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SEC. 9. In case where any person, company, or corporation have heretofore made claim to divert the waters of any stream, and the same has not been forfeited or abandoned, and have not cut, excavated, made, or constructed the necessary ditch, canal, flume, or other conduit to carry such waters and apply the same to a beneficial use, such claimant must, within four months from and after the date of the approval of this act, commence work in pursuance of the requirements hereof, and carry the same to completion, or at the expiration of the said time, or upon failure to prosecute the work in the manner herein required, such claim shall cease to be of any validity as the foundation of a right to the waters of any such stream.

SEC. 10. All persons, companies, and corporations owning or claiming any lands situated on the banks or in the vicinity of any stream shall be entitled to the use of the waters of such stream for the purpose of irrigating the land so held or claimed.

SEC. 11. When any such owners or claimants to land have not sufficient length of frontage on a stream to afford the requisite fall for a ditch, canal, or other conduit on his own premises for the proper irrigation thereof, or where the land proposed to be irrigated is back from the banks of such stream, and convenient facilities otherwise for the watering of said lands cannot be had, such owners or claimants shall be entitled to a right of way through the lands of others for the purposes of irrigation : Provided, That in the making, constructing, keeping up, and maintenance of such ditch, canal, or conduit through the lands of others, the person, company, or corporation proceeding under this section, and those succeeding to the interests of such person, company, or corporation, shall keep such ditch, canal, or other conduit in good repair, and shall also be liable to the owners or claimants of the lands crossed by such work or aqueduct for all damages which may be occasioned by the overflow thereof or result from any neglect or accident (unless the same be unavoidable) to such ditch or aqueduct.

SEC. 12. In case of the refusal of the owners or claimants of any lands through which such ditch, canal, or other works are proposed to be made or constructed to allow the passage thereof, the persons, company, or corporation desiring the right of way may present to the county commissioners of the county a petition describing the lands to be crossed, the size of the ditch, canal, or works, the quantity of land required to be taken, and setting forth the names of the owners or parties interested in the lands to be crossed, and praying for the appointment of three appraisers to ascertain the compensation to be made to such owners or parties interested. Upon the filing of said petition the county commissioners shall give notice, by publication in a newspaper, if there be any printed in the county, or, if there be none, by posting such notice in three of the most public places in the county, one of which shall be at the county-seat, that, at a time and place specified in said notice, said petition will be heard and such appraisers appointed, unless good cause be shown by the parties adversely interested why the said petition should be denied. Said notice shall be published or posted for not less than thirty days prior to the hearing thereon, and the expenses of the publication or posting of the same shall be defrayed by the petitioners.

SEC. 13. The said appraisers shall, before entering on the duties of their office, take an oath to faithfully and impartially perform the duties as such appraisers and make a true and just award of the amount of the compensation to be paid for the right of way over and use of the lands to be crossed by such ditch, canal, or other conduit. They shall hear the allegations and proofs offered by the respective parties, and, after viewing the lands and premises, shall ascertain and certify the compensation which, in their judgment, it is just and proper to make to the parties owning or interested in the lands to be crossed for the use of the same, and for damages, if any, on account of injury to other portions of the tract of land of any owner or interested party, after making allowance and deduction for real and direct benefits which such owner or party interested will derive from the making of such ditch, canal, or other works. The appraisers, or a majority of them, shall subscribe such certificate, and the same shall be recorded in the office of the county recorder, and upon the payment of the compensation and damages, if any, or the tender thereof to the proper parties, or in the absence of such parties from the county, then upon deposit of the amount in the county treasury to the credit of the said party, the persons, company, or corporations petitioners shall have the right of entry upon and of way for the proposed ditch, canal, or other works.

SEC. 14. All persons, companies, and corporations owning or having the possessory title or right to lands adjacent to any stream shall have the right to place in the channel of, or upon banks or margin of the same, rams or other machines for the purpose of raising the waters thereof to a level above the banks requisite for the flow thereof to and upon such adjacent lands; and the right of way over and across the lands of others for conducting said waters may be acquired in the manner prescribed in the last two sections.

