The Salt Lake herald. [volume] (Salt Lake City [Utah]) 1870-1909, 1898-01-11

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/ anywhere on the claim will comply
with the statute, and the ques-
! ton is does the requirement
/ of this section as to the
! time Of doing a portion of the work
! conflict with the United States? In all
! OF the mining states and territories
| legislation has been enacted to the end
! that a would be-locator of a mining
! claim shall be required to demonstrate
to a reasonable certainty that the de-
post located is in a vein or lode within
! the limits of the claim, and to show
that he claims in good faith In all
but California, Oregon and Washing
ton, l believe, the locator is required
TO sink a shaft or run an equivalent
tunnel OF q prescribed number of feet.
He need not do this at the asserted or
called point of discovery. He may do
his work at any point on the surface
claim; but, nevertheless, it is diScoy-
cry work, and for the purpose of dis
closing the vein. AS said by Mr.. Nor
rison, the discovery shaft is a part
of the process of location subsequent to
| discovery"
In these states, the time for complet-
ing the discovery work is also the time
for marking the boundaries and filing
the location notice by which the dis
covery is perfected. In other words,
each act required by the state statute
to be done by the locator is preliminary
to the making of a valid location. In
California, the locator is required to do
fifty dollars worth of labor in devel-
oping his discovery" The labor is to
be deemed a necessary act in COM
plotting the location and a part there
Of"
The validity of this legislation has
not been passed upon by the United
States supreme court, but has been
universally upheld in the state courts.
There would seem to be no objection
to the state or local law regulating the
manner of making a location.
The difficulty with our statute lies in
the fact that it does not appear that
the work provided for is designed as
a part of the process of location" No
indication is given that the work is re-
quired as discovery work. On the con-
trary, the context of the act, in the two
preceding sections. seems to make it
clear that this work is not designed as
discovery work. 1t is there provided
that the locator must mark his boun-
DIARIES and file for record his notice of
location within thirty days from the
date of discovery and posting notice.
Thus, the boundaries are marked and
the record made sixty days before the
locator is required to complete the de-
velopment work. What effect, then, is
to be given to the doing of this work?
Evidently it is not-necesSarily, at
least-in aid of a discovery of a vein.
1t may be done after the location is
perfected, and anywhere upon the
claim. 1t is conceded that the state
may enlarge the amount of annual la
Dor required, but it may not restrict
the time in which this labor is done
If this ninety-day work is considered
as ordinary development work, the re-
quirement as to time is in conflict with
the federal statute.
The Interpretation of section is
also somewhat in doubt. Whether
the proof of work may be
shown by the affidavit of the person
who controlled and caused the labor to
be performed, or whether each person
who labors must make affidavit, is I'M
certain.
l have said enough to illustrate the
confusion and obScurity of the statute,
suggesting the necessity of amend
ment. For the purpose OF location, the
work should be expressly restricted to
the discovery of the vein, and the To-
cation should not be complete, nor the
record made. until the work is done
and its object accomplished. l believe,
also, that the state law should embrace
the whole subject matter, leaving moth
ing to the determination of local rules
and regulations. A general law, uni
form IN its operation throughout the
state, would best conserve the inter
csts OF the mining public.
WASTE AND TRESPASS.
In this connection, note proviso of
the general statute of limitations rela-
tive to waste and tresDass, prepared
by the code commission and adopted
by the legislature, in section 1871, as
follows: That when the waste or
trespass is committed by means of I'M
foreground work upon any mining claim
the cause of action shall not be deemed
to have accrued until the discovery by
the aggrieved party of the facts con-
stituting such waste or trespass." This
proviso is erninently just and satisfac-
tory.
Prior to the admission of the terri
tory into the union, the business of
mining under conditions existing here,
had been supposed to be affected with
a public interest, and legislation was
enacted authorizing the exercise of the
right of eminent domain in such behalf
The legislature of the state, in 1896, re-
affirmed this doctrine, and its principles
have been adopted and carried into the
revised statutes by the succeeding leg
iSlature. In October 1885, the supreme
court, in discussing and passing upon
the validity Of AN act regulating the
hours of employment in underground
HllnSS etllQ IL SiASlllIS anu ore ECQQC-
ton works. known as the Eight Hour
Law took occasion TO deny that the
business os mining is affected with a
public use, and challenged the applica-
ton of the right OF eminent domain to
such purpose. The question was not
necessarily involved, and after a lapse
of time two of the judges, constituting
a majority of the court, added a special
concurrence Withholding assent to so
much of the opinion as referred to this
question, on the ground that its i'm
portance demanded a full argument
and careful investigation. The ques-
ton is thus an open one, SO far as the
two associate justices are concerned,
but the chief justice is emphatically of
the opinion that the right of eminent
domain NAV not be exercised in the
business of mining. The question is of
grave Importance. In Nevada, under
substantially similar conditions, this
right Of eminent domain has been sus-
tanned, upon the ground that mining
was the greatest industrial pursuit in
the state. and, being the paramount
interest, anything that tended to di-
rectly encourage the development and
increase of the mineral resources of the
state, was for the benefit of the pub
lie.
resources of the state Yves for the ben
eft of the public. In Georgia the same
result was reached, but upon different
grounds. 1t was there held that as
gold and silver were the constitutional
money of the country, the facilitation
of their production WAS for fha r1llI1Iic