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the date of the same. The affidavit of the publisher must also be filed to the effect that the "notice," a printed copy of which should be attached, was published in his newspaper for ninety days, giving the date on which such publication commenced and ended, and that he has received payment in full for the same.
19th. These affidavits may be taken before the register and receiver or any officer authorized to administer oaths within their district, but if taken before a magistrate without an official seal, his official character must be authenticated under seal by the county clerk in the usual manner.
20th. If all the proof furnished is satisfactory to the register and receiver, and no adverse claim has been filed, these officers will, at the end of the ninety days, so inform the applicant for patent and the surveyor general, which last-named officer will make an estimate of the expense of surveying and platting the claim, except in the case of placer claims on surveyed land, where no further survey is required, and when the claimant shall have deposited the amount so estimated with any assistant United States treasurer or designated depository in favor of the United States Treasurer to be passed to the credit of the fund created by "individual depositors for surveys of the public lands," and shall have filed with the surveyor general one of the duplicate certificates of deposit, that officer will order the claim to be surveyed and platted in accordance with the regulations of this office governing mineral surveys, except in cases where the claimant has had a preliminary survey made by the United States deputy surveyor, for the purpose of perfecting the diagram and notice posted on the claim, in which case such preliminary survey may be platted and adopted by the surveyor general for the final survey. Copies of plat and field notes of survey are to be sent to the register and receiver and to the General Land Office, the latter accompanied by the certificate of deposit.
21st. The register and receiver will examine the returns of the survey, and, if found satisfactory, will allow the entry to be completed at the rate of $5 per acre, or fractional part of an acre, for lode claims, or $2 50 per acre, or fractional part of an acre, for placer claims, and transmit all the papers on their files bearing upon the case to the General Land Office, together with their joint opinion thereon, so that a patent may be issued if all is found regular.
22d. In regard to placer claims on surveyed land, where the claimant applies to enter one hundred and sixty acres in legal subdivisions, no survey and plat of the claim are required; the entry in that case being allowed to be completed at the local land office as soon as satisfactory proof has been made after the expiration of ninety days' notice and publication, provided no adverse claimant has appeared in the mean time.
23d. Where the claimant of a placer mine desires the subdivision of a quarter section, the service may be performed by county and local surveyors at the expense of #the claimant, as required by law.
With reference to the subdivision of forty-acre into ten-acre lots, mentioned in the second section of the above instructions, supplementary decisions have been issued. The following letter gives a very liberal rule for the survey and subdivision of ten-acre lots of mineral lands, and will be readily understood by surveyors and miners. Its particular application is in the surveying of creek and cañon claims. The case which called for the ruling arose on Deer Creek, just below Nevada City, California.
DEPARTMENT OF THE INTERIOR,
General Land Office, October 20, 1870. SIR: In reply to your letter of the 31st August last, covering one from H. S. Bradley, a deputy United States surveyor, dated the 13th of the same month and year, and addressed to yourself, I have the honor to state as follows:
Circular instructions were issued to the United States land officers by this office on the 8th of August last, in relation to the survey and entry of lode and placer claims under the provisions of the amendatory act of Congress, granting the right of way to ditch and canal owners over the public lands, and approved July 9, 1870, a copy of
which is herewith inclosed.
It will be perceived on the first page of the circular, that surveyors-general were authorized to have the subdivision of forty-acre legal subdivisions into ten-acre tracts made when applied for by claimants, and at their cost; and under the twenty-third head of the same circular, the land officers were informed that placer claimants desiring the subdivision of a quarter section, the service may be performed by county and local surveyors, at the expense of the claimant, as required by the sixteenth section of the amendatory law. As to the particular method of subdividing subdivisions into ten-acre lots, I have to observe that they are susceptible of being subdivided either into square lots of ten-by-ten chains, or into lots of five-by-twenty chains, by runnin
measuring and marking lines in the field due east and west, or due north and south, through the legal subdivisions desired to be subdivided into ten-acre lots, and in regard to which method the surveyors-general have this day been instructed.
