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at the point of discovery, on the surface, a plain sign or notice containing the name of the lode, the name of the locator, and the date of discovery, the number of feet claimed in length on either side of the discovery, and the number of feet in width claimed on each side of the lode; third, by marking the surface-boundaries of the claim. SEC. 6. Marking surface-boundaries.—Such surface-boundaries shall be marked by eight (8) substantial posts, hewed or blazed on the side or sides facing the claim, and sunk in the ground, to wit, one at each corner, and one at the center of each side-line, and one at each end of the lode. When it is impracticable on account of rock or precipitous ground to sink such posts, they may be placed in a monument of stone. SEC. 7. Requisite of location.—Any open cut, cross cut, or tunnel, at a depth sufficient to disclose the mineral vein or lode, or an adit of at least ten (10) feet in along the lode from the point where the lode may be in any manner discovered, shall be equivalent to a discovery shaft. SEC. 8. Time discoverer has to perform labor.—The discoverer shall have thirty days from the time of uncovering or disclosing a lode to sink a discovery shaft thereon. SEC. 9. Certificate construed to contain.—The location or location certificate of any lode-claim shall be construed to include all surface-ground within the surface-lines thereof, and all lodes and ledges throughout their entire depth the top or apex of which lie inside of such lines extended vertically with such parts of all lodes or ledges as continue by dip beyond the side-lines of the claim, but shall not include any portion of such lodes or ledges beyond the end-lines of the claim or the end-lines continued, whether by dip or otherwise, or beyond the side-lines in any other manner than by the dip of the lode. SEC. 10. Claim not beyond exterior lines.—If the top or apex of the lode in its longitudinal course extends beyond the exterior lines of the claim at any point on the surface, or as extended vertically downward, such lode may not be followed in its longitudinal course beyond the point where it is intersected by the exterior. SEC. 11. Claims subject to right of way.—All mining-claims now located, or which may be hereafter located, shall be subject to the right of way of any ditch or flume for mining purposes, or of any tramway or pack-trail which is now in use, or which may be hereafter laid out across any such location: Provided, always, That such right of way shall not be exercised against any location duly made and recorded, and not abandoned prior to the establishment of the ditch, flume, tramway, or pack-trail, without consent of the owners, except by condemnation, as in case of land taken for public highways. Parol consent to the location of any such easement, accompanied by the completion of the same over the claim, shall be sufficient without writing: And provided further, That such ditch or flume shall be so constructed that the water from such ditch or flume shall not injure vested rights by flooding or otherwise. SEC. 12. Owner may demand security from miner.—When the right to mine is in any case separate from the ownership or right of occupancy to the surface, the owner or rightful occupant of the surface may demand satisfactory security from the miner, and, if it be refused, may enjoin such miner from working until such security is given. The order for injunction shall fix the amount of bond. SEC. 13. Filing an amended certificate.—If at any time the locator of any mining-claim heretofore or hereafter located, or his assigns, shall apprehend that his original certificate was defective, erroneous, or that the requirements of the law had not been complied with before filing, or shall be desirous of changing his surface boundaries, or of taking in any part of an overlapping claim which has been abandoned, or in case the original certificate was made prior to the passage of this law and he shall be desirous of securing the benefit of this act, such locator, or his assigns, may file an additional certificate subject to the provisions of this act: Prorided, That such relocation does not interfere with the existing rights of others at the time of such relocation, and no such relocation or the record thereof shall preclude the claimant or claimants from proving any such title or titles as he or they may have held under previous locations. SEC. 14. Work performed annually.—The amount of work to be done or improvements made during each year to hold possession of a mining-claim shall be that prescribed by the laws of the United States, to wit, one hundred dollars annually. SEC. 15. Affidavit of labor to be made.—Within six months after any set time or annual period herein allowed for the performance of labor or making improvements upon any lode-claim, the person on whose behalf such outlay was made, or some person for him, shall make and record an affidavit in substance as follows:
TERRITORY OF DAKo TA, County of , 88 : Before me, the subscriber, personally appeared , who, being duly sworn, says at least dollars' worth of work or improvements were performed or made upon (here describe claim or claims, or part thereof), prior to the day of —, A. D. 18—, situate in mining district, county of , territory of Dakota.
