McFarland entertained the view that a ledge of rock salt might be located under the lode laws.'

As to other so-called mineral springs, Secretary Noble expressed an opinion, which is probably a mere dictum, that they also should be classified as salines; but Secretary Teller ruled, that lands containing mineral springs not of a saline character are subject to sale under the agricultural land laws.3

Sulphur springs are not regarded as saline.'

Lands saline in character cannot be entered under the desert land laws.5

Tracts of land returned by the surveyor-general as saline may be shown to be agricultural in character, and will then be subject to entry under the agricultural land laws. In other words, the return of the surveyor-general concludes no one."

1 In re Megarirrgle, 9 Copp's L. O. 113.

2 Southwestern M. Co., 14 L. D. 597.

Pagosa Springs, 1 L. D. 562. See, also, Morrill v. Margaret M. Co., 11 L. D. 563.

'Coin'rs' Letter, Copp's Min. Dec. 22.

Jermy v. Thompson, 20 L. D. 299.

Cole v. Markley, 2 L. D. 847.

7 See, ante, 106.

CHAPTER VII.

MILLSITES.

519. The law relating to millsites. 520. Different classes of millsites. 2521. Right to millsite- How initiated.

2522. Location of millsite with

reference to lode.

523. Nature of use required in case of location by lode proprietor.

? 524. Millsites used for quartz mill or reduction works disconnected with lode ownership.

519. The law relating to millsites.-Millsites, while they are frequently important accessions to mining rights, occupy a relatively subordinate position in the federal mining system. Prior to the passage of the mining laws, they, in common with many other privileges asserted on the public domain, were regulated exclusively by neighborhood customs and local rules, not necessarily under the name of millsites, but as surface adjuncts to located lodes.

Until the act of May 10, 1872, was passed, there was no law by which title to them could be obtained. Section fifteen of that act provided a method, which is perpetuated in section twenty-three hundred and thirty-seven of the Revised Statutes. This section is as follows:

"Where non-mineral land not contiguous to the vein, or "lode, is used or occupied by the proprietor of such vein, or "lode, for mining or milling purposes, such non-adjacent "surface-ground may be embraced and included in an application for a patent for such vein, or lode, and the same

แ

may be patented therewith, subject to the same prelim"inary requirements as to survey and notice as are appli"cable to veins, or lodes; but no location hereafter made of "such non-adjacent land shall exceed five acres, and pay"ment for the same must be made at the same rate as

"fixed by this chapter for the superficies of the lode. The owner of a quartz mill or reduction works not owning a "mine in connection therewith may also receive a patent "for his millsite, as provided in this section."

2520. Different classes of millsites.-It will thus be observed that the law divides patentable millsites into two classes:

(1) Such as are used and occupied by the proprietor of a vein, or lode, for mining or milling purposes;

(2) Such as have thereon quartz mills or reduction works, the ownership of which is disconnected with the ownership of a lode, or vein.1

The limit as to area and price per acre is the same in both classes, and the requirement, that the lands embraced therein shall be non-mineral, applies equally to each class.

There is nothing to prevent one owning several lode claims from selecting a millsite for each one, provided that each is actually occupied and used for mining or milling purposes in connection with the lode to which it is appurtenant.

It has been held, that a lode proprietor may select more than one tract, if the aggregate does not exceed five acres," provided, of course, that each tract is used for mining and milling purposes in connection with the lode.

There is no provision of law by which a millsite can be acquired as additional to, or in connection with, an exist ing millsite.

3

521. Right to millsite - How initiated.-The statute is silent as to the manner of locating millsites, but it is not unreasonable to suppose that a location thereof must be made substantially as that of a mining claim. This is the universal practice throughout the mining regions, and this 1Rico Townsite, 1 L. D. 556; Hartman v. Smith, 7 Mont. 19; Hamburg M. Co. v. Stephenson, 17 Nev. 449.

