159. School sections containing coal are subject to disposal as other coal and mineral lands. Charles Norager, 10 C. L. O. 54.

160. Sections 16 and 36 in Colorado, if they contain valuable deposits of coal, do not pass to the State under the act of March 3, 1875. Fox & Patterson, 4 C. L. O. 66.

161. Lands known to be valuable for coal are not subject to indemnity selection by the State of California for lands lost under its school land grant, and if a patent issues to

the State for lands so known at date of issu

ance of patent, the United States may bring suit in equity to vacate the patent. Mullan v. United States, 118 U. S. 271.

162. Lands known to be valuable for coal

at date of admission of the State did not

inure under the grant of lands for school purposes. Application to file on such lands should be admitted, and, upon application to purchase, proceedings should be had in accordance with paragraph 2 of the circular relating to coal lands. John M. Ramey, 15 C. L. O. 194.

163. Land surveyed prior to the admission of a State, and known to contain coal at the date of such admission, does not pass under a grant of school lands to the State. State of Montana v. Buley, 23 L. D. 116.

164. Lands known to contain valuable deposits of coal at date of admission of Colorado as a State (August 1, 1876) do not pass under the act of March 3, 1875. A hearing may be ordered to determine the character of the tracts in dispute. John M. Burkhart, 15 C. L. O. 38.

decision overruled.) See Abraham L. Miner, 9 L. D. 408.

167. A coal declaration for lands in sections 16 and 36 may be admitted without investigation into the character of the land. Investigations by the district officers, on their information and belief, into the character of the lands described in applications to file coal declarations, should not be ordered prior to purchase or application to make proof and entry. Silas A. Bowe, 15 C. L. O. 246.

168. Coal land filings for lands in sections 16 and 36 in the Territories are admissible, notwithstanding that they may have been returned by the Surveyor General as declaration, "That I have located and opened non-mineral. The words in the form for the

a valuable mine of coal thereon," must either

not be omitted from the declaration, or words of substantially the same meaning must be used therein. William B. Sterling, 15 C. L. O. 256.

169. All minerals except coal and iron are excepted from grants to railroads. William A. Arnold, 2 C. L. O. 131.

170. When parties were in the possession of and working a coal mine upon a railroad section prior to the definite location of the road, such land does not pass to the railroad under a grant similar in terms to that of the Union Pacific Railroad Company. Crismon v. U. P. R. R. Co., 2 C. L. O. 67. (Affirmed by Secretary, April 11, 1876.)

171. Odd sections in the Union Pacific Railroad granted limits containing coal pass under the grant. Com'r to Cheyenne Office, Aug. 11, 1873, 1 C. L. O. 2.

172. Claims under the donation act will be patented, although containing coal. Com'r to John Yoakum, March 28, 1874, 1 C. L. O. 3. 173. The act of August 30, 1890 (26 Stat.

166. Applications to file coal declaratory statements may be received for sections 16 and 36, with opportunity accorded the State to show cause why they should not be allowed. State of Colorado, 7 L. D. 400. (This

to three hundred and twenty acres, does not apply to the entry of coal lands. See section 17 of the act approved March 3, 1891 (26 Stat. 1095).

CONVEYANCE.

(See TITLE, p. 198.)

1. A conveyance of a mining claim by a qualified locator to an alien does not operate as an abandonment of the claim, but the alien may hold the claim as against all but

the United States; and where the alienage of an applicant is set up by an adverse claim- | ant, the declaration of intention to become a citizen, made by the applicant during the pendency of the adverse suit but before judgment, will render his title good so far as citizenship is concerned. Manuel v. Wulff, 152 U. S. 505. (Reversing S. C., 9 Mont. 279; 23 Pac. Rep. 723. Citing Governeur v. Robertson, 11 Wheat. 332; Osterman v. Baldwin, 6

Wall. 116; Man v. Huk, 3 L. D. 452; Ole Krogstad, 4 L. D. 564; Lord v. Perrin, 8 L. D. 536; Jackson v. Beach, 1 Johns. Cas. 399.)

