NORTHMORE v. SIMMONS et al., 97 F. 386

GILBERT, Circuit Judge.

The appellant was the complainant in a bill in which he alleged that on January 9, 1897, he made a discovery of mineral-bearing quartz in place in the Mojave mining district, in the state of California, and that he duly located the same; that there was a mining regulation in said mining district which provided that, “within ninety days of location, a shaft shall be sunk or a tunnel run to a depth of not less than ten feet from the apex of the ledge of mineral-bearing quartz; otherwise, the claim shall be subject to relocation”; that upon April 10,1897, the defendants entered upon the complainant’s said claim, and took possession thereof and located the same, contending that the complainant’s rights were forfeited by reason of his failure to “comply with the said mining regulation.” On a demurrer to the bill for want of equity, the bill was dismissed.

The. sole question presented upon the appeal is whether the regulation of the Mojave mining district requiring certain work to be done within 90 days after location is valid.

Section 2324 of the Revised Statutes provides; “The miners of each mining-district may make regulations not in conflict with the laws of the United States, or with the laws of the state or territory in which the district is situated, governing the location, manner of recording, amount of work necessary to hold possession of a mining-claim, subject to the following requirements: * » •> On each claim located after the tenth of May, eighteen hundred and seventy-two, and until a patent has been issued therefor, not less than one hundred dollars’ worth of labor shall he performed or improvements made during each year.” The statute was amended on January 22, 1880, so as to read as follows: “That the period within which the work required to bo done annually on all unpatented mineral claims shall commence on the first day of January succeeding the date of location of such claim.” Is the regulation of the Mojave mining district above quoted in conflict with the requirement of the statute that work shall be done or improvements made to the extent of $100 upon each claim within one year after the 1st day of January next succeeding the date of the location?

It is contended by the appellant that the statute secures to every locator a fixed period of time within which to make the improvements or expend the labor that are or may be prescribed for the preservation of his right, and that hy no state statute or mining regulation can the period be abridged. In view of the language of the statute, and the decisions of the supreme court, so far as they afford light upon its meaning, we are of the opinion that

section 2324 was intended to prescribe the minimum amount of expenditure in labor or improvements which was exacted by the United States within a maximum period, and to leave to state legislatures or local mining districts the power to make such reasonable regulations as they might deem advisable, within the prescribed limit; such regulations to be always subject to the provision of the statute that at least the expressed yearly amount in work or improvement must be expended upon the claim, and that, at most, the time for expending the same shall not be extended beyond the designated year.

This, we think, is clearly implied in the language of the statute. Miners are therein authorized to make regulations governing the “amount of work necessary to hold possession of a mining claim.” The amount of work can be regulated only by increasing or diminishing it. The diminution of it is expressly prohibited. There shall be “not less than one hundred dollars’ worth” per annum. It follows that the miners may regulate the amount by increasing it.

If the amount may he increased above that which is required by the statute of the United States, no reason is perceived why the time may not be abridged within which a portion of it is to be done, or why any other reasonable regulation may not be required to be complied with within a shorter time than a year. The statute of the United States exacts no discovery shaft, nor any work, as a condition to the location of a claim, or the initiation of the right of a locator. The right of a state legislature to impose such additional work has uniformly been recognized.

No difference in principle is discernible between the requirement that such discovery work shall he made as an incident to the location, and the requirement that after location it shall be made as a condition to the subsistence of the same. In either case burdens are imposed upon the locator in addition to the “requirements” of the United States statute. In neither case is the requirement that a shaft be sunk, whether it be denominated a “discovery shaft,” or whether it be known by any other name, in conflict with the express provisions of that statute.

The statute was not intended to interfere with the rights of the states or of the local mining districts. It was intended to express'the most liberal terms on which the United States would part with its right in mining claims. No state legislature nor local mining regulation may grant more favorable terms than those which are demanded by the statute. It contains the full extent of the “requirements” of the United States. There shall be expended upon the claim at least $100 per annum. No limit is placed upon the amount of work above $100 which' may by local mining rule be required from the locator.