SEC. 15. Where the owners of any spring, or the appropriators thereof, or of any stream, may desire to conduct the waters thereof to any lands for purposes of irrigation, or to any city or town for the use of the inhabitants thereof, or to any factory, or to any distant place, with the intent to apply the same to a beneficial use, and to accomplish such object it may be necessary to cross with ditches, flumes, or other conduit the lands owned or occupied by others than the owners or appropriators of such spring or stream, the right of way over and across the lands of others for conducting said water may be acquired in the manner prescribed in sections 12 and 13 of this act.

SEC. 16. The owners or constructors of ditches, canals, works, or other aqueducts, and their successors in interest, using and employing the same to convey the waters of any stream or spring, whether the said ditches, canals, works, or aqueducts be upon the lands owned or claimed by them or upon other lands, shall carefully keep and

maintain the same, and the embankments, flumes, or other conduit by which such waters are or may be conducted, in good repair and condition, so as not to damage or in any way injure the property or premises of others.

SEC. 17. Nothing in this act contained shall be so construed as to interfere with or impair the rights to water appropriated and acquired prior to the passage of this act; but this reservation in behalf of existing rights shall not exempt such appropriators from liability as provided in the last section.

SEC. 18. In case the volume of water in any stream shall not be sufficient to supply continually the wants for irrigating purposes of the owners or proprietors of land in any district or neighborhood in which customs exist for distributing the waters amongst such owners or proprietors, under the direction or supervision of persons recognized by the community interested to have authority therein, the waters diverted shall, in such case, be held to be a common right in those accustomed to a participation in the use and enjoyment of such distribution, and such customs shall be upheld in all courts as conferring such common right in the same: Provided, This section shall not be construed to affect any prior vested rights.

SEC. 19. In case any person, company, or corporation shall have constructed a ditch for the purpose of directing the water of any river, creek, cañon, ravine, or spring, for the purpose of selling the water thereof for irrigating purposes, the owners or cultivators of land along the line of and covered by said ditch or canal shall be entitled to, and have the right to the use of water from said ditch or canal for the purpose of irrigating said land so owned or cultivated in the following order: First, all persons through whose land said ditch or canal runs shall be entitled to the use of the water thereof in the order of their location along the line of said ditch or canal. Second, after those through whose land the ditch or canal runs, those upon either side of the line of the ditch or canal shall be entitled to the use of the water thereof; those equally distant from the line of said ditch or canal shall be entitled to priority in the order of their location along the line of said ditch or canal: Provided always, That the owners or cultivators of such lands shall pay the usual and customary rates for the use of said water. And whenever any ditch or canal has been constructed for the purpose of conveying water and selling the same for irrigating purposes, it shall be unlawful for the owner or owners of said ditch or canal to change the line of sáid ditch or canal so as to prevent or interfere with the use of water from said ditch or canal by any one who, prior to the proposed change, had used water for irrigating purposes from said ditch or canal. And it is hereby made the duty of the owner or owners of any such ditch or canal to keep the same in good repair, and to cause the water to flow through said ditch or canal to the extent of its capacity, provided so much may be needed, during the entire time that water may be necessary for irrigating purposes: And provided further, That the river, creek, cañon, ravine, or spring from which the water is taken furnishes an amount of water sufficient for such purpose, subject to the appropriation of the owner or owners of such ditch or canal. For a failure to cause the water to flow as aforesaid the owner or owners or lessees of any such ditch shall be personally liable to any one for any damage resulting from such failure, and in addition to such personal liability, such damages shall be a lien upon such ditch or canal, which lien shall continue in force until such damages are paid. No person entitled to the use of water from any such ditch or canal shall, under any circumstances, use more water than good husbandry shall require for the crop or crops that he shall cultivate, and any person using an excess of water shall be liable to the owner or owners of such ditch or canal for the value of such excess; and in addition thereto shall be liable to all damages sustained by any other person who would have been entitled to the use of such excess of water, as fixed by this section.

SEC. 20. This act shall take effect and be in force from and after its passage.

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SECTION 873. Any person or persons who shall hereafter discover any mining-claim, upon any vein or lode bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposits, shall within twenty days thereafter make and file for record in the office of the recorder of the county in which said discovery is made a declaratory statement thereof, in writing, on oath, before some person authorized by law to administer oaths, describing such claim in the manner provided by the laws of the United States.