2. A grantee of an alien locator who takes possession and does all the acts required by law to maintain a location has good possessory title, provided no adverse rights have intervened between the dates of location and of transfer. North Noonday M. Co. v. Orient M. Co., 6 Sawy. 299; 1 Fed. Rep. 522; 9 Mor. Min. Rep. 529.

3. A transfer of a mining claim to an alien is an abandonment of the locator's right. Lee v. Justice M. Co., 29 Pac. Rep. 1020.

4. Whether or not a patent is broader or narrower than the law under which it issues, it conveys that which the law says shall be conveyed. Stark v. Starr, 6 Wall. 402; Wolfley v. Lebanon M. Co., 4 Colo. 112; 13 Mor. Min. Rep. 282; Silver Bow M. & M. Co. v. Clark, 5 Mont. 378; 5 Pac. Rep. 574; Talbott v. King, 6 Mont. 76; 9 Pac. Rep. 434; Butte City Smoke House Lode Cases, 6 Mont. 397; 12 Pac. Rep. 858; King v. Thomas, 12 Pac. Rep.

865.

5. An adverse claim may be prosecuted by one who has covenanted to convey the property, as he could not otherwise keep his covenant. Wolverton v. Nichols, 119 U. S. 485; 2 Pac. Rep. 308; 15 Mor. Min. Rep. 309.

6. Mining claims held by possessory title are property in the fullest sense of the word, and may be sold, transferred, mortgaged and inherited, and a location made in accordance with law has the effect of a grant by the United States of the right of present and exclusive possession. Forbes v. Gracey, 94 U. S. 762; 14 Mor. Min. Rep. 183; Belk v. Meagher, 104 U. S. 279; 1 Mor. Min. Rep. 510; Gwillim v. Donnellan, 115 U. S. 45; 15 Mor. Min. Rep. 482; Noyes v. Mantle, 127 U. S. 348; 15 Mor. Min. Rep. 611; Manuel v. Wulff, 152 U. S. 505. (Reversing S. C., 9 Mont. 279; 23 Pac. Rep. 723.)

7. Mining claims are treated as real estate although held under conditions, and may be conveyed by deed and sold on execution, and descend to the heir. Harris v. Equator M. & Sm. Co., 3 McCrary, 14; 8 Fed. Rep. 863; 12 Mor. Min. Rep. 178; Atkinson v. Taylor, 7 Colo. 195; Atwood v. Fricot, 17 Cal. 38; 2 Mor. Min. Rep. 305; Hess v. Winder, 30 Cal. 349; 12 Mor. Min. Rep. 217.

8. In California, before 1860, oral transfers

of mining claims were good. Table Mountain Tunnel Co. v. Stranahan, 20 Cal. 198; 9 Mor. Min. Rep. 457; King v. Randlett, 33 Cal. 321. But by the act of 1860 (Sess. Laws, page 175), affecting gold mines, and extended to all mines by act of 1863 (Sess. Laws, page 98), oral transfers, even though accompanied by change of possession, were declared null and void. This rule must be subject to wellknown principles of equity. Patterson v. Keystone M. Co., 23 Cal. 576; 30 Cal. 360; Goller v. Fett, 30 Cal. 481; 11 Mor. Min. Rep. 171; Folger v. Coward, 35 Cal. 652; Melton v. Lambard, 51 Cal. 253; 14 Mor. Min. Rep. 695; Garthe v. Hart, 73 Cal. 541; 15 Pac. Rep. 93; 15 Mor. Min. Rep. 492.

9. Mining claims should be conveyed by deed, being realty granted by the United States under the mining laws. Hopkins v. Noyes, 4 Mont. 550: 2 Pac. Rep. 280; 15 Mor. Min. Rep. 287. Contra, Hardenbergh v. Bacon, 33 Cal. 381; Table Mountain Tunnel Co. v.

Stranahan, 20 Cal. 198; 9 Mor. Min. Rep. 457;
Gatewood v. McLaughlin, 23 Cal. 178; Patter-
son v. Keystone M. Co., 23 Cal. 576; Union
Min. Rep. 323.
Cons. M. Co. v. Taylor, 100 U. S. 37; 5 Mor.

