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Classroom #2 - Homework Assignment #2
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beebarjay



Joined: 30 Dec 2011
Posts: 230
Location: Central Oregon Coast & Az

PostPosted: Tue Jan 24, 2012 6:42 am    Post subject:  Reply with quote

So, here we are in the classroom.  We had two assignments.  I participted in both.  My classroom #2 assignment was reposted by Hefty on page one of this thread.  I did not get a response to the entry I made.   But in reading the other evaluations I felt I had answered it correctly.  So I guess I am lost as to just what I am suppose to be doing; other than reading what others say.  Direct me to read or evaluate something and I will do so.  Is the assignment directing us to find subsequent acts in the Acts themselves?

bejay
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beebarjay



Joined: 30 Dec 2011
Posts: 230
Location: Central Oregon Coast & Az

PostPosted: Tue Jan 24, 2012 7:17 am    Post subject: Reply with quote

Hefty wrote:
1866, can you please clarify this part?

"the states also play roles in insuring the orderly disposal of water rights"

Hefty


I will offer an opinion for what it is worth.  Let's say there are many miners on a river/stream.  One upstream miner can not withhold all the water.  Or in agriculture one farmer can not withold all the water.  States have the authority to step in and dispose of those water rights in an orderly manner.  This very concept is carried out today.  This may be what Woof is refering to in his question about what other acts have progressed from the mining acts.

bejay
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lastchancelarry



Joined: 30 Dec 2011
Posts: 158
Location: hood river, ore

PostPosted: Tue Jan 24, 2012 9:09 am    Post subject: Reply with quote

Bejay, I believe that is correct....that is a perfect real world application/example of the meaning of this: in the absence of necessary legislation by Congress, the local legislature of any State or Territory may provide rules for working mines involving easements, drainage, and other necessary means to their complete development
One of these elders wrote in here somewhere that in oregon you can not be land locked...
so the states set rules and regs to ensure everyone can get to their land..(I would assume this is way to stop some of the shootings Laughing ) And if need be it will be settled in court under possessionary law...meaning the second and third grantees in the area cannot lock out the first grantee from his land just because they claimed the land surrounding him..#1 can still have access to water (canal) and a road (ingress/egress) into his claim.....
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lastchancelarry



Joined: 30 Dec 2011
Posts: 158
Location: hood river, ore

PostPosted: Tue Jan 24, 2012 9:52 am    Post subject: Reply with quote

"But I guess the point about the 1000's of Patents is supporting evidence of it being the very foundation.  But would not a simple statement saying: "When one reads all the patents that have been written, (or thousands of them), one can see that the 1866 Act is the very basis of the Grant....it is the grant.......it is that by which all other Acts extend".  In looking at the growing list of students it would appear that there are those wanting to learn and those who fail to be vocal on the forum.  
I too felt the statement was a bit harsh, and the reason for such a statement exscaped me."
Everyone on here, each every one of us have different learning styles...I have to read it I cannot listen to understand..In college I had to listen and take notes and then read it..It appears bejay, you are more visual...needing examples...examples help me as well...

"Thanks Larry, I beleive you are right.
Must be the oldtimers again.
Printer running."Hefty

Hefty is struggling with oldtimers, so we are gonna have to repeat ourselves like 22 times for hefty.. Laughing  Laughing just playin bud..

Everyone has different teaching styles as well...It is apparent as it should be that these 2 are not giving it away easily ...1866 will usually give you a hint, pushing you to go back and read/find it.......Woof pushes harder than 1866..see above, he is pushing us to go find the answer...be prepared to be pushed..do not take it personally...and enjoy...
GP likes debate /discussion....hey throws out a question and we debate/ discuss.....I can learn that way as well
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Woof!



Joined: 09 Jan 2012
Posts: 90
Location: Gold Trail

PostPosted: Tue Jan 24, 2012 10:05 am    Post subject: Reply with quote

Here are some court decisions that might help clarify things for you bejay.
Watch what you wish for you might just get it.  Very Happy


1866 Act wrote:
Section 5
As a condition of sale, in the absence of necessary legislation by Congress, the local legislature of any State or Territory may provide rules for working mines, involving easements, drainage. and other necessary means to their complete development; and those conditions shall be fully expressed in the patent.


STATE LAWS FOR WORKING MINES.
This section permits any State or Territory to provide rules for working mines and for their complete development in the absence of necessary legislation by Congress.

Calhoun Gold Min. Co. v. Ajax Gold Min. Co., 182 U. S. 499
Butte City Water Co. v. Baker, 196 U. S. 119

This section provides that in the absence of necessary legislation by Congress a State legislature may provide rules for working mines involving easements, drainage, and other necessary means to their complete development.

