the same rights of soverignty and jurisdiction over this subject as the original states;1

(2) The conduct of mining operations in navigable streams is incompatible with the public uses to which such streams are dedicated.

If unnavigable, there is no reason why the gravel deposits lying on the beds cannot be appropriated2 (as the banks can, for it is there that placers are usually found,) if the title to the bed resides in the general government. No subsequent appropriation of the bed of an unnavigable stream can interfere with the rights of the prior riparian. proprietor. In other words, the question to be considered is, whether the bed sought to be appropriated is a part of the public domain, or not.

ARTICLE II. THE LOCATION AND ITS REQUIREMENTS.

432. Acts necessary to be per

formed to constitute a valid
placer location under the
Revised Statutes, in the
absence of supplemental

state legislation and local district rules.

2433. Requisites of a valid placer location where supplemental state legislation exists.

performed to constitute

2432. Acts necessary to be a valid placer location under the Revised Statutes, in the absence of supplemental state legislation and local district rules.- Generally speaking, the acts required to be performed in order to complete a valid location under the federal laws applicable to placers, are the same as are required in cases of lode locations. Section twenty-three hundred and twenty-nine of the Revised Statutes provides:

"Claims usually called placers, including all forms "of deposit, excepting veins of quartz, or other rock in "place, shall be subject to entry and patent under like

1 Pollard v. Hagan, 3 How. 212; Pollard's Heirs v. Kibbe, 9 How. 471; Commissioner Burdett's Letter, 1 Copp's L. O. 155.

2 Rablin's Placer, 2 L. D. 764.

"circumstances and conditions as are provided for vein, "or lode, claims."

This has been construed to mean:

(1) That there must be a discovery upon which to base the location;1

(2) The location must be marked upon the ground so that its boundaries can be readily traced."

As was said in a previous section, referring to lode claims, no notice need be posted, no particular kind of marking is required, nor is any record made necessary. No preliminary development work is prescribed. In the absence of supplemental state or local regulation the discovery and marking the boundaries perfect the location."

433. Requisites of a valid placer location where supplemental state legislation exists. As in the case of lodes,' most of the states within the purview of this treatise have enacted laws prescribing certain acts to be done, in order to perfect a placer location, in addition to the requirements of the federal law. These supplemental provisions vary in the different states. Taking the Colorado statutes as a type (although the laws of some of the states are more elaborate), the following acts are required to complete a location of this class:

(1) Discovery;

(2) Posting a notice of location;

(3) Marking the boundaries in a specified manner; (4) Recording a certificate of location.

As these features are common to both lode and placer claims, what we have heretofore said with reference to the

McDonald v. Montana Wood Co., 14 Mont. 88; Lincoln Placer, 7 L. D. 81; Ferrell v. Hoge, 18 L. D. 81; 19 L. D. 568; Louise M. Co., 22 L. D. 409; Rhodes v. Treaz, 21 L. D. 503; S. P. R. R. v. Griffin, 20 L. D. 663; Reins v. Murray, 22 L. D. 409; Union Oil Co., 23 L. D. 222.

2 White v. Lee, 78 Cal. 593; Sweet v. Webber, 7 Colo. 443; Anthony ". Jillson, 83 Cal. 296; McDonald v. Montana Wood Co., 14 Mont. 88.

necessity of complying with these conditions,' the order in which the acts may be performed, and the effect of locations made by agents, need not be here repeated.

ARTICLE III. THE DISCOVERY.

437. Rules governing discovery 438. Unit of placer locations. the same as in lode locations.

Discovery in each twentyacre tract.

2437. Rules governing discovery the same as in lode locations. The subject of discovery has been fully considered, when dealing with lode locations, in a previous article. The principles there announced apply with equal force to placers, in so far as the character of the deposits will admit. Discovery is just as essential in case of placers as it is in lode locations, and the rules as to what constitutes a valid discovery in the latter apply with equal force to the former, with such modifications only as necessarily flow from the different form in which the deposits occur. It is, therefore, useless to repeat what has heretofore been fully explained.