SEC. 874. That in order to entitle any person or persons to record in the county recorder's office of the proper county any lead, lode, or ledge, there shall first be discovered on said lode, lead, or ledge a vein or crevice of quartz or ore with at least one well-defined wall.

SEC. 875. Claims on any lead, lode, or ledge bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposits, hereafter discovered, shall consist of not more than fifteen hundred linear feet along the lead, lode, or ledge, and not more than three hundred feet and not less than twenty-five feet on each side from the center of said lead, lode, or ledge, for working purposes: Provided, That the provisions of this article shall not be so construed as to include claims recorded prior to the passage of this article.

SEC. 876. All lode-claims heretofore discovered and recorded pursuant to the law, and the possessory title to which shall have been preserved according to law, shall entitle the owner or owners thereof to surface-ground along the course of the vein three hundred feet on each side from the center of said vein: Provided, That such width shall not be permitted to interfere with any vested or possessory rights of any person or persons, corporation or corporations, which have intervened and have been preserved to the time of the taking effect of this article, but parties desiring to avail themselves hereof shall so signify by a record which shall show that they so elect, or if they 80 desire, they may limit the surface-ground on each side of the center of the vein to any width not less than twentyfive feet.

SEC. 877. Any person who shall remore any stake or monument placed on any mining-claim, or who shall obliterate, deface, or destroy any notice placed thereon, shall be deemed guilty of a misdemeanor, and, on conviction thereof, shall be punished by fine not exceeding one hundred dollars, or imprisonment not exceeding one year, or both such fine and imprisonment, in the discretion of the court.

NOTE.--Act February 11, 1876 (Sess. Laws, 1876, p. 127).

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ART. II.-Mining tunnels. Sec.

Sec. 878. Location of tunnel to be recorded.

881. To run one hundred feet on tunnel within one year. 879. Persons pre-empting tunnel to have 300 feet on each side. 882. Pre-emptor's right for ore-yard. 880. Right of way through other claims.

SECTION 878. That if any person or persons shall locate a tunnel-claim for the purpose of discovery and mining, he or she shall record the same, specifying the place of commencement and the course thereof, with the names of the parties interested therein.

SEC. 879. That any person or persons so pre-empting any tunnel shall have the exclusive right to three hundred feet on each side from the center of said tunnel on any and all lodes that he or they may discover in the course of said tunnel: Provided, That none of said lodes, leads, or ledges were discovered and recorded previous to the pre-emption of said tunnel, in accordance with an act passed by the legislative assembly of the territory of Montana, entitled "An act relating to the discovery of gold and silver quartz leads, lodes, or ledges, and the manner of their location”.

SEC. 880. That any person or persons who may work any tunnel or tunnels shall have the right of way through any and all lodes, leads, or ledges that may lie in the course of any of said tunnels: Provided, That all quartz, ore, or mineral taken from said tunnel from leads, lodes, or ledges belonging to parties other than the said tunnel company, shall be deposited on the surface by said tunnel company and belong to the original occupants or owners of said lead, lode, or ledge.

SEC. 881. That in order to hold any tunnel-claims to the use of themselves, their heirs, and assigns they shall, before the expiration of one year from the date of pre-emption, run to the distance or depth of one hundred feet on said tunnel.

SEC. 882. That any person or persons who shall pre-empt any tunnel-claim shall be entitled to three hundred feet on each side of the mouth of said tunnel for the purpose of a quartz or ore yard.

NOTE.- Act January 12, 1872 (Cod. Stats., 1871–72, p. 524).

ART. III.- Mining-district records.

Sec.

sec. 883. All mining-district records to become county records on being 884. Duty of district recorder to deposit records in county recorder's deposited in recorder's office.

office.

885. Penalty for refusal of county recorder to receive records. SECTON 883. That all mining-district records of all lead, lode, ledge, ranch, water, or mill claims that are now or shall be deposited, within the next ninety days hereafter succeeding the passage of this article, in their respective county recorder's office, shall become a part and parcel of said county records, and shall be evidence in any court or courts of competent jurisdiction, and have the same force and effect as if such records had been recorded in the county recorder's office when first filed with the mining-district records.