I am, very respectfully, your obedient servant,
Hon. A. A. SARGENT, Washington City.
JOS. S. WILSON,
A somewhat similar case arose in Montana, in which an application for a patent for one hundred and sixty acres of surveyed placer land land was rejected by the register and receiver at Helena, for the reason that the claim in its exterior limits did not conform to the legal divisions of the public lands, as required by section 12 of the amendatory mining law of July 2, 1870. The Commissioner, upon a review of the case, reversed the decision of the register and receiver, and decided that tenacre lots on surveyed land, in mining States and Territories, are legal subdivisions of the public lands; and that such legal subdivisions may be either 10-by-10 or 5-by-20 chains in size, to suit the case. He says:
In the case in question, it appears that the applicant desires to enter and secure a patent for the one hundred and sixty acres of surveyed land, to be segregated from the public domain in contiguous ten-acre lots, in such manner as to embrace the gulch or placer claims for which he desires a patent. There is no reason why this should not be done, if so desired, inasmuch as the second proviso to said twelfth section authorizes the subdivision of forty into ten-acre tracts, thus recognizing in mineral regions a ten-acre lot as a legal subdivision of the public lands; this provision of the law having been formed for the very just and liberal purpose of enabling miners to prove up and pay for their claims with the least possible chance of difficulty or interference with adjoining mineral or agricultural claimants. The law does not stipulate that these tenacre subdivisions shall be in the form of a square, each side measuring ten chains, and it is held that if a ten-acre tract, one side of which is five and the other twenty-five chains, will better embrace the mining premises applied for, no objection to such claim being so surveyed should be made, provided, of course, that such surveys are not run diagonally to the lines of the regular surveys, but are parallel to the same, so that the public lands from which such tracts are segregated may be described and disposed of without confusion or difficulty. In the case under consideration, should the view of the register and receiver be sustained, the mining claimant would be compelled, if he entered the land at all, to embrace in its application four hundred instead of the one hundred and sixty acres desired by him, a large portion of which may be occupied by adjoining claimants, either for mining or agricultural purposes, or it may be barren or waste, unfit for either purpose. To require mining claimants in cases like the present to postpone making applications for patents until adjoining miners are willing to unite in making a joint entry of their respective claims, or to include in their applications large areas of worthless land to be paid for at double the minimum price of good agricultural land, would not only be a hardship upon the miners, but inconsistent with the intention of the statute.
The following bill, proposed by Senator Stewart of Nevada, passed the Senate February 8, 1871, and now awaits the action of the House:
Be it enacted, etc., That the mineral lands of the public domain, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and occupation, for mining purposes, by all persons, subject to such regulations as may be prescribed by law, and subject also to the local customs or rules of miners in the several mining districts, so far as the same may not be in conflict with the laws of the United States.
SEC. 2. And be it further enacted, That the miners of each mining district may determine the length of their mining claims upon veins or lodes of quartz, or other rock in place, bearing gold, silver, cinnabar, lead, tin, or copper, subject to the following limitations: Claims located previous to July twenty-six, eighteen hundred and sixty-six, shall be limited as to extent along the vein or lode by the local laws or customs existing at the date of the location. Single claims located subsequent to July twenty-six, eighteen hundred and sixty-six, shall not exceed two hundred feet in length along the vein or lode, with an additional claim of two hundred feet for discovery to the discoverer of a vein or lode. Several persons may locate in common on a vein or lode, each pers on taking one claim; but no person, except the discoverer, shall locate more that one claim upon the same vein or lode, and the aggregate amount of a location in common, made subsequent to July twenty-six, eighteen hundred and sixty-six, shall not exceed three thousand feet in length along the vein or lode. No claim shall extend more than three hundred feet on each side of the middle of the vein at the surface, nor
shall any claim be limited by any mining regulation to less than twenty-five feet on each side of the middle of the vein at the surface, except where adverse rights existing at the passage of this bill shall render such limitation necessary. The end lines of each claim shall be parallel to each other, and at right angles with the general course of the vein.