According to a ruling of the department, the fact that land has been returned as mineral by the surveyor-general does not obviate the necessity of a discovery as the basis of a placer location. Without such discovery the location is void."

438. Unit of placer locations - Discovery in each twenty-acre tract. We have heretofore observed that the unit of lode locations is a surface area aggregating a fraction over twenty acres, and that it is immaterial how many or how few locators participate in that class of locations.

We shall see in a succeeding article that the rule in regard to placers is somewhat different. In placers, the

1See, ante, 329.

2 See, ante, ¿ 330.

'See, ante, ?? 335-339.

5 Reins v. Murray, 22 L. D. 409.

3 See, ante, ? 331.

6

See, ante, 361.

unit of the location is twenty acres to each individual, with a maximum of one hundred and sixty acres to an association of persons. In other words, unless limited by local rules, a single individual may locate a twenty-acre tract, but no more. Where more than one person (not exceeding eight) participates, an area equivalent to twenty acres to each is permitted; but they locate the whole area jointly, and are not, according to the practice, required to each locate a particular specified twenty-acre tract, becoming tenants in common of the entire area. Such being the case, the question has arisen as to whether one discovery within the limits of the entire area appropriated by an association of persons would be sufficient upon which to base a location as to such area, or whether a discovery is necessary upon each twenty-acre tract or unit of location. In case of lode locations, where an appropriation in excess of the statutory limit of a single location is desired, a separate discovery and separate location are necessary."

In applying the law to this class of cases, the rule adopted by the land department seems to be now well settled. As stated by Secretary Smith, it is as follows:

"It will be conceded, that the individual is required to "make a discovery on the twenty acres he is permitted "to take. This being true, it is difficult to conceive "of a construction of the law that would discriminate "against the individual in favor of the many. Such was "surely not the intention of the law-makers. In my opin "ion, there must be a discovery upon each twenty-a cre "tract included in a placer location of one hundred and sixty acres, and a location made of that amount of land "upon a single discovery is made void, except as to the twenty acres immediately surrounding it. To construe "the law otherwise, is to open the doorway for the appropriation of the public lands, that would be doing "great violence to the intent and meaning of the mining "law."3

66

66

'Copp's Min. Dec. 164.

2 See, ante, 361.

3 Ferrell v. Hoge, 18 L. D. 81.

That this has not always been the rule, the department itself admits, but all the recent decisions of that department promulgated during the incumbency of Secretary Smith follow the views above expressed."

In one of the decisions of the supreme court of California, there is found the following dictum: "It is insisted by "counsel for respondents, that no location of mineral land "is valid unless valuable mineral had been actually discov"ered in the land before the location was made. As to placer claims, we find no such condition in the acts of congress, in the local laws, or in the practice of miners." We characterize this as dictum, because the court in the next sentence finds, that in the case under consideration there was a discovery.

At all times in the history of mining in the west, discovery was recognized as the source of mining titles,' without distinction as to the character of the deposit, and we do not think the supreme court of California intended to overthrow this doctrine.

The supreme court of Montana does not agree with the rule established by the land department. It has held, that a single discovery within the limits of a tract of one hundred and sixty acres, located by an association of eight persons, is sufficient upon which to base a location of the entire tract.6

Secretary Smith's attention was invited to this decision, but he declined to accept it as a correct exposition of the law."

There is this to be said in favor of the departmental ruling: In placer entries, the department must be satisfied as to the mineral character of the entire tract. There is

1 Ferrell v. Hoge (on review), 19 L. D. 568. See, also, Lincoln Placer, 7 L. D. 81.

2S. P. R. R. v. Griffin, 20 L. D. 485; Rhodes v. Treas, 21 L. D. 502; Louise M. Co., 22 L. D. 663; Union Oil Co., 23 L. D. 222.

3 Gregory v. Pershbaker, 73 Cal. 109, 117.

4 Jackson v. Roby, 109 U. S. 440.