SEC. 884. That it shall be the duty of all mining-district recorders to file any and all records pertaining to all lead, lode, ledge, ranch, water, and mill claims in their respective county recorder's office, and upon failure to do

so they shall be deemed guilty of a misdemeanor, and upon conviction thereof may be fined in a sum not to exceed one thousand dollars, or imprisoned in the county jail not to exceed one year, or both such fine and imprisonment, and shall be subject to a suit in a civil action for damages.

SEC. 885. That it shall be the duty of the county recorder, when any such district records are tendered him, to receive the same and place them on file in his office, for which he shall receive a fee of fifty cents, to be paid by the district recorder; and upon his refusal to receive said district records he shall be deemed guilty of a misdemeanor, and upon conviction thereof may be fined in a sum not to exceed one thousand dollars, or imprisoned in the county jail not to exceed one year, or both such fine and imprisonment, and shall be subject to a suit in a civil action for damages.

NOTE.-Act January 12, 1872 (Cod. Stats., 1871–72, p. 525).

ART. IV.-Rights of way for the development of mines.

See.
886. Right of way over and across the lands of others.
887. For convenience of working, owner of mining-claim to have

right of way for ditch, tunnel, etc.
888. Petition to judge for right of way.
889. Citation to require appearance of parties.
890. Hearing of petition and order awarding right of way;

appointment of commissioners to assess damages. 891. Commissioners to examine and report.

Sec.
892. Report may be set aside and other commissioners appointed.
893. Upon payment of damages awarded, petitioners entitled to

right of way.
894. Appeals from assessment of damages.
895. Trial of appeal.
896. Rights of appellee upon giving bond.
897. When appellee to pay costs.
898. Costs on appeal; tender of payment of damages.

Whereas the Congress of the United States, by an act approved July 26, 1866, and an act amendatory thereto, approved July 9, 1870, has provided that the local legislatures of the several states and territories may provide rules for working mines, involving easements, drainage, and other necessary means to complete development of mines upon which patents shall be granted by the United States, in the absence of necessary legislation by Congress; and whereas there has been no legislation by Congress upon this subject: Therefore,

Be it enacted by the legislative assembly of the territory of Montana, SECTION 886. The proprietor, owner, or owners of mining-claims, whether patented under the laws of the United States or held under the local laws and customs of this territory, shall have a right of way for ingress and egress, for the necessary purposes, over and across the lands or mining-claims (patented or otherwise) of others, as hereinafter prescribed.

SEC. 887. Whenever any such mine or mining-claim shall be so situated that it cannot be conveniently worked without a road thereto, or a ditch to convey the water thereto, or a ditch or a cut to convey the water therefrom,. or without a flume to carry water and tailings therefrom, or without a shaft or a tunnel thereto, which road, ditch, cut, flume, shaft, or tunnel shall necessarily pass over, under, through, or across any lands or mining-claim owned or occupied by others, either under a patent from the United States or otherwise, then shall such first-mentioned owner or owners be entitled to a right of way for such road, ditch, cut, flume, shaft, or tunnel over, under, through, and across such other lands or mining-claims, upon compliance with the provisions of this article.

SEC. 888. Whenever the owner or owners of any mine or mining-claim shall desire to work the same, and it is necessary, to enable him or them to do so successfully and conveniently, that he or they shall have a right of way for any of the purposes mentioned in the foregoing sections, and if such right of way shall not have been acquired by agreement between him or them, and the claimants or owners of the land or claims over, under, across, and upon which he or they seek to establish such right of way, it shall be lawful for him or them to present to the judge of the district court of the territory of Montana within and for the county in which such right of way, or some part thereof, sought to be enforced is situated, or to which such county is attached for judicial purposes, a petition praying that such right of way be awarded to him or them. Such petition shall be verified, and contain a particular description of the character and extent of the right sought, a description of the mine or claim of the petitioner, and the claim or claims and the lands to be affected by such right or privilege, with the names of the occupants or owners thereof. It may also set forth any tender or offer hereinafter mentioned, and shall demand the relief sought.

