Beaudry

[1] As to the patented claims there is, and can he, no controversy. But it is contended by appellant, based upon the recitation in the agreement that Beaudry was “the sole owner and in possession of” the mining claims, and the stipulation that Beaudry should make “a good and sufficient deed for all said properties, free from all incumbrances,” that he contracted to convey a perfect patent or fee simple title to all of said mining claims, whether designated as patented or unpatented, or as being held by receiver’s certificate, and that, by reason of the failure of Beaudry or of the defendant to secure the patents to a portion of said claims, they had breached the contract, for which complainant was entitled to rescind. This depends upon the nature of that species of real property commonly known as mining claims.

[2] Congress has provided how a mining claim can be acquired. In general, it may be acquired by a discovery of. mineral, particularly of gold, silver, or copper, and the like, upon the public lands, and by staking the same off or marking it upon the ground, so that the boundaries may be plainly designated and readily ascertained. The right of continuous occupation may be…