CHAPTER 3 PLACE OF PERFORMANCE
| Jurisdiction | United States |
(Sep 1970)
PLACE OF PERFORMANCE
Neslen and Mock
Salt Lake City, Utah
THE PROBLEM DEFINED
At the root of the problem is the physical extent of a mineral location. Whether lode or placer, it has a congressionally mandated maximum size1 which may or may not be sufficient to encompass the deposit which is to be mined.
The annual assessment2 and patent3 improvement and work requirements relate to these physical entities, i.e. the minimum required value must be rendered for the location.
[Page 3-2]
The question then becomes: what situs may improvements or work have in order that a particular location is not rendered subject to relocation and is rendered subject to patent? It is clear that work on a particular claim intended and qualifying as work on that claim, suffices.4 It is equally clear that geological, geochemical, and geophysical overflights will not avail.5
An area of uncertainty, however, and one upon which this paper focuses is: under what circumstances does work done outside the physical boundaries of a given location serve such location as fully as if done inside those boundaries?
HISTORICAL ANTECEDENTS
Before May 10, 1872, there was no congressional requirement of work.6 Prior to the Act of July 26, 1866,7 local rules and customs governed. That Act
[Page 3-3]
expressly delegated the authority to prescribe lode location assessment work requirements to "the local custom or rules of miners in the district where the same is situated," but established a $1,000.00 expenditure in labor and improvements as a condition precedent to patent.8 The Act of July 9, 18709 extended such provisions to placer locations.
Miners' rules bore general similarities. "[A]ll agreed in one particular, in recognizing...development by working as the condition of continued possession."10 A random survey of mining district rules confirms this observation.11 Interestingly, certain of the rules contained the forerunners of group assessment work provisions. For instance, those of the Magalia Mining District, Butte County, California specified:
ARTICLE 9th. On each claim located not less than Fifty Dollars of labor shall be performed or improvements made during each year. When claims are held in common such expenditure may
[Page 3-4]
be on any one claim. Labor shall be reconed at Five Dollars pr (sic.) day....(Emphasis supplied).12
Even in the absence of specific mining rule authorization, however, it came to be judicially recognized that there might be circumstances under which labor physically performed outside a location could bear such relationship to the development of the location that it would fulfill the requirement.
In Packer v. Heaton,13 the district rule read, "All claimants or companies shall work, or cause to be worked, his or their claims at least two days in every ten, from the first day of May to the first day of November." The senior locators, who encountered water at depth in shafts they had sunk, found it impossible to work their mine without steam machinery. They departed the location to procure such machinery. When they and the machinery returned, a month and a half later, they found that the claim had been relocated. The jury in the ensuing litigation was instructed that, if at the time of the relocation, the senior locators were engaged in efforts to procure the
[Page 3-5]
machinery, and did procure the same within a reasonable time, they were entitled to prevail. The jury so found. On appeal, the California Supreme Court, affirming, said:
The instruction given by the Court...though not within the strict letter of the rule, is yet within its true spirit and intent. The efforts to procure the machinery, with the bona fide intent to work the claim, may be justly considered as work done upon the claim by relation and intendment.14
Noteworthy is the fact that, in Packer, the relocators themselves relied upon work done outside the location boundaries in constructing a drain. Practicalities then sometimes require such extra-territorial work for development of a location, miners must adjust to those practicalities, and the Packer Court at least interpreted the rule in the light of those practicalities.
When, therefore, the 41st and 42nd Congresses came to consider an extensive federal codification of mining laws, it did so with a background of mining rules and some judicial precedent which sanctioned certain work off a particular location to apply to
[Page 3-6]
that location. Each draft before the 42nd Congress had some such clause. The original, or House, version allowed "claimants in common," several locators on the same lode, to consolidate their locations for assessment purposes so long as the total value of work or improvements was $25.00 per claim.15 The Senate version, which after some floor amendment, became the Act of May 10, 1872,16 contained the following language, effectual to this date: "where such claims are held in common, such expenditure may be made upon any one claim."17 Neither version addressed itself to the subject of non-group efforts with situs outside a particular location. They did not, either, explicitly allow such outside costs as pre-patent expenditures.
Finally, in 1875, Congress, by the Act of February 11, 187518 expressly charged that underground tunnels would operate to hold claims.
[Page 3-7]
THE SUPREME COURT SPEAKS
The United States Supreme Court early, by means of three decisions, delineated the extent to which work and improvements extraterritorial to a given claim might legally pertain to it.
The first such decision was St. Louis Smelting Co. v. Kemp,19 penned by Justice Stephen J. Field of California, the patron Saint of American mining law. In holding that the owner of a group of contiguous placer locations need not seek a separate patent for each, the Court noted that the Act of May 10, 1872:
[P]rovides that on each claim subsequently located, until a patent is issued for it, there shall be annually expended in labor or improvements one hundred dollars...but where such claims are held "in common," the expenditure may be upon any one claim. As these provisions relate to expenditures before a patent is issued, proof of them will be a matter for consideration when application for patent is made. It is not preceived in what way this proof can be changed or the requirement affected, whether the application be for a patent for one claim or for several claims held in common. Labor and improvements, within the meaning of the statute, are deemed to have been had on a mining claim, whether it consists of one location or several, when labor is performed or the improvements are made for its development; that is, to facilitate the extraction of the metals it may contain; though,
[Page 3-8]
in fact, such labor and improvements may be on ground which originally constituted only one of the locations, as in sinking a shaft, or be at a distance from the claim itself, as where the labor is performed for the turning of a stream, or the introduction of water, or where the improvement consists in the construction of a flume to carry off the debris [emphasis added] or waste material. It would be absurd to require a shaft to be sunk on each location in a consolidated claim when one shaft would suffice for all the locations....20
A year later, in Jackson v. Roby,21 the Court dealt with an obverse factual situation. The senior locator contended that he had held the location in question by work and improvements in that he had constructed a flume to it from adjoining locations which were being mined and deposited wastes upon it. The Court, again speaking through Mr. Justice Field, rejected the assertion, stating:
The contention of the plaintiff was made upon a singular misapprehension of the meaning of the Act of Congress, where the work or expenditure on one of several claims held in common is allowed, in place of the required expenditure on the claims separately. In such case the work or expenditure must be for the purpose of developing all the claims. It does not mean that all the expenditure upon one claim — which has not reference to the others — will answer....
[Page 3-9]
It often happens that for the development of a mine upon which several claims have been located, expenditures are required exceeding the value of a single claim, and yet without such expenditures the claim could not be successfully worked. In such cases it has always been the practice for the owners of different locations to combine and to work them as one general claim; and expenditures which may be necessary for the development of all of the claims may then be made on one of them. The law does not apply to cases where several claims are held in common, and all the expenditures made are for the development of one of them without reference to the development of the others. In other words, the law permits a general system to be adopted for adjoining claims held in common, and in such case the expenditures required may be made, or the labor be performed upon any one of them.
...Here no work was done for the general improvement of all the claims. The deposit of the debris [emphasis added] from the Lomax gulch on the premises in controversy, so far from tending to develop them, imposed obstacles in the way of their development, by covering them up with refuse matter.22
Finally, there came Chambers v. Harrington,23 upholding assessment work on three contiguous locations. This time speaking through Mr. Justice Miller, the Court said:
[O]ne of the first necessities of a mining neighborhood was to make rules by which this right of occupation should be governed as among themselves; and it was soon discovered that the same person would mark out many claims of discovery and then leave them for
[Page 3-10]
an indefinite length of time without further development, and without actual possession, and seek in this manner to exclude others from...
To continue reading
Request your trial