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Placer vs Lode & Lode vs Placer (one over the other)


elder-miner

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This is just my humble opinion.

Assuming an unpatented mining claim is properly posted on the ground, the location notice accurately describes the claim, the notice is properly recorded with applicable agencies (County & BLM), when applicable - assessment work done and recorded, or BLM maintenance fees paid AND A “VALID MINERAL DISCOVERY EXISTS” with the claims boundaries, an unpatented mining claim is VALID. Which “vests” the owner with valid existing rights over real property, that are statutorily and constitutionally protected.

The validity of any unpatented mining claim (lode or placer) is dependent upon the disclosure of a valuable mineral deposit within the limits of the claim. 30 U.S.C. § 22. However, the courts generally have recognized that a certain amount of time is necessary to make a discovery. During this time the locator has limited possessory rights, based on the doctrine of pedis possessio (Union Oil Co. of California v. Smith, 249 US 537 [1919]). But, pedis possessio rights depend on the actual physical occupancy of each claim, the exclusion of rival locators, and a diligent effort to make the discovery (Cole v. Ralph, 252 US 286, 294 [1920]; Geomet Exploration v. Lucky Mc, Ariz., 601 P2d 1339 [1979]).

Federal law (30 USC 26; 43 CFR 3831.1) requires that a discovery be made before a claim is valid. However, if someone else—acting in good faith and without force or fraud—makes a valid discovery on a conflicting claim, the discoverer’s claim probably is the valid one (Cole v. Ralph, 252 US 286, 294 [1920]; Geomet Exploration v. Lucky Mc, Ariz., 601 P2d 1339 [1979]).

A valuable mineral deposit exists if the mineral found within the limits of the claim is of such quantity and quality that a prudent person would be justified in the further expenditure of his labor and means with a reasonable prospect of success in developing a paying mine. United States v. Coleman, 390 U.S. 599, 602 (1968); Chrisman v. Miller, 197 U.S. 313 (1905); Castle v. Womble, 19 L.D. 455, 457 (1894).

The "prudent man" test has been refined to require a showing that "as a present fact, considering historic price and cost factors and assuming that they will continue, there is a reasonable likelihood of success that a paying mine can be developed." United States v. Holder, 100 IBLA 146 (1987); In re Pacific Coast Molybdenum, 75 IBLA 16, 29, 90 I.D. 352, 360 (1983).

However, actual successful exploitation need not be shown--only the reasonable potential for it. Barrows v. Hickel, 447 F.2d 80, 82 (9th Cir. 1971). The question is not whether a profitable mining operation can be demonstrated, but whether, under the circumstances and based upon the mineralization exposed, a person of ordinary prudence would expend substantial sums with the reasonable expectation that a profitable mine might be developed. Barton v. Morton, 498 F.2d 288 (9th Cir.), cert. denied, 419 U.S. 1021 (1974).

"... no right arises from an invalid claim of any kind. All must conform to the law under which they are initiated; otherwise they work an unlawful private appropriation in derogation of the rights of the public." Cameron vs. United States, 252 U.S. 450, 460, 40 S.Ct. 410, 412 (1920)

Every competent locator has the right to initiate a lawful claim to appropriate public land by a peaceable adverse entry and location thereof while it is in the possession of those who have no superior right to acquire the title or to retain the possession. Thallmann v. Thomas, Colo.1901,111 F. 277, 49 C.C.A. 317. See also, San Francisco Chemical Co. v. Duffield, Wyo.1912, 201 F. 830, 120 C.C.A 160, certiorari denied 33 S.Ct. 461, 229 U.S. 609, 57 L.Ed. 1350.

Mere possession of a claim not based upon a valid location will not avail to prevent another, making peaceable entry from effecting , a valid location. Horswell v. Ruiz, 1885, 7 P. 197, 67 Cal. 111. See, Walsh v. Henry, Colo.1907, 88 P. 449; Dwinnell v. Dyer, 1904, 78 P. 247, 145 Cal. 12, 7 L.R.A.,N.S., 763; Noyes v. Black 1883, 2 P. 769, 4 Mont. 527; Hopkins v. Noyes, 1883, 2 P. 280, 4 Mont. 550.

"A placer discovery will not sustain a lode location, nor a lode discovery a placer location." Cole v. Ralph, 1920, 40 S.Ct. 321, 252 U.S. 286, 64 L.Ed. 567.

