tached, may perform it; and when it has once been performed, it is thenceforth gone forever."1

It is clear that this principle of the law is peculiarly ȧpplicable to the estate of a miner, after a valid location and before patent. He must, as we shall see further on, perform the condition of annual labor. If he does not, a coowner who is interested in the estate may perform it, and this right attaches to any one directly and immediately connected with the estate; such as mortgagees, trustees, administrators, guardians, and the like.

$459. Similarity to Mexican and Spanish law. This idea of imposing the condition of annual labor was not new to the statute. In the laws laid down by the district rules was the requirement of representation work. Likewise, in the Cornish and Devonshire customs, and in the customs of the High Peak of Derbyshire, certain work had to be done in each given period or the mine was forfeited. So, under the Mexican and Spanish law, the person who registered a mine never secured a fee-simple title; he simply secured a right to mine, according to the customs and laws, so long as he complied therewith."

3

$460. Compared with copy hold estates at common law. While there is no such thing as a copyhold estate in America, there is a remarkable similarity in many respects between the estate held by a miner to an unpatented mining claim and that of the copyholder at common law. Both rest upon a custom; both are transferable at will; in both cases the beneficial interest is in the possessor, and the paramount title in possession of the superior proprietor. This doctrine is thus correctly illustrated by the circuit court of appeals of the ninth circuit: "The interest of the locator of a mining claim is in some respects not unlike that of

12 Washb., p. 13.

2 Laws New Recop., ch. 5, § 2; 3 Rockw. Sp. and Mex. Law, ch. 17, p. 318, § 21.

Am. & Eng. Encyc. Law (2d ed.), vol. 7, p. 507.

a copyholder at common law. Both had their origin in local custom, and in each the custom crystallized into law. The copyholder held his land by the custom of the manor, and, while the fee remained in the lord, the right to the possession and enjoyment of the premises was in him. He might alien his lands at will, and on his death they descended to his heirs. His estate might be taken in execution for the payment of his debts, and, if he became bankrupt, it passed to his trustee. But, unlike the locator of a mining claim, the copyholder held upon no condition. He did not have to comply with the rules and regulations established by the law of the manor, nor could the conditions under which he held be changed at the will of the lord. He was not required to perform labor or make improvements upon the land annually, or at all. The copyholder was practically a freeholder, and yet, because the fee was in the lord, the common law, which favored dower, denied it to the widow."1

$461. Dominium utile of the civil law. There is likewise a resemblance between the estate of a miner in an unpatented mining claim and the relation characterized by the dominium utile under the civil law, where the beneficial interest only remains in the possessor. This right is thus described by a leading author: "Dominium utile is a right which the vassal hath in the land, or some immovable thing of his lord, to use the same and take the profit thereof, hereditarily or in perpetuum.”

§ 462. Of certain easements and servitudes specially connected with mining claims.- Independent of the servi tude which each owner of a mining claim owes to an adjoining proprietor who is pursuing his vein on the dip,

1 Black v. Elkhorn M. Co., 52 Fed. Rep. 859, 3 C. C. A. 312; s. C., affirmed on appeal, 163 U. S. 433. See also 1 Scrib. Dower, p. 363;

Duncan v. Nevassa Phosphate Co., 137 U. S. 647.

21 Spence's Eq. Juris., pp. 31, 33; Lindl. Mines, § 541.

3 Spence's Eq. Juris, supra.

congress has impressed each location with additional easements, including drainage and other necessary means of development. The statute imposing this easement1 reads as follows: "As a condition of sale, in the absence of necessary legislation by congress, the local legislature of any state or territory may provide rules for working mines, involving easements, drainage and other necessary means to their complete development; and those conditions shall be fully expressed in the patent." Some courts, in construing this section, have held that it does not impose any limitation upon the estate granted which would be enforceable in violation of a constitutional provision upon the subject of eminent domain.2

$463. Also subject to vested water rights.-The statute has expressly conferred the right of possession and use and the right of way over other property for ditches and canals to all parties who by priority of possession and rights to the use of water for mining, agricultural and manufacturing purposes, have secured vested and accrued water rights therein. Whence it follows that estates in mining claims are subject to rights thus acquired, and the grantee in a patent takes subject to the easement reserved by this section.1

8 464. Local legislatures have power to limit this easement. It will be seen from the foregoing sections, and the authorities cited therein, that the effect of these provisions IR. S. U. S., § 2328.

2 Woodruff v. North Bloomfield Gravel M. Co., 18 Fed. Rep. 753, 774; Mississippi & R. R. Boom Ca v. Patterson, 98 U. S. 403; People ex rel. Aspen M. & S. Co. v. Dist. Ct. of Pitkin County, 11 Colo. 147, 17 Pac. Rep. 298.

