each individual claimant. The limit which might be taken by an association of persons remained the same, as in this respect the act of 1870 was unrepealed.1

As to the form of the location, the later act provided that it should conform as near as practicable with the United States system of public land surveys and the rectangular subdivisions of such surveys; where it could not be conformed to legal subdivisions, it might be made the same as on unsurveyed lands. This was the state of the law when the federal statutes were revised.

2448. Form and extent under Revised StatutesThe Revised Statutes, which embrace the laws of the United States general and permanent in their nature, in force on December 1, 1873, contain the following provisions as to form and extent of surface area:

"2329. 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 circumstances and conditions, and upon similar pro"ceedings, as are provided for vein, or lode, claims; but "where the lands have been previously surveyed by the "United States, the entry in its exterior limits shall con"form to the legal subdivisions of the public lands.

"22330. Legal subdivisions of forty acres may be sub"divided into ten-acre tracts; and two or more persons, or "associations of persons, having contiguous claims of any "size, although such claims may be less than ten acres each, "may make joint entry thereof; but no location of a placer "claim, made after the ninth day of July, eighteen hun"dred and seventy, shall exceed one hundred and sixty acres for any one person, or association of persons, which "location shall conform to the United States surveys.

"22331. Where placer claims are upon surveyed lands, "and conform to legal subdivisions, no further survey or plat shall be required, and all placer mining claims located "after the tenth day of May, eighteen hundred and seventy"two, shall conform as near as practicable with the United "States system of public-land surveys, and the rectangular

1 See, ante, 72; St. Louis Smelting Co. v. Kemp, 21 Fed. Cases, 205.

"subdivisions of such surveys, and no such location shall "include more than twenty acres for each individual "claimant; but where placer claims cannot be conformed "to legal subdivisions, survey and plat shall be made as "on unsurveyed lands; and where by the segregation of "mineral lands in any legal subdivision a quantity of agricultural land less than forty acres remains, such frac"tional portions of agricultural land may be entered by "any party qualified by law, for homestead or pre-emption purposes."

It will thus be observed:

(1) That the unit or individual location is twenty a cres; (2) That not to exceed one hundred and sixty acres may be embraced within one location by an association of persons, of which there must be at least eight;

(3) That the location, if upon surveyed lands, must conform as near as practicable to the lines of the public surveys.

As to whether it is practicable to make a location or survey conform to legal subdivisions, is a matter which rests entirely with the land department.

Ore

Commissioner McFarland held, that the only construction of the language of the act, "as near as practicable,” which is consistent with the context of the act and the general intention of congress is, that placer locations upon surveyed lands must conform to the public surveys in all cases, except where this is rendered impossible by the P vious appropriation or reservation of a portion of the legal subdivision of ten acres upon which the claim is situated. The location in this case was made in 1880, and covered the bed of Bear river, in California, for twelve thousa nd feet, following the meanderings of the river, and embraced a small quantity of surface ground along its banks. entry was held for cancellation.1

The

This ruling of the commissioner, however, was reversed by Secretary Teller, who held, that the placer law of 1870, which expressly required placer locations to conform

110 Copp's L. O. 3. See, also, Copp's Min. Lands, 115.

2 Rablin's Placer, 2 L. D. 764; Esperance M. Co., 10 Copp's L. 0.338.

to

the lines of the public surveys, was unreasonable, a hardship, and in contravention of the established custom of the mining regions; therefore, it was modified by the act of May 10, 1872, so as to provide for exceptional cases where reason and common sense required a different regulation.

The case of the Bear river claim was of this exceptional character. The placer deposit was in a cañon on the banks of a very crooked stream, and where the adjoining lands were totally unfit for mining or agricultural purposes. The placer applicant was permitted to proceed to patent.

There can be no question but that this ruling is in harmony with the custom of miners in California. This particular river was, from 1852 to 1867, the scene of great mining activity, and for miles up and down the stream, during the season when the stage of the water would permit, miners claimed, occupied, and worked its bed, bars, and banks, under regulations defining the extent of their claims by a certain number of feet along the stream, and a width extending to the sides of the gulch.

