 308; 1 Caines, R. 45; 15 Mass. R. 433; 1 Hill, R. 270; Wright, R. 573; 1 N. & M. 176; 5 Binn. R. 287; 5 Ham. R. 436; 3 Conn. R. 9; 2 Pet. R. 148; 6 Pet. R. 715; 6 Porter R. 123; 2 N. H. Rep. 93; 1 Hall, R. 612; 1 Harr. & Gill, 239; 1 N. S. 192; 4 L. R. 160; 7 L. R. 529; Id. 215



RULE. This is a metaphorical expression borrowed from mechanics. The rule, in its proper and natural sense, is an instrument by means of which may be drawn from one point to another, the shortest possible line, which is called a straight line.

2. The rule is a means of comparison in the arts to judge whether the line be straight, as it serves in jurisprudence, to judge whether an action be just or unjust, it is just or right, when it agrees with the rule, which is the law. It is unjust and wrong, when it deviates from it. lt is the same with our will or our intention




Very Powerful Phrase "local custom and rules of miners", probably took way to long for that to soak in for me, with that being said  could miners of today inadvertently change a custom through ignorance (for lack of a better term) or would it be something that would have to be agreed upon by a majority?

Also is a custom a learned item such as eating turkey for thanksgiving dinner is a custom (sorry only analogy I could think of) or can it be written down as a rule would be?

I ask the question since reading one of the links under swoma, even w/i the mining districts there were differences between them with regards to rules and/or customs.

Also does anyone know if there is any documentation of customs/rules of any of the mining districts that one may read? I've done a search but have yet to come upon anything.


Gary
Woof!

Bouviers 1856 wrote:
DISTRICT. A certain portion of the country, separated from the rest for some special purposes.

The United States are divided into judicial districts, in each of which is established a district court; they are also divided into election districts; collection districts, &c.
Glindberg

Thanks Woof!, I suppose if I would have looked up District I could have answered part of my question.

Gary
Woof!

I'm thinking all questions have been answered on this lesson. If there are any questions still lingering in anyone's mind please speak up so we can address them before we move on to the big kahuna - the 1872 Act.

Woof!
BigAl

Regarding Filing a Placer Claim by legal subdivision, also known as Aliquot Part description. as some seem a little confused I will share what I have learned in getting ready to go to court with someone who thinks he can tie up large tracks of land with association placer claims.     You can file right over the section lines, say you had a claim with a section corner right in the middle of where you wanted to file your claim, and you were standing there looking north, on your left side the claim would be in the south east corner of that section, if it was only part of the south east corner, than it would be in the south east corner of the south east corner, the part of the claim that is on the right would be the south west corner, behind you on your right would be the north west corner of that section, and behind you on your left would be the north east corner of that section.  if you are still confused look at a quadrant map. and then look at your placer claim location papers, for them to be filed correctly they HAVE TO BE FILED IN THIS MANNER. And another party can file on them and win in court, and or the BLM can annul them if they are not. another important point, when you are reading Aliquot Part description you read from right to left. Thats my two cents worth, Big Al
Woof!

Thanks for your 2 cents Al.

You do seem to understand the PLSS system. Your explanation fits as long as the Sections are regular and they have been surveyed down to the  quarter quarter - not always the case. A lot of the West is still unsurveyed.

Unless the placer deposit is shaped square and north/south (very rare) I suggest describing your location by metes and bounds with reference to a surveyed corner. This is more accurate, allows you to meet the every 10 acres mineralized rule and gives the BLM a quadrant for their informational filing.

I think you may be disappointed with your efforts to over file on pre-existing claims. It is perfectly legal to "tie up large tracks* of land with association placer claims" (*tracts).

The courts have consistently ruled that the intent of the senior locator, along with the actual location on the ground, are the ultimate claim and any defects in filing will be overlooked as long as the claim meets the other requirements. I know of no cases where an adverse claimant won on the basis of irregular paperwork by the senior locator.

You should also be aware that an adverse filing is not valid should the senior claimant drop their claim. Overfiling in hopes of being first in line should the senior claim drop is foolish. An adverse claimant has 30 days to  file suit and serve the senior claimant or their claim is void ab initio - from the beginning - as if it never existed.

You say the BLM can annul a claim that has not been filed "in this manner". I am unaware that the BLM has a right to annul any claim. To my knowledge the BLM can only declare a claim abandoned for lack of a timely informational filing, as per the FLPMA. I would be very interested to study the law that allows the BLM to annul a claim for not filing by the legal subdivision. Please share with us.

