Filing Pre-1866 Mining Claims Under FLPMA

Federal Land Policy and Management Act of 1976. Section 314 of the Federal Land Policy and Management Act of 1976 ("FLPMA") provides that the owner of an unpatented lode or placer mining claim "located prior to the date of approval of this Act" must, within the three year period following the date of the approval of the Act, file with the Bureau of Land Management ("BLM") "a copy of the official record of the notice of location or certificate of location, including a description of the location of the mining claim . . . sufficient to locate the claimed lands on the ground", and that the owner of an unpatented lode or placer mining claim "located after the date of approval of this Act" must file such documents "prior to December 31 of each year". (An odd feature of this statute, certainly not intended by Congress but just as certainly required by the decision of the United States Supreme Court in United States v. Locke, is that there is no statutory requirement in FLPMA to file with the BLM unpatented mining claims located on the date of approval of the Act.)

In July 1978 I became house counsel for the Minerals Division of Houston Oil and Minerals Corporation ("HOM"). One of my first tasks was to make sure that all unpatented mining claims held by HOM were properly filed with the BLM as required by FLPMA. A challenging situation existed in the case of seven unpatented mining claims which had been located in Gold Hill, Nevada in 1859, prior to the enactment of any mining law governing the location of mining claims on the public domain. Difficulties in obtaining the required documents surfaced immediately, and I looked to the regulations to for guidance in submitting supplemental information with regard to such claims. The regulations, however, defined an unpatented mining claims as "a lode mining claim or a placer mining claim located and held under the General Mining Law of 1872, as amended". This definition did not include claims located under the 1866 Act or under the customs of miners existing prior to the enactment of the 1866 Act. Also, the definition was erroneous in stating that placer mining claims are located under the "General Mining Law of 1872, as amended". Although the General Mining Law of 1872 amended the Placer Law of 1870 in certain particulars, it provided that the 1870 Act "shall be and remain in full force, except as to the proceedings prescribed to obtain a patent." Placer mining claims, therefore, are located under the Placer Law of 1870, as amended, not under the General Mining Law of 1872, as amended. For this reason, it seemed to me that strict compliance with the regulations was not required. Nevertheless, given the Department of the Interior's fuzzy idea of what was encompassed by the "General Mining Law of 1872, as amended", I decided to provide the BLM, to the extent possible under the circumstances, the information required by the regulations over and above that required by Section 314 of FLPMA in a Statement of Supplemental Information. (This Statement, including all attachments, comprised 92 pages.) The following material is, for the most part, taken from the Statement filed with the BLM.

Recordation of Mining Claims. For reasons which more fully appear below, the relevant location notices for most of the claims in question could not be found of record. At the time most of these claims were located, neither federal nor territorial law nor district rules required the recordation of mining claims. In the absence of such laws or rules, failure to record had no effect upon the validity of a claim.

The first meeting of the miners of the Gold Hill Mining District was held on June 11, 1859. Most of the claims in question were located before that date, when there were neither district rules governing the location of claims nor a recorder of any kind empowered to record the claims. Nevertheless, possessory title of such early claims was customarily recognized by the miners of the vicinity. Such customs were expressly recognized and approved by in the 1866 Act, and many of the very earliest claims in the Gold Hill Mining District were subsequently patented under the 1866 Act.

The Gold Hill Mining Records. The very earliest records of the Gold Hill Mining District appear to have been kept not in a book, but on loose sheets of paper:

"The book which is handed down to the present time [i.e., 1883] as containing copies of original notices of location made by Houseworth deserves preservation as a relic of mining customs twenty years ago, but it is surprising that it should ever be cited as an authoritative record. Even if it contains the earliest transcripts, which is at least questionable — for it was currently reported in 1860 that the first records were made on loose sheets of paper, of which some were lost and some destroyed—yet it shows such marks of carelessness, erasures, irregular additions, and it is scarcely unwarrantable to add, positive fraud, that its legal value is materially diminished."

The manner in which the first book of Gold Hill mining records was kept is vividly described by a contemporary observer:

"V.A. Houseworth, the 'village blacksmith,' was the first recorder at Gold Hill, and the book of records was kept at a saloon, where it lay upon a shelf behind the bar.

"The 'boys' were in the habit of taking it from behind the bar whenever they desired to consult it, and if they thought a location made by them was not advantageously bounded they altered the course of their lines and fixed the whole thing up in good shape, in accordance with the latest developments.

"When the book was not wanted for this use, those lounging around the saloon were in the habit of snatching it up, and batting each other over the head with it.

