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Mining Law terms Defined

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.

AUTHORITY: 5. – 2. The authority given must have been possessed by the person who delegates it, or it will be void; and it must be of a thing lawful, or it will not justify the person to whom it is given. It is a maxim that delegata potestas non potest delegari, so that an agent who has a mere authority must execute it himself, and cannot delegate his authority to a sub-agent.  See Delegation

DELEGATION, contracts. The transfer of authority from one or more persons to one or more others.

2. In general, all persons sui juris may delegate to another authority to act for them, but to this rule there are exceptions; 1st. On account of the thing to be done; and 2d. Because the act is of a personal nature, and incapable of being delegated. 1. The thing to be done must be lawful; for an authority to do a thing unlawful, is absolutely void.

Ex Post Facto Law: Websters New World Law Dict.; A law intended to apply to crimes or events that took place before its passage. The United States Constitution forbids the passage of ex post facto criminal laws, on the principle that it is wrong to punish an act which was not illegal when committed.
Bouvier's: EX POST FACTO, contracts, crim. law. This is a technical expression, which signifies, that something has been done after another thing, in relation to the latter.

2. An estate granted, may be made good or avoided by matter ex post facto, when an election is given to the party to accept or not to accept. 1 Co . 146.

3. The Constitution of the United States, art. 1, sec. 10, forbids the states to pass any ex post facto law; which has been defined to be one which renders the act punishable in a manner in which it was not punishable when it was committed. 6 Cranch, 138. This definition extends to laws passed after the act, and affecting a person by way of punishment of that act, either in his person or estate. 3 Dall. 386; 1 Blackf. Ind. R. 193 2 Pet. U. S. Rep. 413 1 Kent, Com. 408; Dane's Ab. Index, h. t.

Land: This term comprehends any found, soil or earth whatsoever,as meadows, pastures, woods, waters, marshes, furze and heath.It has an indefinite extent upwards as well as downwards; therefore land, legally includes all houses and other buildings standing or built on it; and whatever is in a direct line between the surface and the centre of the earth, such as mines of metals and fossils. 1 Inst. 4 a; Wood's Inst. 120; 2 B1. Com. 18; 1 Cruise on Real Prop. 58. In a more confined sense, the word land is said to denote "frank tenement at the least." Shepp. Touch. 92. In this sense, then, leaseholds cannot be said to be included under the word lands. 8 Madd. Rep. 635. The technical sense of the word land is farther explained by Sheppard, in his Touch. p. 88, thus: "if one be seised of some lands in fee, and possessed of other lands for years, all in one parish, and he grant all his lands in that parish (without naming them) in fee simple or for life; by this grant shall pass no, more but the lands he hath in fee simple." It is also said that land in its legal acceptation means arable land. 11 Co. 55 a. See also Cro. Car. 293; 2 P. Wms. 458, n.; 5 Ves. 476; 20 Vin. Ab. 203.

2. Land, as above observed, includes in general all the buildings erected upon it; 9 Day, R. 374; but to this general rule there are some exceptions. It is true, that if a stranger voluntarily erect buildings on another's land, they will belong to the owner of the land, and will become a part of it; 16 Mass. R. 449; yet cases are, not wanting where it has been decided that such an erection, under peculiar circumstances, would be considered as personal property.

TO VEST, estates. To give an immediate fixed right of present or future enjoyment; an estate is vested in possession when there exists a right of present enjoyment; and an estate is vested in interest, when there is a present fixed right of future, enjoyment.
EX. 1866 ACT: SEC. 9. And be it further enacted, That whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued,

TRUST, contracts, devises. An equitable right, title or interest in
property, real or personal, distinct from its legal ownership;
or it is a
personal obligation for paying, delivering or performing anything, where the person trusting has no real. right or security, for by, that act he confides altogether to the faithfulness of those entrusted. This is its most general meaning, and includes deposits, bailments, and the like. In its more technical sense, it may be defined to be an obligation upon a person, arising out of a confidence reposed in him, to apply property faithfully, and according to such confidence. Willis on Trustees,

