readily identified so recognized, and having definite place on the earth's surface, would be sufficient for all requirements of the act, to define "the lines of their original purchase." That an official survey had in fact been made by the government fixing substantially the same boundary is important only in affording record evidence of what before rested only in parole. It is of higher evidential value because matter of record. One buying before any approved survey of the tract purchased must necessarily do so with view to some accepted, supposed, or believed lines as to its extent, and such are the lines of original purchase. The existence of a survey, accepted, and referred to by the parties in their deed, though not finally approved, only serves as a better and higher degree of evidence to make definite the lines, which otherwise could be proved only by parole testimony. The use of the land for grazing and herding was that to which it was best adapted in the then condition of the country, and the possession by pasturing the claimant's stock, and exclusion of that of others by means of a keeper, or herder, instead of by a fence, was nevertheless a maintaining of possession. Webber v. Clark (74 Cal., 11); McCreery. Everding (44 Cal., 246). Possession is the subjection of the locus, or thing, to the dominion and control of the claimant; the exclusion of others from its use and its appropriation to one's own use. If this is done, by whatever means, by fence or by keeper, possession is maintained. The extent, nature, and kind of improvement necessary to enable one to claim benefit of the act are not therein defined. There were no buildings upon the lands applied for. Some of the land was brought into cultivation, but the number of acres or proportion in that way improved does not appear in the testimony. It would certainly not be a reasonable construction of the act to say there must be some kind of a structure on every government subdivision of forty acres. Improvements in the nature of structures are usually for convenience assembled about the proprietor's house, and so ordinarily stand on a single tract of few acres, while made for the utilization of his entire holding, though that may include several thousand acres. It would seem therefore that by "improved" the act contemplated the utilization of land to some recognized purposes of settled and civilized life, not necessarily by structures like houses, barns, &c., especially where such structures are elsewhere located on neighboring land and adapted to use in connection with the land applied for, and that lands so used and occupied are within the intendment of the statute. Couts paid a valuable consideration to the former possessor and himself succeeded to the possession, and, until his death in 1874, eight years after his purchase, exercised dominion to the boundaries of the Hays survey. Couts being dead and his testimony lost, such facts must be accepted as raising a strong presumption of perfect good faith in his purchase. No evidence offered directly negatives his entire good faith. It is argued that as Couts was a prudent man, well versed in business affairs, perfectly conversant with the Spanish language, and had loaned money on this title before his purchase, therefore he must have consulted the original grant and must have known its true extent. It is also insisted that as he paid but $3000, and by his deed received conveyance for the Buena Vista Rancho, then worth about one dollar per acre, and the San Marcos Ranch, 8877.49 acres, "then worth a little less" than a dollar per acre, Couts could not have expected to get 2219.08 acres as his Buena Vista purchase, as that would make 11,096.57 acres, worth, say, $9200, for the consideration of $3000 paid. That Couts examined the Spanish archives not merely for purposes of making a loan, but in making his purchase, is probable. That it would charge even a skillful lawyer with knowledge of what the Buena Vista grant would be finally limited to contain does not follow. The words of the grant in the Spanish were "Media leagua en cuadro," which one of the witnesses testifies is properly translated as, half a league in square form, and which was translated and embodied by the court in its decree of confirmation as "one half of a square league of land." The two translations differ only in the form that should be given to the survey. That of the court gives the half league or quantity, but did not specify in square form. Both the grant and the decree then specify courses and distances→ a square of 2500 varas each side-and run to designated monuments. The square of 2500 varas, if limited to that distance, contained but half the quantity, one quarter of a square league, but natural monuments existed on the ground answering to the calls of the ambit, which would give the half league quantity, but the length of the courses would have exceeded 2500 varas. It was certainly not a clear case that the grant would be limited to one quarter of a league square-a square of one half a league in dimensions-instead of one half a square league in quantity, laid off in square form, and the fact that distances controlled both monuments and quantity, in a decision made in 1887, over twenty-one years after Couts's purchase, could not in 1866 with certainty have been foreseen. Nor does the consideration alone impugn the good faith of the purchase. The testimony shows that Couts did not seek to purchase, but bought at the solicitation of Mrs. Alvarado and Mrs. Couts, somewhat reluctantly. Nor does it appear that Couts got title to the 8877 acres in the ranch San Marcos. The deed of Mrs. Alvarado and husband conveyed only "all our right, title, and interest." There is no covenant or representation of what that interest was. The probate decree in Soto's estate, July 11, 1866, was: That the Rancho San Marcos being in dispute between said heirs of said deceased and other claimants, and being incapable of partition, without injury to the owners thereof, do remain undivided in possession in common of said Maria Ygnacia (Mrs. Soto-Alvarado), Rosa and Vivian. Mrs. Soto then had not more than a one-third interest in San Marcos, and that was in question between the successors of Soto and others claiming adverse to them. So that the value of what passed to him by Mrs. Alvarado other than the Buena Vista ranch is not shown, except that it was not over $2,333, putting the value of San Marcos at $7,000, the figure given by protestant's counsel. But, so value in fact was paid, the inadequacy of consideration is seldom in itself evidence of bad faith, and courts seldom characterize a transaction as mala fide merely because of insufficiency of the consideration. One may sell for what price he will, and one may buy at the best price he can, without impeachment of the good faith of the transaction, except at the complaint of parties, like creditors then having rights, or those who in contemplation of law were intended to be defrauded. It is immaterial to these settlers whether Mrs. Soto were