The ruling of Secretary Teller was followed in a later case by acting Secretary Muldrow.1

While it is true that congress is not bound to shape its legislation so as to conform to the previously existing local customs, yet the history of federal mining legislation shows that great consideration has been paid to such customs. Evidently, there was some reason for the modification of the original placer act in this respect, and there can be no doubt that Secretary Teller states the "old law, the "mischief, and the remedy" correctly.

These gulch or river claims, as well as deep placers found in ancient river beds where the deposits follow the meanderings of the channel, certainly present instances where it would be unreasonable in all cases to insist that a mining claimant should take and pay for, at an increased rate, any considerable amount of land that is useless for mining purposes, for the sake of obtaining title to the

KK

1 In re Pearsall and Freeman, 6 L. D. 227.

small quantity which is useful.' The inconvenience to the government in administering its land system is no greater in this respect than that caused by the segregation of lode claims.2

Lands must be treated as unsurveyed until the plat is finally approved.3

Locations upon unsurveyed lands may be made in any form so long as the statutory area is not exceeded.

449. Placer locations by corporations.-As heretofore noted, the supreme court of the United States has determined, that a domestic corporation formed under the laws of a state may locate public mineral lands, but intimates that there may be some question raised as to the extent of a claim which a corporation may be permitted to locate as an original discoverer, suggesting that it might perhaps be treated as one person and entitled to locate only to the extent permitted a single individual."

one

The placer law quoted in the preceding section permits an "association of persons" to locate not to exceed hundred and sixty acres. A corporation is an association of persons; at the same time we must admit that it is but an artificial individual. We have intimated in a previous section, that if such a corporation had a constituency of eight stockholders it might be permitted to approp riate one hundred and sixty acres of land by location. We are not aware that the question has ever been judicially determined. Looking at the object of the statute in permit ting consolidation of interests for purposes of development and operation, so clearly outlined by the supreme court of the United States in St. Louis Smelting Company v. Kemp,

2

1 Esperance Mining Claim, 10 Copp's L. O. 338.

For illustration of manner of describing minor subdivisions located as placers, see, Mining Circular, Dec. 10, 1891, pars. 56, 57. See appendix. 3 Copp's Min. Dec., 41. See, ante, ?? 104, 105, 142; Bullock v. Rouse, 81 Cal. 590, 595; Medley v. Robertson, 55 Cal. 396.

See, ante, 226, p. 274.

5 McKinley v. Wheeler, 130 U. S. 630, 636. 6104 U. S. 636.

we cannot say that by the use of the term "association of "persons" congress meant to exclude corporations from the designation. As eight individuals might locate and unite their interests in an incorporated company without violating the spirit of the law, it is not unreasonable to suggest, that a corporation composed of the eight may accomplish the same purpose by locating one hundred and sixty acres. Our suggestion is based upon the language of the statute. In the absence of any such provision granting privileges to an association of persons, undoubtedly a corporation would simply occupy the status of an individual. The question is not by any means easy of solution. It has not been judicially answered.

2450. Locations by several persons in the interest of one-Number of locations by an individual. It is a matter of frequent occurrence, that an individual locator, desiring to obtain more ground than he is permitted under the law to appropriate in his individual capacity by a single location, resorts to the use of "dummies," and perfects locations in their names, subsequently obtaining conveyances therefor. The courts have held that this is a fraud upon the government. The same object can be accomplished without violating the law. There is nothing. to prevent a miner from locating, by separate location, as many twenty-acre tracts as he pleases, either contiguous or non-contiguous. The right to locate and develop mining ground is not exhausted by a single location, as in the case of pre-emption and homestead entries. If he can discover mineral within the eight twenty-acre subdivisions of a quarter section of land, and is willing to develop them to the extent required by law as a condition precedent to the acquisition of title by patent, or to annually perform labor to the extent required by law upon, or for the benefit of, each, he is clearly entitled to do so. The statute simply inhibits the acquisition by an individual of more than

'Mitchell v. Cline, 84 Cal. 409; Gird v. California Oil Co., 60 Fed. 535.