CHAPTER 8 NON-RECORD TITLE EXAMINATION OF UNPATENTED MINING CLAIMS
| Jurisdiction | United States |
(Feb 1992)
NON-RECORD TITLE EXAMINATION OF UNPATENTED MINING CLAIMS
Franco-Nevada Mining Corporation, Inc.
Euro-Nevada Mining Corporation, Inc.
Reno, Nevada
TABLE OF CONTENTS
I. INTRODUCTION
A. Possession Remains "Nine-Tenths Of the Law"
B. Law Affecting Non-Record Title To Mining Claims
C. Record Title—The Disproportionate "Tenth" Of The Law Affecting Title
D. Introduction Summary
II. PHYSICAL EVIDENCE TO BE EXAMINED
A. Physical Location Of Mining Claims—Surveys and Maps
1. Actual Physical Size Of The Claim
2. Government Surveys
3. Historical Changes To Survey
a. Physical Location Of Survey Monuments
b. Physical Location Of Survey Monuments Relative To Survey Description And Plats
c. Dependent And Independent Resurveys
d. Effect Of Resurveys On Original Mining Claim Boundaries
4. Surveys And Maps Of Mining Claims
B. Monumentation
1. Claims Subject To Examination
2. Previous Claims Covering Same Ground
3. Physical Movement Of Monuments
4. Style Of Monuments
5. Description In Documentation
6. Physical Changes To Ground Subsequent To Location
C. Work Evidence
1. Physical Evidence On Site
2. Evidence Found Should Be Compared To Documentation
D. Evidence Of "Discovery"
1. Sampling Cuts
2. Old Workings And Evidence Of Drilling
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3. Geotechnical Work
4. Mining District Records
5. Old Reports And Analyses
6. Intersecting Or Crossing Veins
7. Extralateral Rights
E. Conflicting Claim/Title Evidence
1. Unpatented Mining/Mill Site/Tunnel Site Claims
2. Patented Claims And Fee Lands
3. Fractions
4. Townsites
5. Ditches, Canals, Fences, Roads, Electrical/Telephone Lines, Buildings, And Other Facilities Or Improvements
6. Reconveyed Lands
F. Physical Possession
G. Tailings and Residues
H. Access; Ingress and Egress
I. Vertical And Subjacent Support
J. Miscellaneous Physical Evidence
III. METHODS OF GATHERING EVIDENCE AFFECTING NON-RECORD TITLE
A. Physical Examination By Expert
B. Physical Examination Of The Mining Claims And Surrounding Area
. Development Work Performed And In Progress
2. General Observations Of Potential Title Conflicts
3. Patent And Multiple Use Restrictions
C. Current Photographs
D. Land Surveys And Forensic Surveys
E. Videotapes Of The Mining Claim Area
F. Depositions On Site Of Percipient Witnesses
G. Historical Air Photographs
1. Government
2. Claim Owner Or Lessee
H. Historical Archives And Libraries
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I. Maps
1. Recorded Maps And Surveys
2. Governmental Maps And Plats
3. Historical Property Reports
J. Unofficial Records Offices
1. State And County Offices
2. Federal Government
K. Former Ground Owners, Locators, Lessees, And Laborers
IV. COMPARING WHAT IS WITH WHAT IS SUPPOSED TO BE -- CASE STUDIES
A. The Rawhide Mine
B. The Bald Mountain Mine
C. The Cannon Mine
D. The Goldacre Mine
IV. THE MORAL OF THE STORY
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I. INTRODUCTION
When Senator William Stewart first drafted the Mining Act of 18721 , it appears that, like all good lawyers, he was protecting his future in the event he was not re-elected. The language of the Act makes it possible to attribute to Senator Stewart the motive of creating a lawyer's paradise. While the Act is short in section numbers and length, it has been long on interpretation and, as all mining lawyers know, it has been their great benefactor for more than a century. Among the greatest contributors to lawyers' financial well being have been matters pertaining to title to unpatented mining claims, primarily because what you see in the mining records is not necessarily what you get. It is the intent of his article to provide the lawyer, geologist, and landman with a reference guide to better aid their endeavors to obtain WYSIWYG (what you see is what you get) with respect to unpatented mining claims. This reference guide is written with the thought of avoiding, shortening, or succeeding in title litigation, which is almost always based on non-record title matters.
