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THE MINING LAW.
The following are the two acts of Congress under which the present administration of the mining law is conducted, so far as the United States Government is concerned. They comprise, therefore, all the regulations which are universal in their application, and superior to the local and variable rules established by State and territorial legislation, or by the "laws" and "customs" of mining districts:
AN ACT granting the right of way to ditch and canal owners over the public lands, and for other purposes.
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the mineral lands of the public domain, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and occupation by all citizens of the United States, and those who have declared their intention to become citizens, 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 whenever any person, or association of persons, claim a vein or lode of quartz, or other rock in place, bearing gold, silver, cinnabar, or copper, having previously occupied and improved the same according to the local customs or rules of miners in the district where the same is situated, and having expended in actual labor and improvements theron an amount of not less than one thousand dollars, and in regard to whose possession there is no controversy or opposing claim, it shall and may be lawful for said claimant, or association of claimants, to file in the local land office a diagram of the same, so extended laterally or otherwise as to conform to the local laws, customs, and rules of miners, and to enter such tract and receive a patent therefor, granting such mine, together with the right to follow such vein or fode, with its dips, angles, and variations to any depth, although it may enter the land adjoining, which land adjoining shall be sold subject to this condition.
SEC. 3. And be it further enacted, That upon the filing of the diagram as provided in the second section of this act, and posting the same in a conspicuous place on the claim, together with a notice of intention to apply for a patent, the register of the land office shall publish a notice of the same in a newspaper published nearest to the location of said claim, and shall also post such notice in his office for the period of ninety days; and after the expiration of said period, if no adverse claim shall have been filed, it shall be the duty of the surveyor general, upon application of the party, to survey the premises and make a plat thereof, indorsed with his approval, designating the number and description of the location, the value of the labor and improvements, and the character of the vein exposed; and upon the payment to the proper officer of five dollars per acre, together with the cost of such survey, plat, and notice, and giving satisfactory evidence that said diagram and notice have been posted on the claim during said period of ninety days, the register of the land office shall transmit to the General Land Office said plat, survey, and description, and a patent shall issue for the same thereupon. But said plat, survey, or description shall in no case cover more than one vein or lode, and no patent shall issue for more than one vein or lode, which shall be expressed in the patent issued.
SEC. 4. And be it further enacted, That when such location and entry of a mine shall be upon unsurveyed lands, it shall and may be lawful, after the extension thereto of the public surveys, to adjust the surveys to the limits of the premises according to the location and possession and plat aforesaid; and the surveyor general may, in extending the surveys, vary the same from a rectangular form to suit the circumstances of the country and the local rules, laws, and customs of miners: Provided, That no location hereafter made shall exceed two hundred feet in length along the vein for each locator, with an additional claim for discovery to the discoverer of the lode, with the right to follow such vein to any depth, with all its dips, variations, and angles, together with a reasonable quantity of surface for the convenient working of the same, as fixed by local rules: And provided further, That no person may make more than one location on the same lode, and not more than three thousand feet shall be taken in any one claim by any association of persons.
SEC. 5. And be it further enacted, That as a further condition of sale, in the absence of necessary legislation by Congress, the local legislature of any State or Territory
may provide rules for working mines involving easements, drainage, and other necessary means to their complete development; and those conditions shall be fully expressed in the patent.
SEC. 6. And be it further enacted, That whenever any adverse claimants to any mine, located and claimed as aforesaid, shall appear before the approval of the survey, as provided in the third section of this act, all proceedings shall be stayed until final settlement and adjudication, in the courts of competent jurisdiction, of the rights of possession to such claim, when a patent may issue as in other cases.
SEC. 7. And be it further enacted, That the President of the United States be, and he is hereby, authorized to establish additional land districts, and to appoint the necessary officers under existing laws, wherever he may deem the same necessary for the public convenience in executing the provisions of this act.
SEC. 8. And be it further enacted, That the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted.
SEC. 9. And be it further enacted, That whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction of ditches and canals for the purposes aforesaid is hereby acknowledged and confirmed: Provided, however, That whenever, after the passage of this act, any person or persons shall, in the construction of any ditch or canal, injure or damage the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage.
SEC. 10. And be it further enacted, That wherever, prior to the passage of this act, upon the 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, the said settlers or owners of such homesteads shall have a right of preemption thereto, and shall be entitled to purchase the same at the price of one dollar and twenty-five cents per acre, and in quantity not to exceed one hundred and sixty acres; or said parties may avail themselves of the provisions of the act of Congress approved May twenty, eighteen hundred and sixty-two, entitled “An act to secure homesteads to actual settlers on the public domain," and acts amendatory thereof.
