32 Sec. 14 Sec. 2335 Sec. 15 Sec. 2338 Sec. 16 Sec. 2331 Sec. 17 Sec. 2340 Act of May 10th, 1872, 17 U. S. Stats. 91: Sec. 1 Sec. 2319 Sec. 2 Sec. 2320 3 Sec. 2322 Sec. 4 Sec 2323 & a. 5 Sec 2324 Bee. <; Sec. 2325 Sec. 7 Sec. 2326 C. K Sec. 2327 Bee. 9 Sec. 2328 Bi c. l<> Sec. 2331 Sec. II Sec. 233:! 12 Sec. 2331 L3 Sec. 2335 1 1 Sec. 2336 Bee. US Sec. 2337 BeC. 16 Sec. 2311 Revised Statutes. Sec. 2319. .Sec. 1, Act of 1866, and Sec. 1, Act of 1872. Sec. 2320. .Sec. 4, Act of 1866, and Sec. 2, Act of 1872. Sec. 2322. .Sec. 3, Act of 1872. Sec. 2323. .Sec. 4, Act of 1872. Sec. 2324. .Sec. 5, Act of 1872. Sec. 2325. .Sees. 2, 3, Act of I860, and Sec. 6, Act of 1872. Sec. 2326. .Sec. 6, Act of 1866, and Sec. 7, Act of 1872. Sec. 2327. .Sec. 8, Act of 1872. Sec. 2328. .Sec. 9, Act of 1872. Sec. 2330. .Sec. 12, Act of 1870. Sec. 2331 .Sec. 16, Act of 1870, and Sec. 10, Act of 1872. Sec, 2332. .Sec. 13, Act of 1870. Sec. 2333. .Sec. 11, Act of 1872. Sec. 2334. .Sec. 12, Act of 1872. Sec. 2335. .Sec. 13, Act of 1872, and Sec. 14, Act of 1870. Sec. 2336 .Sec. 14, Act of 1872. Sec. 2337. .Sec. 15, Act of 1872. Sec. 2338. .Sec. 5, Act of 1866, and Sec. 15, Act of 1870. Sec. 2339. .Sec. 9, Act of 1866. Sec. 2340. .Sec. 17, Act of 1870. Sec. 2341. .Sec. 10, Act of 1866. Sec. 2342. .Sec. 11, Act of 1866. Sec. 234:;. .Sec. 7, A. t of 1866. Sec. 2344. Sec. 8, Act of 1866, and Sec. 16, Act of 1872. TABLE OF CONTENTS. CHAPTER I. INTRODUCTORY— THE FIRST MINING ACT. § 1. The Act of 18G6— The repealed sections. § 2. Section one — License without title. § 3. Duties of registers and receivers. § 4. Title and patent — The second section. § 5. Limitation of the right to obtain patents. § 6. Applications for patents. § 7. Citizenship required. § 8. Entry and diagram. § 9. Defects in the Instructions. § 10. The application. § 11. Publication of the notice. § 12. Duties of claimants, registers, and receivers. § 13. What a patent conveyed. § 14. Diagram, notice, survey, and patent. § 15. Survey. § 16. Posting the notice of application. § 17. Effect of irregularities — Notice of application — Requisites. § 18. Fees of surveyors. § 19. Size of locations — Adjustment of surveys. § 20. Duties of deputy-surveyors. § 21. Following the vein to any depth. § 22. Mode of survey— Quantity and restriction to one claim. § 23. Deviation from the rectangular form of survey. § 24. Number of feet located. § 25. Adverse claims and contests. § 26. Proceedings on adverse claims. § 27. Miscellaneous. CHAPTER n. RESERVATIONS AND EXCEPTIONS OF MINERAL LANDS IN GRANTS BY THE GOVERNMENT. § 28. Mineral lands reserved. § 29. Mineral lands in certain States not excepted. § 30. Exception from certain grants. ix X TABLE OF CONTENTS. § 31. The policy of the Government in reserving or excepting mineral lands. § 32. Excepting clause in placer and agricultural patents. § 33. Saline lands. § 34. School lands containing mineral. § 35. School lands in Nevada. § 36. Mineral lands in railroad grants. CHAPTER III. EIGHT OF EXPLORATION AND PURCHASE OF VALUABLE MIN- ERAL DEPOSITS, AND THE OCCUPATION AND PURCHASE OF MINERAL LANDS— CITIZENSHIP AND PROOF THEREOF. § 37. Right to purchase. § 38. Valuable deposits. § 39. The general rule stated. § 40. Borax deposits. § 41. Mineral deposits. § 42. What is a mineral vein ? § 43. Mineral veins, classifications. § 44. Definitions of terms in common use. § 45. "Who may acquire patents. § 46. Application by aliens. § 47. Citizenship. § 48. Proof of citizenship. § 49. Affidavit of citizenship. § 50. Foreign corporation. § 51. Restriction as to proof. CHAPTER IV. DIMENSIONS OF CLAIMS AND LOCATIONS UPON VEINS OR LODES. § 52. Length and width of lode-claims. § 53. Veins or lodes of quartz or other rock in place. § 54. Location previous to t lie Mining Acts. J :,:,. Width of Lode-claims— Rights granted by the patent. Burvey must conform to the patent. § 57. Manner of locating prior to 1872. § 58. Several locations may be made. § 59. Local regulations. CHAPTER V. LOCATOR'S RIGHTS OF POSSESSION AND ENJOYMENT OF THE SURFACE GROUND AND OF THE LODE. LocatOI B rights Of possession and enjoyment. § 61. Stains of |i><|e-clailllS previously located. § 62. I'ateni i [or vans or lodea previously issued. § 63. Priority of location- Importance of . TABLE OF CONTENTS. CHAPTER VI. TUNNEL BIGHTS. 64. Owners of tunnel rights. 65. Patenting tunnel rights. 