SEC. 3. And be it further enacted, That the locators of all mining locations heretofore made, or which shall hereafter be made, on any mineral vein, lode, or ledge situated on the public domain, their heirs and assigns, where no adverse claim exists at the passage of this act, so long as they comply with the laws of the United States, and with State, Territorial, and local regulations, not in conflict therewith, governing their possessory title, shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations, and of all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines, extended downward vertically, although such veins, lodes, or ledges, may so far depart from a perpendicular in their course downward as to extend outside the vertical side lines of said surface locations: Provided, That their right of possession to such outside parts of said veins or ledges shall be confined to such portions thereof as lie between vertical planes drawn downward as aforesaid, through the end lines of their locations, or locations in common, so continued in their own direction, that such planes will intersect such exterior parts of said veins or ledges: And provided further, That nothing in this section shall authorize the locator or possessor of a vein or lode, which extends in its downward course beyond the vertical lines of his claim, to enter upon the surface of a claim owned or possessed by another.
SEC. 4. And be it further enacted, That where a tunnel is run for the development of a vein or lode, or for discovery of mines, the owners of such tunnel shall have the right of possession of all veins or lodes, not previously known to exist, discovered in such tunnel, to the extent of five hundred feet on each side of the same; and locations on the line of such tunnel of veins or lodes not appearing on the surface, made by other parties after the commencement of the tunnel, and while the same is being prosecuted with reasonable diligence, shall be invalid.
SEC. 5. And be it further enacted, That the miners of each mining district may make rules and regulations, not in conflict with the laws of the United States, or with the laws of the State or Territory in which the district is situated, governing the location, manner of recording, amount of work necessary to hold possession of a mining claim, subject to the following requirements: The location must be distinctly marked on the ground, so that its boundaries can be readily traced. All records of mining claims hereafter made shall contain the name or names of the locators, the date of the location, and such description of the claim or claims, located by reference to some natural object or permanent monument, as will identify the claim. After the passage of this act, and until a patent shall have been issued, not less than twenty-five dollars' worth of labor shall be expended on improvements made upon each claim of two hundred feet during each year; but claimants in common, as defined in the second section of this act, may cause all the labor to be expended for improvements to be made upon any one claim, provided the aggregate amount equals twenty-five dollars a year to each claim of two hundred feet. And upon a failure to comply with this condition, the claim or mine upon which such failure occurred shall be open to relocation in the same manner as if no location of the same had ever been made: Provided, That the original locator has not resumed work upon the claim after such failure and before such location.
SEC. 6. And be it further enacted, That a patent shall be obtained in the following manner: any person, association, or corporation in possession of a mining claim or claims in common, who has complied with the mining regulations and the laws of the United States, may file in the local land office an application for a patent showing such compliance, together with a plat of the claim or claims in common; a copy of such plat, together with a notice of intention to apply for a patent, shall also be posted in a conspicuous place on the claim for the period of ninety days. The register of the land office, upon the filing of such application and plat, shall publish a notice that such application has been made for the period of ninety days, in a newspaper published nearest to said claim, and he shall also post such notice in his office for the same period. The claimant, at the time of filing his application, or at any time thereafter within ninety days of publication, shall file with the register a certificate of the United States surveyor general that one thousand dollars' worth of labor has been expended or improvements made upon the claim, by himself or grantors, that the plat is correct, with such further description by such reference to natural objects or permanent monuments as shall identify the claim and furnish an accurate description, to be incorporated in the patent. At the expiration of the ninety days of publication, the claimant shall file his affidavit, showing that the plat and notice have been posted in a conspicuous place on the claim during said period of publication. If no adverse claim shall have been filed at the expiration of the ninety days of publication, it shall be assumed that the applicant is entitled to a patent, and that no adverse claims exist, and thereafter no objection from third parties to the issuance of a patent shall be heard except it be shown that the applicant has failed to comply with this act.
