Imágenes de páginas
PDF
EPUB

CHAPTER V.

OF MILL SITES.

§ 324. How and for what purposes mill sites may be located.
325. Different kinds of mill sites - Acts necessary to hold.
326. Must be worked in connection with mine or mill.

§ 324. How and for what purposes mill sites may be located. The statute authorizes the location, by the owner or proprietor of a lode or placer claim, of non-adjacent surface ground, not to exceed five acres, as a mill site. Such mill site must be non-mineral in character, and shall be paid for at the same rate as lode claims. The owner of a quartz mill or reduction works may locate not to exceed five acres as a mill site, even though he does not own a mine in connection therewith. This statute has been construed to allow a mill-site claimant to select more than one tract of land as a mill site, provided the aggregate does not exceed five acres. The manner of locating a mill site is in all respects similar to the manner of locating a lode or placer claim so far as regards the posting of notice and marking of boundaries. The notice of location of a mill site should, in addition to giving the boundaries and extent of the claim, also state that the ground is non-mineral in character. In states where there are statutory provisions on the subject, provision is generally made for the manner of locating and recording

2

1R. S. U. S., § 2337; Rico Townsite, 1 L. D. 556; Alta Mill Site, 8 L. D. 195; Circular of Gen. Land Office, June 24, 1899, p. 30, $$ 66, 67; Com'r Drummond to Central City (Colorado) Office, July 29, 1872, Copp's Min. Lands, p. 88; Mongrain v. N. P. R. R. Co., 18 L. D. 105.

2J. B. Haggin, 2 L. D. 755; Hecla Cons. M. Co. 12 L. D. 75.

3 Hartman v. Smith, 7 Mont. 19, 14 Pac. Rep. 648; Valcalda v. Silver Peak Mines, 86 Fed. Rep. 90, 29 C. C. A. 591.

mill sites, and where there are such provisions they should be carefully observed.1

325. Different kind of mill sites - Acts necessary to hold. The obvious meaning of the statute is that a mill site may be located upon non-mineral land by the owner of a mine not contiguous thereto, or by the owner of a quartz mill or reduction works even though he does not own a mine in connection with it. But the owner of such mill site must either own a mine, mill or reduction works, or use his mill site in some way beneficial to the working of his mine. He is entitled to possession, and to have that possession protected, just to the extent that he has actually and in good faith prosecuted labor in that direction, and no longer. But it has been held in this connection that the building on the land of a pumping plant to carry water to the mine,3 the use of the same for the purpose of constructing a storage reservoir thereon to maintain a water supply for the mine,* or for depositing tailings, or for shops or houses for his workmen," is a sufficient mining use to amount to a compliance with the statute. The circuit court of appeals for the ninth circuit in a recent case has held that the locator of a mill site, who has caused the corners thereof to be marked by posts, has a house and stable thereon, and who has made certain excavations thereon to increase the flow of water from springs, and has also built a wagon road across it to his mine, has sufficiently complied with the law to entitle him to maintain ejectment proceedings against a trespasser."

1 Hartman v. Smith, infra; Valcalda v. Silver Peak Mines, infra. For a summary of the state statutes see Appendix B.

2 Valcalda v. Silver Peak Mines, 86 Fed. Rep. 90, 29 C. C. A. 591; Hartman v. Smith, 7 Mont. 19, 14 Pac. Rep. 648.

3 Sierra Grande M. Co. v. Craw

ford, 11 L. D. 338; Gold Springs & Denver City Mill Site, 13 L. D. 175. 4 Gold Springs & Denver City Mill Site, supra.

5 Chas. Lennig, 5 L. D. 190, 192; Hartman v. Smith, supra.

6 Valcalda v. Silver Peak Mines, supra.

8326. Must be worked in connection with mine or mill. By the enactment of this section of the statute congress undoubtedly intended that the locator of a mill site must hold the same in one of the two ways therein pointed out, and must work it in connection with his mine, or must own and operate mills and reduction works, or some other improvements necessary for the convenient working of his mine thereon. Of course no iron-clad rule as to the amount of work necessary to constitute a compliance with the statute can be laid down; the matter must be left for determination under the peculiar facts in each particular case. As said by the supreme court of Montana: "We cannot say, under this statute, what shall be the extent of the use, whether much or little, or the particular character of the use. The phrase 'mining purposes' is very comprehensive and may include any reasonable use for mining purposes which the quartz-lode mining claim may require for its proper working and development. This may be very little or it may be a great deal. The locator of the quartz-lode mining claim is required to do only a hundred dollars' worth of work each year until he obtains a patent therefor. But if he does only this amount and uses the mill site in connection therewith, is not this the use of a mill site for a mining purpose in connection with the mine? Who shall prescribe what shall be the kind and extent of the use under this statute so long as it is used in good faith in connection with the mining claim for a mining purpose?" 1

In addition to the requirement that the mill site be held in connection with the mine, or that mills or other proper buildings be constructed upon it, it is also necessary and essential that it be held by the real party in interest, that is, not by one person for the benefit of somebody else. But

1 Hartman v. Smith, 7 Mont. 19, curing the water thereon and is 14 Pac. Rep. 648. not improved or occupied for mining or milling purposes, it may not be appropriated for a mill site. Cy. prus Mill Site, 6 L. D. 706; Mint

2 Hamburg M. Co. v. Stephenson, 17 Nev. 449. And where land is merely held for the purpose of se

it is not necessary that application for patent for the mine be made before location of the mill site.1

Lode and Mill Site, 12 L. D. 624. See also Two Sisters Lode and Mill Site, 7 L. D. 557. In the Nevada case, supra, p. 296, it appeared that plaint iff had located a ranch, if such a thing is possible, and that defendant had sought to locate a mill site over it. No mine or mill seems to have been owned in connection

with this mill site, nor does the ranch owner seem to have held one in connection with his "farm," so that, as an abstract proposition of law, there is not very much in the

case.

1 Hargrove v. Robertson, 15 L. D. 499. As to patent for mill sites, see post, § 671.

CHAPTER VI.

OF WATER RIGHTS.

§ 329. Water rights generally — Extent of discussion here.

330. Water rights under the statute - Nature of estate in-Beneficial use - First in time, stronger in right. 331. Percolating waters — Part of soil — Owner of soil not liable for diversion of.

332. Distinction between percolating waters and underground currents.

§ 329. Water rights generally - Extent of discussion here. The question of water rights, except in so far as it relates exclusively to mining, is not a proper subject for discussion in a work of this kind. In this part of our work we will devote ourselves exclusively to a discussion of the question of the rights of the miner to appropriate water for use about his mine or mill, as conferred upon him by stat ute;' and his right to appropriate and use percolating waters, developed or discovered by him while prosecuting work in his shaft, tunnel or other mining excavation. This discussion, it will be observed, treats water as a necessity. There are times, however, when it proves to be an enemy, and damages are claimed by one person against another for allowing his water to flow upon and do damage to the property of the other. This question will be discussed in a future chapter.2

-

§ 330. Water rights under the statute Nature of estate in Beneficial use-First in time, stronger in right.— The statute upon this question reads as follows: "That whenever, by priority of possession, rights to the use of water for mining, or other purposes, have accrued, and the same are recognized and acknowledged by

1 R. S. U. S., § 2339.

[ocr errors]

2 Post, Part XII, ch. VII.

« AnteriorContinuar »