As to highways, section twenty-four hundred and seventy-seven of the Revised Statutes grants the right of way for the construction of highways over public lands not reserved for public uses. A mining location made subsequent to the laying out of a public road crossing it would be subject to the public easement.1

531. Location subject only to pre-existing easements. The right of the United States to grant easements and other limited rights on any portion of its public domain cannot be gainsaid, and subsequent purchasers must take it burdened with such easements or other rights.2

"But when it has once disposed of its entire estate in "the lands to one party, it can afterwards no more burden "it with other rights than any other proprietor of lands."

The same doctrine applies to perfected mining locations. After such location has once been completed, the estate of its owner cannot be subjected to burdens, except for some public use; or if sanctioned by the state constitution for a private use, upon condemnation proceedings.1

This phase of the subject has been discussed by us in a preceding portion of the work," and it is unnecessary to here repeat what was there said.

As to other privileges which may be said to be incident to the ownership of mines and mining claims, we shall consider them when discussing the nature of the title acquired and rights conferred by location."

Murray v. City of Butte, 7 Mont. 61.

2 Amador-Medean G. M. Co. v. S. Spring Hill M. Co., 13 Saw. 523. 3 Woodruff v. North Bloomfield Gravel M. Co., 9 Saw. 441. See, also, Dower v. Richards (Cal.), 15 Pac. 105; Amador Queen M. Co. v. Dewitt, 73 Cal. 482.

Peo v. Dist. Court, 11 Colo. 147; Robertson v. Smith, 1 Mont. 410; Noteware v. Sterns, Id. 311.

5 See, ante, 2 252-264.

See, post, tit. vi., ch. ii and iii.

TITLE VI.

THE TITLE ACQUIRED AND RIGHTS CONFERRED BY LOCATION.

CHAPTER

I. THE CHARACTER OF THE TENURE.

II. THE NATURE AND EXTENT OF PROPERTY RIGHTS CONFERRED BY LODE LOCATIONS.

III. THE EXTRALATERAL RIGHT.

IV. THE NATURE AND EXTENT OF PROPERTY RIGHTS CONFERRED BY PLACER LOCATIONS.

V. PERPETUATION OF THE ESTATE BY ANNUAL DEVELOPMENT AND IMPROVEMENT.

VI. FORFEITURE OF THE ESTATE, AND ITS RESTORATION

BY RESUMPTION OF WORK.

2535. Nature of the estate as defined by the early decisions. It is somewhat difficult to comprehensively classify the nature of the estate acquired and held by the possessor of a valid mining location, by the use of any definitive term recognized by the common law or employed in the United States to designate a particular tenure.1

In the early history of mining jurisprudence, the estate or interest acquired by the miner in his claim, held and worked under the local rules and customs, was treated as an interest in real property. It was liable to sale on execution, and was subject to taxation.3

The supreme court of California thus announced its views:

1Judge Knowles in Black v. Elkhorn M. Co., 49 Fed. 549.

McKeon v. Bisbee, 9 Cal. 137.

State of Cal. v. Moore, 12 Cal. 56; People v. Shearer, 30 Cal. 645; Hale & Norcross M. Co. v. Storey County, 1 Nev. 82; People v. Taylor, 1 Nev. 88; Forbes v. Gracey, 94 U. S. 762.

"From an early period of our state jurisprudence we "have regarded these claims to public mineral lands as "titles. They are so practically. Our courts have 'given them the recognition of legal estates of freehold; "and so for all practical purposes, if we except some "doctrine of abandonment not perhaps applicable to such "estates, unquestionably they are, and we think it would "not be in harmony with the general judicial system to "deny to them the incidents of freehold estates in respect to this matter."1

And in a later case the same tribunal stated the rule to be,

"That although the ultimate fee in our public mineral "lands is vested in the United States, yet, as between individuals, all transactions and all rights, interests, and estates in the mines are treated as being an estate in fee "and as a distinct vested right of property in the claimant or claimants thereof, founded upon their possession or "appropriation of the land containing the mine. They "are treated, as between themselves and all persons, but "the United States, as the owners of the land and mines "therein."2

As was said by the supreme court of Nevada, the courts and the laws adapting themselves to the necessity of the case, and governed by rules of common sense, reason, and necessity, have universally treated the possessory rights of the miner as an estate in fee. Actions for possession, similar to the action of ejectment, actions of trespass, bills for partition, are constantly maintained. Such interests are held to descend to the heir, to be subject to sale on execution, and to be assets in the hands of executors and administrators for the payment of debts.1

1 Merritt v. Judd, 14 Cal. 60, cited and approved in Roseville Alta Co. v. Iowa Gulch, 15 Colo. 29; Spencer v. Winselman, 42 Cal. 479.

2 Hughes v. Devlin, 23 Cal. 502-507; Watts v. White, 13 Cal. 321.

3 Dall . Confidence S. M. Co., 3 Nev. 531; Aspen Mining, etc., Co. v. Rucker, 28 Fed. 220 (disapproving Strettell v. Ballou, 3 McCrary, 46; 9 Fed. 256).

But it is seldom that a division of mines may be made. Generally, partition suits must result in sale: Aspen M. & S. Co. v. Rucker, 28 Fed. 220; Lenfers v. Henke, 73 Ill. 405. See, also, Coleman v. Coleman, 19 Pa. St. 100. Hale & Norcross G. & S. M. Co. v. Storey County, 1 Nev. 83.