H Ex. 10- -32
SEC. 7. And be it further enacted, That where an adverse claim shall be filed during the period of publication, all proceedings, except the publication of notice and making and filing of the affidavit thereof, shall be stayed until the controversy shall have been settled or decided by a court of competent jurisdiction, or the adverse claim waived. It shall be the duty of the adverse claimant, within thirty days after filing his claim, to commence proceedings in a court of competent jurisdiction to determine the question of the right of possession, and prosecute the same with reasonable diligence to final judgment, and a failure so to do shall be a waiver of his adverse claim. After such judgment shall have been rendered, the party entitled to the possession of the claim, or any portion thereof, may file a certified copy of the judgment-roll with the register of the land office, together with the certificate of the surveyor general that the requisite amount of labor has been expended or improvements made thereon, and the description required in other cases, and shall pay to the receiver five dollars per acre for his claim, together with the proper fees, whereupon the whole proceedings and the judgment-roll shall be certified by the register to the Commissioner of the General Land Office, and a patent shall issue thereon for the claim, or such portion thereof as the applicant shall appear, from the decision of the court, to rightfully possess. If it shall appear from the decision of the court that several parties are entitled to separate and different portions of the claim, each party may pay for his portion of the claim, with the proper fees, and file the certificate and description by the surveyor general; whereupon the register shall certify the proceedings and judgment-roll to the Commissioner of the General Land Office as in the preceding case, and patents shall issue to the sev eral parties according to their respective rights.
SEC. 8. And be it further enacted, That the description of vein or lode claims upon the surveyed lands shall designate the location of the claim with reference to the lines of the public surveys, but need not conform therewith; but where a patent shall be issued for a vein or lode claims upon surveyed lands, the surveyor general in extending the surveys shall adjust the same to the boundaries of such patented claim, according to the plat or description thereof, as in other cases of private claims.
SEC. 9. And be it further enacted, That sections one, two, three, four, and six of an act entitled "An act granting the right of way to ditch and canal owners over the public lands, and for other purposes," approved July twenty-six, eighteen hundred and sixty-six, are hereby repealed, but such repeal shall not affect existing rights, or prevent claimants now prosecuting their claims for patents from proceeding under said act: Provided, That this act shall be enforced as to such claims where it is not inconsistent with the act approved July twenty-six, eighteen hundred and sixty-six, aforesaid.
SEC. 10. And be it further enacted, That the "Act to amend an act granting the right of way to ditch and canal owners over the public lands, and for other purposes," approved July nine, eighteen hundred and seventy, shall be and remain in full force, except as to the proceedings to obtain a patent, which shall be similar to the proceedings prescribed by sections six and seven of this act for obtaining patents to vein or lode claims; but where said placer claims shall be upon surveyed lands, and conform to legal subdivisions, no further survey or plat shall be required, and joint entries shall be allowed for contiguous claims, as provided in said act: Provided, That proceedings now pending may be prosecuted to their final determination under existing laws; but the provisions of this act, when not in conflict with existing laws, shall apply to such
SEC. 11. And be it further enacted, That where the same person, association, or corporation is in possession of a placer claim and also a vein or lode included within the boundaries thereof, application shall be made for a patent for the placer claim, with the statement that it includes such vein or lode, and in such case, (subject to the provisions of this act and the "Act to amend an act granting the right of way to ditch and canal owners over the public lands, and for other purposes," approved July 9, eighteen hundred and seventy,) a patent shall issue for the placer claim, including such vein or lode, upon the payment of five dollars per acre for such vein or lode claim, and one hundred feet of surface on each side thereof. The balance of the placer claim shall be paid for at the rate of two dollars and fifty cents per acre, and where a vein or lode, such as is described in the second section of this act, is known to exist within the boundaries of a placer claim, an application for a patent for such placer claim, which does not include an application for the vein or lode claim, shall be construed as a conclusive declaration that the claimant of the placer claim has no right of possession of the vein or lode claim; but where the existence of a vein or lode in a placer claim is not known, a patent for the placer claim shall convey all minerals within the boundaries thereof.
