no legal inference, that because a given twenty-acre tract within an area of one hundred and sixty acres is mineral in character, that the adjoining tracts, or others more remote, are of the same character.1 And we cannot conceive how this essential fact can be established without showing a discovery within each tract. The ruling of the land department, however, is not altogether consistent with decisions upon other requirements of the law. If the theory upon which the rule rests is the correct one, it would follow, that each twenty-acre tract should be marked upon the ground, and that, prior to patent, the equivalent of five hundred dollars in labor or improvements must be shown to have been expended for the benefit of each twenty acres; that is, an aggregate of four thousand dollars for one hundred and sixty acres. This, according to Secretary Smith, would be required in the case of eight contiguous lode claims.2 But in case of placers, it seems that the expenditure of five hundred dollars alone will be sufficient to carry to patent any extent of contiguous area that may be embraced in the application.3 It is not our present intention to discuss the correctness of either of the two propositions last announced. This will be reserved for discussion when dealing with patent proceedings. We cite them simply to show inconsistency existing between the two classes of rulings. the the While the supreme court of Montana may be right in its theory that one discovery is sufficient to hold one hundred and sixty acres of placer ground when located in the names of eight persons, it is quite manifest that its decision does not control the land department. As the courts ca nnot interfere with that department while in the discharge of its duties in disposing of the public lands, either by injunction or mandamus,' or exercise any direct appellate 1 Dughi v. Harkins, 2 L. D. 721. Quoted in Davis v. Weibbold, 139 U.S.507. 2Sweeney v. N. P. R. R., 20 L. D. 394; Ferguson v. Hanson, 21 L. D. 336. 3 Good Return P. M. Co., 4 L. D. 221. * Marquez v. Frisbie, 101 U. S. 473; Litchfield v. Richards, 9 Wall. 575; Games v. Thompson, 7 Wall. 347; Cox v. McGarrahan, 9 Wall. 298 jurisdiction for the purpose of reversing or correcting its errors, it is safer to assume the correctness of its rulings in this respect, at least, than to insist upon a contrary doctrine. In ordinary placer claims, it is by no means difficult to comply with the rule established by the department. In the case of deep placers, some inconvenience will be encountered, but no more so than to establish the mineral character of the land containing this class of deposits for purposes of final entry and patent. ARTICLE IV. STATE LEGISLATION AS TO POSTING NOTICES AND PRELIMINARY DEVELOPMENT WORK. ? 442. State statutes requiring post- 2443. Preliminary development ing of notices on placers. work required by state laws upon placer locations. 442. State statutes requiring posting of notices on placers. The general observations upon the subject of posting notices following lode discoveries, found in a preceding section, apply with equal force to all classes of locations upon the public mineral lands. With the exception of the common custom generally observed, as there indicated, the posting of a notice is the subject of state or local regulation, in the absence of which none is required. Some of the states have enacted laws upon the subject with regard to placers, a brief epitome of which will not be out of place: Colorado. Before recording (thirty days from discovery) the discoverer must post upon the claim a notice containing: (1) the name of the claim; (2) the name of the locator; (3) date of discovery, and (4) number of feet or acres claimed.1 1Quinby v. Conlan, 104 U. S. 420; Shepley v. Cowan, 91 U. S. 330. 2 Louise M. Co., 22 L. D. 663. 3 See, ante, ? 350. 'Mills' Annot. Stats., 3136. California. The discoverer must immediately post, in a conspicuous place at the point of discovery, a notice or certificate of location containing: (1) the name of the claim; (2) the name of the locator or locators; (3) date of discovery and posting of notice, which shall be considered as the date of location; (4) a description of the claim, by reference to legal subdivisions of sections, if the location is made in accordance with the public surveys; otherwise, a description with reference to some natural object or permanent monument as will identify the claim.' Idaho. Requirements are practically the same lode claims." as in Montana. The same as in lode claims, except that the number of feet or acres claimed must be designated in the notice, instead of the length of the lode.3 Wyoming. Provisions are the same as in Colorado.1 As to Arizona and New Mexico, if any notice is required to be posted, it is the same as in case of lode claims. Placers are not specially named in the laws of either of these territories upon the subject of posting notices, and it is doubtful if they were intended to apply to placer locations. We find no provisions on this subject in either Washington, Utah, South Dakota, Oregon, North Dakota, or Nevada. 