"The old book is now [i.e., 1876] in the office of the county recorder at Virginia City and is beginning to be regarded as quite a curiosity. It shows altered dates, places where leaves have been torn out, and much other rough usage."

". . . The leaves are yellow with age, and have been thumbed for so many years that the corners are worn off, and half—sometimes nearly the whole — of the names of the locators are missing. . . . In a short time it will become useless, at its present rate of decay. The County Recorder is of the opinion that it will be necessary to copy its contents into a new and substantial volume, to preserve the records from oblivion."

It appears that the volume designated "Book A, Gold Hill Records" which I found in the Storey County Recorder's office in 1978 or 1979 was the "new and substantial volume" mentioned in the last quotation. It is impossible to determine what errors and omissions have resulted in the process of copying the old book into the new. In researching the records, however, I became aware of the fact that the page numbers given in the various indices did not always correspond to the page numbers of the "new" record book, thus suggesting that no attempt was made to conform the pagination of the "new" record book to that of the old.

My search of the records of the Storey County Recorder's office turned up only two location notices relating to the claims in question. The rest of the notices were undoubtedly either recorded and lost, or never recorded. The fact that some of the original records have been lost is evidenced in the location notice of the Crown Point claim which recites that the Crown Point claim is "rerecorded on this date [i.e., March 27, 1860] the old record having been lost".

Finally, it should be noted that the rules of the Gold Hill Mining District did not provide that failure to record rendered the claim invalid, and it is a well-established rule of mining law that the right to a mining claim will not be forfeited by a failure to record the claim, in the absence of a rule providing for forfeiture on that ground.

Division and Consolidation of the Gold Hill Claims. Although all or most of the Gold Hill claims were located 50 feet in length along the lode (see Dates of Location, below), most of them were subdivided into even smaller claims, which were frequently consolidated and subdivided again in a most bewildering manner. As a result, in 1979 some claims, such as the Eclipse, the Rice, and the Consolidated, comprised only a portion of the claim as originally located, while other claims, such as the Imperial (North), the Bowers, and the (Imperial South), covered ground which originally was held by two (or perhaps more) claims.

The Names of Mining Claims. No federal statute has ever required that the record of a mining claim must contain the name of the claim. The early mining claims in the Gold Hill Mining District were not given names as such, but were known by the names of their owners, such as "the Empire Mill and Mining Company's North Mine", or "Empire (North)" for short. For this reason, the division and consolidation mentioned in the preceding paragraph were frequently accompanied by changes in the names by which the claims were known.

Dates of Location. Section 314 of FLPMA does not require that the date of location be given, and, as noted above, the regulations implementing and supplementing FLPMA applied only to claims located under the 1872 Act. Nevertheless, I made an attempt to determine the dates of location of the claims in question as accurately as circumstances allowed.

The first discovery at Gold Hill was made on January 28, 1859, and on that date 50-foot claims were located by James ("Old Virginny") Finney, Henry T.P. Comstock, Alexander Henderson, John Bishop, Jack Yount, and perhaps others. The accounts of that day, as might be expected, are not in complete agreement. The Virginia City Union mentions only James Finney, John Bishop, Aleck Henderson, and Jack Yount, as do Lord and Smith. De Quille quotes John Bishop's account of the events of the day in which Bishop mentions "Old Virginia" and Comstock by name, and refers to several other unnamed persons in such a manner as to suggest that at least two other persons besides himself, Finney, and Comstock were present. No location notices for these claims were found of record. The Consolidated, the Rice, the Imperial (South), the Eclipse, and probably the Plato and the Bowers claims are derived from these locations of January 28, 1859.

According to the Virginia City Union, a few days after the locations mentioned above, James Rogers, Joseph Plato, Sandy bowers, Henry Comstock, and William Knight located five 10-foot claims. If this account is correct, the date of location of the parcels of ground from which the Plato and Bowers claims were derived would be in late January or early February 1859. The account given by the Union presents two difficulties: (1) The position of the claims on Gold Hill is such that if the Union account is correct, the original four locators must have left an open space of 50 feet to be appropriated a few days later by the Rogers group of locators. This seems highly unlikely; (2) no reason is given as to why the Rogers group located only 10-foot claims when the other locators, only a few days before, had located 50-foot claims as did locators locating claims on Gold Hill after the location of the claims by the Rogers group. Most probably, Henry Comstock was one of the first group of locators, as stated by Bishop, and he either located a 50-foot claim on behalf of himself, Rogers, Plato, Bowers, and Knight, or subsequently subdivided his 50-foot claim into five 10-foot claims and transferred four of them to Rogers, Plato, Bowers, and Knight.