SEC. 12. And be it further enacted, That the Surveyor General of the United States may appoint in each land district containing mineral lands as many competent_surveyors as shall apply for appointment to survey mining claims. The expenses of the survey of vein or lode claims and the subdivision of placer claims into smaller quantities than one hundred and sixty acres, together with the cost of publication of notices, shall be paid by the applicants, and they shall be at liberty to obtain the same at the
most reasonable rates, and they shall also be at liberty to employ any United States deputy surveyor to make the survey. The Commissioner of the General Land Office shall also have power to establish the maximum charges for surveys and publication of notices under this act; and in case of excessive charges for publication, he may designate any newspaper published in a land district where mines are situated for the publication of mining notices in such district, and fix the rates to be charged by such paper; and to the end that the Commissioner may be fully informed upon the subject, each applicant shall file with the register a sworn statement of all charges and fees paid by said applicant for publication and surveys, together with all fees and money paid the register and receiver of the land office, which statement shall be transmitted, with the other papers in the case, to the Commissioner of the General Land Office. The fees of the registers and receivers shall be the same as in other cases for similar services. But nothing in this act shall be construed to repeal, impair, or in any way affect the provisions of the " Act granting to A. Sutro the right of way and other privileges to aid in the construction of a draining and exploring tunnel to the Comstock lode in the State of Nevada," approved July twenty-five, eighteen hundred and sixty-six. Provided, That nothing in this act shall be construed to enlarge or affect the rights of either party in regard to any property in controversy at the time of the passage of the act entitled "An act granting the right of way to ditch and canal owners over the public lands, and for other purposes," approved July twenty-six, eighteen hundred and sixty-six, nor shall this affect any right acquired under said act.
It will be seen that this bill differs somewhat from the one which I had the honor to suggest in my last report. In some respects I regard it as superior to that, while in other respects there is still room for difference of opinion. At all events, I consider it the wisest and most beneficent measure that has ever been proposed in Congress on this subject; and if it becomes a law, I shall hope to see intelligent men in all the mining communities rally in its favor, give it a fair trial, and acknowledge its great value and importance. One thing which this bill unfortunately fails to do, is to legalize the location of timber and pasture tracts, mill-sites, etc., in connection with mines upon the public lands. This is a practice which has grown up without explicit authority of law in many of our interior districts. It is founded in necessity. The rigid enforcement of the law as it now stands, with regard to the timber on unsurveyed public lands, would almost put a stop to mining operations throughout several States and Territories; and there can be no doubt that, under proper restrictions, the protection of the law should be extended over this essential auxiliary part of mining industry, as much as over the immediate operations of extracting and reducing ore. With regard to placer mines, the bill does nothing more than facilitate the acquirement of title from the United States, by simplifying the steps prescribed to the applicant for a patent, and by fixing the status of a quartz lode, discovered (as many a quartz lode is discovered) on a placer claim.
With regard to lode mines, three provisions of the greatest importance are established. In the first place, the title of the miner to the surface of his claim is distinctly declared. This, as I have argued in a former report, is really involved in the spirit and letter of the present law, which grants the land and fixes its price by the acre; but courts and juries have held both ways, and the General Land Office at Washington increased the doubt and confusion by patenting the same land over and over again to different parties. Before long we shall have, I trust, a clear and explicit law, which the jury-box cannot defy, and the bench and the bureau cannot manage to misunderstand.
At the same time, rights now existing are fully protected. The proposed law is unjust to no one, since it simply declares that hereafter certain regulations shall be observed which have heretofore been neglected. For a score of years the United States has permitted the miners on the public lands to prescribe their own rules of title and occupancy; and the result has been that, one after another,