Gambar halaman
PDF
ePub

Eli S. Streeter, and Thomas McCunniff, applicants for patent for the Pelican lode, Central City District, Colorado Territory.

By your decision of February 16, 1872, Morse was ordered to begin suit in the local court, within thirty days after service of notice to adjudicate the right of possession of the mine. The notice was served on him February 23, 1872. He began his suit on the last day of the thirty. The case coming up for trial on April 19, 1872, he moved that it be continued to the next term of the court.

This motion the court denied, "because of there being no equity in said complainant's bill of complaint, and the evidence set forth in complainant's affidavit (supporting his motion for continuance) would not be admissible upon the hearing of the cause.' Thereupon, on motion of Morse, the cause was then dismissed, without prejudice to the parties. On April 20, the day succeeding the dismissal, he began a new suit against the same parties and sundry others, whom he joined with them as defendants.

The appellant severely censures the judge for overruling the motion for a continuance, and thereby forcing him to suffer his bill to be dismissed. It is not the province of this Department to review the discretionary action of the judge. It will assume that he acted properly, until it is shown that he acted maliciously or corruptly.

I agree with you, that this second suit, begun long after the expiration of the thirty days, cannot be considered by your office, nor allowed to retard the progress to patent of the claim of the applicants. The adoption of such a rule would put it in the power of every adverse claimant to postpone indefinitely the issue of the patent.

Your decision is affirmed, and the papers in the case transmitted with your letter of September 23, are herewith returned.

[blocks in formation]

SIR: I have considered the case of the Central Pacific Railroad Company, by S. W. Austin v. mineral affiants, involving the character of the N. W. of N. W. section 9 S, 16 N. R. 9 E., M. D. M., Sacramento, Cala., appealed from your decision in favor of said affiants.

The evidence adduced at the trial shows that there are on

the land agricultural improvements to the value of $1,000 or $1,200; that the greater portion is inclosed with fencing, and seven or eight acres of it cultivated in fruits, vines, vegetables, and grain; that the only active mining done on the tract was at the Gagen quartz mine, near the western boundary, and some placer diggings in the N. W. corner; that the owners of the quartz mine abandoned it, declaring that it was exhausted and worthless, and the diggings were abandoned for the same reasons; and that there are some quartz veins on adjoining lands that may run into this, but that they are all either exhausted or unprofitable.

All the witnesses testify that, in their opinion, the land is more valuable for agriculture than for mining purposes. The mineral affiants, though present at the trial, in person and by attorney, offered no testimony in support of their affidavits, but contented themselves with cross-examining the opposing witnesses.

I am of the opinion that the agricultural character of the land is established, and rule accordingly.

Your decision is therefore reversed, and the papers in the case transmitted with your letter of May 6, are herewith returned.

Very respectfully,

C. DELANO, Secretary.

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

Mill-Site must be Non-Mineral in Character.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., July 29, Register and Receiver, Central City, Colorado:

1872

GENTLEMEN : * * * The affidavits referred to do not allege the non-mineral character of said mill-site, but only allege that the same "does not to his knowledge contain any vein or lode of quartz, or other rock in place, bearing gold, silver, cinnabar, lead, tin, or copper.'

[ocr errors]

Before patent can issue for this mill-site, additional proof will be required that there are no "valuable deposits" such as placer or gulch mines, embraced within the exterior boundaries thereof.

[blocks in formation]

Case of Agricultural vs. Mineral Claimants. Mortgages given by Pre-emptor.

Department of THE INTERIOR,

Washington, D. C., August 6, 1872,

SIR: I have examined the case of Joseph Clark v. F. A. Celles, Joseph Lerquin, Henry Boutin et al., on appeal from your decision of December 14, 1871.

Clark claims as a pre-emptor, the contestants as mineral claimants, each for a portion of the tract claimed by Clark. The main question at issue relates to the character of the land in controversy. You decide that it is mineral.

I am compelled to differ with you in the conclusion you reach. Although the land is shown to be in a mineral belt, and in the immediate vicinity of valuable placer and lode claims, yet I am satisfied, by a careful examination of the evidence transmitted with the appeal, that it is worthless for mining purposes, and that if it ever were paying ground, it has evidently been worked out. On the other hand, it is clearly established that the land is of very great value for agricultural purposes; that Clark has been in possession for twenty years; has cultivated it nearly all of this time, and has very valuable and lasting improvements thereon.

All the proceedings in the case of Boutin, accompanying the record, appear to have been ex parte, and Clark only answers by affidavits filed since the transmission to your office of the mineral application. From these affidavits, however, I am satisfied that the land is more valuable for agricultural than mineral purposes.

I, therefore, reverse your decision, and hold all the land in controversy as agricultural.

