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possessionary law

I read the act which states that each case shall be judged by the law of possession....what is the law of possession??? It isnt possession is 9/10th of the law is it???
Also are we still to know this one as well, meaning is it part of the first discussion


Yes, this will be visited both as a homwork assignment and then later in the classroom.  But to answer your question, I cite:

USC 30 § 26. Locators’ rights of possession and enjoyment
The locators of all mining locations made on any mineral vein, lode, or ledge, situated on the public domain,
their heirs and assigns, where no adverse claim existed on the 10th day of May 1872 so long as they comply with
the laws of the United States, and with State, territorial, and local regulations not in conflict with the laws of the
United States governing their possessory title, shall have the exclusive right of possession and enjoyment of all
the surface included within the lines of their locations.

-R.S. § 2322 derived from act May 10, 1872, ch. 152, § 3, 17 Stat. 91.[/b]

Unfortunately, 30 USC 26 is not the Law of Possession, but merely the codification of some of the rights granted and vested by the act of actual possession.

Personally, I'd refer you to the following instead.

"Doctrine & Law of Possessory Actions":


Nice nudge and well advised!


"Doctrine & Law of Possessory Actions" :   Without a doubt this gives meaning to the formation of: "The Jefferson Mining District"  

I did not see a heading/cover page that discloses where this doctrine is found/located.  Or did I miss it.


The Law of Possession is a common law, established by precedent opposed to a statutory law.

Ultimately, the Law of Possession is about who is controlling the land.

For example, many miners are under the errornous idea that you MUST go out and follow a procedure to file a claim in order to establish a right over a mineral deposit. That is not actually 100% correct or is it in the actual spirit of the mining law.

For example, you can go out into the Public Lands, discover an unappropriated mineral deposit, begin working it and lawfully hold it against others through occupation or an assertion that "this is mine". This assertion can take a number of forms, typically some type of posted notice or the leaving behind of tools. This is called "pedis possessio" and while a title recorded at the county, etc. will typically be regarded as superior to this type of right, it is not always the case. There are many court cases where it has worked the opposite, as the courts have ruled that open discovery and possession is as good as a title, unless challenged by a superior title that was obtained by the same degree of openess.

While most miners don't understand this from the standpoint of law and they have never heard of pedis possessio, there is something at the core of most miners that continues to recognize and understand it.

In recent decades this has essentially evolved into something akin to an inter-community code of courtesy. This is especially true in popular open mining areas during the summers where most the miners gathered at a spot will recognize that the spot where each miner is working is "his hole" and even if Miner A is the best friend of Miner B, Miner A recognizes that he is not welcome to jump into Miner B's hole unless that miner gives him some form of permission. Meanwhile, when new comers arrive they are told "Bill has been working that spot over there the last few weeks, but he isn't here today. Please leave Bill's spot alone." In many cases, if a group of miners are working a particular open section of the river, you will even see a newcomer ask before he puts in among them and if the reception is not welcoming, even if there is a lot of room in the river, he will move on to somewhere else. And if the newcomer doesn't ask, he may even find himself a bit ostracized, even if he knows them, until he does something that gains acceptance, such as helping someone move a boulder without being asked. In SW Oregon this has even evolved a little further where in if a miner sees a submerged bucket in the water, he will recognize it as a mark that someone is developing that spot in the river and even if NOBODY is around, he will intentionally stay clear of that bucket in the water.

While these may be just viewed as common courtesies among miners, what we are really seeing in this courtesy is a basic acknowledgement of the Law of Possession and in some cases, even the establishment of rough mining customs.

Possession is a complex topic.

Bouvier has the following to say on the subject, which is quite enlightening when you apply it to property:

POSSESSION, intern. law. By possession is meant a country which is held by no other title than mere conquest.
    2. In this sense Possession differs from a dependency, which belongs rightfully to the country which has dominion over it; and from colony, which is a country settled by citizens or subjects of the mother country. 3 Wash. C. C. R. 286.