Calhoun Gold Min. Co., v. Ajax Gold Min. Co., 27 Colo. 1

MINING EASEMENTS.
A State may enact such laws for mining easements as under the construction of State courts might grant tunnel rights.
Baillie v. Larson, 138 Fed. 177

By this section easements for working mines, drainage, etc., are excluded from the purview of the mining statute, leaving these matters for state regulation.

Jacob v. Day, 111 Cal. 571

The reservation of an easement for the proper working of a mining claim must be inserted in a patent where it is necessary to protect any such easement.

Hendricks, In re, Sickels' Min. L. &; D. 464

An easement for a tail race essential in carrying off water and debris from the operation of a hydraulic mine is not an easement within the contemplation of this section.

Jacob v. Day, III Cal. 571

1866 Act wrote:
Section 9
Whenever, by priority of possession, rights to the use of water for
mining, agricultural, manufacturing, or other purposes .. have vested
and accrued, and the same are recognized and acknowledged by the
local customs, laws, and the decisions of courts, the possessors and
owners of such vested rights shall be maintained and protected in
the same; and the right of way for the construction of ditches and
canals for the purposes herein specified is acknowledged and con-
firmed; but whenever any person, in the construction of any ditch
or canal, injures or damages the possession of any settler on the pub-
lic domain, the party committing such injury or damage shall be liable
to the party injured for such injury or damage.


The object of this section was to give the sanction of the Government to possessory rights which had previously rested solely upon the local customs, laws, and decisions, and to prevent such rights being lost upon the sale of the land.

Jennison v. Kirk 98 U. S. 453
Kern River Co., in re, 38 L. D. 302
Miocene Ditch Co. v. Jacobsen, 2 Alaska 567
Bee Isaacs v. Barber, 10 Wash. 124

This section is rather a voluntary recognition of a preexisting right of possession constituting a valid claim to its continued use than the establishment of a new right.

Broder v. Water Co., 101 U. S. 274
Mohl v. Lamar Canal Co., 128 Fed. 776
Hoge v. Eaton 135 Fed. 411
See Eaton v. Hoge 141 Fed. 64.
Van Dyke v. Midnight Sun Min., etc., Co., 177 Fed. 85
Atchison v. Peteerson, 87 U. S. 507.
Basey v. Gallagher, 87 U. S. 670.
Forbes v. Gracey, 94 U. S. 762.
Jennison v. Kirk, 98 U. S. 463.

The act of 1866 recognized but did not create the water rights and the right to the use of water for mining and other purposes therein mentioned:

Jones v. Adams, 19 Nev. 78
Carson v. Gentner, 33 Oreg. 512
Isaacs v. Barber, 10 Wash. 124
Willey v. Decker, 11 Wyo. 496
See Reno Smelting, etc., Works v. Stevenson 20 Nev. 269
United States v. Rio Grande, etc., Irrig. Co., 174 U. S. 690.

Neither this nor the succeeding section contemplate the reservation of land for the purpose of Constructing ditches or reservoirs.
Huerfano Valley Ditch &; Reservoir Co., In re, 10 L. D. 171

GRANT OF WATER RIGHTS.
This section is not only found in the body of the mining acts passed by Congress and classified therewith by statute, as well as by courts and law writers, but next to the right to mine on the public domain it grants to miners the most valuable incident thereto, the right to use the public waters in mining, which is the very essence of the mineral laws, without which mining could not be made profitable.

McFarland v. Alaska Perseverance Min. Co., 3 Alaska 308

Woof!
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Woof!



Joined: 09 Jan 2012
Posts: 90
Location: Gold Trail

PostPosted: Tue Jan 24, 2012 10:30 am    Post subject: Reply with quote

This one is for those who still might be thinking the State could have a right to take water rights for mining.


A State by its statute can not take from a private individual the water rights granted him by the General Government.

Howell v.Johnson, 89 Fed. 556

The power of Congress over nonnavigable streams flowing through the public lands is superior to that of the local State, as such streams are a part of the public domain, and Congress may grant the use of such streams for mining or other purposes separate from the land.

