mony between contiguous sections of the revision, which may mislead. It is first provided that "no location of a placer claim, made after the ninth day of July, eighteen hundred and seventy, shall exceed one hundred and sixty acres for any one person or association of persons." The next succeeding section says: "No such location shall include more than twenty acres for each individual claimant." If there were any real conflict between these sections the latter would govern, for the reason that it was enacted in 1872,3 while the preceding section was a part of the act of 1870. But there is no such conflict. Construed together, the first section limits the number of acres located in one claim to one hundred and sixty, regardless of the number of persons forming the association, while the latter section definitely limits the number of acres to be located by one person. If an association is formed of eight persons or more, one hundred and sixty acres may be located. If it be composed of less than eight persons, the amount of land which may be located, will be diminished below one hundred and sixty acres, just as many times twenty acres, as the number of persons falls short of eight.

1 Rev. Stat. U. S., § 2329, ante, p. 20.

2 Rev. Stat. U. S., § 2331, ante, p. 21. 3 Act of Congress May 10, 1872, § 10.

§ 45. Survey.-Most of the provisions in regard to survey have direct reference to the application for a patent. But even for purposes of location, where the claim is on the surveyed lands of the United States, it will be sufficient to designate the fractional portion of the section without any survey, and it is doubtful whether any local statute or regulation requiring anything further than this, by way of identifying the claim would be obligatory. When, however, the claim is taken on unsureyed lands, the survey, or measurement of the ground

and the designation of the particular tract, in such a manner as to identify it, would necessarily be required of the locator.1

1 Rev. Stat. U. S., § 2331, ante, p. 21.

§ 46. Record. The recording of a placer claim is purely a matter of local regulation. Where the local law requires a record of them to be made, there is no doubt that the description of such as are on surveyed lands by designating them according to legal subdivisions would be sufficient. Indeed, this would be more definite and certain for all the purposes of a record than a description by reference to monuments, however permanent.

CHAPTER VI.

MILL SITES.

SECTION 47-Possessory rights.

48-Extent of mill site.

$ 47. Possessory rights.-Prior to the enactment of the provision of the statute in relation to the location and patenting of mill sites,1 tracts of land were located for such purposes under local regulations, or held under the law of possession. When claimed independently of any local law or district rule by mere possession, the rights of the claimant were subject to all the restrictions and qualifications which attach to mining claims generally when held by possession upon portions of the public domain. It must be a pedis possessionis, a subjugation to the will and control of the claimant, with the evident intention of using a particular portion of the public domain for milling purposes. The declared intention of the claimant to use adjacent land to construct a ditch for the pur

pose of carrying water to a particular point, was held no notice of a claim to the land near the end of the ditch as a mill site. The same duties as to marking boundaries, diligent prosecution of work, or erecting improvements upon the tract selected, as in case of lode or placer claims, when held by possession, are required in order to hold mill sites on public land.3

1 Rev. Stat. U. S., § 2337, ante, p. 23.

2 Robinson vs. Imperial S. M. Co., 5 Nev. 44.

3 Ibid.

§ 48. Extent of mill site.-The provisions of the federal statute are quite meagre in respect to the location of mill sites. The most important provision is as to the amount of ground to be taken for that purpose. This is limited to five acres of non-mineral land. Although this provision is conclusive, all local laws, rules or regulations to the contrary notwithstanding, it does not prevent the local legislatures or mining districts from further restricting claims of this character.

CHAPTER VII.

TIMBER.

§ 49. Timber reserved to government.—The right to occupy and possess the public domain for mining purposes does not necessarily include the right of appropriation of growing timber on the land so occupied. Prior to an act authorizing the cutting of such timber, approved June 3, 1878,1 it was held, under the provisions of a prior statute,2 in an action between an occupant of mineral lands and one who occupied a portion of the Public domain for agricultural purposes, that neither

ld claim a superior right to the other, to the growing

timber, except upon the ground of priority of possession, for the reason that the cutting of timber by any occupant was expressly prohibited by said statute.3 On an information for cutting timber on the public land in violation of Section 2461 of the Revised Statutes, filed November 24, 1877, in the District Court of the United States for the district of Oregon, the case was submitted on findings in a special verdict, which were in substance as follows: (1) That defendant did cut and remove the timber between January 1, 1875, and November 1, 1877; (2) that in 1870 defendant claimed the land for the purpose of placer mining, and in August, 1872, caused the claim to be surveyed and platted; (3) that in 1873 all the necessary conditions to obtaining a patent were complied with except paying for the land; (4) that the premises were "placer mining ground," and that it was necessary, to successfully mine the same, to remove the trees standing thereon, and that it was better, for the purposes of such mining, that the timber should be removed so far in advance of the work as to give opportunity for stumps to rot and so be more easily disposed of; (5) that between 1870 and 1877 defendant made improvements on his claim to the amount of $2,500, and worked the ground during the mining season thereafter; (6) that defendant expected to make a business of working the claim; (7) that about one-third of an acre was worked over annually, and the trees cut and removed were taken from about four acres of the same. The court construed the section of the Revised Statutes under which the information was filed, and which was enacted March 2, 1831, in connection with subsequent acts upon the same subjectthe mining, homestead and pre-emption laws-and held that in so far as the provisions of the subsequent statutes conflicted with the act of prior date, it was repealed. The timber act was intended to be modified by the statute

permitting the occupation and enjoyment of public land for mining purposes, in so far as such modification was necessary for the full enjoyment of the right to mine.4 It was held not to be compulsory upon defendant to apply for a patent and pay for the land; but his failure to do so was taken into consideration to determine whether the location as a mining claim was not a cover for the securing of the timber for speculative purposes. It was admitted that the miner might remove the timber in order to facilitate his mining operations, and that when so removed he might dispose of it as he saw fit; but it was denied that he might remove and sell the timber for acres in advance of his working. To permit such a course under the excuse that the miners wished to give the stumps time to rot, would expose public lands, chiefly valuable for their timber, to be stripped of their trees upon a pretense of mining, and without compensation to the government. It was held that miners, securing claims prior to patent, had no right to the timber growing thereon except for mining purposes, and to such as was necessarily removed in the progress of mining operations. This case, in many respects, will serve as a judicial construction of the timber act, subsequently passed.5

1 "An act authorizing the citizens of Colorado, Nevada and the territories to fell and remove timber on the public domain for mining and domestic purposes.

"Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all citizens of the United States and other persons, bona fide residents of the states of Colorado or Nevada, or either of the territories of New Mexico, Arizona, Utah, Wyoming, Dakota, Idaho or Montana, and all other mineral districts of the United States, shall be, and are hereby authorized and permitted to fell and remove, for building, agricultural, mining or other domestic purposes, any timber or other trees growing or being on the public lands, said lands being mineral, and not subject to entry under existing laws of the United States, except for mineral entry, in either of said states,