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§ 632.

Taxation of Mines and Minerals.

Partnership Rights and Obligations; Power of Superintendent to
Bind Partnership; Prospecting Contracts; When Partnership
Inferred; Liabilities.

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§ 621. Location, Notice, and Labor.-No location of a placer mine for a single individual can embrace more than twenty acres; and no association of individuals can obtain a patent for more than one hundred and sixty acres; but any one person may, by purchasing other claims, be entitled to a patent for one hundred and sixty acres. Five hundred dollars expenditures are not required on each location where they are contiguous and constitute one claim.

R. S. 2330, 2331; Sickels' Mining Laws, p. 348. Notice must be published and posted.

R. S. 2330, 2331; Sickels' Mining Laws, p. 348.

Locations of placer claims made prior to July 9, 1870, upon land over which the public surveys have not been extended, may be patented in any shape or to any area not in conflict with local laws or regulations, provided not less than one thousand dollars have been expended thereon.

Sickels' Mining Laws, p. 340.

Placer mining claims upon public lands must both be held and worked, not only according to the United States laws, but also in accordance with the state and local district laws in force in the district where the same are located, when such laws, rules, and regulations are not in conflict with United States laws. Strange v. Ryan, 46 Cal. 33; Sickels' Mining Laws, p. 335.

When the local rules or laws in force in a mining district restrict locations to less than twenty acres for each individual, they must be observed; but where they permit locations in excess of limits fixed by congress, they are restricted accordingly. Sickels' Mining Laws, p. 339.

§ 622. Proof as to Character of Land.-When land is returned as mineral on the township plat, clear and positive proof will be required to establish its non-mineral character.

Sickels' Mining Laws, p. 349.

And where land is located on a well-known mineral region, the burden of proof is upon the person alleging the same to be agricultural in character; or in other words, the presumption is that the land is mineral.

Sickels' Mining Laws, p. 355.

Until the township plat of survey is approved by the surveyor general and has been filed in the local office, the register and receiver will treat an application for patent on placer claim as being made for unsurveyed lands.

Sickels' Mining Laws, p. 341.

All veins of quartz or other rock in place bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposit claimed or known to exist within the exterior boundaries of the claim at the date of the patent are, by the terms of the patent itself, excluded from its operation.

Sickels' Mining Laws, p. 343.

In all applications for patents for placer land satisfactory proof must be furnished that the premises applied for do not contain any known veins of quartz or other rock in place containing gold or other valuable mineral.

Sickels' Mining Laws, p. 349.

Salt springs and salines in the north-west territory and in the Louisiana purchase are treated as mineral, and can not be entered when the land is known to be of this character.

Morton v. Nebraska, 21 Wall. 660.

§ 623. School Lands.-The grant of school lands takes effect from the date of survey, and carries with it all mineral deposits, of whatsoever nature or kind, not known to exist in those sections at that date; but it does not convey these sections when they are known or recognized and regarded as mineral lands at the time of survey.

3 Otto, 309.

Minerals discovered on land after patent pass with the patent. Moore v. Robbins, 6 Otto, 530.

But land discovered to contain valuable mineral deposits, after same has been entered as agricultural but before patent has issued, is subject to mineral location and entry, and the agricultural entry will be canceled for so much as is mineral.

Sickels' Mining Laws, p. 449.

§ 624. The University of California selected certain unsurveyed land, and upon the filing of the township plat these selections were adjusted to the lines of the public survey, and approved December 6, 1872. The testimony showed that the land had been known to be valuable for petroleum since 1864: held, that the land was mineral and the selection void, and the governor of the state was requested to relinquish the land to the United States.

Sickels' Mining Laws, p. 438.

A party having claimed land as mineral, adversely to another, is estopped from claiming the same land as agricultural.

Sickels' Mining Laws, p. 441.

Mineral lands upon which the mineral has been exhausted and the mines abandoned is subject to agricultural entry if the application is made in good faith.

Sickels' Mining Laws, p. 440.

The words "reserved for public uses," in the act of 1866, were not meant to cover those lands which passed to the state of California, either under the swamp-land act or the schoolland act.

Sickels' Mining Laws, p. 440.

§ 625. Petroleum.-Petroleum is both a fluid and a mineral. Dork v. Johnson, 55 Pa. St. 164.

Wells are frequently held by parties as tenants in common. Mason v. Norris, 18 Grant's Ch. 500.