Howell v.Johnson, 89 Fed. 556
See Morris v. Bean, 123 Fed. 618
Morris v. Bean, 146 Fed. 423
Bean v. Morris, 159 Fed. 651


Woof!
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lastchancelarry



Joined: 30 Dec 2011
Posts: 158
Location: hood river, ore

PostPosted: Tue Jan 24, 2012 10:55 am    Post subject: Reply with quote

"This one is for those who still might be thinking the State could have a right to take water rights for mining."
Replace "a right" with authority in woofs statement
From bouviers:

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. Dyer, 102; Kielw. 83. 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 5 Pet. 390; 3 Story, R. 411, 425; 11 Gill & John. 58; 26 Wend. 485; 15 Pick. 303, 307; 1 McMullan, 453; 4 Scamm. 127, 133; 2 Inst. 597. See Delegation
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Hefty



Joined: 30 Dec 2011
Posts: 132
Location: sacramento ca

PostPosted: Tue Jan 24, 2012 3:01 pm    Post subject: Reply with quote

Thanks guys!
Only 17 more times and I might get it. Just Kidding,Got it.

Hefty

P.S. Going "D" this spring.
Or maybe mineral mining on the river bottom. Cool


Last edited by Hefty on Tue Jan 24, 2012 3:11 pm; edited 1 time in total
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beebarjay



Joined: 30 Dec 2011
Posts: 230
Location: Central Oregon Coast & Az

PostPosted: Tue Jan 24, 2012 3:09 pm    Post subject: Reply with quote

Woof! wrote:
This one is for those who still might be thinking the State could have a right to take water rights for mining.


A State by its statute can not take from a private individual the water rights granted him by the General Government.

Howell v.Johnson, 89 Fed. 556

The power of Congress over nonnavigable streams flowing through the public lands is superior to that of the local State, as such streams are a part of the public domain, and Congress may grant the use of such streams for mining or other purposes separate from the land.

Howell v.Johnson, 89 Fed. 556
See Morris v. Bean, 123 Fed. 618
Morris v. Bean, 146 Fed. 423
Bean v. Morris, 159 Fed. 651


Woof!


"Granted him by the General Government"  (I'll go to Boviers to look up GENERAL)
BUT:
All this presented is one of the most powerful statements I have seen yet.  If I were going into a courtroom to defend an action I did while mining using water, would not this be a very important tool to use?  Of course I would not exclude the mining Acts themselves and the power of the Grant.  Not having read the cases cited I would imagine the very essence of the case rulling developing such language would be deteremined from the miners entering the Public Domain....Mineral Estate Grant.

I will focus some attention to all that Woof cited.  Very good info.  Will take me some time to obsorb it all.  Thanks

bejay
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beebarjay



Joined: 30 Dec 2011
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Location: Central Oregon Coast & Az

PostPosted: Tue Jan 24, 2012 3:54 pm    Post subject: Reply with quote

Woof! wrote:
Here are some court decisions that might help clarify things for you bejay.
Watch what you wish for you might just get it.  Very Happy



GRANT OF WATER RIGHTS.
This section is not only found in the body of the mining acts passed by Congress and classified therewith by statute, as well as by courts and law writers, but next to the right to mine on the public domain it grants to miners the most valuable incident thereto, the right to use the public waters in mining, which is the very essence of the mineral laws, without which mining could not be made profitable.

McFarland v. Alaska Perseverance Min. Co., 3 Alaska 308

Woof!


All that was stated in the total thread is great info.  But is this statement and the case rulling not a very important reference.  Understanding the Mineral Estate Grant, and the power conveyed from the mining Acts is very important.  I am not saying that understanding the Acts is not vitally important.  But are not these cases the the icing on the cake?  Many have always thought that "talk comes cheap"....itis easy to say the Acts say this and the Acts say that.  But when challenges occurr and the "truth is in the pudding".....are these not substantial supporting arguments?

I don't know...maybe it is just me, but if someone were to say to me: "The mining acts are old stuff that does not apply anymore"......The truth is before you in case challenges.  The Mineral Estate Grant is alive and well.  I know there are some like MEG, Boxy, Woof, 1866, and Hal who are knowledgable about the truth.  I can only imagine how much study has occurred by those who are extremely knowledgeable.  

Honestly speaking I have received many PM's from indoividuals who believe the Grants are historical laws that do not apply.  I am getting a very good basic understanding of the Acts studied so far......that is not to say each phrase and term does not need to be readily comprehendable.

Just as a thought:  Earlier on a GPAA forum Boxy brought to task the transcribing of a certain section of one of the mining Acts; utilizing the meaning of specific words within the Sect. per Boviers definitions of the time.  I wish I knew how to paste and post as I would bring it forth as an example of how the acts could be written in a sense that conveys to the reader a clear understanding of their meaning. I know it was extremely beneficial in my learning.  Thanks Larry for posting the definitions.  Much appreciated.    

Again, all very good info.

bejay


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