CHAPTER XIII.

THE POSSESSORY TITLE OR TITLE BEFORE PATENT.

I. The Right of Possession.

II. Action for the Possession of Mining
Claims.

III. Conveyance of Mining Claims before
Patent. Statute of Frauds.

I. THE RIGHT OF POSSESSION.

ONE who has completed a valid location of a mining claim has a title to the land. It is not the complete legal title; that is still in the government, and is not acquired by the locator until he has received a patent for his claim. He has thus far only occupied a portion of those lands, which are declared open to "occupation and purchase" by Rev. Stats. 2319. The legal title is acquired only when that occupation is followed by purchase. But in the mean time he has a title good as against every one except the United States. This title is most often referred to in congressional legislation as the "right of possession," or the "right of possession and enjoyment." The locator of mineral land who has complied with the requirements of law and of the mining rules and regulations in force in the district, thereby becomes the assignee of the United States; a grant takes place, and a title vests in him. The fee remains in the government, but to him is granted the right of exclusive possession and enjoyment, to occupy, explore, and take therefrom the precious metals, and also the right, which it is his option to exercise or not as he pleases, to purchase the legal title from the United States.

This right of possession does not come from mere possession, or from the simple act of occupation. It "comes only from a valid location. Consequently if there is no location, there can be no possession under it. Location does not necessarily follow from possession, but possession from location." Nor is residence or actual possession necessary for its protection. All that is necessary after a valid possessory title has been acquired is a compliance with such laws and regulations as are requisite to

preserve it from forfeiture, and the absence of any intention to abandon it.

This possessory title is a vested interest in real estate that will be protected by law, and cannot be divested by any one except the United States, which can do so by a repeal of the law creating it, or by any other legislative revocation of the grant. As such an interest, it is an estate in fee, inheritable, subject to the laws of descent and distribution of realty. In fine, a mineral claim is property in the fullest sense alienable, inheritable. It may be the subject of taxation, and this without interference with the rights of the United States. It may be taken and sold in execution, and the purchaser steps into the shoes of the judgment debtor, he has the right of possession and enjoyment, as above defined, and the right, by taking the necessary steps required by law, to acquire a complete legal title by purchase.

The right of possession, however, is conditional, and the failure to perform the conditions subsequent prescribed by the statute terminates it; as does also an abandonment, or what is equivalent thereto, a conveyance. Dower, therefore, and analogous rights, if they can under any circumstances attach to the right of possession, are divested by the termination in any of these modes of the locator's title.

Where there is a conflict or dispute of title, priority of location confers the better title. A location made in pursuance of law, and kept alive by compliance therewith, will prevail over prior possession without location, provided it was peaceably made.

The remedial rules which affect the title to real estate are applicable to the possessory title to mining claims. A title may be thus acquired by means of the Statute of Limitations without proof of a valid location. A mining claim may be the subject of an action of partition.

The rule that ejectment may be maintained against a trespasser or wrong-doer upon the strength of a prior possession, however short, has given rise to a kind of possessory title not resting upon location. This is the title of the mere occupant of mineral ground who is in actual possession, exploring

1 Colorado, M. A. S. 456, 3613, 3618; New Mexico, Comp. Laws 1884, sec. 2218; but see Oregon, Hill's Ann. Laws 1892, sec. 3830. In this State it is held that the

possessory interest is not real estate. Duffy v. Mix, 24 Ore. 265, post, p. 338.

2 Rev. Stats. 2332; Arizona, Rev. Stats. 1887, sec. 2308.

or improving the same, which is good as against an intruder. This title covers only the ground in actual occupancy, the pedis possessio, unless the miner has defined a claim by distinct, visible, and notorious boundaries, in which case his possession is extended to his boundaries; or unless, by virtue of compliance with some regulation, he has acquired a right to a certain extent. These titles have no validity as against locations or patented claims, but as between mere occupants they give rise to another rule as to priority. Though priority of location confers the better title, yet when there is no location, and both parties rely on simple possession alone, priority of possession gives the better right. This right can only be retained by continued occupancy and use. The mere trespasser is without right, nor can he by his unlawful entry initiate a right. If, however, the prior possessor permits the entry of another who first discovers mineral and makes location, the title of the latter will prevail over that of the former. Of course, a title by mere occupancy cannot be enlarged by purchase from the government, except where a valid location has been previously made.

A possessory title, while it may not be divested by any one except the United States, may be avoided by the default of its owner, either by abandonment or by forfeiture for non-compliance with local regulations or with the statutory requirements as to annual labor. This subject has been considered elsewhere.'

Sparrow v. Strong, 3 Wall. 97 (1865). The value of United States. a mining claim in Nevada may be the subject of estimate in money; and this court will take jurisdiction of a suit concerning such a claim, if of the requisite value, though the land where the claim exists has never been surveyed and brought into the market. Mining rights in the public lands are recognized by territorial authority, and have received the sanction of the federal government by acquiescence.