A work in progress..I propose definitions from "our" dictionary
No poll required Im gonna learn by doing...If someone disagrees.let me have it

My intent here is to have a quick reference to some key terms with the meat and potatoes highlighted for aiding in the reading...Not the whole dictionary...just some of the more used terms that are key to our application....
I began with land and this is the format I will follow unless youalls have some suggestions..
I am happy to continue to moderater or update abbreviations as well if you choose
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COLOR, pleading. It is of two kinds, namely, express color, and implied color. 2. Express color. This is defined to be a feigned matter, pleaded by the defendant, in an action of trespass, from which the plaintiff seems to have a good cause of action, whereas he has in truth only an appearance or color of cause. The practice of giving express color in pleas, obtained in the mixed actions of assize, the writ of entry in the nature of assize, as well as in the personal action of trespass. Steph. on Plead. 230; Bac. Ab. Trespass, 14.

3. It is a general rule in pleading that no man shall be allowed to plead specially such plea as amounts to the general issue, or a total denial of the charges contained in the declaration, and must in such cases plead the general issue in terms, by which the whole question is referred to the jury; yet, if the defendant in an action of trespass, be desirous to refer the validity of his title to the court, rather than to the jury; he may in his plea stated his title specially, by expressly giving color of title to the plaintiff, or supposing him to have an appearance of title, had indeed in point of law, but of which the jury are not competent judges. 3 Bl. Com. 309. Suppose, for example, that the plaintiff wag in wrongful possession of the close, without any further appearance of title than the possession itself, at the time of the trespass alleged, and that the defendants, entered upon him in assertion of their title: but being unable to set forth this title in the pleading, in consequence of the objection that would arise for want of color, are driven to plead the general issue of not guilty. By this plea an issue is produced whether the defendants are-guilty or not of the trespass; but upon the trial of the issue, it will be found that the question turns entirely upon a construction of law. The defendants say they are not guilty of the trespasses, because they are not guilty of breaking the close of the plaintiff, as alleged in the declaration; and that they are not guilty of breaking the close of the plaintiff, because they themselves had the property in that close; and their title is. this, that the father of one of the defendants being seised of the close in fee, gave it in tail to his eldest son, remainder in tail to one of the defendants; the eldest son was disseised, but made continual claim till the death of the disseisor; after whose death, the descent being cast upon the heir, the disseisee entered upon the heir, and afterwards died, when the remainder took effect in the said defendant who demised to the other defendant . Now, this title involves a legal question; namely, whether continual claim will no preserve the right of entry in the disseisee, notwithstanding a descent cast on the heir of the disseisor. (See as to this point, Continual Claim.) The issue however is merely not guilty, and this is triable by jury; and the effect, therefore, would be, that a jury would have to decide this question of law, subject to the direction upon it, which they would receive from the court. But, let it be supposed that the defendants, in a view to the more satisfactory decision of the question, wish to bring it under the consideration of the court in bank, rather than have it referred to a jury. If they have any means of setting forth their title specially in the plea, the object will be attained; for then the plaintiff, if disposed to question the sufficiently of the title, may demur to the plea, and thus refer the question to the decision of the judges. But such plea if pleaded simply, according to the state of the fact, would be informal for want of color; and hence arises a difficulty.

4. The pleaders of former days, contrived to overcome this difficulty in the following singular manner. In such case as that supposed, the plea wanting implied color, they gave in lieu of it an express one, by inserting a fictitious allegation of some colorable title in the plaintiff, which they, at the same time avoided by the preferable title of the defendant. S Step . Pl. 225 Brown's Entr. 343, for a form of the plea. Plowd. Rep. 22 b.

5. Formerly various suggestions of apparent right, might be adopted according to the fancy of the pleader; and though the same latitude is, perhaps, still available, yet, in practice, it is unusual to resort to any except certain known fictions, which long usage has applied to the particular case for example, in trespass to land, the color universally given is that of a defective charter of the demise. See, in general, 2 Saund. 410; 10 Co. 88; Cro. Eliz. 76; 1 East, 215; Doct. Pl. 17; Doct. & Stud. lib. 2, c. 53; Bac. Abr. Pleas, I 8; Trespass, I 4; 1 Chit. Pl. 500 Steph. on Pl. 220.