66. Expenditures upon tunnel. CHAPTER VII. KEGULATIONS AND CUSTOMS — EXPENDITURES AND IMPROVE- MENTS—SURVEYS AND BOUNDARIES. § 67. Regulations and customs. § 68. Definition of "claim." § 69. Annual expenditures on placer-claims. § 70. Annual expenditures on lode-claims. $ 71. Neglect of co-claimants to contribute. § 72. Re-located mines — expenditure. § 73. Amount of expenditure shown upon plat and field-notes. § 74. Location and survey — Boundaries. § 75. Certificate as to improvements. § 76. Fixed monuments — Courses — Distances. CHAPTER VIII. PATENTS TO MINERAL LANDS— MODE OF* PROCURING GOVERN- MENT TITLE. § 77. Patents for vein or lode-claims, how obtained. § 78. Details of procedure. § 79. Duties of registers and receivers. § 80. Nature of the patent. § 81. Impeachment of patent. § 82. Adverse possession as against a patent. § 83. What is granted. § 84. Who may apply. § 85. Evidence of ownership — Deraigning title — Identity of applicant — Transfers. § 86. Claim through an executor — Where an alien is grantee of a claim. § 87. United applications — Unincorporated associations. § 88. Several claims cannot be embraced in one application. § 89. Grantee of several locators may obtain patent for the whole tract. § 90. Conflicting patents. § 91. Errors in description in patent — Relinquishment — Calls for the relin- quishment of land inadvertently iiatented. § 92. Second patent — Entries of mineral lands by settlers and corporations. § 93. Minerals discovered after agricultural patent. § 94. Setting aside patent. Xll TABLE OF CONTEXTS. Number of patents. Protests against issuance of patents — Status of protestants. An illegal location invalidates subsequent proceedings. Location by a minor. Application for several lodes and a mill-site — Claim partly in one dis- trict and partly in another. Delaying action at request of Congressional Committees. The affidavit — Proper party to make it. Verification of affidavits. The location notice. Parol evidence to aid the notice. Plat must show the boundaries of the claim. Surveys to show exterior boundaries?. Specific surface ground. Posting on claim, and proof thereof. Publication of the notice. Time of publication. Counting the sixty days- Proof of publication. The newspaper in which the notice is to be published. Defects in the published notice. Discrepancies between final survey and patent and the application and published notice. Discrepancies between the published notice and the notice and diagram filed. Discrepancies between the published notice and the diagram and posted notice. Discrepancies between the final survey and patent and the application. New survey, pending another application. Discrepancies between survey and diagram. I liscrepancies between survey and notice, matter of description. Errors in survey. When application will be rejected. Sworn statement. Approval of survey — Jurisdiction of Surveyor-General. Proof of citizenship. Miscellaneous. CHAPTER IX. ADVERSE CLAIMS— PROCEEDINGS IN COURT. Adverse claims. Advei i claims under Act of 1866. Adv< ;rs DITCHES — EASEMENTS— DRAINAGE — STATE AND TEBBITORIAL LEGISLATION— PATENTS SUBJECT TO VESTED RIGHTS— SUTEO TUNNEL ACT. i, State and Territorial legislation — Easements— Drainage, etc. § 197. Conditions inserted in the patent. J 198, Vested rights to use of water— Bight of way for canals. § 199. Patents subjecl to vested water rights. \ 200 i' > ■ ••■■ atei rights confirmed. J 201 Lot al v.. iter rights protected. TABLE OF CONTENTS. XV § 202. Conditions as to vested water rights inserted in patent. § 203. Mining ditch in railroad grant. § 204. Conflicting rights of ditch-owners and miners. § 205. Exercise of eminent domain for a private ditch company's use. § 200. Water rights in California under the Codes. § 207. Existing water rights obtained by patent, how affected. § 208. Effect of the acts upon previous diversion of water upon patented lands. § 209. Recognition of the doctrine of prior appropriation. § 210. Effect of the statute upon prior appropriation without Government title. § 211. Construction of flumes over public lands. § 212. Rights of ditch-owners on public lands. § 213. Sutro Tunnel Act. § 214. Conditions inserted in patents for mines on Comstock Lode, Nevada. § 215. Claim rejected. CHAPTER XV. HOMESTEADS AND TOWN SITES — HOMESTEAD RIGHTS ON NON- MINERAL LANDS— TOWN-SITE ENTRIES. § 216. Non-mineral lands open to homesteads. § 217. Pre-emption of homesteads on agricultural lands formerly designated as mineral. § 218. Homestead entries including mineral deposits. § 219. Rights of pre-emptioners and homestead claimants. § 220. Conflicts between homestead and mill-site claimants. § 221. Title to town lots subject to mineral