A portion of what eventually become the Imperial (North) claim was located on November 20, 1859. I found no location notice for the balance of the Imperial (North), but the date of location cannot be later than October 30, 1859, the date of a deed conveying that portion of the Imperial (North) from James F. Rogers to Francis Board. The date of location of this portion of the Imperial (North) cannot, of course, be prior to January 28, 1859, the date of location of the first Gold Hill claims.

The Front Gold Hill claim (discussed in Placers v. Lodes, below) was located on February 20, 1860.

From the foregoing, it appears that, except for the Front Gold Hill claim, which was located in 1860, all of the claims in question were located in the year 1859. No withdrawal or other event relating to the status of the land made it critical to determine whether that date was January 28 or some other date in 1859.

The Position of the Gold Hill Claims. The original Gold Hill claims lay essentially east-west. The relative position of the claims located by the nine original locators at Gold Hill (see Dates of Location, above) can be readily determined by an examination of the conveyances of record, which usually mention the names of the claims lying to the north and to the south of the claim being conveyed. The initial relative position of the original Gold Hill claims was as follows:

______________________________

HENDERSON 50'

_____________________________

COMSTOCK 10'

KNIGHT 10'

PLATO 10'

BOWERS 10'

ROGERS 10'

YOUNT 50'

_____________________________

FINNEY 50'

_____________________________

BISHOP 50'

_____________________________

A deed dated September 7, 1861 refers to a "Record Survey of the Gold Hill District", and a deed dated March 12, 1862 and recorded March 22, 1862 in Book B of the Storey County Records at Page 184 conveys the Henderson claim in Gold Hill "in accordance with the survey of the same made by S.H. Marlette Civil Engineer in the year A.D. 1860". It was probably this survey that revealed the dog-leg shape of the claims. My search of the Storey County Recorder's office failed to turn up the Marlette survey. However, a map of an uncertain, but somewhat later date, was found in the Storey County Clerk's office. This map was presumably based upon the 1860 Marlette survey.

Placers or Lodes: The Dimensions of the Gold Hill Claims. The Gold Hill claims were originally staked as placer claims. It was soon discovered, however, that the Gold Hill deposit was a part of the Comstock Lode, and the Gold Hill claims were held and conveyed as "quartz" or lode claims. In 1860, the Front Gold Hill claim was located. This claim lay immediately to the east of the Gold Hill claims and extended east an additional 300 feet. In 1866, the Front Gold Hill Gold and Silver Mining Company conveyed to the then owners of the Gold Hill claims those portions of the Front Gold Hill claim which lay within the eastward extensions of the boundaries of the Gold Hill claims. Several of these extended Gold Hill claims were subsequently patented under the 1866 Act. In the meanwhile, the "one ledge" v. "multiple ledge" controversy had been resolved in favor of the one ledge theory, which held that the Comstock lode was but one ledge, and not a number of parallel ledges. The custom of the Gold Hill Mining District was that the holder of a quartz claim held all of the ground between the two walls of the lode. Accordingly, the patents to the Gold Hill claims conveyed "all of said lode and surface ground contained between the northern and southern boundary lines hereinbefore described and the east and west walls of the lode not yet ascertained with sufficient certainty to furnish specific lateral boundaries." The issuance of patents in this form was subsequently disapproved by the Secretary of the Interior, and the eastern and western side lines of the Gold Hill claims were taken as being defined by the easternmost and westernmost monuments called for on the north and south end lines of the claims.

Specific Claims-Imperial (North). The Imperial (North) was a consolidation of at least two and probably three claims. The northernmost 18 feet of this 118-foot claim was located by Francis Board on November 20, 1859. The southernmost 100 feet was located, probably as two 50-foot claims, sometime between January 28, 1859 and October 20, 1859. (See Dates of Location, above.) The Imperial (North) was bounded on the north by the patented Alpha claim and on the south by the patented Bacon No. 58 claim. From the mineral survey plat of the Alpha and Bacon No. 58 claims it appeared that the Imperial (North) lay in the Northeast and Southeast Quarters of Section 31 and the Northwest Quarter of Section 32, T. 17 N., R. 21 E., M.D.B. & M.

Specific Claims-Eclipse. The Eclipse claim comprised the north 30 feet of the 50-foot claim located by Alexander Henderson on January 28, 1859. (See Dates of Location, above.) The southern 20 feet of the Henderson claim was patented as the Trench claim, which bounded the Eclipse claim on the south. The Eclipse claim was bounded by on the north by the patented Empire (North) claim. From the mineral survey plats of the Empire (North) and Trench claims it appeared that the Eclipse claim lay in the Southeast Quarter of Section 31 and the Southwest Quarter of Section 32, T. 17 N., R. 21 E., M.D.B. & M.