You refer to the execution of certain mortgages by Clark to one Shoemaker for a tract of land, including that in controversy, as a fact that might vitiate Clark's pre-emption right. Such is not, I think, the effect of these conveyances. One mortgage has been satisfied, and proceedings upon the other are now barred by the statute of limitations of California. Neither is an agreement that can, by any possibility, cause the title of the claimant to inure to any other person or persons. They do not, therefore, prevent him from properly making the affidavit required by the thirteenth section of the pre-emption act.

I return herewith the papers transmitted with your letter of April 29, 1872.

Very respectfully,

W. H. SMITH, Acting Secretary. Hon. WILLIS DRUMMOND, Com'r General Land Office.

Deputy Surveyors are not Authorized to Survey Claims outside their State or District.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., Aug. 6, 1872.

W. M. SEAWELL, Esq., Aurora, Nevada:

SIR: Referring to your letter of twenty-fifth ultimo, I have to state that a deputy mineral surveyor is not authorized to make surveys of mineral claims outside of the State or district for which he is appointed.

*

*

*

*

Very respectfully,

*

*

*

Your obedient servant,

WILLIS DRUMMOND, Commissioner.

Construction of the Tenth Section of the Act of July 26,

1866.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., Aug. 6, 1872.

Register and Receiver, Sacramento, Cal.:

GENTLEMEN: The papers and testimony submitted with your letter of seventeenth June, 1872, have been examined. The only question presented is in regard to the mineral or non-mineral character of the S. W. of the S. W. 1, Sec. 31, T. 10, N. R. 10 E. and the N. W. of the N. W.

, Sec. 6, T. 9 N. R. 10 E. Mt. Do. Mer.

On the twenty-first of December, 1870, Ekin Smith filed D. S. No. 2282 upon lot 2 of N. W. and lots 3 and 4 of the S. W. of Sec. 31, T. 10, N. R. 10 E. and lot 4 of N. W., Sec. 6, T. 9, N. R. 10 E. Mt. Do. Mer.

On the twelfth of July, 1871, Thomas Stewart filed in your office an affidavit alleging the mineral character of the S. W. of S. W. of said Sec. 31 and the N. W. of N. W. of said Sec. 6.

You fixed upon the twenty-fourth of October, 1871, for the day of hearing, and cited said Stewart to appear and offer proof as to the character of said land.

Upon the evidence submitted at said hearing you decided: First. That the land in dispute is agricultural, and

Second. "That the pre-emption claimant, Ekin Smith, was settled upon the land and had acquired a pre-emption right thereto, prior to the passage of the act of Congress entitled, 'An act granting the right of way,' etc., approved July 26th, 1866. That down to the time of the passage of said act of Congress no valuable mine had been discovered on said land; that said claimant has continuously resided

upon and cultivated and improved said land since his first settlement, and complied with all the provisions of the preemption laws, and therefore would be entitled to enter said land even though a mine had been discovered thereon, since the passage of said act of Congress above referred to." In support of this decision you refer to the tenth section of the act of Congress, approved July 26th, 1866, and state the "the law says that whenever prior to the passage of this act," * * * "there have been homesteads made," * * * upon lands "upon which there have been no valuable mines discovered, the settlers shall have a right of preemption thereto."

Upon a careful examination of the evidence, this office is of the opinion that the testimony taken at said hearing establishes the mineral character of the land in dispute and this portion of your decision is therefore reversed.

The tenth section of the act of Congress, approved July 26, 1866, was not correctly quoted in your decision, and the conclusions which you arrive at, are not correct nor in accordance with the law itself.

The tenth section of said law reads: "That whenever prior to the passage of this act, upon lands heretofore designated as mineral lands which have been excluded from survey and sale, there have been homesteads made by citizens of the United States, or persons who have declared their intention to become citizens, which homesteads have been made, improved and used for agricultural purposes, and upon which there have been no valuable mines of gold, silver, cinnabar or copper discovered, and which are properly agricultural lands, said settlers or owners of such homesteads shall have a right of pre-emption thereto," etc.

And the eleventh section of said act declares: "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 pre-emption and sale as other public lands of the United States, and subject to all the laws and regulations applicable to the same."

It is clear from the language of this statute that Congress did not intend to abolish or do away with the distinction between mineral and agricultural lands, or to allow mineral lands to be classed and disposed of as agricultural, but it simply provided that the public survey might be extended over a region that was so clearly mineral in character that it had, previous to the passage of said act of Congress, been reserved for mineral purposes, and that such tracts as should appear to be "properly" and "clearly agricultural," might be disposed of under the laws applicable to agricul

tural lands.

« SebelumnyaLanjutkan »