Such expenditure was made by or at the expense of , owner of said claim, for the purpose of holding said claim.
(Jurat.) - (Signature.)
And such certificate, when recorded in the office of the register of deeds of the county wherein such claim is located, shall be prima-facie evidence of the performance of such labor.
SEC. 16. Relocating abandoned claims.--The relocation of abandoned lode-claims shall be by sinking a new discovery shaft and fixing new boundaries, in the same manner as if it were the location of a new claim, or the relocator may sink the original shaft, cut, or adit to a sufficient depth to comply with sections five and seven of this chapter, and erect new or adopt the old boundaries, renewing the posts if removed or destroyed. In either case a new location stake shall be erected. In any case, whether the whole or part of an abandoned claim is taken, the location certificate must state that the whole or any part of the new location is located as abandoned property.
SEÇ 17. One certificate one location.—No location certificate shall claim more than one location, whether the location be made by one or several locators; and if it purport to claim more than one location, it shall be absolutely void except as to the first location therein described; and if they are described together, or so that it cannot be told which location is first described, the certificate shall be void as to all.
SEC. 18. Fee for recording.-The register of deeds shall be entitled to receive the sum of one dollar for each location certificate recorded and certified by him, and shall furnish the locator or locators with a certified copy of such certificate, when demanded, for which he shall be entitled to receive fifty cents.
Disputed mining property. SEC. 19. Judge may order survey of mine-Limitations. In all actions in any district court of this territory, wherein the title or right of possession to any mining-claim shall be in dispute, the said court, or the judge thereof, may, upon application of any of the parties to such suit, enter an order for the underground as well as the surface survey of such part of the property in dispute as may be necessary to a just determination of the question involved. Such order shall designate some competent surveyor, not related to any of the parties to such suit, or in anywise interested in the result of the same; and, upon the application of the party adverse to such application, the court may also appoint some competent surveyor, to be selected by such adverse applicant, whose daty it shall be to attend upon such survey and observe the method of making the same; said second survey to be at the cost of the party asking therefor. It shall also be lawful in such order to specify the names of witnesses named by either party, not exceeding three on each side, to examine such property, who shall be allowed to enter into such property and examine the same; such court, or the judge thereof, may also cause the removal of any rock, débris, or other obstacle in any of the drifts or shafts of said property, when such removal is shown to be necessary to a just determination of the question involved: Provided, however, That no such order shall be made for survey and inspection, except in open court or in chambers, upon notice of application of such order of at least six days, and not then except by agreement of parties, or upon the affidavit of two or more persons that such survey and inspection is necessary to the just determination of the suit, which affidavits shall state the facts in such case, and wherein the necessity for survey exists; nor shall such order be made unless it appears that the party asking therefor had been refused the privilege of survey and inspection by the adverse party. SEC. 20. Judge to issue writs of injunction.—The district courts, or any judge thereof, sitting in chancery,
shall have, in addition to the power already possessed, power to issue writs of injunction for affirmative relief, having the force and effect of a writ of restitution, restoring any person or persons to the possession of any mining property from which he or they may have been ousted by force and violence, or by fraud, or from which they are kept out of possession by threats, or whenever such possession was taken from him or them by entry of the adverse party on Sunday or a legal holiday, or while the party in possession was temporarily absent therefrom. The granting of such writ to extend only to the right of possession, under the facts of the case, in respect to the manner in which the possession was obtained, leaving the parties to their legal rights on all other questions as though no such writ had issued.
REVISED CODES, 1877: CIVIL CODE.
AN ACT to provide a civil code for the territory of Dakota. (Approved February 16, 1877; Rev. Codes, p. 254.)
CHAP. III.-ART. I.—THE CREATION OF CORPORATIONS.
SECTION 384. Prirate, limited.-Private corporations can be formed by the voluntary association of any three or more persons, and only as provided in this chapter. The legislative assembly cannot grant private charters or especial privileges, but they may, by general incorporation acts, permit persons to associate themselves together as bodies corporate, for mining, manufacturing, and other industrial pursuits, or the construction or operation of railroads, wagon roads, irrigating ditches, and the colonization and improvement of lands in connection therewith; or for colleges, seminaries, churches, libraries, or any benevolent, charitable, or scientific association, and for such other purposes as Congress may hereafter authorize. [Section 1889 of the Revised Statutes of the United States.]