making this application, or Mr. Couts, her grantee. Had they rights, such rights would not be affected by Mrs. Soto's conveyance to Couts. Inadequacy of the consideration would not be, therefore, a badge of bad faith. But no inadequacy appears. The administrator on behalf of the heirs to the estate is the proper one to make the application. The devolution of the right, on death of the original party in interest, is not limited by the act to any particular persons, and on his death it passed, like other rights in action, to the administrator as part of his estate. The adverse claim of the settlers was not existing prior to the act of 1866, nor had it ever validity under the law. The grant had not been finally surveyed at the time of their intrusion into the grantees' possession, nor was the grant then finally segregated from the lands not granted. They could not, therefore, in face of the act of 1866 giving the grant claimant a right of purchase, acquire rights in the land, or cut off his pre-emption right to purchase, whether they knew of his claim or not. But they did know it, and perfectly understood the existing conditions. They can assert no right against him. As to the non-mineral character of the land, the testimony shows that no mines of gold, silver, copper, or cinnabar exist on the tract; that there was once quite an excitement "in Soto's time," that is prior to 1866, about a supposed copper mine, and that Soto leased a tract to Rose to prospect and mine for copper near the Red Hill, in the southwest corner of the tract; that there were some copper stains there, but they proved to be a false indication, and the mineral prospect has been long since abandoned; and that this was the only mineral prospect ever heard of upon the ranch. This testimony is wholly uncontradicted, and no mineral protest was filed and no evidence was offered tending in any way to show that any part of the land contains valuable mineral deposits. The land clearly is non-mineral. Your office decision is reversed, and the application of the administrator will be allowed. UNITED STATES MINING LAWS, AND REGULATIONS THEREUNDER, RELATIVE TO THE RESERVATION, EXPLORATION, LOCATION, POSSESSION, PURCHASE, AND PATENTING OF THE MINERAL LANDS IN THE PUBLIC DOMAIN. DEPARTMENT OF THE INTERIOR, TITLE XXXII, CHAPTER 6, REVISED STATUTES. July 26, 1901. MINERAL LANDS AND MINING RESOURCES. SEC. 2318. In all cases lands valuable for minerals shall Mineral lands reserved. be reserved from sale, except as otherwise expressly directed by law. 4 July, 1866, c. 166, s. 5, v. 14, p. Mineral lands 152, s. 1, v. 17, p. SEC. 2319. All valuable mineral deposits in lands belong- 86. ing to the United States, both surveyed and unsurveyed, open to purchase are hereby declared to be free and open to exploration and by citizens. purchase, and the lands in which they are found to occu- 10 May, 1872, c. pation and purchase, by citizens of the United States and 1. those who have declared their intention to become such, under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States. Length of min veins or lodes. 152, 91. SEC. 2320. Mining-claims upon veins or lodes of quartz in claims upon or other rock in place bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposits, heretofore located, shall be governed as to length along the vein or lode by the customs, regulations, and laws in force at the date of their location. A mining claim located after the tenth. day of May, eighteen hundred and seventy-two, whether located by one or more persons, may equal, but shall not exceed, one thousand five hundred feet in length along the vein or lode; but no location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located. No claim shall extend more than three hundred feet on each side of the middle of the vein at the surface, nor shall any claim be limited by any mining regulation to less than twenty-five feet on each side of the middle of the vein at the surface, except where adverse rights existing on the tenth day of May, eighteen hundred and seventy-two, render such limitation necessary. The end lines of each claim shall be parallel to each other. Proof of citizenship. 94. 10 May, 1872, c. SEC. 2321. Proof of citizenship, under this chapter, may consist, in the case of an individual, of his own affi152, s. 7, v. 17, p. davit thereof; in the case of an association of persons unincorporated, of the affidavit of their authorized agent, made on his own knowledge or upon information and belief; and in the case of a corporation organized under the laws of the United States, or of any State or Territory thereof, by the filing of a certified copy of their charter or certificate of incorporation. Locators' rights of possession and enjoyment. 91. SEC. 2322. The locators of all mining locations heretofore made or which shall hereafter be made, on any mineral 10 May, 1872, c. Vein, lode, or ledge, situated on the public domain, their 152, s. 3, v. 17, p. heirs and assigns, where no adverse claim exists on the tenth day of May, eighteen hundred and seventy-two, 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, and of all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically, although such veins, lodes, or ledges may so far depart from a perpendicular in their course downward as to extend outside the vertical side lines of such surface locations. But their right of possession to such outside parts of such veins or ledges shall be confined to such portions thereof as lie between vertical planes drawn downward as above described, through the end lines of their locations, so continued in their own direction that such planes will intersect such exterior parts of such veins or ledges. And nothing in this section shall authorize the locator or possessor of a vein or lode which extends in its downward course beyond the vertical lines of his claim to enter upon the surface of a claim owned or possessed by another. Owners of tunnels, rights of. 92. c. p. SEC. 2323. Where a tunnel is run for the development of a vein or lode, or for the discovery of mines, the owners 10 May, 1872, of such tunnel shall have the right of possession of all veins or lodes within three thousand feet from the face of such tunnel on the line thereof, not previously known to exist, discovered in such tunnel, to the same extent as if discovered from the surface; and locations on the line of such tunnel of veins or lodes not appearing on the surface, made by other parties after the commencement of the tunnel, and while the same is being prosecuted with reasonable diligence, shall be invalid, but failure to prosecute the work on the tunnel for six months shall be considered as an abandonment of the right to all undiscovered veins on the line of such tunnel. Regulations made by miners. SEC. 2324. The miners of each mining-district may make regulations not in conflict with the laws of the United 152, s. 5, v. 17, p. States, or with the laws of the State or Territory in which the district is situated, governing the location, manner of 92. 10 May, 1872, c. |