R. S. U. S., § 2329.

*Jacob v. Day, 111 Cal. 571, 44 Pac. Rep. 243; Broder v. Natoma W. & M. Co., 101 U. S. 274; Atchison v. Peterson, 20 Wall. 507;

Basey v. Gallagher, id. 670; Forbes v. Gracey, 94 U. S. 762; Jennison v. Kirk, 101 U. S. 240. But the supreme court of California has held that this provision cannot be construed to enlarge the grant to ditch owners, so as to include a right not "recognized and acknowledged by the local customs, laws and the decisions of the court." Titcomb v. Kirk, 51 Cal. 288, 294. See also Bliss v. Kingdom, 46 Cal. 649.

of statute is to extend the right of eminent domain over mining property. It imposes upon each location a servitude to neighboring or adjoining locations, but power is impliedly given to the states and territories to limit these easements. It constitutes a limitation upon the estate of the locator, restricting, to that extent only, what would otherwise be an exclusive possession. The provision of statute granting "the right of way for the construction of highways over public lands, not reserved for public uses,"3 has also been held to impress upon the estate in a mining claim a limitation, subject to which the locator or patentee secures his estate. But this is not such an estate as is necessary to be protected by adverse claim against an application for patent."

§ 465. Other implied limitations. In a subsequent chapter of this work will be discussed the doctrine of apex and extra-lateral rights. While this right does not extend to the surface, it is a limitation upon the estate of the locator, by virtue of which a neighboring proprietor has the right to follow his vein on its dip, and when the facts are ascertained this becomes an express limitation upon his estate, pursuant to which his neighbor is permitted to enter within the vertical planes of his particular piece of land.'

$466. Possessory rights equal to patent so long as the law is complied with.— A correct understanding of the law demonstrates that so long as the condition imposed by the

1 R. S. U. S., § 2328; Jennison v. Kirk, 98 U. S. 453; People ex rel. Aspen M. & S. Co. v. Dist. Ct. of Pitkin County, 11 Colo. 147, 17 Pac. Rep. 298; Amador Queen M. Co. v. De Witt, 73 Cal. 482, 15 Pac. Rep. 74. 2 Titcomb v. Kirk, 51 Cal. 288; Jacob v. Day, 111 Cal. 571, 44 Pac. Rep. 243; Broder v. Natoma W. & M. Co., 101 U. S. 274.

3 R. S. U. S., § 2477.

4 Hobart v. Ford, 6 Nev. 77.

5 Rockwell v. Graham, 9 Colo. 36, 10 Pac. Rep. 284. A full discussion of the question as to who should and who need not adverse will be found post, Part X, ch. II, arts. B. and C.

6 See post, Part XI.

7 Id.; Watervale M. Co. v. Leach (Ariz.), 33 Pac. Rep. 418, 420.

law itself is complied with, the locator of an unpatented mining claim has a valid estate, to all intents and purposes an estate of inheritance, equal in degree to a fee simple for all practical purposes. He is not required to patent his claim, though he may do so, but he is required, in order to hold and maintain his estate, to perform the other condition of annual labor, and the requirements of the local law, in order to hold it. He may patent or not as he sees fit; his estate is good without it, and there is no law requiring it. And so long as he complies with the laws relative to assessment work, as we shall fully set forth in the next chapter, his rights are just as perfect without patent as with it.'

§ 467. Possessory actions maintainable - Property in the highest sense of the term. Thus it is that the courts have come to recognize a mining claim, concerning which all the rules, regulations and customs have been complied with, as property capable of alienation before the issuance of a patent. It has even been held, as we shall see later on, that. it could be transferred without a deed. But courts have grown to regard it, and the estate thus secured by location and the performance of annual labor, as property in the highest sense of the term. It may, and generally must, be conveyed by deed. It may be partitioned, and may be bought, sold, conveyed and generally dealt with as patented

1 Gold Hill Quartz M. Co. v. Ish, 5 Oreg. 104. See also Manuel v. Wulff, 152 U. S. 505; Butte City Smoke House Lode Cases, 5 Mont. 497, 12 Pac. Rep. 858.

* Sussenbach v. First Nat. Bank, 5 Dak. 477, 41 N. W. Rep. 662. See ante, § 455-457.

Harris v. Equator M. Co., 8 Fed. Rep. 863; Forbes v. Gracey, 94 U. S. 767; Aspen M. Co. v. Rucker, 28 Fed. Rep. 220; Gillis v. Downy, 29 C. C. A. 286; Gaylord v. Place, 98

Cal. 472, 33 Pac. Rep. 484; Spencer v. Winselman, 42 Cal. 479; Hughes. v. Devlin, 43 Cal. 502; Watts v. White, 13 Cal. 521; Roseville Alta M. Co. v. Iowa Gulch M. Co., 15 Colo. 29, 24 Pac. Rep. 920; Hale, etc. M. Co. v. Story County, 1 Nev. 83.

4 Robertson v. Smith, 1 Mont. 410; Hopkins v. Noyes, 4 Mont. 556, 2 Pac. Rep. 280; Melton v. Lambard, 51 Cal. 258.

5 Dahl v. Confidence M. Co., 8 Nev. 531.