POSSESSION, property. The detention or enjoyment of a thing which a man holds or exercises by himself or by another who keeps or exercises it in his name. By the possession of a thing, we always conceive the condition, in which not only one's own dealing with the thing is physically possible, but every other person's dealing with it is capable of being excluded. Thus, the seaman possesses his ship, but not the water in which it moves, although he makes each subserve his purpose.
    2. In order to complete a possession two things are required. 1st. That there be an occupancy, apprehension, (q.v.) or taking. 2dly. That the taking be with an intent to possess (animus possidendi), hence persons who have no legal wills, as children and idiots, cannot possess or acquire possession. Poth. h. It.; Etienne, h.t. See Mer. R. 358; Abbott on Ship. 9, et seq. But an infant of sufficient understanding may lawfully acquire the possession of a thing.
    3. Possession is natural or civil; natural, when a man detains a thing corporeal, as by occupying a house, cultivating grounds or retaining a movable in his custody; possession is civil, when a person ceases to reside in the house, or on the land which he occupied, or to detain the movable he possessed, but without intending to abandon the possession. See, as to possession of lands, 2 Bl. Com. 116; Hamm. Parties, 178; 1 McLean's R. 214, 265.
    4. Possession is also actual or constructive; actual, when the thing is in the immediate occupancy of the party. 3 Dey. R. 34. Constructive, when a man claims to hold by virtue of some title, without having the actual Occupancy; as, when the owner of a lot of land, regularly laid out, is in possession of any part, he is considered constructively in possession of the whole. 11 Vern. R. 129. What removal of property or loss of possession will be sufficient to constitute larceny, vide 2 Chit. Cr. Law, 919; 19 Jurist, 14; Etienne, h.t. Civ. Code of Louis. 3391, et seq.
    5. Possession, in the civil law, is divided into natural and civil. The same division is adopted by the Civil Code of Louisiana.
    6. Natural possession is that by which a man detains a thing corporeal, as by occupying a house, cultivating ground, or retaining a movable in his possession. Natural possession is also defined to be the corporeal detention of a thing, which we possess as belonging to us, without any title to that possession, or with a title which is void. Civ. Code of Lo. art. 3391, 3393.
    7. Possession is civil, when a person ceases to reside in a house or on the land which he occupied, or to detain the movable which he possessed, but without intending to abandon the possession. It is the detention of a thing, by virtue of a just title, and under the conviction of possessing as owner. Id. art. 3392, 3394.
    8. Possession applies properly only to corporeal things, movables and immovables. The possession of incorporeal rights, such as servitudes and other rights of that nature, is only a quasi. possession, and is exercised by a species of possession of which these rights are susceptible. Id. art. 3395.
    9. Possession may be enjoyed by the proprietor of the, thing, or by another for him; thus the proprietor of a house possesses it by his tenant or farmer.
   10. To acquire possession of a property, two things are requisite. 1. The intention of possessing as owner. 2. The corporeal possession of the thing. Id. art. 3399.
   11. Possession is lost with or without the consent of the possessor. It is lost with his consent, 1. When he transfers this possession to another with the intention to divest himself of it. 2. When he does some act, which manifests his intention of abandoning possession, as when a man throws into the street furniture or clothes, of which he no longer chooses to make use. Id. art. 3411. A possessor of an estate loses the possession against his consent. 1. When another expels him from it, whether by force in driving him away, or by usurping possession during his absence, and preventing him from reentering. 2. When the possessor of an estate allows it to be usurped, and held for a year, without, during that time, having done any act of possession, or interfered with the usurper's possession. Id. art. 3412.

When you are reading an Act/law, and it uses the word possession.  Would you go through all the definitional language and find that which is most applcable?

In Az,, while on club claims the bucket is used as well, signalling that a miner is occupying that hole.  Additionally there is placed a period of time by which the miner has to return and work his hole.  In other words the bucket can not be left there for a long period of time without the miner attending to his dig/work.  (No one leaves tools anymore as they will be stolen).

Yes, what you are seeing is a continuance of the Law of Possession. I believe that it's actually something very common in all states and all areas that has somehow managed carry forward from the 1850's. You especially see it on club claims. Another interesting thing about it is that nobody seems to have to be told about it. It just seems to be something inherent in most miners. Essentially, there is a memory of this in the mining community as a whole, even if the miners don't know where it originated or realize that there is law behind it.

As far as interpretation, historically, there have been two types of possessions  among miners. "Actual Possession" and "Constructive Possession". Constructive Possession is far more the commonest of the two today because we don't tend to occupy our claims these days. But study Adverse Possession too, as once you understand that, it sheds a lot of light on what we do.

One thing to keep in mind is that when the Mining Law was cofidied and it was written that "all cases will be judged by the Law of Possession", it was really designed for miner on miner or miner on "other settler" cases. We don't see much of that now. Things have changed a lot since 1866 in that regard.

That said, there is still an application today: miner on agency. In the Dusty Ford case where in BLM wished to burn Dusty's cabin and tried to prosecute him for theft after cleaning up garbage on his claim that others had dumped there, what defeated BLM was Dusty's title. The BLM employees were asked to produce a title and not only failed, but none of them could say for sure if BLM really held a title (BLM does NOT hold title). BLM asserted that they had property, but failed to produce evidence. Dusty DID however have a title - his location notice - and he beat BLM.

That is a very good point:  Asking BLM to produce titile.  I am going to put that one down in my notebook for future need; if one should arise.  Interestingly though, in the Southern Oregon situation(s) of old, the BLM and USFS took miners to court and (according to stories my grandfather told me as a child) argued before the court that miners did NOT need to occupy (live on) their claims.  They argued that the miner could commute from town.  In some cases before the courts; in those days, the issue of "grandfathered use/occupancy" was ruled to be established and some miners, like Glen Young were allowed to live on their claims until their death.  I know you are aware of such cases and bring attention to it; only to bring further thought and consideration to the issue.  


bejay: Good point. I believe that the actions of the courts for too long, have been more to do with the rambling of the government, over the lack of accountability to the law. Miners have for generations, kept silent and suffered greatly. but that is changing and with knowledgeable miners understanding their rights, will be able to hold not only the government, but the courts accountable under the laws.

It may not be pretty.. but it's going to be damn interesting.

I'm aware of those cases, as you know.

The biggest issue with those cases is that occupation is a RIGHT. It cannot be questioned, as this grant is to be construed in favor of the miner until it is proven that he is a trespasser. (ie. It is proven that he made an entry for illegitimate purposes. In the old days, building a whorehouse on your claim was held up as the best example of an illegitimate entry - you get the idea here). Basically, it is to be assumed that an entry is valid until there is some sort of cause to prove otherwise, so the question of a "need for occupation" is actually mute as far as the law is concerned. (For an example, see Robertson v. Smith - a very famous case).

Obviously, that is not what took place in the era that you are reffering to. In most cases, they duped the miners into signing some sort of contract recognizing an authority. Ultimately, this is the biggest issue. Forum Index -> Mining Law Tibits
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