2 In re J. B. Haggin, 2 L. D. 755.

3 Hecla Consolidated M. Co., 12 L. D. 75.

4 Rico Townsite, 1 L. D. 556.

practice is recognized by the land department' and the courts.2

3

Some of the states have enacted laws prescribing the manner of locating millsites. California, Montana,1 and Utah' have passed laws providing for the posting and recording of notices, the latter state also requiring the boundaries to be marked with the same formality as in case of lode claims.

The mere location of a millsite does not of itself segregate the land from the body of the public domain. A right to be recognized must be based upon possession and use."

Where the land is not in actual use, the claimant must show such an occupation, by improvements or otherwise, as evidences an intended use of the tract in good faith for mining and milling purposes.'

Mere intention or purpose on a certain contingency of performing acts of use, or occupation thereon, will not satisfy the law.

It is unnecessary to remark, that the tract sought to be obtained for millsite purposes must not only be non-mineral, but it must also be upon the unoccupied, unreserved, and unappropriated domain. As lands not mineral in character may be selected under various laws, the right to appropriate them for millsite purposes cannot be exercised if any lawful possession is held by others. Therefore, millsites may not be selected on lands within the limits of railroad grants after the line of the road has been definitely fixed, nor within the limits of any valid, subsisting, agricultural, or other holding. As between millsite and

10

1 Hargrove v. Robertson, 15 L. D. 499; In re George, 2 Copp's L. O. 114. "Hartman v. Smith, 7 Mont. 19.

3 Act of March, 1897.

4 Rev. Pol. Code, 1895, 22 3610, 3612.

5 Act of March, 1897.

6 Rico Townsite, 1 L. D. 556.

Two Sisters Lode and Millsite, 7 L. D. 557; In re Lennig, 5 L. D. 190. 8 Ontario S. M. Co., 13 Copp's L. O. 159.

Rico Townsite, 1 L. D. 556; Alta Millsite, 8 L. D. 195; Patterson Quartz

Mine, 4 Copp's L. O. 3; Copp's Min. Dec., 129.

10 Mongrain v. N. P. R. R., 18 L. D. 105; Copp's Min. Dec., 147.

agricultural claimants, the rights of the parties are determined by priority of possession.1

522. Location of millsite with reference to lode.As to the requirement that the land selected for millsite purposes should be non-contiguous to the lode, it has uniformly been held by the land department that land contiguous to the surface ground of a lode claim was not within the prohibition named. Millsites may abut against the side lines of a lode claim if the land is non-mineral." Ordinarily they cannot adjoin the end lines, upon the theory that the lode suppositiously crosses these lines, and must, to some extent, at least, exist in the adjacent ground beyond them. But as the character of the land is always a question of fact, if it should be determined that the tract contiguous to the end lines is in fact non-mineral, there is no objection to appropriating it for millsite purposes."

523. Nature of use required in case of location by lode proprietor. The statute does not mention any particular mining purpose for which a millsite, selected by a lode proprietor, shall be used. If used in good faith for any mining purpose at all in connection with a quartz lode, such use would be within the meaning of the statute.

The erection on the tract of a cabin, using the same for storage of tools and supplies, and ores in small quantities, has been held to be within the intent of the law."

It has been said, that using land for deposit of tailings, or storing ores, or for shops, or houses for workmen;" for collecting water for motive power, or for pumping

1 Sierra Grande M. Co. v. Crawford, 11 L. D. 338; Adams v. Simmons, 16 L. D. 181; In re Moore, 11 Copp's L. O. 326.

2 In re Freeman, 7 Copp's L. O. 4.

3 Id.; In re Long, 9 Copp's L. O. 188.

* National Mining and Exploring Co., 7 Copp's L. O. 179; In re Long,

9 Copp's L. O. 188.

5 Hartman v. Smith, 7 Mont. 19.

6 Id. See, also, Eclipse Millsite, 22 L. D. 496.

7 Satisfaction Extension Millsite, 14 L. D. 173; In re Lennig, 5 L. D. 190.