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1870 Placer Mining Act
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Glindberg



Joined: 04 Jan 2012
Posts: 101
Location: Minnesota

PostPosted: Sat Feb 25, 2012 9:45 pm    Post subject:  Reply with quote

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.
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lastchancelarry



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Location: hood river, ore

PostPosted: Sat Mar 10, 2012 7:29 am    Post subject: Reply with quote

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...
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lastchancelarry



Joined: 30 Dec 2011
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PostPosted: Tue Mar 27, 2012 2:12 am    Post subject: Reply with quote

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......
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Woof!



Joined: 09 Jan 2012
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Location: Gold Trail

PostPosted: Fri Mar 30, 2012 5:13 pm    Post subject: Reply with quote

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!
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Woof!



Joined: 09 Jan 2012
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PostPosted: Fri Mar 30, 2012 5:21 pm    Post subject: Reply with quote

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!
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daubster



Joined: 01 Jan 2012
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PostPosted: Sat Mar 31, 2012 1:28 am    Post subject: Reply with quote

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
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Woof!



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

PostPosted: Sat Mar 31, 2012 2:03 pm    Post subject: Reply with quote

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!
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Glindberg



Joined: 04 Jan 2012
Posts: 101
Location: Minnesota

PostPosted: Fri Apr 13, 2012 1:11 am    Post subject: Reply with quote

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
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Woof!



Joined: 09 Jan 2012
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PostPosted: Sat Apr 14, 2012 10:50 pm    Post subject: Reply with quote

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.
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Glindberg



Joined: 04 Jan 2012
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PostPosted: Sun Apr 15, 2012 2:33 am    Post subject: Reply with quote

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

Gary


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