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1870 Placer Mining Act
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Glindberg



Joined: 04 Jan 2012
Posts: 101
Location: Minnesota

PostPosted: Tue Feb 07, 2012 10:56 am    Post subject:  Reply with quote

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
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lastchancelarry



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

PostPosted: Wed Feb 08, 2012 6:24 am    Post subject: Reply with quote

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
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daubster



Joined: 01 Jan 2012
Posts: 30

PostPosted: Wed Feb 08, 2012 3:29 pm    Post subject: Reply with quote

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.
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lastchancelarry



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PostPosted: Wed Feb 08, 2012 4:54 pm    Post subject: Reply with quote

daubster...thumbs up!
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beebarjay



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

PostPosted: Thu Feb 09, 2012 8:46 am    Post subject: Reply with quote

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
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beebarjay



Joined: 30 Dec 2011
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PostPosted: Thu Feb 09, 2012 9:39 pm    Post subject: Reply with quote

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
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Last edited by beebarjay on Fri Mar 30, 2012 11:57 pm; edited 5 times in total
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beebarjay



Joined: 30 Dec 2011
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PostPosted: Sat Feb 11, 2012 7:29 pm    Post subject: Reply with quote

"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
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Glindberg



Joined: 04 Jan 2012
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PostPosted: Mon Feb 20, 2012 10:50 am    Post subject: Reply with quote

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

Gary
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Woof!



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

PostPosted: Mon Feb 20, 2012 6:28 pm    Post subject: Reply with quote

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!
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beebarjay



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

PostPosted: Mon Feb 20, 2012 9:15 pm    Post subject: Reply with quote

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


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