10. A mining claim can, under the Statute of Frauds, be transferred only by operation of law or instrument in writing. Moore v. Hammerstag, 109 Cal. 122; 41 Pac. Rep. 805.

11. A verbal transfer followed by change of possession is valid if not in conflict with law. Lockhart v. Rollins, 2 Idaho, 503; 21 Pac. Rep.

413.

12. A locator's right to a lode can only be conveyed by deed. Murley v. Ennis, 2 Colo. 300; 12 Mor. Min. Rep. 360.

13. A deed to give constructive possession of the entire claim to one who enters thereunder must contain definite boundaries which can be located, marked and made known from the deed itself. Hess v. Winder, 30 Cal. 349 (1865); 12 Mor. Min. Rep. 217.

14. A deed, not giving boundaries, but referring to a location certificate, in which a full description is given, will extend the possession to the entire claim described in such location certificate. Harris v. Equator M. & Sm. Co., 3 McCrary, 14; 8 Fed. Rep. 863; 2 Colo. Law Rep. 63; 12 Mor. Min. Rep. 178.

15. A deed of mineral entries Nos. 1 and 2, lots 3 and 4, patented as the A. and B. claims, may, if such appears to have been the intent of the parties, be held to convey all of grantor's title to the A. and B. claims, even though the patent only covered parts thereof. Crescent M. Co. v. Wasatch M. Co., 19 Pac. Rep. 198; Jackson v. Dines, 13 Colo. 90; 21 Pac. Rep. 918.

16. A mining claim may be conveyed by name, reference being made to the location record. Carter v. Bacigalupi, 23 Pac. Rep. 361. 17. Where the dividing line between the original location of the mining claims has been disregarded by one who has become the owner of both of them, and he has sold and

at date of the town site entry, without going to a hearing for the purpose, as there could be no other party to such hearing. Com'r to Denver Office, July 10, 1896, In re Dump | Lode.

20. Where the discovery and improvements are excluded from the entry of a mining claim, the entry will be canceled, unless it is shown that mineral has been discovered and the requisite expenditure made upon claimed ground. A reconveyance by another lode claimant of the patented excluded ground will not be accepted, in such a case, as reinvesting title to the same in the government for the purpose of patenting it with the claim last entered. Winter Lode, 22 L. D. 362.

21. A relinquishment of ground embraced in a mineral entry, made by the entryman, must be accompanied by an abstract showing title in the entryman at date of the execution of the relinquishment. Com'r to Pueblo Office, Sept. 30, 1895, In re Lookout Lode.

22. "The officers of the Land Department,

be made in accordance with the lines of the claim of the previous location, but as a conveyance of a tract of mining ground, carved out of the entire tract by metes and bounds, the grantor is estopped by his deed from questioning the right of his grantee to all the gold found within the surface lines of the deed, irrespective of the depth below the surface at which it is found, and such grantee has title

to the gold found at the place of intersection of two veins falling within the surface lines of the deed, irrespective of the depth below the surface at which it is found. Stinchfield v. Gillis, 107 Cal. 84; 40 Pac. Rep. 98; S. C., 96 Cal. 33; 30 Pac. Rep. 839.

no authority to insert in a patent any other terms than those of conveyance, with recitals showing compliance with the conditions clauses in patents at their own discretion which the law prescribes. Could they insert they could limit or enlarge their effect without warrant of law. The patent of a mining claim carries with it such rights to the land which includes the claim as the law confers, and no others, and these rights can neither be

enlarged nor diminished by any reservation of the officers of the Land Department, resting for their fitness only upon the judgment of those officers." Davis' Adm'r v. Weibbold, 139 U. S. 507; S. C., 7 Mont. 107. (Citing Deffeback v. Hawke, 115 U. S. 392.)

19. If the owner of a lode claim within a patented town site secures a reconveyance of the conflict to the United States, he may show by affidavits the known existence of the lode

the Department had no jurisdiction to transfer the land, and their attempted conveyance by patent is inoperative and void, no matter with what seeming regularity the forms of law have been observed." Davis' Adm'r v. Weibbold, 139 U. S. 507; S. C., 7 Mont. 107.

