A mining claim, is a parcel of land con taining precious metal in its soil or rock. A location is the act of appropriating such par cel, according to certain established rules. If the miner has only one location that "lo cation" is identical with "mining claim," and the two designations may be indiscriminate ly used to denote the same thing; St. Louis Smelting & Refining Co. v. Kemp, 104 U. S. 649, 26 L. Ed. 875 ; if he acquires an adjoin ing location his claim covers both ; id. See Lindl. Mines § 327. A transfer of a mining claim must be in writing ; Garthe v. Hart, 73 Cal. 541, 15 Pac. 93.
A mining claim is real estate ; Carrhart v. Mining Co., 1 Mont. 245 ; and descends to the heir ; Keeler v. Trueman, 15 Col. 143, 25 Pac. 311 ; it is property ; Blake T. Mining Co., 2 Utah 54; subject to execution; McKeon v. Bisbee, 9 Cal. 137, 70 Am. Dec. 642 ; and taxation; State v. Moore, 12 Cal. 56; and a • lien for unpaid taxes ; Forbes v. Gracey, 94 U. S. 762, 24 L. Ed. 313. An owner out of possession may maintain an ejectment or corresponding action; Merced Min. Co. v.
Fremont, 7 Cal. 317, 68 Am. Dee. 262 ; Her bert v. King, 1 Mont. 475 ; Lentz v. Victor, 17 Cal. 271; Aurora Hill Con. Min. Co. v. Mining Co., 34 Fed. 515 ; Reynolds v. Mining Co., 116 U. S. 687, 6 Sup. Ct. 601, 29 L. Ed. 774; contra, Duffy v. Mix, 24 Or. 265, 33 Pac. 807. See as to claims, 14 Am. & Eng. Corp. Cas. 152.
There is no right of dower in an unpat ented mining claim ; Black v. Mining Co., 163 U. S. 445, 16 Sup. Ct. 1101, 41 L. Ed. 221; but in some cases dower has been allowed in mines ; In re Seager, 92 Mich. 186, 52 N. W. 299 ; Lenfers v. Henke, 73 Ill. 405, 24 Am. Rep. 263 ; Priddy v. Griffith, 150 Ill. 560, 37 N. E. 999, 41 Am. St. Rep. 397 ; Rock well v. Morgan, 13 N. J. Eq. 389; Heridrix v. McBeth, 61 Ind. 473, 28 Am. Rep. 680 ; Coates v. Cheever, 1 Cow. (N. Y.) 460. See, as to dower, Black v. Min. Co., 52 Fed. 859, 3 C. C. A. 312, 7 U. S. App. 393.
Of joint owners, either may mine without the consent of the others, using the com mon property for the purpose intended, and it is no objection that the use is consump tion; McCord v. Min. Co., 64 Cal. 134, 27 Pac. 863, 49 Am. Rep. 686; it is not waste ; but he must account to his co-owners for ore mined; Barnum v. Landon, 25 Conn. 137 ; and any act for the benefit of the property, as the purchase of a paramount title inures to the benefit of all; Franklin Min. Co. v. O'Brien, 22 Col. 129, 43 Pac. 1016, 55 Am. St. Rep. 118. The interest may be the sub ject of partition; Hughes v. Devlin, 23 Cal. 502; but the mere fact of joint ownership does not give an equitable right to a divi sion ; the question must be fairly consider ed by a chancellor upon all the circumstanc es ; Aspen Min. & Smelting Co. v. Rucker, 28 Fed. 220.
Joint owners who co-operate in working, constitute a mining partnership without any specific contract or agreement; Barr. & Ad. Mines 753. There may be an ordinary com mercial partnership in the working of a mine,' but this will arise only from agree ment. A mining partnership, properly so called, is a relation springing only by impli cation from actual co-operation in the work ; Kahn v. Smelting Co., 102 U. S. 641, 26 L. Ed. 266; Judge v. Braswell, 13 Bush (Ky.)
67, 26 Am. Rep. 185 ; Snyder v. Burnham, 77 Mo. 52; Dougherty v. Creary, 30 Cal. 290, 89 Am. Dec. 116 ; Decker v. Howell, 42 Cal. 636 ; State Nat. Bank v. Butler, 149 Ill. 575, 36 N. E. 1000. A mining partnership is not dissolved by the death of a partner, nor by the sale of his interest to a stranger ; in the latter case the purchaser becomes a partner ; Taylor v. Castle, 42 Cal. 367; Nisbet v. Nash, 52 Cal. 540; Charles v. Eshleman, 5 Col. 107.
Mining partnerships are in some states effectually regulated by statute ; Cal. C. C. §§ 2511-2520 ; Mont. C. C. g§ 3350-3359 ; Ida ho, R. S. §§ 3301-3309. In the latter state it has been said that a mining partnership, by virtue of the statute, "in all its essential elements is precisely like a corporation ;" Hawkins v. Min. Co., 3 Idaho 650, 33 Pac. 40, where the substance of the statute is giv en. See as to mining partnerships, 28 Am. St. Rep. 488, n.
In most states where mining is an impor tant industry, there are statutory provisions for securing the safety of those engaged in the employment. For a citation of these statutes see Barr. & Ad. Mines 780; note 1, where it 'is said that a discussion of the cas es arising under these statutes is impossible because they involve no general principle. Such statutes have been held constitutional; Northumberland County v. Zimmerman, 75 Pa. 26. They are an exercise of the police power, as to the propriety and validity of which there can be little question. In their relation to the law of negligence these stat utes enlarge and define the obligation of the mine owner, and fix absolutely his responsi bility for injuries resulting from failure to comply with the act, wherever that failure is the proximate cause of the injury. But the violation of the statute does not excuse contributory negligence or authorize the em ployee to neglect his own safety ; Barr. & Ad. Mines 785, where the cases are collected.
Mining acts in some states provide for the appointment by tie state of mine bosses or foremen, who are practically placed in charge of the operation of the mines. The follow ing is a substantial synopsis of such acts : No one shall act as mine foreman unless he shall have been granted a certificate, after having passed a satisfactory examina tion before a board, and has given evidence of at least five years' practical experience as a miner, and of good conduct, capability and sobriety. A mine shall not be operated with out a mine foreman for a longer period gen erally than thirty days.
A mine boss has charge of all matters pertaining to ventilation. He is the inside overseer of the mine. Where mines zener ate gas, he must examine them every day. Also every other day he must visit and exam ine every working place in the mine. Where props and timber are wanted, the miners are required to notify the mine boss, and if timber cannot be supplied when needed, work must be stopped, except in cases of emergency, when the miner must attend to his own propping.
Mine owner is not responsible for negli gence of mine boss employed in obedience to a 'mining act ; Dempsey v. Coal Co., 227 Pa. 571, 76 Atl. 745.
See COLLIERY ; GAS ; LODE ; LANDS, PUBLIC ; MINERALS; OIL.