Previous to the legislation of congress in 1866, mining claims upon the public lands of the United States were held under rules framed by miners themselves in different localities. These rules prescribed the extent of ground which miners could severally appropriate for mining, and the conditions upon which such ground could be acquired and held. They bore a general similarity in different districts, varying only according to the extent and character of the mines. They all agreed in one particular,-in recognizing discovery and appropriation as the source of title, and development by working as the condition of continued possession. The first discoverer could derive no benefit from his discovery unless he followed it up by work for the development of his claim; and what that work should be, the nature and extent of it, how soon it should commence after the discovery, and when its suspension should be deemed an abandonment of the claim, were specifically declared. The act of congress of 1866 gave the sanction of law to these rules of miners, so far as they were not in conflict with the laws of the United States. 14 St. c. 262, § 1. Subsequent legislation specified with greater particularity the modes of location and appropriation and extent of each mining claim, recognizing, however, the essential features of the rules framed by miners, and, among others, that which required work on the claim for its development as a condition of its continued ownership. The act of 1872-and its provisions are re-enacted in the Revised Statutes-declares that on each claim subsequently located, until a patent for it is issued, there shall be annually expended for labor or improvements $100, and on claims previously located, an annual expenditure of $10 for each 100 feet in length along the vein; and provides that when such claims are held in common, the expenditure may be upon any one of them. And it declares that upon a failure to comply with these conditions the claim shall be opened for relocation in the same manner as if no location of the same had ever been made, provided the original locators, their assigns or representatives have not resumed work upon it after failure and before relocation. 17 St. c. 152, § 5.
The act also points out various steps which must be followed by a party who seeks to obtain a patent for his mining claim. Among other things he must file an application in the proper land-office, under oath, showing a compliance with the law, together with a plat and the field-notes of his claim or claims made under the direction of the surveyor general of the United States, showing its or their boundaries. He must also at the time, or within 60 days thereafter, file with the register a certificate of the surveyor general that $500 worth of labor has been expended or improvements to that amount have been made upon the claim by himself or grantors. If within 60 days thereafter an adverse claim is filed, accompanied by the oath of the party making it, showing its nature, boundaries, and extent, proceedings are to be stayed until the controversy has been settled by the decision of a court of competent jurisdiction, or the adverse claim is waived. And it is made the duty of the adverse claimant, within 30 days afterwards, to commence legal proceedings to determine the question of the right of possession.
In this case it appears that the defendants claimed the premises in controversy as their mining ground, and made application for a patent. The premises are situated on Blue river, in the county of Summit, in the state of Colorado, and embrace 23.48 acres. The plaintiff asserted an adverse right to them as part of what is called in the record 'The Thomas Klak Claim,' and brought the present action to determine his right of possession. In his complaint he alleges that on the ninth of August, 1876, he was the owner of the Klak claim, and ever since has been such owner, and entitled to its possession; that he worked the same as a placer mining claim in connection with other claims adjacent and contiguous to it; that the defendants sometime in 1880 entered upon a part of said claim-that portion now in controversy-and have ever since wrongfully withheld its possesion from him. He avers that the premises are worth $50,000; that the action is brought in support of his adverse claim; and he asks judgment for possession of the premises. The defendants, besides denying the allegations of the plaintiff, set up a a right to a portion of the premises by location and occupation under the mining rules of the district, and to the remainder by purchase from the original locators.