Specific Claims-Plato. The Plato claim was the 10-foot claim located or acquired by Joseph Plato on or a few days after January 28, 1959. (See Dates of Location, above.) It was bounded on the north by the patented Empire (South) claim and on the south by the unpatented Bowers claim. From the mineral survey plat of the Empire (South) claim it appeared that the Plato claim lay in the Southeast Quarter of Section 31 and the Southwest Quarter of Section 32, T. 17 N., R. 21 E., M.D.B. & M.

Specific Claims-Bowers. The Bowers claim was a consolidation of the two 10-foot claims located or acquired by L.S. ("Sandy") Bowers and James Rogers on or a few days after January 28, 1859. It was bounded on the north by the unpatented Plato claim and on the south by the patented Bacon No. 59 claim. From the mineral survey plat of the Bacon No. 59 claim it appeared that the Bowers claim lay in the Southeast Quarter of Section 31 and the Southwest Quarter of Section 32, T. 17 N., R. 21 E., M.D.B. & M.

Specific Claims-Consolidated. The Consolidated claim comprised the north 21 feet of the 50-foot claim located by James ("Old Virginny") Finney on January 28, 1859. (See Dates of Location, above.) It was bounded on the north by the patented William Sharon claim and on the south by the unpatented Rice claim. From the mineral survey plat of the William Sharon claim it appeared that the Consolidated claim lay in the Southeast Quarter of Section 31 and the Southwest Quarter of Section 32, T. 17 N., R. 21 E., M.D.B. & M.

Specific Claims-Rice. The Rice claim comprised 13 feet 4 inches of the 50-foot claim located by James ("Old Virginny") Finney on January 28, 1859. (See Dates of Location, above.) It is bounded on the north by the unpatented Consolidated claim and on the south by the unpatented Imperial (South) claim. From the mineral survey plats of the William Sharon claim, which lay to the north of the Consolidated claim, and the Challenge claim, which lay to the south of the Imperial (South) claim, it appeared that the Rice claim lay in the Southeast Quarter of Section 31 and the Southwest Quarter of Section 32, T. 17 N., R. 21 E., M.D.B. & M.

Specific Claims-Imperial (South). The Imperial (South) was a consolidation of the south 13 feet 8 inches of the 50-foot claim located by James ("Old Virginny") Finney on January 28, 1859 and the 50-foot claim located by John Bishop on that same date. (See Dates of Location, above.) It was bounded on the north by the unpatented Rice claim and on the south by the patented Challenge claim. From the mineral survey plat of the Challenge claim, it appeared that the Imperial (South) lay in the Southeast Quarter of Section 31 and the Southwest Quarter of Section 32, T. 17 N., R. 21 E., M.D.B. & M.

". . . that where said persons or associations, they and their grantors, shall have held and worked their said claims for a period equal to the time prescribed by the statute of limitations for mining claims in the state or territory where the same may be situated, evidence of such possession and working shall be sufficient to establish a right to patent thereto under this act, in the absence of adverse claims."

This section applies to both lode and placer claims. Possession under this section "obviates the necessity of making proof of the posting and the recording of a location notice, and supplies the place of record title". This section was not expressly repealed by FLPMA, and since FLPMA did not repeal any statute by implication, this section remained a part of the mining laws. Since this section, as interpreted by the courts, contemplates that a valid claim may exist without the posting of a notice of location or the recording of a notice or certificate of location, and since nothing in FLPMA could be construed as terminating any valid land use right, it was my position that the recording provision of Section 314 of FLPMA must be read in light of the rights of a mining claimant under the above-quoted provision of the mining laws, and I therefore submitted to the BLM that failure to file with the BLM copies of notices or certificates of location which could not be found of record, particularly under the circumstances set forth above (see The Gold Hill Mining Records, above) did not preclude a claimant from recording a claim by filing with the BLM such available information regarding the claim as would have appeared in the original notice or certificate of location.

The fact that the original locators of the Gold Hill claims and their successors in interest, including the Imperial, the Empire, and the Consolidated companies, held and worked these claims from 1859 until at least 1882 was attested by the historians. At that time, the Nevada statute of limitations for mining claims was two years.

Chain of Title. Having completed the research set out above, I presented a draft of the Statement of Supplemental Information containing the foregoing material to the Regional Solicitor of the Department of the Interior in Sacramento, California for his review and comments. The one comment that he had was that he would like to see a chain of title on the claims in question.