SEC. 386. Contents of articles.-Articles of incorpora a 14: lve prepared setting forth :
3. The place where its principal business is to be transacted. 4. The term for which it is to exist. 5. The number of its directors or trustees, and the names and residences of such of them who are to serve until the election of such officers, and their qualifications.
6. If there be a capital stock, its amount and the number of shares into which it is divided.
SEC. 388. Three residents.-The articles of incorporation must be subscribed by three or more persons, one-third of whom must be residents of this territory, and acknowledged by each before some officer authorized to take and certify acknowledgments of conveyances of real property. * - * # * + # * # # SEC. 389. Secretary's certificate.—Upon filing the articles of incorporation with the secretary of the territory, the secretary of the territory must issue to the corporation, over the great seal of the territory, a certificate that a copy of the articles containing the required statement of facts has been filed in his office; and thereupon the persons signing the articles, and their associates and successors, shall be a body politic and corporate, by the name and for the purposes stated in the certificate. SEC. 390. Record by secretary.—Upon the filing of any articles of incorporation and copy thereof, as in the last section is prescribed, the secretary of the territory must record the same in a book to be kept in his office for that purpose, to be called “the book of corporations”, with the date of filing. SEC. 391. Copy—Evidence.—A copy of any articles of incorporation filed in pursuance of this chapter, and certified by the secretary of the territory, must be received in all courts and other places as prima-facie evidence
of the facts therein stated, and of the existence of such corporation.
ART. II.-Corporate stock.
SEc. 395. Subscription enforced.—A subscription to the stock of a corporation about to be formed is to be held for the benefit of the corporation when it is formed, and may be enforced by it. SEc. 396. Books opened.—After the secretary of the territory issues the certificate of incorporation, as provided in section three hundred and eighty-nine, article one, of this chapter, the directors named in the articles of incorporation must proceed in the manner specified or provided in their by-laws; or, if none, then in such manner as they may by order adopt, to open books of subscription to the capital stock then unsubscribed, and to secure subscriptions to the full amount of the fixed capital, and to levy assessments and installments thereon, and to collect the same, as in article six of this chapter assessments of stock are provided to be made. SEc. 397. Forfeit or recover.—When a corporation is authorized by the terms of subscription, or otherwise, to forfeit stock for non-payment, it may either forfeit the stock or recover the amount of the subscription, but it cannot do both. SEC. 398. Stock negotiable.—1. All corporations for profit must issue certificates of stock when fully paid up, signed by the president and secretary, and may provide in their by-laws for issuing certificates prior to the full payment, under such restrictions and for such purposes as their by-laws may provide. 2. Whenever the capital stock of any corporation is divided into shares, and certificates therefor are issued, such shares of stock are personal property, and may be transferred by indorsement by the signature of the proprietor, or his attorney or legal representative, and delivery of the certificate; but such transfer is not valid, except between the parties thereto, until the same is so entered upon the books of the corporation as to show the names of the parties by and to whom transferred, the number or designation of the shares, and the date of the transfer. SEC. 399. Eccess void.—A corporation whose capital is limited by its charter, either in amount or in number of shares, cannot issue valid certificates in excess of the limit thus prescribed. SEC.400. Corporation owning stock-Unless otherwise provided, a corporation may purchase, hold, and transfer shares of its own stock from its surplus profits, or as provided in the article on assessments of stock.
SEC. 401. Dividend to whom.—A dividend belongs to the person in whose name the stock stands upon the books of the corporation on the day when it becomes payable.
ART. III.-Corporate powers.
SEC. 402. Powers classed.—Every corporation, as such, has power: 1. To have succession, by its corporate name, for the period limited ; and when no period is limited, perpetually. 2. To sue and be sued; to complain and defend in any court. 3. To make and use a common seal, and alter the same at pleasure. 4. To purchase, hold, transfer, and convey such real and personal property as the legitimate purposes of the corporation may require, not exceeding in any case any amount limited by law.
5. To appoint such subordinate officers and agents as the business of the corporation may require and to allow them suitable compensation.