24. A purchase of coal lands from the United States by one authorized so to do, even if for the benefit and at the expense of a corporation unable to make the purchase for itself, under an agreement by which the land is to be conveyed to the corporation on issuance of patent, is not illegal, as such a contract to convey is not prohibited by the statutes relative to the sale of coal lands. United States v. Trinidad Coal & Coking Co., 37 Fed. Rep. 180. (Reversed, S. C., 137 U. S. 160.)

25. When, between the dates of making mineral entry and issuance of patent, the entryman sells the claim, the grantee holds under the patent, which relates back to date of entry. Brown v. Warren, 16 Nev. 229.

26. The California statute prohibiting corporate officers from selling "mining ground' without the consent of the stockholders is held to include ditch and water rights appurtenant to the claim. McShane v. Carter, 22 Pac. Rep. 178. A deed under this statute must show the consent of the stockholders.

CO-OWNERS.

(See ABANDONMENT. FORFEITURE, p. 128.)

1. A tenant in common of a mining clairn, holding under possessory title, is not bound to file an adverse claim against an application for patent to the claim filed by a co-owner. The statute contemplates the filing of an adverse by one setting up a title against the mining claim applied for, not by one claiming an interest in the claim. Turner v. Sawyer, 150 U. S. 578: Hunt v. Patchin, 13 Sawy. 304; 35 Fed. Rep. 816; Brundy v. Mayfield, 15 Mont. 201; 38 Pac. Rep. 1067.

2. A tenant in common of a mining claim who is not joined by his co-tenants in their application for patent must, to be recognized by the Land Department, file an adverse claim and proceed under section 2326, United States Revised Statutes. Mattingly v. Lewisohn, 8 Mont. 259; 19 Pac. Rep. 310: Grampian Lode, 1 L. D. 544; Lucy B. Hussey Lode, 5 L. D. 93; Monitor Lode, 18 L. D. 358.

3. A co-owner who makes a relocation in

679.

27. A locator who has sold his claim will

not be heard, over the objection of his grantee, to impeach the validity of the location made by him and subsequently sold. McGinnis v. Egbert, 8 Colo. 41; 5 Pac. Rep. 653; 15 Mor. Min. Rep. 329.

28. Section 2336 was not intended to limit or define the rights of a person in mere possession of a tract of mining ground, where there is more than one vein, or to prescribe the effect of a conveyance by the locator of a claim of a portion of his location containing

one of such veins. The objects of the statute were to supplement the provision of section 2322, and to prescribe rules under which different locations by different proprietors should be held, and to determine the rights of such proprietors in case of intersecting veins. Stinchfield v. Gillis, 107 Cal. 84; 40 Pac. Rep. 98; S. C., 96 Cal. 33; 30 Pac. Rep. 839. 29. Where section 2336 does not apply by reason of a conveyance by the locator to his grantee of a portion of the claim, the ordinary rule governing grants must of necessity apply, and if the intersection of the vein takes place on the part of the claim conveyed, the grantee takes all the mineral at the space of intersection. Stinchfield v. Gillis, 107 Cal. 84; 40 Pac. Rep. 98; S. C., 96 Cal. 33; 30 Pac. Rep. 839.

his co-owners holds such relocation in trust

for his co-owners to the extent of their respective interests. Hunt v. Patchin, 13 Sawy. 304: 35 Fed. Rep. 816.

4. Where an applicant bases his right to a patent on a relocation, in the making of which he acted as a constructive trustee for the benefit of co-owners according to their respective interests in the original location, such co-owners are not obliged to adverse the application, but may have the applicant declared trustee. Hunt v. Patchin, 13 Sawy.

304; 35 Fed. Rep. 816.

5. One of several owners of a mining claim may relocate the same for himself after abandonment and forfeiture thereof. Strang v. Ryan, 46 Cal. 33: 1 Mor. Min. Rep. 48.

6. Where one of two tenants in common of a mining claim promises to perform the work necessary to prevent the claim from becoming subject to relocation, but fraudulently fails so to do and relocates the claim for himself, though he has the legal title, he may be declared constructive trustee under the relocation for his co-owner as to his interest. Saunders v. Mackey, 5 Mont. 523; 6 Pac. Rep. 361.