Forbes v. Gracey, 94, 762 (1876). A mining claim, that is, the possessory right of a miner to explore and work the mine under the existing laws and regulations on the subject, is property, and may be made by State statute the subject of a lien for unpaid taxes on the products of the mine. While the title to the land remains in the United States the holder of the claim has this interest, and is the owner of the minerals which he severs from the earth. The taxation of these and the subjecting the claim to a lien is not an interference with the interests, or any infringement of the title, of the United States. Miller, J.:" Such right as the mining laws allow and as Congress

1 Chapter XI.

concedes to develop and work the mines is property in the miner, and property of great value." "They are property in the fullest sense of the word, and their ownership, transfer, and use are governed by a well-defined code or codes of law, and are recognized by the States and the Federal government. This claim may be sold, transferred, mortgaged, inherited, without infringing the title of the United States. Why may it not also be made subject to a lien for taxes, and the claim, such as it is recognized by statute, be sold to enforce the lien? We see nothing in principle or in any interest which the United States has in the land to prevent it."

Chapman v. Toy Long, 4 Sawy. 28 (1876), C. C. D. Oreg. Deady, J.: "Prior to the passage of the acts aforesaid concerning the mineral lands, strictly speaking, all persons who occupied them for the purpose of mining were naked trespassers, at least as against the United States. As between the first occupants and third persons, from the necessity and convenience of the case, the courts held that the former were not trespassers, and were entitled to the protection of the law as persons in the possession of portions of the public domain with the assumed assent of the owner. But under the mining laws of the United States now in force the locator of a mining claim, as to the right to the possession of the premises and to appropriate the minerals therein, becomes and is the assignee of the United States so long as the law remains in force and he complies with the conditions imposed by it. Until Congress withdraws this license by a repeal of the law, the right of the locator to the possession of his claim, and to appropriate to his own use the mineral deposits therein, is full and complete, and he need not take any steps to purchase the land or obtain a patent for it. That is a matter left to his own option or sense of self interest."

Campbell v. Rankin, 99, 261 (1878). "In actions of ejectment, or trespass quare clausum fregit, possession by the plaintiff at the time of eviction has always been held prima facie evidence of the legal title, and as against a mere trespasser it is sufficient (2 Greenl. Evid., sec. 321). If this right be the law when the right of recovery depends on the strict legal title in the plaintiff, how much more appropriate is it as evidence of the superior right of possession under the acts of Congress which respect such possession among miners."

Faxon v. Barnard, 2 McCrary, 44; 4 Fed. 702 (1880), C. C. D. Colo. One in actual possession of mining ground who has discovered and uncovered the lode, but has failed to take the other steps required by law to complete his location, cannot be ousted by a subsequent discoverer from the ground actually held by him. A location cannot be extended over a senior discovery in the actual possession of another. North Noonday M. Co. v. Orient M. Co., 6 Sawy. 503; 11 Fed. 125 (1880), C. C. D. Cal. Where a party is in possession of a mining claim, claiming title under a conveyance by specific bounds, and is engaged in actually working the same within his lines as marked on the ground, a party entering upon such prior right is a trespasser, and can gain no right as against the possessor. "Independent of such constructive possession as the mining laws give by simple compliance with its provisions there was a continual actual possession

and occupation, upon which defendant could not enter without being a trespasser. The Supreme Court of California held that a mining claim in actual possession of the claimants is valid, irrespective of mining laws. English v. Johnson, 17 Cal. 107; Table Mountain Co. v. Stranahan, 20 Cal. 209; s. c. 31 Cal. 390; Hess v. Winder, 30 Cal. 355; Rogers v. Cooney, 7 Nev. 219. These cases have been cited and approved by the Supreme Court of the United States in the recent case of Campbell v. Rankin, 99 U. S. 261. And as I understand the recent decisions of the Supreme Court of the United States, under the pre-emption laws no man can initiate a pre-emption or other right under those laws by an entry upon the actual possession of another, be that other a competent pre-emptioner or rightfully in possession as against the government, or otherwise. Trenouth v. San Francisco, 100 U. S. 251, 256; Atherton v. Fowler, 96 U. S. 513. If that be so, the principle is equally applicable to rights acquired in mining claims."

Belk v. Meagher, 104, 279 (1881). A valid location kept alive by the performance of the required work constitutes possession under the acts of Congress.

"The right to the possession comes only from a valid location. Consequently if there is no location, there can be no possession under it. Location does not necessarily follow from possession, but possession from location. A location is not made by taking possession alone, but by working on the ground, recording and doing whatever else is required for that purpose by the acts of Congress and the local laws and regulations."

"There is nothing in the act of Congress which makes actual possession any more necessary for the protection of the title acquired to such a claim by a valid location, than it is for any other grant from the United States. The language of the act is that the locators 'shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations (sec. 2322), which is to continue until there shall be a failure to do the requisite amount of work within the prescribed time."

Until such a location is terminated by abandonment or forfeiture, no right or claim to the property can be acquired by adverse entry thereon with a view to relocation.

Crossman v. Pendery, 8 Fed. 693 (1881), C. C. D. Colo. "A prospector on the public mineral domain may protect himself in the possession of his pedis possessionis while he is searching for mineral. His possession so held is good as a possessory title against all the world except the government of the United States. But if he stands by and allows others to enter upon his claim, and first discover mineral rock in place, the law gives such discoverer a title to the mineral so first discovered, against which the mere possession of the surface cannot prevail." Miller, J.

Van Zandt v. Argentine M. Co., 8 Fed. 725 (1881), C. C. D. Colo. As between two locators, the boundaries of whose respective claims included common territory, priority of location confers the better title, provided a vein in place was discovered in the discovery shaft, and provided, also, that it extended to the ground in controversy.