6. To make by-laws, not inconsistent with the law of the land, for the management of its property, the regulation of its affairs, and for the transfer of its stock. 7. To admit stockholders or members, and to sell their stock or shares for the payment of assessments or installments. 8. To enter into any obligations or contracts essential to the transaction of its ordinary affairs, or for the purposes of the corporation. In addition to the above-enumerated powers, and to those expressly given in any other statute under which it is incorporated, no corporation shall possess or exercise any corporate powers except such as are necessary to the exercise of the powers enumerated and given. SEC. 403. By-laws—Who adopt.—Every corporation formed under this chapter must, within one month after filing articles of incorporation, adopt a code of by-laws for its government not inconsistent with the laws of the United States or of this territory. The assent of stockholders representing a majority of all the subscribed capital stock, or of a majority of the members if there be no capital stock, is necessary to adopt by-laws, if they are adopted, at a meeting called for that purpose; and in the event of such meeting being called, two weeks' notice of the same by advertisement in some newspaper published in the county in which the principal place of business of the corporation is located, or if none is published therein, then in a paper published in an adjoining county, must be given by order of the acting president. The written assent of the holders of two-thirds of the stock, or of two-thirds of the members, if there be no capital stock, shall be effectual to adopt a code of by-laws without a meeting for that purpose. SEc. 404. Scope of by-laurs.-A corporation may by its by-laws, where no other provision is specially made, provide: 1. The time, place, and manner of calling and conducting its meetings; . The number of stockholders or members constituting a quorum; . The mode of voting by proxy; The time of the annual election for directors, and the mode and manner of giving notice thereof; . The compensation and duties of officers; The manner of election, and the tenure of office of all officers other than the directors; and, . Suitable penalties for violations of by-laws, not exceeding in any case one hundred dollars for any one offense. SEC. 405. Record—Certificate—Repeal of by-laws.--All by-laws adopted must be certified by a majority of the directors and secretary of the corporation, and copied in a legible hand in some book kept in the office of the corporation, to be known as “the book of by-laws”, and no by-law shall take effect until so copied, and the book shall then be opened to the inspection of the public during office hours of each day except holidays. The by-laws may be repealed or amended, or new by-laws may be adopted at the annual meeting, or at any other meeting of the stockholders or members, called for that purpose by the directors, by a vote representing two-thirds of the subscribed stock, or by two-thirds of the members; or the power to repeal and amend the by-laws, and to adopt new by-laws, may, by a similar vote at any such meeting, be delegated to the board of directors. The power when delegated may be revoked by a similar vote at any regular meeting of the stockholders or members. Whenever any amendment or new by-law is adopted, it shall be copied in the book of by-laws with the original by-laws, and immediately after them, and shall not take effect until so copied. If any by-law be repealed, the fact of repeal, with the date of the meeting at which the repeal was enacted, shall be stated in the said book, and until so stated the repeal shall not take effect. SEC. 406. Election of directors.-1. The directors of a corporation must be elected annually by the stockholders or members, and if no provision is made in the by-laws for the time of election, the election must be held on the first Tuesday in June. Notice of such election must be given, and the right to vote determined, as provided in section four hundred and three. 2. At the first meeting at which the by-laws are adopted, or at such subsequent meeting as may be then designated, directors must be elected to hold their offices for one year and until their successors are elected and qualified. 3. All elections of directors must be by ballot, and a vote of stockholders representing a majority of the subscribed capital stock, or of a majority of the members, is necessary to a choice. If there be capital stock in the corporation, each stockholder is entitled to one vote for each share held by him at all such elections, and also at all elections at other meetings of stockholders. SEC. 407. Number and power of directors.-The corporate powers, business, and property of all corporations formed under this chapter must be exercised, conducted, and controlled by a board of not less than three nor more than eleven directors, to be elected from among the holders of stock; or, where there is no capital stock, then from the members of such corporation. Directors of corporations for profit must be holders of stock therein in an amount to be fixed by the by-laws of the corporation. Directors of all other corporations must be members thereof. Unless a quorum is present and acting no business performed or act done is valid as against the corporation.
