The settled policy of the government in the disposition of salt lands and salines has been, and is now, to reserve the same from general disposal. Deposits of rock salt are "salines," and not subject to entry under the statutes authorizing the acquisition of title to mineral lands. Southwestern M. Co., 14 L. D. 597 (1892).

A desert land entry will not be allowed of land on the beach of Great Salt Lake chiefly valuable for the saline deposits therein and not susceptible of reclamation at a cost that would justify the outlay at any probable price for agricultural land. Jeremy v. Thompson, 20 L. D. 299 (1895).

On salt springs and salt lands in Alabama, see State of Alabama, 21 L. D. 320 (1896).

CHAPTER XVIII.

TITLE ACQUIRED BY STATUTE OF LIMITATIONS.

PROPERTY in minerals in place being real estate, title thereto may be acquired under Statutes of Limitations in the same way as title to other real estate. The same is true of title to mining claims upon the public domain. By Rev. Stats. 2332 it is proIvided that those who have held and worked their claims for the time prescribed by the Statutes of Limitations for mining claims of the State or Territory where they are situated, have a title sufficient to establish the right to a patent in the absence of any adverse claim. And such a possession, at least against a wrongdoer, raises a conclusive presumption that the claimant holds. under a valid location.

In some States and Territories special limitations have been imposed by statutes upon suits for recovery of mining property,1 but in the absence of such limitations such suits are governed by the general statutes relating to actions for the recovery of real

estate.

The important question in these cases is what constitutes adverse possession of mining property.

Where the ownership of minerals in place is severed from the ownership of the soil or surface, the mere possession of the latter is not such a possession of the minerals beneath as to be adverse. Nor will the non-user of the minerals or of the right to dig them by the mine owner, convert the possession of the surface owner into an adverse possession of the minerals. The latter must perform some act adverse, hostile to the rights of the mine owner, which prevents him from exercising his rights. The surface owner setting up the statute must establish a possession

1 Arizona, Rev. Stats. 1887, sec. 2308; Colorado, M. A. S. 2923-6; Montana, Code Civ. Proc. 1895, sec. 494; Oregon, Hill's

Ann. Laws 1892, sec. 2178; West Vir ginia, Code App. 1891, p. 1045.

of the mine as such independently of his possession of the surface.

Such a possession must be actual, notorious, exclusive, continuous, peaceable, and hostile for the statutory period. And in these respects the surface owner is in no better position than a stranger. No act or acts on his part will establish title in him which would not give title to a stranger. Actual possession is taken by the opening of mines and carrying on of mining operations. That possession is continuous if the operations are continuous, or are carried on continuously at such seasons as the nature of the business and the customs of the country permit or require. A cessation of operations in accordance with the custom of the neighborhood, or from necessity occasioned by some natural agency, would not be an interruption of the possession. But there must be something evidencing possession in the interval which connects the operations when resumed with those which have gone before, and to distinguish such possession from a series of repeated acts of trespass.

Where there is no division of the estate in the surface from that in the minerals, the ordinary rules on the subject of the adverse possession of real estate govern.

To establish an adverse possession of a mining claim in the public domain, there must be actual possession of a part, accompanied by a claim of title to the whole, and continuous working thereon. Possession of the surface of the claim is possession of all the veins and ledges to which the owner of the claim has title. And conversely, without possession of the surface of a claim no possession of any of the veins whose apices are therein, can be adversely acquired, as by sinking shafts to them outside of the surface boundaries. The statute in such a case could only begin to run after the prior locator acquired actual knowledge of the fact of the possession of the vein. Where one party claims under a patent from the United States, the statute begins to run from the date of that patent. In Nevada adverse possession of a mining claim is defined by statute1 to" consist in holding and working the same in the usual and customary mode of holding and working similar claims in the vicinity thereof."

Of course the Statute of Limitations does not run against the United States.

1 Gen. Stats. 1885, 3632.

Union M. Co. v. Taylor, 100, 37 (1879). Where

United States. the plaintiff in ejectment was a tenant in common with the defendants, their possession of the claim was his possession, and the Statute of Limitations did not run against him until he was ousted by them and they maintained a possession adverse to him.

Hamilton v. Southern Nev. G. & S. M. Co., 33 Fed. 562 (1887), C. C. D. Nev. "The only evidence of actual possession for the prescribed time was going upon the land once and looking at its boundaries, and afterwards doing the annual hundred dollars' worth of work in tunnels, where those doing it were unseen during that time, for the purpose of not forfeiting complainant's rights and rendering the claim not liable to relocation. While defendant also claims and introduces testimony showing, or at least tending to show, that it also did the annual work required by the statute to preserve its rights during the same period for the same purpose, and so was itself in possession; that its possession was better than, or at least as good as, that of complainant. Evidently such a loose, uncertain, scrambling, and mixed possession is not sufficient to vest a title under the Statute of Limitations."