Woof!
BigAl

Hi Woof, I will dig up the case law in the next few days on blm. What my partner and I did was file on some KNOWN load claims, the other guy has Placer claims, he has tried to claim clipper v eli says we could not do what we did, clipper v eli says you cannot trespass to locate UNKNOWN loads. but the case law is very clear that if a placer owner does not file on the known loads his claim encompasses, they are open for anyone to claim.   The law says you must file by legal subdivision as a first preference, or by metes and bounds. by law the claim has to be traceable on the ground. So if the legal subdivision language is not correct, you are vulnerable until it is amended, as the claim would not be traceable on the ground.   The guy I am about to take to court, has a history of locating claims for sale, not mining them, one of things he is doing is quit-claiming claims of to friends and then a couple of years go by and he shows up as the owner on the assessment work filed at the county, thus staying under the ten claim limit on blm paperwork so he can get the waiver. I have several other things that I will be bringing up in court, that show serious bad faith. but do not want to put anything out there where he could possibly see it yet. Big Al
BigAl

I am aware that a claim filed over another valid claim would be invalid from the beginning, ab initio if my spelling from memory is correct. then I realize you had it in your post and yes, I had it misspelled.  And I am also aware that the courts are VERY sympathetic to the senior locator, but thank you for your input. I have spent the last two years researching case law, and researching what this fellow does, he is very tricky. I will share more when I take him to court, and have shown my hand so to speak. Big Al
Woof!

BigAl wrote:
Hi Woof, I will dig up the case law in the next few days on blm. What my partner and I did was file on some KNOWN load claims, the other guy has Placer claims, he has tried to claim clipper v eli says we could not do what we did, clipper v eli says you cannot trespass to locate UNKNOWN loads. but the case law is very clear that if a placer owner does not file on the known loads his claim encompasses, they are open for anyone to claim....
Big Al


I think we have cleared up the matter of locations conforming to the survey in our PMs Al. It's also clear there is no law allowing the BLM to annul a claim for filing irregularities. We will be visiting that subject in our next lesson. I look forward to your participation there.

As far as locating a known lode within and over an existing placer claim - there is a lot more to learn there than what is offered in Clipper v. Eli.

You might want to consider the standard of "discovery" necessary to make a mineral deposit "known" to you.

From SAMUEL McMILLEN , v. FERRUM MINING COMPANY:
Quote:
The substance of the plaintiffs' argument was that the mere knowledge of the Eulalia locator of the existence of a vein in the Pocket Liner, the previous lode, made his location valid, provided he performed the other things requisite under the statutes of the state of Colorado, besides the actual discovery of mineral.

In its opinion the court reiterated what it had previously said, that, admitting that the plaintiffs might have availed themselves of the previous discovery within the Eulalia location, and adopted the same as their own without making a valid discovery for themselves, they had not brought themselves within this principle, since in their offer of proof they merely relied upon a former knowledge of such location.


McMillen (the Plaintiff) lost because he relied on former knowledge to establish his location.

Read more here:
http://www.law.cornell.edu/supremecourt/text/197/343

It's kind of hard to discover a location, that to your direct knowledge and experience, contains a valuable mineral deposit when that location is found in the middle of another's exclusive mineral claim. Relying on other's past discoveries obviously isn't good enough according to the Supreme Court in McMillen.

I really do dislike claims mongers. I am of the opinion that most of these 160 acre blanket claims will be disappearing soon due to the placer claim BLM fee hike. Perhaps patience will win over force in your battle?

In any case the methods you are employing are well known to the courts. The term is "claim jumping" and it has a long and dishonorable practice among mining attorneys. What has been earned by the skill, knowledge and hard work of a miner has often been taken by a glib tongue and some little white lies on paper.

I am not suggesting you are a claim jumper Al - far from it - I wish you luck in your endeavors. I am suggesting the methods you are employing will not find favor in the courts. A single decision does not make a right. If you study the Mining Acts you will see there was never the intention to allow one grantee to claim over another grantee. The intent was to ensure the United States got their full $5 per acre for known lode deposits found within proven placer patents.

The import of Clipper v. Eli and McMillen is all about patent rights. Attempting to bring administrative patent decisions into a local equity court is mixing venues way beyond what any local magistrate should be willing to consider. I wish you well in your efforts and hope you will consider some of my points about sufficiency of location.

Woof!
BigAl

Thank you Woof, for the case law, when I started down this path four years ago I knew very little about mining law. If my research had supported the other claimants position believe me when I say I would have dropped it like a hot potato. But all the case law that I have found thus far, and I have found numerous cases, supports my position. and since I found where three of the judges referred to Lindley on mines, I found and bought the book. A known load is defined in it and the case law to support it. Also, my partner has personal knowledge of this mine, as he was in it when his brother worked there back in the early 1950s. The other claimant had filed on two of the hardrock mines we now have, he had them for a few years, he then filed a notice of abandonment on them, we filed on them about three months later. The discovery that the other claimant is using will not support the prudent man test, he is using some old hydraulic workings, less than two acres, to tie up 158 acres of hardrock ground, mostly serpentine, and he is using the hyd workings as a corner and the discovery for two claims. 99 percent of what he has tied up is hardrock ground, not placer. but he is trying to sell it as hardrock ground. thus getting around filing a bunch of hardrock claims with the resulting cost of that. last but not least, his aliquot part description puts his sideline around 600 east of our portal on the one mine.  Anyway, enough grousing about this guy. I do appreciate any knowledge  that you share, and I am more than willing to share my research on this forum. thanks again, Big Al
BigAl