Whenever a vacancy occurs in the office of director, unless the by-laws of the corporation otherwise provide, such vacancy must be filled by an appointee of the board. SEC. 408. Organization.—Immediately after their election the directors must organize by the election of a president, who must be one of their number, a secretary, and treasurer. They must perform the duties enjoined on them by law and the by-laws of the corporation. A majority of the directors is a sufficient number to form a board for the transaction of business, and every decision of a majority of the directors forming such board, made when duly assembled, is valid as a corporate act. SEC. 409. Dividends, debts, bad faith, limitations, and penalty.—The directors of corporations must not make dividends except from the surplus profit arising from the business thereof; nor must they divide, withdraw, or pay to the stockholders, or any of them, any part of the capital stock; nor must they create debts beyond their subscribed capital stock, or reduce or increase their capital stock, except as specially provided by law. For a violation of the provisions of this section the directors under whose administration the same may have happened (except those who may have caused their dissent therefrom to be entered at large on the minutes of the directors at the time, or were not present when the same did happen), are, in their individual and private capacity, jointly and severally liable to the corporation and to the creditors thereof, in the event of its dissolution, to the full amount of the capital stock so divided, withdrawn, paid out, or reduced, or debt contracted; and no statute of limitations is a bar to any suit against such directors for any sums for which they are made liable by this section. There may, however, be a division and distribution of the capital stock of any corporation which remains after the payment of all its debts upon its dissolution or the expiration of its term of existence. 2. Any officer of a corporation who willfully gives a certificate, or willfully makes an official report, public notice, or entry in any of the records or books of the corporation, concerning the corporation or its business which is false in any material representation, shall be liable for all the damages resulting therefrom to any person injured thereby; and if two or more officers unite or participate in the commission of any of the acts herein designated, they shall be jointly and severally liable. SEC. 410. Removal of directors.-No director shall be removed from office, unless by a vote of two-thirds of the members, or of stockholders holding two-thirds of the capital stock, at a general meeting held after notice of the time and place and of the intention to propose such removal. Meetings of stockholders for this purpose may be called by the president, or by a majority of the directors, or by members or stockholders holding at least one-half of the votes. Such calls must be in writing and addressed to the secretary, who must thereupon give notice of the time, place, and object of the meeting, and by whose order it was called. If the secretary refuse to give the notice, or if there is none, the call may be addressed directly to the members or stockholders, and be served as a notice, in which case it must specify the time and place of meeting. The notice must be given in the manner provided in section four hundred and three, unless other express provision has been made therefor in the by-laws. In case of removal the vacancy may be filled by election at the same meeting. SEC. 411. Quorum—Proxy.—At all elections or votes had for any purpose, there must be a majority of the subscribed capital stock or of the members, represented either in person or by proxy in writing. Every person acting therein, in person, or by proxy, or representative, must be a member thereof or a bona fide stockholder, having stock in his own name on the stock-books of the corporation at least ten days prior to the election. Any vote or election had other than in accordance with the provisions of this article is voidable at the instance of absent stockholders or members, and may be set aside by petition to the district court of the county where the same was held. Any regular or called meeting of the stockholders or members may adjourn from day to day, or from time to time, if for any reason there is not present a majority of the subscribed stock or members, or no election or majority vote had; such adjournment and the reasons therefor being recorded in the journal of proceedings of the board of directors. - SEC. 412. Election failing—Action—Place of meeting—Justice of peace may call.—If from any cause an election does not take place on the day appointed in the by-laws, it may be held on any day thereafter, as is provided for in such by-laws, or to which such election may be adjourned or ordered by the directors. If an election has not been held at the appointed time, and no adjourned or other meeting for the purpose has been ordered by the directors, a meeting may be called by the stockholders, as provided in section four hundred and ten. 2. Upon the application of any person or body corporate aggrieved by any election held by any corporate body, or any proceedings thereof, the district judge of the district in which such election is held must proceed forthwith summarily to hear the allegations and proofs of the parties, or otherwise inquire into the matters of complaint, and thereupon confirm the election, order a new one, or direct such other relief in the premises as accords with right and justice. Before any proceedings are had under this section, five days' notice thereof must be given to the adverse party or those to be affected thereby. 3. The meetings of the stockholders and board of directors of a corporation must be held at its office or principal place of business. 4. When no provision is made in the by-laws for regular meetings of the directors and the mode of calling special meetings, all meetings must be called by special notice in writing, to be given to each director by the secretary, on the order of the president, or if there be none, on the order of two directors.