rights. § 222. Conflicts between mineral and town-site claimants. CHAPTER XVI. SEGREGATION OF MINERAL AND AGRICULTURAL LANDS WITHDRAWAL FROM AGRICULTURAL ENTRY. § 223. Manner of setting apart mineral lands as agricultural. § 224. Segregation of agricultural from mineral lands. § 225. Mineral affidavits. § 226. Mineral affidavits on timber land. § 227. Segregation under Acts of 1866 and 1870. § 228. Withdrawal of certain lands from agricultural entry. § 229. Surveyors' returns. § 230. Their prima facie accuracy. § 231. Hearings to determine the character of land — Publication. § 232. What is mineral land. § 233. Burden of proof. § 234. Evidence as to agricultural character of land. § 235. The testimony. § 230. Proof as to mineral character of land. § 237, Discovery of mines on agricultural lands. § 238. Agricultural patent covering mines already worked. § 239. Fraud in pre-emption entry. § 240. Compromises between miners and settlers. XVI TABLE OF CONTENTS. § 241. Attempt by railroad to disprove mineral character of lands. § 242. Non-mineral proof by settlers on lands within railroad limits. CHAPTER XVII. COAL LANDS — EIGHT OF ENTRY AND OF PRE-EMPTION — PRES- ENTATION OF CLAIMS— LIMITATION OF ENTRY— CONFLICTING CLAIMS— EXISTING EIGHTS. § 243. Entry of coal lands. § 244. Pre-emption of coal lands. § 245. "When claims are to be presented. § 24G. Only one entry allowed. § 247. Conflicting claims. § 248. Existing rights. § 249. Departmental regulations and instructions. § 250. Restrictions as to purchase. § 251. School sections containing coal. § 252. Coal lands and town sites. § 253. Actual possession of coal mines upon railroad sections. § 254. Coal lands in Minnesota, Wisconsin, and Michigan. CHAPTER XVIII. MISCELLANEOUS PROVISIONS. § 255. Power of the President as to appointments. § 256. Pending applications — Existing rights. § 257. Possessory actions relative to mines. § 258. Practice before the Land Department— Hearings, contests, and appeals Witnesses and testimony. § 259. Appeals, exceptions, evidence. § 260. Fees of registers and receivers. § 201. Payment pending contest. § 262. Decisions df the Land Department — Their authority. I 263. Right of inspection of mine. § 264. Mining claims in riverbeds. § 265. Timber on mineral lauds — Railroad companies. § 266. Claims not within any mining district. | 267. Removal of machinery. § 268. Criminal offenses. § 269. Various provisions CHAPTER I. INTRODUCTORY— THE FIRST MINING ACT. § 1. The Act of 1866 — The repealed sections. — It had been a well-known policy of the Government of the United States, from the time of its foundation, to reserve from sale all lands containing minerals, or " known mines." This policy was not in any degree disturbed until the passage of the Act of 1866, known as the first Congressional mining act. In 1850, the policy of the nation's selling the mines for the purpose of obtain- ing public revenue began to be discussed in the National Legis- lature. But, after much controversy, the arguments in favor of leaving the mines free and open for exploration and develop- ment prevailed, and adverse measures were defeated or aban- doned. From that time until 1866, non-action was the policy of the Government. At this time, the necessity of Congressional action, long before felt, came to be directly recognized. In the annual report of the Secretary of the Treasury for the year 1865, the substitution of an absolute title in fee for the indefinite possessory rights or claims under which the mines were held by private parties, was earnestly recommended. It Avas urged that the right to obtain a " fee-simple title " would invite to the mineral districts men of character and enterprise, and would give permanency to settlements by the stimulus which owner- ship always produces. Under the then existing condition of things, constant fear was felt, by those who were engaged in mining pursuits, that some disturbance and interference with their rights of property, such as they had, would occur. This fear was not groundless. 1 Measures for the sale of the mines 1 Valuable coal-fields had been discovered on the public lands of California, and large quantities of coal were being taken therefrom by intruders on the public lands. The Act of March 3d, 1807, provided (2 U. S. Stats. 445) that if any person or persons should take possession of, or make a settlement on, the public lands of the United States, which lands should not have been previously sold, ceded, or leased by the United States, or the claim to which by such w. C— 1. 