SEC. 11. And be it further enacted, 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.
Approved July 26, 1866.
AN ACT to amend "An act granting the right of way to ditch and canal owners over the public lands, and for other purposes."
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the 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, be, and the same is hereby, amended by adding thereto the following additional sections, numbered twelve, thirteen, fourteen, fifteen, sixteen, and seventeen, respectively, which shall hereafter constitute and form a part of the aforesaid
SEC. 12. And be it further enacted, That claims, usually called "placers," including all forms of deposit, excepting veins of quartz, or other rock in place, shall be subject to entry and patent under this act, under like circumstances and conditions, and upon similar proceedings, as are provided for vein or lode claims: Provided, That where the lands have been previously surveyed by the United States, the entry in its exterior limits shall conform to the legal subdivisions of the public lands, no further survey or plat in such case being required, and the lands may be paid for at the rate of two dollars and fifty cents per acre: Provided further, That legal subdivisions of forty acres may be subdivided into ten-acre tracts; and that two or more persons, or associations of persons, having contiguous claims of any size, although such claims may be less than ten acres each, may make joint entry thereof: And provided further, That no location of a placer claim, hereafter made, shall exceed one hundred and sixty acres for any one person or association of persons, which location shall conform to the United States surveys; and nothing in this section contained shall defeat or impair any bonafide preemption or homestead claim upon agricultural lands, or authorize the sale of the improvements of any bona-fide settler to any purchaser.
SEC. 13. And be it further enacted, That where said person or association, they and
their grantors, shall have held and worked their said claims for a period equal to the time prescribed by the statute of limitations for mining claims of the State or Territory where the same may be situated, evidence of such possession and working of the claims for such a period shall be sufficient to establish a right to a patent thereto under this act, in the absence of any adverse claim: Provided, however, That nothing in this act shall be deemed to impair any lien which may have attached in any way whatever to any mining claim or property thereto attached prior to the issuance of a patent.
SEC. 14. And be it further enacted, That all ex-parte affidavits required to be made under this act, or the act of which it is amendatory, may be verified before any officer authorized to administer oaths within the land district where the claims may be situated.
SEC. 15. And be it further enacted, That registers and receivers shall receive the same fees for services under this act as are provided by law for like services under other acts of Congress; and that effect shall be given to the foregoing act according to such reg ulations as may be prescribed by the Commissioner of the General Land Office.
SEC. 16. And be it further enacted, That so much of the act of March third, eighteen hundred and fifty-three, entitled "An act to provide for the survey of the public lands in California, the granting of preemption rights, and for other purposes," as provides that none other than township lines shall be surveyed where the lands are mineral, is hereby repealed. And the public surveys are hereby extended over all such lands: Provided, That all sub-dividing of surveyed lands into lots less than one hundred and sixty acres may be done by county and local surveyors at the expense of the claimants; And provided further, That nothing herein contained shall require the survey of waste or useless lands.
SEC. 17. And be it further enacted, That none of the rights conferred by sections five, eight, and nine, of the act to which this act is amendatory shall be abrogated by this act, and the same are hereby extended to all public lands affected by this act; and all patents granted or preemption or homesteads allowed shall be subject to any vested and accrued water rights, or rights to ditches and reservoirs used in connection with such water rights as may have been acquired under or recognized by the ninth section of the act of which this act is amendatory. 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 twentyfifth, eighteen hundred and sixty-six.
Approved July 9, 1870.
The following instructions issued by the Commissioner of the General Land Office to registers and receivers, in relation to the survey and entry of mining claims under the provisions of these acts, sufficiently explain the present condition and construction of the law:
DEPARTMENT OF THE INTERIOR, General Land Office, August 8, 1870. GENTLEMEN: The original mining act of July 26, 1866, (United States Statutes, vol. 14, p. 251,) having been amended in adding to its provisions additional sections twelve to seventeen inclusive, by the act of Congress, approved July 9, 1870, it becomes my duty to prescribe for your information and observance the following regulations, to
1st. By the twelfth section of the amendatory act, placer claims, including all forms of deposit, excepting veins of quartz or other rock in place, are made subject to entry and patent under similar circumstances, conditions, and like proceedings as contemplated in the original act for vein or lode claims.