SEC. 889. Upon the receipt of such petition and filing thereof with the clerk of such court, the judge shall direct a citation to issue, under the seal of such court, to the owners named in the petition of mining-claims and lands tở be affected by the proceedings, requiring them, and each of them, to appear before the judge on a day therein named, which shall not be less than ten days from the service thereof, and show cause why such right of way should not be allowed as prayed for; such citation shall be served on each of the parties in the manner prescribed by law for serving summons in ordinary proceedings at law.

SEC. 890. Upon the return day of the citation, or upon any day to which the hearing shall be adjourned, the

judge shall proceed to hear the allegations and proofs of the respective parties, and if upon such hearing he is satisfied that the claims of the petitioner can only be conveniently worked by means of the privilege prayed for, he shall make an order adjudging and awarding to the petitioner such right of way, and shall appoint three commissioners, who shall be disinterested parties and residents of the county, to assess the damages resulting to the lands or claims affected by such order.

SEC. 891. The commissioners so appointed shall be sworn or affirmed to faithfully and impartially discharge their duties, and shall proceed without unreasonable delay to examine the premises, and shall assess the damages resulting from such right or privilege prayed for, and report the amount of the same to the judge appointing them; and if such right of way shall affect the property of more than one person or company, such report shall contain an assessment of damages to each company or person.

SEC. 892. For good cause shown, the judge may set aside the report of such commissioners, and appoint three other commissioners, whose duties shall be the same as above mentioned.

SEC. 893. Upon the payment of the sum assessed as damages, as aforesaid, to the persons to whom it shall be awarded, or a tender thereof to them, then the person or persons petitioning, as aforesaid, shall be entitled to the right of way as prayed for in their or his petition, and may immediately proceed to occupy the same, and to erect thereon such works and structures, and make therein such excavations, as may be necessary to the use and enjoyment of the right of way so awarded.

SEC. 894. Appeals from the assessment of damages made by the commissioners may be made and prosecuted in the proper district court by any party interested, at any time within ten days after the filing of the report of the commissioners, and a written notice of such appeal shall be served upon the appellee in the same manner as summonses are served in civil actions. The appellant shall file with the clerk of the court to which the appeal is made a bond, with sureties to be approved by the clerk, in the amount of the assessment appealed from, in favor of the appellee, conditioned that the appellant shall pay ang costs that may be awarded to the appellee and abide any judgment that may be rendered in the cause.

SEC. 895. Appeals shall bring before the appellate court only the propriety of the amount of damages, and may be tried by the court or before a jury as other cases in the court.

SEC. 896. The prosecution of any appeal shall not hinder, delay, or prerent the appellee from exercising all the rights and privileges mentioned in section 893 of this article: Provided, That the appellee shall file with the clerk of the court in which the appeal is pending a bond, with sufficient sureties to be approved by the clerk, in double the amount of the assessment appealed from, conditioned that the appellee shall pay to the appellant whatever amount he may recover in the action.

SEC. 897. If the appellant recover fifty dollars more damages than the commissioners shall have awarded, or the appellee shall offer to allow judgment against him to be taken, the appellee shall pay the costs of the appeal; otherwise the appellant shall pay such costs.

SEC. 898. The costs and expenses of proceedings under the provisions of this article, except as herein otherwise provided, shall be paid by the party making the application : Provided, however, That if the applicant shall, before the commencement of such proceedings, have tendered to the parties owning or occupying the lands or miningclaims a súm equal to or more than the amount of damages recorered by the defendant or defendants, then all of the costs and expenses shall be paid by the party or parties owning the lands or mining-claims affected by such right of way, and who appealed and resisted the claim of the applicants thereto.

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CHAP. III.-CODE OF CIVIL PROCEDURE.

SECTION 363. In actions respecting mining-claims proof must be admitted of the customs, usages, or regulations established and in force at the bar or diggings embracing such claim; and such customs, usages, or regulations, when not in conflict with the laws of this territory, must govern the decision of the action.

TITLE III. CHAP. II.

SECTION 40. No action for the recovery of mining-claims (lode-claims excepted), or for recovery of possession thereof, shall be maintained, unless it appear that the plaintiff or his assigns was seized or possessed of such mining-claims within one year before the commencement of such action.

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