have been posted on the claim during the period of ninety days, the Register of the land office shall transmit to the General Land Office such plat, survey, and description, and a patent shall issue for the same.

The sixth section provides that whenever "an adverse claimant" to any mine located as aforesaid shall appear before the approval of the survey, as provided in the third section, proceedings shall be stayed until final settlement and adjudication in the courts of the "rights of possession to such claim," when a patent may issue, as in other cases. It will be observed that the second section, after pointing out what is to be done by any person or association claiming a vein or lode of quartz, before a patent is issued to such person therefor, describes it as one "in regard to whose possession there is no controversy or opposing claim." It also provides that when the patent is issued granting such mine, the right to follow the vein or lode, with its dips, angles, and variations to any depth, although it may may enter the land adjoining," is distinctly recognized. Then it is enacted that the "land adjoining shall be sold subject to this condition." The sixth section then provides that when an "adverse claimant" to any mine shall appear, all proceedings shall be stayed until the courts shall determine the right of possession to such claim.”

In this case, the Chollar Potosi company assert no right of possession to the premises for which the Julia company ask patents. In regard to the surface possession of the property sought to be patented by the Julia company, there is no "controversy" nor "opposing claim." It is asserted, however, that the Comstock lode, previously patented to. the Chollar Potosi company, underlies the surface of the several claims for which the Julia company ask patents, and it is also asserted that there is no lode or vein of quartz or other rock in place, bearing gold, silver, cinnabar, or copper, beneath the surface of the several claims of the Julia company, except it be the Comstock lode, embraced in their patent before referred to. Is this such an "adverse claim" to the "possession" or "right of possession" of the Julia company as is referred to in the third and sixth sections of the act? Does this raise a "controversy" or "opposing claim" in regard to the "possession" of the property for which the Julia company is seeking patents? If so, how is the adjoining land to be sold subject to the rights of the Chollar Potosi company? If, by merely asserting that the lode patented to this company is the only lode underlying the land claimed by the Julia company, they can prevent the issuance of a patent to the Julia company until the question is settled as to whether their assertion is correct or erroneous, how can such "adjoining land" ever be sold "subject to the rights" of the Chollar Potosi company.

The chief purpose of this mining law is to open all the mineral lands of the country to "exploration and occupation," and thus to encourage and stimulate mining operations. Hence the fourth section of the act limits the quantity of surface which any individual may take, to two hundred feet in length, and provides that no person shall make more than one location on the same lode, and that not more than three thousand feet shall be taken in any one claim by any association.

It seems to have been foreseen by the authors of this law that, without some unmistakable expression authorizing "land adjoining" to be sold, difficulties such as this case presents might arise, and to prevent this, and keep open and free to "exploration and occupation" all the mineral lands of the nation, it was enacted that land should be disposed of in very limited quantities, and that lands "adjoining" those first located should remain open to exploration and sale, subject to such rights as might have vested in the first locator. Considering this act in all its parts, keeping each of its provisions in view and observing the relations of one to the other, it seems clear to my mind that in establishing this system for the sale of the mineral lands, it was intended to allow the first patentee to follow his vein, though it may lead him under "adjoining lands." It seems equally clear, that it was also intended that such "adjoining land' should be sold subject only to this right; and it seems equally clear that their right to follow a vein under adjoining land does not create a "controversy" or "opposing claim" under the second section, nor an adverse claim under the third section, to the possession of him who enters the adjoining land for mining purposes.

There is, in this case, no controversy about the "possession" of the surface of the several claims for lodes made by the Julia company, and hence I conclude that the Chollar company has made no such "adverse claim" to the property sought to be patented by the Julia company, as is necessary, by the act aforesaid, in order to require proceedings to be stayed until "final settlement in the courts of the rights of possession to such claim" be had. To allow any other construction would enable the first patentee greatly to obstruct the sale of the mineral lands; for, if a previous patentee sees fit to claim that his vein or lode underlies adjoining land, he can prevent this land from being patented to an indefinite extent of surface, until the fact is ascertained by legal proceedings whether such claim is true or false. He may thus suspend the sale of "adjoining land," and, indeed, prevent any sale "subject to his rights," because he will require these rights to be determined before the adjoining land is patented.

By issuing a patent to the Julia company the legal rights of the Chollar Potosi company cannot be impaired, because the patent itself, following the direction of the statute, will provide that the adjoining lands are sold subject to the rights of the Chollar Potosi company. That company, if satisfied that its vein or lode is the only one underlying the surface claimed by the Julia company, can enjoin, in a court of equity, the Julia company from proceeding to take minerals previously patented to the Chollar company, and, upon making good their allegations, will at once obtain a perpetual prohibition of the Julia company from proceeding to take such minerals.

This construction of the act will enable the Government to proceed to sell "adjoining land," "subject to the rights" of previous patentees, and will prevent the first patentee from prohibiting the Government the exercise of this privilege, when adjoining lands are found which are supposed to contain other lodes or veins of minerals than such as have been previously patented. I cannot eradicate from my mind the necessity of this construction. Any other view of it seems to me unreasonable, and against the spirit of the entire act, with a strong tendency, at least, toward an adherence to the letter, rather than to follow the reason, of the law. I therefore affirm your decision, and direct that patents be issued to the Julia company for its several claims, which, on their face, shall show that they are issued subject to the legal rights of all previous locators or patentees.

