Butte City Water Company v. Baker

Messrs. L. Orvis Evans, W. W. Dixon, and Forbis & Evans for plaintiff in error.

[Argument of Counsel from pages 120-121 intentionally omitted]

Messrs. Robert B. Smith and J. E. Healy for defendant in error.

[Argument of Counsel from page 121 intentionally omitted]

Mr. Justic

e Brewer delivered the opinion of the court:

This was an action of ejectment brought in the district court of Silver Bow county, Montana. The dispute was between two locations of the same mining ground. The defendant's location was adjudged invalid by the trial court, and its decision was affirmed by the supreme court of the state, on the ground of a failure to comply with certain Montana statutes. 28 Mont. 222, 72 Pac. 617. These statutes contained regulations concerning the location of mining claims in addition to those prescribed by congressional legislation, and the question is as to the validity of those additional requirements.

Section 2319, Rev. Stat. (U.S.C.omp. Stat. 1901, p. 1424), provides that 'all valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States and those who have declared their intention to become such, under regulations prescribed by law, and according to the local customs or rules of miners in the several mining districts, so far as the same are applicable, and not inconsistent with the laws of the United States.'

Section 2322 (U.S.C.omp. Stat. 1901, p. 1425) gives to the locators the exclusive right of possession and enjoyment of all the surface included within the lines of their locations 'so long as they comply with the laws of the United States, and with state, territorial, and local regulations not in conflict with the laws of the United States governing their possessory title.'

Section 2324 contains this grant of authority:

'Sec. 2324 (U.S.C.omp. Stat. 1901, p. 1426). 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: The location must be distinctly marked on the ground so that its boundaries can be readily traced. All records of mining claims hereafter made shall contain the name or names of the locators, the date of the location, and such a description of the claim or claims located by reference to some natural object or permanent monument as will identify the claim.'

Section 2332 (U.S.C.omp. Stat. 1901, p. 1433) makes the statute of limitations for mining claims of a state applicable for certain purposes to mining claims under the government.

Section 2338 (U.S.C.omp. Stat. 1901, p. 1436) reads as follows:

'As a condition of sale, in the absence of necessary legislation by Congress, the local legislature of any state or territory may provide rules for working mines, involving easements, drainage, and other necessry means to their complete development; and those conditions shall be fully expressed in the patent.'

Section 2339 (U.S.C.omp. Stat. 1901, p. 1437) contains this clause:

'Whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same.'

In 1893 Congress passed an act (28 Stat. at L. 6, chap. 12) relieving from the necessity of the annual labor for that year, 'so that no mining claim which has been regularly located and recorded as required by the local laws and mining regulations shall be subject to forfeiture for nonperformance of the annual assessment for the year 1893,' and a similar statute was enacted in 1894 in respect to the annual labor for that year. 28 Stat. at L. 114, chap. 142.

While, in the above sections, there is not that direct grant of authority to the state to legislate respecting locations as there is to miners to make regulations, yet there is a clear recognition of such legislation. All these statutory provisions, except the last two sections referred to, were embodied in the legislation of 1872, and have been in force ever since.

Acting upon the belief that they were fully authorized, nearly all, if not all, the states in the mining regions have passed statutes prescribing additional regulations in respect to the location of mining claims, some having been in force for more than a score of years.

This court has, in many cases, recognized the validity of such state legislation. In Belk v. Meagher, 104 U.S. 279, 284, 26 L. ed. 735, 737, Chief Justice Waite, speaking for the court, declared that 'a location is not made by taking possession alone, but by working on the ground, recording, and doing whatever else is required for that purpose by the acts of Congress and the local laws and regulations.'

In Erhardt v. Boaro, 113 U.S. 527, 28 L. ed. 1113, 5 Sup. Ct. Rep. 560, it appeared that there were no mining regulations prescribed by the miners of the district, and it was said by Mr. Justice Field (p. 536, L. ed. p. 1116, Sup. Ct. Rep. p. 564):