Placer claims on surveyed lands are authorized to be entered by legal subdivisions, no special survey or plat in such case being required, at the rate of $2 50 per acre. In regard to placer claims, however, the amendatory law restricts their extent, in respect to locations made after the date of its passage, to not exceeding one hundred and sixty acres for any one person, or association of persons; such location being required to conform to the Government surveys, and not to interfere with any bona-fide preëmption or homestead claims upon agricultural lands.
2d. The act further provides for the subdivision of forty-acre legal subdivisions into ten-acre tracts, and authorizes two or more persons, or association of persons, having contiguous claims of any size, although less than ten acres each, to make joint entry of such minor subdivisions, all bona-fide preemption or homestead claims upon agricnitural lands being protected by law. The surveyors general are therefore hereby authorized to have such subdivisions into ten-acre tracts made by their deputies when applied for by claimants, numbering each ten-acre tract with consecutive numbers of claims in the township, as in the case of other mineral surveys, and if the service is performed by county and local surveyors, as authorized by the sixteenth section of the amendatory act, it will be the duty of the surveyor general to verify the surveys so
executed, and if found correctly done, to adopt the same and certify the fact, appending his approval as in cases where surveys are made under his own direction. The expense of such subdividing is required to be defrayed by the mining claimants,
3d. In the thirteenth section it is declared that in the absence of any adverse claim where said person or association, they and their grantors, shall have held and worked their said claims for a period equal to the time prescribed by the statute of limitations for mining claims of the State or Territory where the same may be situated, evidence of such possession and working of the claims for such period shall be sufficient to establish a right to a patent thereto, subject to any lien which may have attached to such claim prior to the issue of said patent.
The foregoing provision is construed to apply as well to lode as to placer claims, and should lessen the amount of proof usually required to establish a right to a patent.
4th. In the fourteenth section it is provided that all ex-parte affidavits required under the original and amendatory acts may be verified before any officer authorized to administer oaths within the land district in which the claims are situated.
5th. By the fifteenth section it is declared that registers and receivers are entitled to the same fees for services in mining cases as are provided by law for like services under other acts of Congress, the rates of allowance being specifically given in our circular dated July 25, 1870.
6th. By the sixteenth section the interdict placed by the act of March 3, 1853, “that none other than township lines shall be surveyed where the lands are mineral," is repealed; this provision of law being referable to surveys in California only; the extension of the lines of future surveys over the lands mentioned in this section applies exclusively to that State. The requirement, however, in the last proviso of the same section, "that nothing herein contained shall require the survey of waste or useless lands," is a principle of general application, and surveyors general will refrain from extending the lines of public surveys over such waste lands, which are considered to be those covered by alkali to a depth calculated to prevent the growing of crops, moving sand, or other sandy plains of great extent, and abrupt or snowy mountains not known to contain mineral deposits.
7th. Section seventeen authorizes the extension of the rights conferred by sections 5, 8, and 9 of the original mining act, to all public lands affected by this law, and subjects all patents granted, or preemptions or homesteads allowed, to any vested or accrued water rights, or rights to ditches and reservoirs used in connection with such water rights as may have been acquired under, or recognized by, the said ninth section, said section declaring further that nothing in the act shall be construed to repeal, or in any way affect, the act granting 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 25, 1866, (United States Statutes, volume 14, p. 242.)
8th. The per-diem allowance to deputy surveyors, including all expenses of assistants for surveys of mineral claims, as stipulated in our circular letter of January 14, 1867, has been in several cases found inadequate, and that, consequently, parties in order to induce deputies to make the surveys have found it necessary to pay additional sums as on private account. To avoid such results the surveyors general are hereby authorized to increase the maximum per-diem allowance according to the difficulty of the service, taking care, however, to have the work performed on the most econonical scale by skillful and responsible surveyors, and in no case to exceed a maximum of $20 per day.
In each case where an allowance is made of over $10 per day, the reasons showing the necessity for doing so must be stated in the contract and then reported to this office, and it must be understood that no extra compensation, under any circumstances whatever, is to be exacted or received by the deputy under penalty of forfeiting the contract and exclusion from the public surveying service.
SPECIAL INSTRUCTIONS RELATIVE TO OBTAINING PATENTS FOR MINING CLAIMS.