6. Implied color. That in pleading which admits by implication, an apparent right in the opposite party, and avoids it by pleading some new matter by which that apparent right is defeated. Steph. Pl. 225.

7. It is a rule that every pleading by way of confession and avoidance, must give color; that is, it must admit an apparent right in the opposite party, and rely, therefore, on some new matter by which that apparent right is defeated. For example, where the defendant pleads a release to an action for breach of covenant, the tendency of the plea is to admit an apparent right in the plaintiff, namely, that the defendant did, as alleged in the declaration, execute the deed and break the covenant therein contained, and would therefore, prima facie, be liable on that ground; but shows new matter not before disclosed, by which that apparent right is done away, namely, that the plaintiff executed to him a release. Again, if the plaintiff reply that Such release was obtained by duress, in his, replication, he impliedly admits that the defendant has, prima facie, a good defence, namely, that such release was executed as alleged in the plea; and that the defefadant therefore would be discharged; but relies on new matter by which the plea is avoided, namely, that the release was obtained by duress. The plea, in this case, therefore, gives color to the declaration, and the replication, to the plea. But let it be supposed that the plaintiff has replied, that the release was executed by him, but to another person, and not to the defendant; this would be an informal replication wanting color; because, if the release were not to the defendant there would not exist even an apparent defence, requiring the allegation of new matter to avoid it, and the plea might be sufficiently answered by a traverse, denying that the deed stated in the plea is the deed of the plaintiff. See Steph. Pl. 220; 1 Chit. Pl. 498; Lawes, Civ. Pl. 126; Arch. Pl. 211; Doct. Pl. 17; 4 Vin. Abr. 552; Bac. Abr. Pleas, &e. I 8; Com. Dig. Pleader, 3 M 40, 3-M 41. See an example of giving color in pleading in the Roman law, Inst. lib. 4, tit 14, De replicantionibus.

LEX TERAE. The law of the land. The phrase is used to distinguisb this from the civil or Roman law.

"Bivens Action":

"Bivens Action":

BIVENS ACTIONS allowing for Damages remedies for constitutional violations committed by federal agents were not available until 1971. The Supreme Court had long held that federal courts had the power to grant relief not expressly authorized by statute as well as the power to adjust remedies to grant relief made necessary by the particular circumstances of the case at hand.

However, it was not until the Court's decision in Bivens v. 6 unknown named federal agents 403US388, 91SCT1999, 29LE2d 619(1971) that a violation of a specific constitutional amendment by a Federal employee was recognized as a cause of action for monetary damages.

Without Bivens Actions, the right to hold Federal employees personally liable for malicious, vicious and even depraved actions is severely limited under the Civil Rights Act of 1964 and subsequent revisions.  For example, a Federal, former Federal employee or non Federal employee treated with grievous and malicious indifference, would have no recourse to file suit against the parties involved in US Federal Court.  A Federal Employee would only have recourse to filing against the "Department Head," such as the Attorney General.  Thus, people responsible for acts of brutality and sadism in violation of the United States Constitution, would be protected by the Federal Government.  This allows for a continuation of these actions against others.

In the case of Bivens vs six employees of the US Department of Justice, the Plaintiff alleged that Federal Agents had arrested him and searched his home without a warrant or probable cause in violation of the 4th amendment's ban against unreasonable searches and seizures.

The Court upheld the reasonableness of the complaint in the face of a motion to dismiss for failure to state a cause of action. They rejected the argument that a State Tort action provided an adequate and exclusive judicial remedy.

Even though there was no specific authority for such a civil action in the Constitution, the Bill of Rights, or any Federal Statute, the Court acknowledged a judicial remedy on the basis of the historic power of the Federal courts to redress personal injury through the particular monetary damages.

These judicially created Causes of Action, known as BIVENS ACTIONS , provided the right to secure monetary damages.