“One going upon a valid placer location to prospect for unknown lodes and veins against the will of the placer owner is a trespasser, and cannot initiate a right maintainable in an action at law to the lode and vein claims within the placer limits which he may discover during such trespass”. Clipper Mining Co. v. Eli Mining and Land Co., 194 US 220 [1904]. http://supreme.justia.com/cases/federal/us/194/220/case.html

The same holds true of entering a “valid” lode claim, in search of a placer deposit. But, if the “lode” claim is not “valid” for lack of a valid lode discovery within it’s limits, or some other fatal flaw. One may enter an invalid lode claim (so long as you can do so peacefully), and upon discovery of a valid placer deposit, make a placer location over it. The caveat being, you better know what you are doing, if/when you do it & have the financial & legal resources to defend the placer claims title.

Edited by elder-miner
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A lot of fly by night exploration companies pull stunts. They will blanket an area with 100 or 200 lode claims. All have the same location date, and if you look, you cannot find a single monument on the ground. Filing fees alone are 20 or 40K. They tie up a square mile of 2. Do you think any of those lode claims are “valid”?

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As much as some of the lode claims look good around here to prospect on, I would not use this to go out on their claim to look for placer gold.


There’s a couple of series of lode claims around here. One I find suspect and I could probably go on it except the caveat of “you better know what you are doing, if/when you do it & have the financial & legal resources to defend the placer claims title”. This may work for someone who is going to develop these claims full time, but for me who will either be running nothing bigger than a Keene 151 or Trommel on the claim with dirt that my partner and I are digging with a pick and shovel.


Not being an expert in the law other than a certified, I thought that Clipper Mining Co v. Eli Mining and land Co (1904) was a benchmark case that meant no placer claim on top of a lode claim or vice versa. That placing a placer claim on a valid lode question has made it to the boards a few times in the last year or so.


As far as a Valid claim that needs to produce minerals of value, I wouldn’t think any company is under obligation to you to show they have made a valid discovery, otherwise, they’d give away all their secrets and research they put so much money into. It would be demanding to see a claim’s drilling logs. If I were to test drill on a claim, I would not want to show anyone who asked to see those logs I’d spent tens of thousands of dollars on. I bring this up because most of the claims I find suspect in this area are made by paper claimers, but on my $10 budget, there’s no way I could fight this.


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Hoser John pretty well summed it up! This stuff sounds fine on the surface,but disproving the

validity of an existing claim ,will make the most hard core mining lawyer think twice. Going on to

an active claim with the intent to prospect or over file ,with out absolute proof of it being invalid

by law can lead to big trouble.

Only the Federal government has the right to enter that claim to do a validity test. In order for

a private citizen or mining company to contest the validity,they would have to convince the courts

and government ,to conduct those tests. Discovery is darn tough to disprove,and can be real

expensive to do. Keep in mind that a claim can be valid for any locatable mineral,not just precious

metal. Sometimes gold or silver is just a by product of the real target minerals. You may be looking

at the wrong target ,and that could cause you some serious problems in court.

Entering that claim to prospect or test before having a legal validity test done by proper channels

or with the owners consent is mineral trespass. As long as a claim is active on the BLM files ,you

are playing with fire ,by trying to play lawyer and enter it for mineral or prospecting purpose.

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I am certainly not advocating CLAIM JUMPING in any way, shape or form.

There are however instances where certain mining claims are FUBAR.

(google FUBAR - if you don’t know what that means)

In some cases, speculative mining claims are paper filed, that are not valid. Because the person or entity NEVER set foot on the ground to stake the claim. There are numerous other instances, where it is certainly justifiable to challenge the validity of a mining claim. The caveat being, if you have the expertise, funding & verifiable proof that the claim is illegitimate, bogus, invalid, paper filed, back dated 90 days to circumvent a claim you made in the interim, or any number of other circumstances.

You cannot legitimately over-stake/file a claim (lode or placer) over a VALID UNPATENTED MINING CLAIM, against the will of the owner. If you do, you can face some VERY lengthy expensive litigation.

How FUBAR can things get. Example, years back, an attorney I know contacted me requesting I determine who had a valid mining claim to a conflicted area. Situation was a guy bought a placer claim for big bucks, pulled up on it towing his 8 inch dredge, to find another person dredging on it. The guy dredging had staked a claim there. A confrontation ensued, there was a physical altercation, police were called, one was arrested. Both hired attorneys & sued each other.