A. Possession Remains "Nine-Tenths Of The Law". Mining claims located on the Public Domain owe their existence to the Mining Act of 1872. Such mining claims are by their very nature primarily a possessory interest in land.2 Because of this possessory aspect of mining claims, the title examiner must look not only at the official county records and the records maintained by the Bureau of Land Management pursuant to the requirements of the Federal Land Policy and Management Act of 1976 (FLPMA)3 , he must also look at the mining claim itself and the area surrounding it to determine the possible existence of any conflicting claims of title to the ground in question.
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B. Law Affecting Non-Record Title To Mining Claims. The law affecting non-record title to unpatented mining claims has changed little in recent years. Previous articles by the author regarding surface inspection requirements pertaining to mining claim titles4 , Gerald M. Kitchen5 , and Patrick J. Garver and Stephen J. Hull6 have each dealt extensively with the statutory and case law pertaining to examination of title to unpatented mining claims. Reference should be made to those articles should a question of law arise regarding the law of non-record title to mining claims. Additionally, a number of the other articles presented in this Institute bear directly upon issues of non-record title to unpatented mining claims.7 Consideration of all of these various resources will provide the possessory examiner of title (surface inspector) with sufficient information and legal expertise to face the formidable task of possessory title examination with fear and trepidation.
C. Record Title — The Disproportionate "Tenth" Of The Law Affecting Title. Examination of the record title to unpatented mining claims is a difficult and tedious task. But this remaining "tenth" of the law of title is every bit as important as the determination of possessory title.8 Moreover, by reviewing the records of the appropriate Recorder's office and the Bureau of Land Management, the possessory title examiner may glean additional information as to items which should be cross-checked during a field examination of the ground covered by the unpatented mining claims.
Record title examinations provide numerous opportunities for causing ulcers
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and spending quantums of a clients money. The preceding article at this Institute9 , by Lynn Cardey-Yates, should be consulted by the title examiner as the most current authority on the requirements and pitfalls of record title examinations for unpatented mining claims. Likewise, an earlier article on examination of title to unpatented mining claims by Messrs. Garver and Hull10 should be consulted for a thorough review of all matters affecting the examination of title to unpatented mining claims.
D. Introduction Summary. Non-record matters affecting title to unpatented mining claims have an infinite source and appear in an infinite variety. These non-record matters frequently cannot be discovered except by luck, perseverance, or unfortunate happenstance. While luck and perseverance have always been chief ingredients to success in the mining industry, it is unfortunate happenstance which too frequently raises the issue of a non-record title matter. Unfortunate happenstance affects title when someone who knows of a non-record title defect desires to use that defect to secure some monetary advantage over the legitimate claim holder. The issues facing the possessory title examiner, then, are what non-record matters will affect title to unpatented mining claims and how can they be discovered and overcome.
II. PHYSICAL EVIDENCE TO BE EXAMINED
A. Physical Location Of Mining Claims — Surveys and Maps. One of the most usual disparities between record title and possessory title is that the mining claim is frequently not physically on the ground where the record describes it to be. Because the location of the mining claim on the ground, rather than where its location is described in the record, is controlling11 , it is imperative that any disparity between the physical location of the claim and its description in the record be removed. A number of matters must be considered in determining the physical location of the mining claim.
1. Actual Physical Size Of The Claim. Lode mining claims cannot exceed 1500 feet in horizontal length and 600 feet in horizontal width (300 feet on either side of the center of the "vein").12 Placer claims may not exceed twenty acres13 , and
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associated placer claims cannot exceed 160 acres.14 A claim which has dimensions which are so excessive as to be unreasonable may be void.15
2. Government Surveys. Much of the American West, although not all, has been officially surveyed by various branches of the United States Government. Where such official surveys exist, the actual physical location of an unpatented mining claim may be precisely determined. Where no official survey covers the land on which the mining claim is located, it may be helpful to use projected survey lines to determine an approximate quarter section description of the physical location of the unpatented mining claim. In such unsurveyed areas, the actual location of the claim may still be tied to the official government survey, although it may be an expensive task to tie the physical location of a claim in an unsurveyed area to the official survey because of the distance of traverse. Nevertheless, in order to determine the actual physical location of a mining claim, reference should be made to the official government surveys and survey plats maintained by the Bureau of Land Management.
3. Historical Changes To Survey. Unfortunately, original and subsequent government surveys do not necessarily coincide. Indeed, they generally do not...
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