443. Preliminary development work required by state laws upon placer locations. When speaking of the requirement of preliminary development work with respect to lode locations, we expressed the view that the object was two-fold: (1) To determine the lode character of the deposit; (2) To compel the discoverer to manifest his intention to claim the ground in good faith under the mining laws 1 Act of March, 1897, 4. 2 Laws of 1895, p. 25, ?¿ 1, 12. See, ante, ? 354. Rev. Code 1895, 3610. See, ante, + Laws of 1888, pp. 89-90, ? 22. See, ante, 353. 352. See, ante, 344. It is quite obvious that both of these reasons cannot be offered in support of similar requirements in cases of placers, although the latter applies with equal force to them. But three of the states, however, have attempted any legislation on this subject with respect to placers. California requires, that within sixty days from the date of discovery, the discoverer shall perform labor upon his claim in developing it, to an amount equivalent to at least ten dollars' worth for each twenty acres, or fractional part thereof. A failure to perform such labor within the time shall work a forfeiture of all rights under such location, and open the land to location by any qualified locator, except the previous locators.' 3 In Idaho2 and Montana, the equivalent of the work done upon lode claims must be done upon placers. The remaining states and territories have passed no laws upon the subject. It must be remembered, that these requirements are not necessarily connected with the annual labor required by the laws of congress. While this preliminary development work might reasonably be considered in estimating the value of the annual labor for the first year next succeeding the date of location, its requirement is one of the acts of location, and we think such legislation is clearly within the power of the states. ARTICLE V. THE SURFACE COVERED BY THE LOCATION ITS FORM AND EXTENT. tions. 2447. Form and extent of placer | 449. Placer locations by corporalocations prior to Revised Statutes. 448. Form and extent under Re vised Statutes. 2450. Locations by several persons in the interest of oneNumber of locations by an individual. 2447. Form and extent of placer locations prior to Revised Statutes.- Previous to the act of July 9, 1870, 2 Laws of 1895, p. 25, 2 xii. 1 Act of March, 1897, 24. Rev. Code, 1895, 23611. commonly known as the "placer law," congress imposed no limitation to the area which might be included in the location of a placer claim. This, as well as every other thing relating to the acquisition and continued possession of mining claims, was determined by rules and regulations established by miners themselves. The size and shape varied according to the nature of the deposit, for in those days this class of claims embraced hydraulic "dig"gings," gulch or ravine claims, creek claims, and claims on bars and flats. Locations of these claims were made without regard to the lines of public surveys, as there were none. The placer law of 1870, provided for the patenting of placer claims under like circumstances and conditions as were provided by the lode law of 1866 for vein, or lode, claims. It was required, however, that where locations. were made upon surveyed lands, the entry in its exterior limits was required to conform to the legal subdivisions of the public lands. For this purpose, it was provided that forty-acre tracts might be subdivided into areas of ten acres, but no location thereafter to be made was permitted to exceed one hundred and sixty acres for any one person or association of persons. Locations made prior to this act might, if located in conformity with local rules, be patented, whatever their form or area, and any number of contiguous claims, of any size, might be purchased, consolidated, and applied for as one entry." An Under this act, any one person might, unless inhibited by local rules, locate one hundred and sixty acres. association of persons was limited to a like area. The general mining act of May 10, 1872,6 modified the original placer law by fixing the limit of twenty acres for 1St. Louis Smelting Co. v. Kemp, 104 U. S. 636, 649. 2 Yale on Mining Claims and Water Rights, 76, 77. 316 Stats. at Large, 217. *Copp's Min. Dec. 40. 5 St. Louis Smelting Co. v. Kemp, 104 U. S. 636, 651. |