Long story short, a title search revealed both those yo-yo’s placer claims were in conflict with a senior VALID placer claim that pre-dated theirs by 40 years. In effect BOTH were in trespass & SOL. Who made a pile of money off those blunders. The attorneys.

There is something called DUE DILIGENCE.

Many mining claim novices never do ANY

In other instances, on certain rivers in California there are conflicting placer claims, stacked like pancakes, one over the other sometimes eight (8) deep. All because of shysters filing bogus claims & selling them to novices - who fail to do any due diligence before parting with their money. Or, novices simply file conflicting claims, not knowing they conflict with a senior VALID claim

In other instances, many placer claims initiated by novices have fatally flawed legal descriptions that place the claim a ¼, ½, ¾, a mile or more from where the BLM case file map shows the claim to be. What rules is monuments on the ground, which often don’t exist. Sort that one out. There are a million examples of FUBAR mining claims out there.

Every mining claim I have staked/filed has a case file containing a dated BLM LR 2000 Geo-index print out of the section(s) & showing the pre-existing mining claims, a BLM Master Title Plat (showing land status), a high definition USGS topographic map depicting the claim (and adjoining claims), as well as time/date stamped photographs of the monuments on the ground. To back that up, when available short notarized statements from witness’s who were there. Plus, fuel, food & lodging receipts to also prove I was there & when.

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Elder Miner's thread highlights the principled approach of trying to do things the "right" way in a world filled with lying, cheating, opportunist scoundrels. I compliment him on his honesty and accuracy. He describes how to take the "high road" (which is the morally and legally correct path both to sainthood as well as to legal victories). In the real world -- especially in the case of the small scale miner's world where one must operate with limited time and resources -- the sinners often outnumber the saints. Sinners run on different theories of time and reality. Their theory of time is that law enforcement, BLM and FS employees operate at slug speed and can easily be thrown off the trail just by flashing a piece of paperwork. The typical response of a deputy sheriff or BLM ranger when confronted with two sets of paperwork is, "This is a civil matter. Work it out in court and bring us a copy of the judgment." Meanwhile, operating at near light speed in remote areas, often at night, the sinners can pretty much physically clean out a saint's patch or pocket.

The legal world is a slow, cumbersome, expensive world. One of my old law professors, Lon Fuller, devoted a fair portion of his legal writing skills addressing "legal fictions". This is a concept regarding how the law goes about solving a problem in the face of seemingly insurmountable evidentiary and conceptual limitations. In other words, how to pragmatically get the ponderous legal system to work. An example of a legal fiction is that everyone is deemed to know the law. But there is no legal fiction that everyone who knows the law will follow the law (except in some technical rules of evidence situations which are too far off topic).

So what alternative to sole reliance upon the legal system does a small scale honest person have upon discovery of a modestly rich patch, pocket or vein? (one that will pay on a small scale, but will not justify large scale, corporate-type ventures that would include 24 hr guards) Nature supplies many lessons, among them stealth, camouflage and trickery. The recording of a claim is a public document that serves to announce to the world, "I found gold here. It belongs to me. Do not trespass or I will be forced to take you to court." But by not recording a claim, someone else might.

One way to partially address this situation is immediately to erect a cairn and post initial paperwork on the cairn, but not record it. During your 90 day grace period work your butt off to clean out as much high grade as you can. Do it stealthily, try not to be seen, take care to cover or camouflage your diggins during times you are away, tell NO ONE about it -- not even your priest -- and maybe work only at night. Near the end of the 90 days you must make a risky decision whether to go ahead and record it (announce it to the world) or continue operating on the chance that no one has been watching you or will stumble upon your workings. This is the real world of many small scale prospectors. R.D. from Indio is an example. He cleaned out several pounds from his initial discovery of "Area 51" in the Dale Gold District near Twentynine Palms, California (see RD's story link contained in Bill Southern's Home Page). He then made a common mistake. He told someone about it.

There are more Area 51s out there for the small scale prospector to discover. If done successfully, there is no need for a visit to the courthouse.

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Claim it ...and they will come....and predate your location to steal it from you......file 88 days after location-then the new claim hasn't been published for a couple a days. Then computer scanning paper hangers are outta there as 90 day cutoff time constraints kill their thieving games---John

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