7. Where one tenant in common of a mining claim promises to see that the required

911.

8. One who locates a claim in the names of himself and others, even without their consent, makes such others co-owners with himself, and cannot deprive them of their interests by destroying the location notice and posting a new one omitting their names. Morton v. Solambo Copper M. Co., 26 Cal. 527; 4 Mor. Min. Rep. 463.

9. If the locator of a mining claim inserts in the location notice the names of others, they become tenants in common with the one making the location, even though they were not aware of the location. Chase v. Savage S. M. Co., 2 Nev. 9; 9 Mor. Min. Rep. 476.

10. A parol partition of a mining claim, if followed by exclusive possession of the several parcels, is doubtless valid; the parties cease to be tenants in common, and forever afterwards deal at arm's length. 420 M. Co. v. Bullion M. Co., 9 Nev. 240; 1 Mor. Min. Rep. 114; 3 Sawy. 634; 11 Mor. Min. Rep. 608.

11. Mining claims may be partitioned between co-tenants the same as other real property. Hughes v. Devlin, 23 Cal. 501; 12 Mor. Min. Rep. 251. (See PARTITION.)

12. The possession of one co-tenant is the possession of all. Union Cons. S. M. Co. v. Taylor, 100 U. S. 37; 5 Mor. Min. Rep. 323; Colman v. Clements, 23 Cal. 245; 5 Mor. Min. Rep. 247.

13. The possession of one tenant in common is not adverse to his co-tenants. Union Cons. S. M. Co. v. Taylor, 100 U. S. 37; 5 Mor. Min. Rep. 323.

14. The possession of a mining claim by one tenant in common is possession of all, unless it becomes adverse. Mallett v. Uncle Sam G. & S. M. Co., 1 Nev. 188; 1 Mor. Min. Rep. 17.

15. The taking of hostile possession of a mining claim by one tenant in common and excluding the co-tenant is an ouster, from the date of which the Statute of Limitations begins to run in favor of the tenant so taking possession and against his co-tenant. 420 M.

16. To give a person the right to procure, by forfeiture proceedings under section 2324, United States Revised Statutes, the interest of another in a mining claim held by possessory title, the two persons must not only be co-owners at date of the forfeiture notice, but during the year in which the work was done upon the claim. Turner v. Sawyer, 150 U. S. 578.

17. The regularity and legality of forfeiture proceedings against alleged delinquent co-owners, under section 2324, United States Revised Statutes, will not be questioned by the Land Department if such co-owners fail to protect their rights by filing an adverse claim under section 2326, United States Revised Statutes. Grampian Lode, 1 L. D. 544.

18. A co-owner who has been "advertised

out" may show his compliance with the law in the matter of expenditures, and that there was in fact no forfeiture. Brundy v. Mayfield, 15 Mont. 201; 38 Pac. Rep. 1067.

19. The defendant in an adverse suit cannot

defeat plaintiff's title by showing that a forfeiture notice given by plaintiff to co-owners was insufficient. That point may be raised Colo. 243; 29 Pac. Rep. 173. (First trial, 9 Becker v. Pugh, 17 only by the co-owners. Colo. 589; 13 Pac. Rep. 906; 15 Mor. Min. Rep. 304.)

20. A tenant in common may maintain an action for the recovery of a mining claim without joining his co-tenant. Morenhaut v. Wilson, 52 Cal. 263; 1 Mor. Min. Rep. 53; Weise v. Barker, 7 Colo. 178; 2 Pac. Rep. 919; 2 West Coast Rep. 108.

21. Tenants in common in a mine may join in an action to recover possession of all their undivided interests. Goller v. Fett, 30 Cal. 481; 11 Mor. Min. Rep. 171.

22. Co-tenants are presumed by law to own equal interests until the contrary is shown. Nippel v. Hammond, 4 Colo. 211.

23. Where a location is made by a citizen and an alien, and the alien thereafter declares his intention of becoming a citizen, the citizen cannot, by relocation, cut his coowner out on the ground that the original location was void so far as the alien was concerned. Sever v. Gregovich, 16 Nev. 325.