I am the better satisfied with this conclusion, because I understand that it conforms to the uniform practice and rulings of your office since the passage of what is termed the Mining Act.

The papers are herewith returned.
I am, sir, very respectfully,

Your obedient servant,

C. DELANO, Secretary.

HON. WILLIS DRUMMOND, Com'r General Land Office.

The Keystone Case: Involving the Right of the State of California to School Sections which are Mineral in Character.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., June 18, 1872. Register and Receiver, Sacramento, California:

GENTLEMEN: The papers, testimony, arguments, and your joint opinion in the matter of a controversy between certain mining claimants, the town of Amador, and Henry Casey,

grantee of State of California, affecting the right to the east half of section 36, in township 7 north, range 10 east, Mount Diablo meridian, have been examined. The question involved is mainly one of law, viz: As to the right of the State of California, under the grant of third March, 1853, to lands found upon survey to be numerically designated under our public land system as sections 16 and 36, where such lands were, at the date of such survey and designation, in the bona fide possession of parties properly qualified, who claim the right of having the mining and town site laws of the United States executed in their favor. It has never been clear to this office, that the grant by the act of third March, 1853, of sections 16 and 36, to the State of California for school purposes, vested any right in said State to mines, or that the decision of the Supreme court, case of Cooper v. Roberts, affirming the right of the State of Michigan to certain copper-bearing lands in school section 16, in that State, was applicable to California for the

First. That the said act of March 3, 1853, "to provide for the survey of the public lands in California, the granting of pre-emption rights therein, and for other purposes, is simply a law in the ordinary meaning of the term, and as such repealable at the will of the law-making power; whereas the act approved June 23, 1836, entitled "An act supplementary to the act entitled 'An act to establish the northern boundary line of the State of Ohio, and to provide for the admission of the State of Michigan into the Union on certain conditions,'" belongs to that class of laws which are legislative compacts, and which, in that case, became obligatory and binding upon the parties to it, viz: The United States and the State of Michigan, on the twenty-fifth July, 1836, that being the day upon which the State of Michigan passed the act of acceptance; and—

Second. That the said act of March 3, 1853, the sixth section of which grants sections 16 and 36 to the State of California for schools, contains a special condition in the last proviso to its second section, "That none other than township lines shall be surveyed where the lands are mineral," a provision of law not applied by Congress to surveys in the State of Michigan, for the probable reason that no mines were known to exist in that State when the authority of Congress was first given for extending the survey therein. The inhibition as to survey of other than township lines, where the lands were considered mineral, was not repealed by Congress until the passage of the laws of July 26, 1866, and July 9, 1870, commonly known as the "mining acts," the first of which in its tenth and eleventh sections, and the latter in its sixteenth section, provides for extending the

United States surveys to the lands previously designated as mineral, and which had been excluded from survey or sale as such, the eleventh section of said statute of July 26, 1866, providing "that upon the survey of the lands aforesaid, the Secretary of the Interior may designate and set apart such portions of the said lands as are clearly agricultural lands, which lands shall thereafter be subject to preemption and sale as other public lands of the United States, and subject to all the laws and regulations applicable to the

same.

It is not readily understood by what process of reasoning the sixth section of said act of March 3, 1853, can be construed to mean a present grant of sections 16 and 36 of lands, which were by the second section of the same act expressly excluded from survey as mineral.

The land, comprising what is now designated township 7 north, range 10 east, Mount Diablo meridian, forms a part of Amador County, California, in the mining region, and was of course reserved from survey or disposal until after the passage of the said mining act of July 26, 1866, it not having been surveyed into sections and platted until the year 1870.

The deputy surveyor returned the east half of section thirty-six in said township as vacant agricultural land, as appears from the official plat thereof; a return shown by the evidence to be grossly incorrect and fraudulent, the testimony clearly establishing that the town of Amador, which lies within said subdivision, was plainly visible from numerous points along the lines run by the surveyor, as were also the improvements, etc., of the several quartz mining companies, whose mines are within said east half of section thirty-six.

The seventh section of said statute of March 3, 1853, provides for pre-emption claims upon school sections sixteen. or thirty-six, but fails to provide for mining claims for the very excellent reasons: First, that Congress in said act had only given authority for the survey of agricultural lands upon the sixteenth and thirty-sixth sections, of which it was well known that agricultural pre-emption claims would often be found, rendering it necessary to provide the means for their protection, and for indemnifying the State, by granting lieu land for the areas so pre-empted; and second, that Congress having by said act expressly limited the extension of surveys to agricultural lands, that body considered that inhibition in itself ample and complete protection to miners against school or any other kind of claims; there being no section 16 or 36 so long as this region remained a part of the reserved mineral land of the United States.

The mining act of July 26, 1866, provides, among other