Hi Woof, you said that McMillen lost because he relied on former knowledge to establish his location.      He lost because the discovery shaft that he dug did not have mineral in it,  according to the case he did not have mineral in his discovery,  he should have used the original discovery shaft and dug it ten feet deeper according the the miners customs for that district. the judge even said he could have used it, but since he did not and Ferrum came along and filed on it before McMillen decided to use the original shaft, McMillen lost it.     The judge cited a (then) recent case, Baker city Water Co V Baker. if you haven't read it, you might want to, it talked about the rights of mining districts to make rules. I also because of this research discovered an old publication called the Mineral Reporter, I will be doing a lot of reading next winter when it's storming. Thank you again, Big AL
Woof!

Thanks for your reply Al.

Although McMillen did lose for lack of an actual discovery his complaint was very specifically based on prior knowledge of a valid discovery. That is what the court ruling was based on. McMillen claimed that his location was valid based on his prior knowledge. The courts consistently found that theory to be invalid. I gave you the link to the Supreme Court appeal. The justices wording in that appeal is not ambiguous it clearly states that locations by prior knowledge are not discoveries.

Quote:
Plaintiffs did not claim by virtue of a discovery of their own, but by virtue of their knowledge of the existence of a vein within the surveyed limits of that claim, though several hundred feet distant from the discovery shaft of the Eulalia, which he, McMillen, together with his co-owner, had previously discovered in the process of its development; and insisted that this knowledge was equivalent to an actual discovery by him of a vein within the Eulalia location.

The proposition of plaintiffs, as stated by their counsel, was this:
'That Mr. McMillen, as an owner and a locator of the Eulalia lode, knew at the time he placed his stake upon the Eulalia claim on the 30th of May, 1893, that he in company with the co-owners of the Pocket Liner claim had discovered ore in the shaft of the Pocket Liner claim; that at the moment that he placed his stake upon that ground, claiming the Eulalia claim as abandoned and unoccupied territory, that theretofore there had been a discovery of mineral within the requirements of the statutes of the United States and of the state of Colorado, and that that knowledge within the mind of Mr. McMillen constituted a complete, final, and perfect location of that mining claim, provided he did the other things requisite under the statutes of the state of Colorado, by sinking a discovery shaft 10 feet in depth, etc., etc., etc.'

The substance of the plaintiffs' argument was that the mere knowledge of the Eulalia locator of the existence of a vein in the Pocket Liner, the previous lode, made his location valid


As the original trial court pointed out it is not their duty to show how the McMillen claim could have been made valid. It was not valid and the fact that another did make a valid discovery on the same location does not prove a discovery for McMillen.

If you have a real interest in gleaning the actual details of McMillen's failed legal theories about known locations you should read the original trial court record. You might be surprised to find out that McMillen worked for the mining company that did make a successful discovery on that location. In fact McMillen participated in making the valid discovery. His personal knowledge of that discovery is what he was relying on to make his later claim a valid discovery.

My point in bringing up McMillen was to show that the courts have insisted on the actual discovery of mineral in place rather than a prior knowledge that a valuable mineral deposit existed at one point in time. Your friend having been inside a producing mine does not amount to a prior known location.

I hate to quote myself but I'd like to illustrate that I've made this very same point previously in our discussion.
Quote:
It's kind of hard to discover a location, that to your direct knowledge and experience, contains a valuable mineral deposit when that location is found in the middle of another's exclusive mineral claim. Relying on other's past discoveries obviously isn't good enough according to the Supreme Court in McMillen.


Now how are you going to legally dig a discovery shaft and discover a valuable mineral deposit, without trespassing, while a senior locator has exclusive rights to the surface and the minerals? The senior locator may give written permission to explore his claim but from what you have said he's pretty unlikely to do that.

As I have pointed out in a previous post on this forum a real understanding of the difference between mineral and non-mineral land would have led you to the conclusion that the abandoned previously known mineral lode would be non-mineral land until a current proven lode discovery is made. Past discoveries do not make for a currently valid claim.

Could you point out where in the 1870 Placer Act or the 1866 Act the issue of lodes located within placers is addressed? Both this lode over placer issue and the location by survey issues are properly discussed in the 1872 Act thread when the pertinent sections are addressed. This particular issue of lodes over placers would be better left to our discussion of Section 11 of the 1872 Act. I hope you will continue your study of this matter. I look forward to your informed input when we reach that portion of our studies. Alternatively you might wish to pursue your theory on a part of the forum that is not committed to lessons based on specific Acts of Congress.

Jumping ahead in these lessons before getting a grounding in the basis of these grants will lead to conclusions based on a desired outcome rather than the law. You seem to be pretty good at research Al. That is a valuable skill, I hope you will continue to research and bring your findings to this forum.

Woof!

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