With reference to the proceedings necessary to obtain patents for lode and placer claims under the provisions of the acts of Congress above-mentioned, the following is communicated:
9th. The mining enactments limit the right to apply for and receive patents for mining claims to claimants.
First. Who have occupied and improved their claims according to the local customs or rules of miners, or
Second. Who have by themselves or their grantors, held and worked their claims for a period equal to the time prescribed by the statute of limitations for mining claims of the State or Territory where the same may be situated.
Third. Who have expended in actual labor and improvements upon their respective claims an amount of not less than $1,000, and—
Fourth. In regard to whose possession there is no controversy or opposing claim. Unless, therefore, applicants for mining patents are properly within these require
ments they are not in a condition to avail themselves of the privileges extended by the laws referred to.
10th. This must be in writing, and must be filed in the office of the register and receiver of the land district in which the claim lies. It must distinctly state the name of the applicant, and whether the claim is applied for by an individual, an association, or an incorporation; the name and extent of the claim; the character of the ore; the mining district, county, and State; the date of its original location according to the mining customs; where the same was recorded; whether the applicant claims as a locator or purchaser; give a description of the premises claimed, and the nature of the improvements made or labor performed, and finally the application should state that the claimant has posted a "diagram" of the claim in a conspicuous place thereon, together with notice of his intention to apply for a patent, giving the date of such posting.
11th. With the above application the claimant must file a copy of the "diagram" posted on the claim, which diagram must represent the boundaries of the premises, as fixed by the local laws, customs, or rules of miners; and, when the claim lies upon surveyed land, it must also show its relation to the public surveys.
12th. Diagrams of placer claims upon surveyed lands must represent the subdivision of the public lands which the claimant desires to enter, as the act requires such entries, in their exterior limits, to conform to such legal subdivisions.
13th. With said diagram must be filed a copy of the "notice" posted upon the claim.
This should state the name of the claimant, describe the claim, give the names of adjoining claims, or if none adjoin, the names of the nearest claims; state whether it is a placer or rock claim, if the former the approximate area, if the latter, the estimated extent of surface ground, and the number of feet claimed on the course of the vein, distinctly stating the name of the lode and the character of the vein exposed; the mining district, county, and State in which it lies; whether upon surveyed or unsurveyed lands; if the former, in what section, township, and range; if the latter, the location of the claim relatively to some well-known natural object or landmark in the vicinity, and, finally, the notice should state that it is the intention of the claimants to apply for a patent for the premises therein designated, and upon which it is posted.
14th. There should also be filed with the application satisfactory evidence that the applicant has the possessory right to the claim agreeably to the local laws or customs of miners. This should consist of a certified copy of the laws or customs of the miners of the district in force at the date of the location of the claim, and of a certificate under seal, of the county or mining recorder, giving a copy of the record of the original location of the claim, with name or names of the locators, and if the applicant claims as a purchaser, an abstract of title should be filed, tracing the right of possession from the original locators to the applicant for patent. Where applicants furnish satisfactory evidence that they and their grantors have held and worked their claims for a period equal to the time prescribed by the statute of limitations of mining claims of the State or Territory where the same may be situated, such evidence being sufficient to establish a right to a patent for a claim so held and worked, upon compliance with the other provisions of the law and instructions, the proofs enumerated under this subdivision, (14,) of the instructions are not required.
15th. Proof of citizenship is required. Where the applicant is a corporation, a copy of its charter or certificate of incorporation may be filed in lieu of evidence of citizenship. In case, however, the applicant is an individual or an association of persons unincorporated, affidavits of citizenship, or of having filed declarations of intention to become citizens, should be filed.
16th. Upon filing these papers the register and receiver will give the same careful examination, and if found to be regular the register will order the publication of the "notice" for ninety days in a newspaper published nearest the location of the claim, but before ordering such publication, the register will, in future, require the claimant to enter into an agreement with the publisher, to the effect that no claim or demand shall be made against the United States for the payment of such publication, and the register will decline to order the publication until such written agreement shall have been filed in his office. The cost of the publication of notice will, therefore, not be estimated by the surveyor general in future cases.
17th. The register will also post copies of the said "notice" and "diagram" in his office for ninety days, and upon forwarding the case to this office will certify that they were so posted.
18th. On the expiration of the ninety days, the claimant or his duly authorized agent, must file with the register his own affidavit, supported by that of at least one other person cognizant of the fact that said "notice" and "diagram" were posted in a conspicuous place upon the claim for the period of ninety consecutive days, giving