A quantity of oil was sold by sample in a bottle, which was represented to be of specified quality; a written agreement was then drawn for the delivery of "oil of the quality of the sample;" such oil was in fact delivered, but the sample in reality was a cheap crude oil instead of refined oil of a particular grade: held, that it was a palpable fraud, and that the defendant might show that the oil was not of the quality which he agreed to deliver.

Mante v. Gross, 66 Pa. St. 250.

Where a certain quantity of oil is purchased and before it is all delivered the vessel into which it is being delivered is consumed by fire, the purchaser is not responsible, but the loss falls upon the seller.

Rochester Oil Co. v. Hughey, 56 Pa. St. 322.

§ 626. Patents. In the application for patent the affidavit of publication should show a continuous publication and a compliance with all mining laws in force, together with proof of citizenship, and must be accompanied with a certified copy of the mining laws of the district in force at the date of the location.

Sickels' Mining Laws, p. 84.

No person who is out of possession can obtain a patent, except in the manner and form prescribed in the statute; but it has been held, that notwithstanding section 2324 of the revised statutes provides in terms that a possessory claim may be relocated at any time prior to the issue of a patent, if the necessary labor and improvements shall be neglected for one year, yet an entry made is equivalent to a patent issued.

Stork v. Storrs, 6 Wall. 418.

§ 627. Applications of Patent.-When all the preliminary and necessary steps have been complied with, an application in writing for a patent may be made. This application should recite in detail all the steps which have been taken, and must accurately describe the property for which a patent is asked. The application, when all necessary steps have been complied with, is such an appropriation of the premises embraced therein as takes them out of the operation of the local laws, and suspends the necessity for annual expenditure until the issuance of a patent. Publication of notice of application for a patent must be made continuously in one newspaper, and must not be made without the knowledge of the register of the land office.

Sickels' Mining Laws, p. 66.

§ 628. Void Patents.-Neither an entry nor a patent vests title unless the land was sold according to the rules applicable to the class of lands to which the particular tract belongs. A patent is but the evidence of the grant, and the officer who issues it acts ministerially, and not judicially, and if he issues a patent for lands reserved from sale by law, such patent is void for want of authority; for example, the executive department has no right to sell lands as agricultural which are in fact mineral, and patents are sometimes issued inadvertently, or by

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mistake, where the officer had no authority to issue them. In all such cases courts of law will pronounce the patent void.

United States v. Stone, 2 Wall. 1.

Patents for lands which have been previously granted, reserved from sale, or appropriated are simply void.

Morton v. Nebraska, 21 Wall. 660.

In case of the loss of the duplicate receipt or certificate of purchase, the applicant for patent must show by affidavit that the same has been lost, and after careful and diligent search can not be found, and must state as nearly as possible the circumstances how, when, and where the same was lost.

Sickels' Mining Laws, p. 513.

A waiver in writing of all right to that portion of a mining claim which is in controversy entitles the claimant to a patent for that portion of the claim not in controversy.

Sickels' Mining Laws, p. 279.

§ 629. It is the duty of the register and receiver, in the first instance, to pass upon the regularity of the claimant's application for a patent, as well as upon his right to make the same for the tract therein described; and if no adverse claim is filed before the approval of the survey by the surveyor general, the right of the applicant to a patent (if all the preceding requirements are regular) is established. The application need not be under oath.

Toy Long v. Chapman, 4 Saw. 28.

Minerals discovered on land after patent pass with the patent, unless expressly reserved.

Moore v. Robbins, 6 Otto, 530; Fremont v. Fowler, 17 Cal. 200. § 630. When Rights Attach under Patents.-When a patent for a mining claim finally issues, it attaches itself to the entry and relates to the date of the entry, and has the same effect as if issued at the date of the entry.

Hydenfeldt v. Dana Mining Co., 93 U. S. 641; Bagnall v. Broderick,

13 Pet. 450; Gibson v. Chatteau, 13 Wall. 93; Shepley v. Cowan, 91 U. S. 337; Smelting Co. v. Kemp, 104 Id. 647; Hayner v. Stanley, 8 Saw. 225.

And such patent carries all mines in the land patented to which no right has attached at the time the patent issues.

Pacific Coast Mining & M. Co. v. Spargo et al., Copp's L. O., June 1, 1883, p. 81.

§ 631. Taxation of Mines and Minerals.-Where the claimant of a mine is the owner of the soil the mine itself may be taxed;

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