In

Hunt v. Patchin, 35 Fed. 816 (1888), C. C. D. Nev. The owners in common of a mining claim by agreement forfeited the claim by failing to do annual work, and one of them relocated it in his own name. an action by the other to enforce a trust in his favor, begun May 18, 1885, he was not barred by the Nevada statute limiting to two years the time for commencing an action to recover a mining claim, when he had no intimation that the defendant denied the trust until May 29, 1883.

Glacier Mt. S. M. Co. v. Willis, 127, 471 (1888). A complaint in ejectment for a mine in Colorado, which alleges a valid and legal location by those under whom the plaintiff claims, and possession and occupation by the plaintiff for more than five consecutive years prior to the ouster, and payment of taxes by him during that time, sets up a sufficient claim to title as against everybody except the United States.

Francœur v. Newhouse, 43 Fed. 236 (1890), C. C. N. D. Cal. The taking actual possession of a portion of a claim, working and expending money thereon continuously and claiming title to the full limits, is adverse possession of the whole within the Statute of Limitations. The title of the United States does not prevent the running of the statute as against other claimants.

Fremont v. Seals, 18, 433 (1861). The act of March, California. 1856, "for the protection of actual settlers and to quiet land titles in this State," was passed for the benefit of those who desire to build up homes and for that purpose are seeking in good faith lands for settlement and occupation. The eleventh section does not apply to miners engaged simply in extracting gold from a quartz vein. They are not settled upon their vein in the sense of the act.

Nessler v. Bigelow, 60, 98 (1882). Plaintiff in an action to quiet title claimed under a patent issued under the mining laws of the United States less than five years before the commencement of the action. Defendant averred fifteen years' adverse possession. Held, he could

not have held adversely to the government, and the action was brought within the statutory period after title acquired by the patentee.1

McTarnahan v. Pike, 91, 540 (1891). Plaintiff in ejectment had entered the land in dispute in the Land Office as a placer claim; and it was held that no title by adverse possession prior to the date of that entry could be acquired, as the Statute of Limitations did not run against the government.

Saterfield v. Randall, 44, 576 (1872). Where one claimed Georgia. adverse possession of land for the period of limitation, and the evidence showed the land to be unfit for cultivation, but chiefly valuable for timber and mining purposes, it was error to instruct the jury that the occupation must be "continuous; that is, from day to day, month to month, and from year to year.'

Colvin v. McCune, 39, 502 (1874). Quarrying stone is an Iowa. act indicating adverse possession under the Statute of Limi

tations.

Arnold v. Stevens, 24 Pick. 106 (1839). The occuMassachusetts. pation and cultivation of the surface is not evidence of

adverse enjoyment of the right to dig ore; and the mere non-user for forty years of the right to dig ore will not extinguish such right. "As the right was neither acquired nor evidenced by use, so we think it cannot be lost by misuse. And as there was no adverse enjoyment to raise the presumption of a conveyance or release of it, the right of those holding the written title remains unimpaired."

Davis v. Clark, 2, 310 (1875). In actions to recover Montana. mining claims where not held under United States patent, the Statute of Limitations which controls is the special law, Cod. Sts., 591, secs. 2 and 4, and not the general statute as to real estate.

Pardee v. Murray, 4, 234 (1882). Possession of the surface of a lode claim is possession of all veins, lodes and ledges whose tops or apices are within the surface lines, and possession of such surface protects all such veins, lodes and ledges from the operation of the Statute of Limitations. No adverse possession could become operative by sinking a shaft to such a vein outside of the surface boundaries on what was claimed to be another location. In such case, the statute would begin to run only from the time at which it became known to the prior locator that the adverse claimant had entered into possession of a vein whose apex was within his surface boundaries.

King v. Thomas, 6, 409 (1887). The Statute of Limitations does not run against a mining claim until patent thereto has been issued by the United States, any State or Territorial legislation to the contrary notwithstanding, except as between parties both of whom claim by possessory title only.

Mayer v. Carothers, 14, 274 (1894). Where it is sought to establish adverse possession of a mining claim during the period of the Statute of Limitations, that statute does not begin to run until the issuance of a patent. King v. Thomas followed.

McCowan v. McClay, 16, 234 (1895). The term "adverse claim," as used in Rev. Stats. 2332, means adverse claim filed as required by Rev. Stats. 2325, in opposition to an application to a patent. Where

1 Redfield v. Parks, 132 U. S. 239.