While there was no Federal statutory or constitutional basis for such a cause of action, the historic use of damages by Federal courts as a remedy for the invasion of personal liberty interests led the Court to conclude that a Plaintiff should be allowed to redress a violation of the Plaintiff's 4th amendment rights by the federal employees with a monetary award.

The essence of TRUE CIVIL LIBERTY consists of the right to protection of the laws of the Federal Government.  Because of this, the Court concluded that monetary damages were a valid way of enforcing the Constitution.

Furthermore, they felt that reliance on State laws was not sufficient for redress since the states might have a conflict of interest between actions and redress. The Court's concern was what they felt to be a lack of real relief for constitutional violations.

The Court’s additional concern was their perception that an agent of the Federal Government acting unconstitutionally in the name of the U.S., possesses a far greater capacity for harm than an individual exercising less authority.

A remedy of monetary damages for plaintiffs injured by federal officials and agents thus became a means to compensate and vindicate a Plaintiff's claim.  As of now, Bivens claims are still primarily used to redress infractions by law enforcement and others in the criminal justice system.  On the other hand, the Supreme Court has expanded the scope of a Bivens Action from violations of just the Fourth Amendment so that it now includes violations of the First and Sixth.

The US Supreme Court has subsequently restricted  Bivens by refusing to allow Federal employees whose First Amendment rights are violated by their superiors (as in the case of Caryl Leventhal vs. Janet Reno) to file suit against their tormentors.  This theory is based on the assumption that they are in an employment relationship governed by "comprehensive" procedural and substantive provisions for giving meaningful remedies.  In the Federal suit involving Caryl Leventhal vs. Janet Reno, their assumption has proven itself to be in error.  Such over-optimism is evident by reviewing "The Administrative Process" page of this site.

(Author's Note: The Supreme Court's decision is predicated on comprehensive and assumedly equal treatment of a complainant by Federal employees administering the procedural process.  In Caryl Leventhal's case, obstruction of justice, threat of death, unequal treatment, perjury and threat of prosecution by the US Attorney's Office Criminal Division were used to keep Caryl Leventhal from obtaining equal treatment in this process.  Possibly more important to the safety of Americans, this was essentially retaliation for Caryl Leventhal being a whistle blower.  Subsequently documented criminals and potential terrorists were being allowed into America by way of the Immigration and Naturalization Service selling Green Cards and pushing through paperwork that was incomplete.  Unfortunately there is no redress in federal court for this type of complaint and the USDOJ INS Administrative complaint process refused to address this basis.

This was done to protect individuals who had deprived her of rights guaranteed under the United States Constitution.  Inasmuch as solid evidence exists to show that Ms. Leventhal was denied fair and equal due process, an argument might be made that she is excluded from the Supreme Court's restriction on Federal employees filing individually against other Federal employees.  The Supreme Court's allowing a Bivens Action is based on a citizen not having sufficient redress.  Certainly, a Federal employee being treated prejudicially in the Federal procedural process is being denied this level of redress assumed to exist by the Supreme Court.  In fact, she has no more procedural and substantive provisions for giving meaningful remedies than a non-Federal employee.  

Under these circumstances, denying Caryl Leventhal to file a Bivens Action would be denying her equal protection and redress of other citizens, simply because she was employed by the Federal Government.)

Federal employees are in a position of either "playing the game," no matter how corrupt, savage or exploitative, or simply keeping quiet.  

People who might be in a position to protect the citizenry, are subject to extreme retaliation without unimpeded recourse to the US Federal Court system.  

Contrary to abusers in the private sector of the economy, innocent Americans can still be victimized by the vast majority of government employees who know they will be protected from personal liability and responsibility.  Federal employees are even more vulnerable to abuse by their co-workers.

A Bivens claim can be based on conspiracy of federal agents by showing:

(1) the existence of an express or implied agreement among the defendants to deprive someone of constitutional rights, and

(2) an actual deprivation of those constitutional rights resulting from the agreement.

Written and Copyright © by:  LTC Michael G. Leventhal Forum Index -> Mining Law Tibits
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