To provide that the assessment work shall be $200 per annum is not in conflict with the statute; neither is there a conflict if one-half of that amount of work be required within one-half of the time. In Erhardt v. Boaro, 113 U. S. 527, 5 Sup. Ct. 560, the supreme court recognized the validity of a statute of Colorado (Gen. Laws Colo. 1877, p. 630) declaring that one of the essential acts of locating a claim should consist in sinking a discovery shaft upon the lode.

Said the court in that case: “Before 1866, mining claims upon the public lands were held under regulations adopted by the miners themselves in different localities.

These. regulations were framed with such just regard for the rights of all seekers of the precious metals, and afforded such complete protection, that they soon received the sanction of the local legislatures and tribunals, and when not in conflict with the laws of the United States, or of the state or territory in which the mining ground was situated, were appealed to for the protection of miners in their respective claims, and the settlement of their controversies.

And although since 1866 congress has to some extent legislated on the subject, prescribing the limits of location and appropriation, and the extent of mining ground which one may thus acquire, miners are still permitted, in their respective districts, to make rules and regulations not in conflict with the laws of the United States, or of the state or territory in which the districts are situated, governing the location, manner of recording, and the amount of work necessary to hold possession of a claim. * * * It does not'appear in this case that there were any mining regulations in the vicinity of the Hawk lode which affect in any respect the questions involved here.

Had such regulations existed, they should have been proved as facts in the case. We are therefore left entirely to the laws of the United States and the laws of Colorado on the subject.”

Section 2320, Eev. St., concedes to mining districts the power to diminish the surface width of mining claims from 300 feet on each side of the middle of the vein to 25 feet on each side thereof. In Mining Co. v. Kerr, 130 U. S. 256, 9 Sup. Ct. 511, the supreme court, through Mr. Justice Field, declared that the effect of such a mining regulation “could not be' doubted.” A decision directly in point is that of the supreme court of Nevada in the recent case of Sissons v. Sommers, 55 Pac. 829, in which the court had under consideration the provisions of the act of the legislature of that state (Laws 1897, p. 103). The first

section of the act prescribed the method of locating a mining claim.

It declared that it should consist (1) in “defining the boundaries of the claim in the manner hereinafter described,” and (2) “posting a notice of such location at the point of discovery.” The second sec tion provided that before the expiration of 90 days from the posting of the notice “the locator must sink a discovery-shaft upon the claim located to the depth of at least ten feet from the lowest par* of the rim of such shaft at the surface, or deeper if necessary, to show by such work a lode deposit in place.” It was a provision identical with the regulation of the Mojave mining district which is involved in this case, in that it required the act to be done within 90 days after location.

The court, in a carefully considered opinion, said: “Wo think die legislature may require a reasonable additional amount ol work to bo clone annually, and a reasonable amount of work to complete the location, or, after location, a reasonable additional amount of work within a reasonable time, less than the time named by congress for the annual expenditure, as a condition to the continuance of the right acquired by the locar tion of the mine.” The appellant relies upon Sweet v. Webber, 7 Colo. 443, 4 Pac. 752, and Original Co. of W. & K. v. Winthrop Min. Co., 60 Cal. 631.

The first case goes no further than to hold that neither by a rule of miners nor by a state statute can a location be maintained upou the expenditure of less than $100 per annum, as required by the United States statutes, — a proposition that is not disputed and is not involved in this case. The second case holds that a local regulation providing for forfeiture of a claim upon the failure of the loca tor to perform some work upon it every 60 days was fin conflict with the law of congress, and therefore void. The reasoning upon which this conclusion is reached is not stated in the opinion.

It is opposed, not only to what we conceive to be the plain meaning of the statute, but to the weight of authority. Certain decisions are also cited, such as Belk v. Meagher, 3 Mont. 65, which sustain the proposition that a mining claim may not be forfeited until the expiration of the period which congress lias fixed for the performance of the annual assessment work, but they are all cases in which the law of the United States alone was involved.

In none of them was there a question of rights under a state law or a miners' regulation, and in none of them was the question which is now before the court even remotely involved. Their inapplicability to the present discussion is too apparent to require further coniment. We find no error in the ruling of the circuit court, and the decree will be affirmed.