Two circumstances made the preparation of a chain of title to the Gold Hill claims a matter of some difficulty. The first was the condition of the extant records of the Gold Hill Mining District. (See The Gold Hill Mining Records, above.) The second was the fact that in the early days on the Comstock, title to mining property could be transferred without a written conveyance. In a case dealing with a claim on the Comstock lode, the Supreme Court said:

". . . The ownership of Wood in 1892 was an ultimate fact, and even if Taylor had no other right to the possession than that which he derived from Wood by conveyance, it was not necessary to set forth the chain of conveyances by which Wood became the owner. A transfer of possession is sufficient. They would have been but evidence of Wood's ownership. Besides, a written conveyance is not necessary to the transfer of a mining claim . . . ." (Emphasis supplied.)

". . . in the early days, at Virginia, the transfer of actual possession of a mining claim and submission to it by possession of the transferee acquiesced in—possession in pursuance of such a transfer acquiesced in—was a good transfer of a mining claim, independent of any deed."

Fortunately, in the early days on the Comstock Lode, ownership of mining claims was a matter of public knowledge, and the very early conveyancing history of the claims, in broad outline, at least, could be determined by reference to contemporary and historical sources. Documents of record in the Storey County Recorder's office provided a complete chain of title from 1876.

The Bowers claim was a consolidation of the claims originally held by L.S. Bowers and James Rogers.

"Rogers sold his 10 feet to Mrs. Cowan (now [i.e., 1863] Mrs. Sandy Bowers for $100 per foot. This, with the 10 feet which Sandy Bowers owned, and still retains, form what is known as the Bowers claim."

"When Jim Rogers, paralyzed with too much 'tarantula juice,' failed to pay his board bill, Eilley [i.e., Eilley Orrum, who later married Sandy Bowers] graciously took over his claims. It bordered on that of Sandy Bowers and Eilley had designs on Sandy."

The conveyances from the original locators which created the Consolidated, Rice, and Imperial (South) claims is described in an article in the Virginia City Union of October 14, 1863 as follows:

". . .Virginia [Finney] first gave John Vignot, alias Little French John, 9 feet in consideration of his having attended him during a spell of sickness. The 9 feet is now [i.e., 1863] incorporated in the Logan and Holmes claims. He then sold 21 feet to Dugin [Durgin} & Co. for $50 per foot. Of this, 10 ½ feet now compose the Coover and Stevenson Co. claims, and 10 ½ feet of the Lindauer and Hirschman claims. The remaining 20 feet he sold to L.E. and J.W. Rice. Of this, 6 1/8 [6 1/3] feet is now incorporated in the Logan and Holmes claims. The remaining 13 2/3 feet is still known as the Rice claims. John Bishop sold his claim to Logan and Homes for $50 per foot."

The merger of the several Gold Hill claims into the Consolidated Imperial was accomplished between 1863 and 1876.

"In 1863, when the ore in the west ledge was nearly at an end, three of the small mines were incorporated into the Empire and three others into the Imperial . . . . The owners of several of the other eight little mines also prospered for several years, but by 1868 the last of them was done.

"In 1876 Sharon merged all of those mines into the Consolidated Imperial . . . ."

"Consolidated Imperial is a consolidation of the Imperial, Bacon, Empire, Eclipse, French [Trench], Bowers and Consolidated Gold Quartz, in all making 468 feet."

The distance of 468 feet encompasses the ground from the north line of the Imperial (North) to the south line of the Imperial (South). The lengths of the individual claims, as appears from the mineral survey plats and deeds, are as follows:

The document creating the Consolidated Imperial Mining Company and by which these claims passed to the newly created company is entitled "Articles of Incorporation and Certificate of Consolidation" dated April 12, 1876.

By a deed dated March 17, 1922 the Consolidated Imperial Mining Company conveyed all of the claims in question to United Comstock Mines Company.

By a deed dated November 19, 1924 United Comstock Mines Company conveyed all of the claims in question to Comstock Merger Mines, Inc.

By a deed dated July 9, 1928 Comstock Merger Mines, Inc. conveyed all of the claims in question in Sutro Tunnel Coalition.

Epilog. Based upon the Statement of Supplemental Information, the BLM issued "N MC" (i.e., Nevada Mining Claim) numbers under FLPA for the seven claims in question. Subsequently, Houston Oil & Minerals Corporation surrendered the mining lease under which it had held theses claims. At the time of the surrender, there was a difference of opinion regarding whether the obligation to comply with the current year's filing requirements under FLMPA remained with Houston Oil & Minerals Corporation, or whether that obligation had passed to the lessor along with the surrender of the lease. As a result, no filing was made, and the claims were declared "abandoned" under FLPMA.