CHAPTER 1 INTRODUCTION AND OVERVIEW

• Jurisdiction: United States

Mineral Patenting Procedures
(Feb 1975)
CHAPTER 1
INTRODUCTION AND OVERVIEW
Victor H. Verity
Verity, Smith, Lacy, Allen & Kearns, P.C.
Tucson, Arizona

The California gold rush had been going strong for several years, the Civil War was ended but not forgotten, pioneers were moving westward in great numbers to acquire their very own land under the new homestead law, Colonel (later General) Custer had ten more years to live although Chief Sitting Bull had not let him in on the secret, and there were thirty-seven stars in the flag of the United States when Congress enacted a law in 1866 that gave the United States its first general mining law. I have to tell you that it was a mining law because the act was entitled "An act granting the right of way to ditch and canal owners over the public lands and for other purposes."¹ This law was limited to the location and patenting of lode or vein claims. Another law, passed in 1870, was amendatory of and supplemental to the 1866 law.² It provided for the location and patenting of mining claims called "placers."

On May 10, 1872, Congress passed a law entitled "An act to promote the development of the mining resources of the United States."³ This act, as amended, is still the

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general mining law governing acquisition of mineral rights on public domain of the United States by means of location of lode and placer claims.⁴ It provides for the patenting, that is, purchase from the United States, of lode and placer mining claims located for valuable mineral deposits on each of which claims five hundred dollars worth of labor or improvements have been expended or made. It also provides for the location and patenting of millsites. With respect to the patenting feature, the present law is substantially the same as originally enacted.

Patenting is not required by law. An unpatented mining claim may be held in perpetuity provided that it is validly located and thereafter maintained by the performance of annual assessment work. The United States Supreme Court has declared that "[a] mining claim perfected under the law is property in the highest sense of that term...."⁵ The Court has also declared that "...the possession under a claim established according to law is fully recognized by the Acts of Congress, and the patent adds little to the security of the party in continuous possession of a mine...."⁶ Therefore, in light of these pronouncements, why go to the trouble and expense of obtaining a patent? Because there are both legal and practical considerations that render patent a virtual necessity — especially nowadays.

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Title to an unpatented mining claim falls into the "here today and gone tomorrow" class if there is a failure to comply in timely manner with the provisions of the mining law. An example would be failure to perform annual assessment work, in which case, the ground becomes open for location. Also, failure to comply substantially with the requirement of annual expenditure will render the claim subject to cancellation.⁷ The courts have been called upon to resolve innumerable disputes as to whether the kind of work performed and the place of performance did, in fact, constitute compliance with the law. Another factor, particularly where the Government is concerned, is the matter of what constitutes a discovery. The Interior Department in...