2 INTRODUCTORY. § 2 and for the taxation of the miners, as a class, had from time to time been proposed ; and, besides, the Government had the un- doubted legal right to treat every miner upon the public domain as a naked trespasser. The passage of the Act of 1866, with all its defects, marked a change in the Governmental policy, and introduced a new era in the history of mining enterprise. § 2. Section one — License without title. — The first sec- tion (now repealed) jn*ovided : " Sec. 1. That the mineral lands of the public domain, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and occu- pation by all citizens of the United States and those who have declared their intention to become citizens, subject to such reg- ulations 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." 1 This section declared the freedom of the mines by oj^ening the whole public domain to exploration or prospecting in search of mines and minerals, and to the occupation and use of such mines as were unoccupied, or which might be discovered, to be worked for the use and benefit of individuals, partnerships, person or persons should not have been previously recognized and confirmed by i!i" United States, or if any person or persons should cause such lands to be tli us occupied, taken possession of, or settled, or should survey, or attempt to survey or designate, any boundaries on such lands, such person or persons should forfeit any right to such lands, and the President of the United States might dired the marshal of the district to remove from such lands any such person or persons, and to employ snch military force as might be necessary for that purpose. And the persons on such lands in violation of tin- provisions of the a Lease Lead-mines. The Courl Bay: "The contract purports to be a license for smelting Lead-ore, and it is objected that it is not a lease within the act of Congress. The legal understanding of a lease for 1 See People '. Shearer, 30Cal. 646; Yule's Mining Claims, 355, 356. - Bainbridge on M Lnes, 246. :; i:;. tal itL. in. Bainbridge on Mines, 252; Blanchard \- Weeks' Leading Cases on Mines and Mining Water Rights, < baps. 14, 15. §§ 3-4 THE FIRST MINING ACT. 5 years is a contract for the possession and profits of land for a determinate period, with the recompense of rent. The contract in question is strictly within the definition." * The license was in the nature of a tenancy at will, revocable at pleasure, and until an entry and purchase of a lode-claim, was applicable to all the privileges granted under the Act of 1866. 2 There was nothing obligatory on claimants to proceed under the Act of 1866, and where they failed to do so, there being no adverse interest, they held the same relations to the premises they worked as before the passage < of the act, with the ad- ditional guarantee that they possessed the right of occupancy under the statute. 3 § 3. Duties of registers and receivers. — It became the duty of registers and receivers, upon the passage of the Act of 1866, to acquaint themselves with the local mining customs and usages. In acting upon individual claims, a perfect record there- of was required to be taken and preserved by the register and receiver, and accompanied by a diagram or plat fixing the out- boundaries of the district in which such customs and usages ex- isted. 4 As Sec. 1 of the Act of 1866 did not relate to title, the surveyors, receivers, and registers had no duty to discharge under it. The instructions were only applicable to the other sections. 5 The diagram or plat fixing the out-boundaries of the district in which the customs and usages existed, was not in practice found easy of execution. The names of the districts were accidentally given, governed by no rule ; the boundaries uncertain and undefined, except when controlled by well-known, natural objects ; the districts frequently changed or divided, and per- haps never made the subject of actual survey — a record of the customs and regulations was an easier matter. 6 § 4. Title and patent. — The second section (also repeal- ed) read : " Sec. 2. That whenever any person or association of i U. S. v. Gratiot, 14 Pet. U. S. 526. 2 Yale's Mining Claims, 355, 356, 357. 3 Instructions Jan. 14th, 1867; Zabriskie's Land Laws, 200; Copp's U. S. Min- ing Decisions, 239; Gold Hill Quartz Mining Co. v. Isli, 5 Oregon, 104. 4 Instructions Jan. 14th, 1867; Zabriskie's Land Laws, 200; Copp's U. S. Min- ing Decisions, 239. 5 Yale's Mining Claims and "Water Eights, 357, 358. « Ibid. 359. 6 INTRODUCTORY. §§ 5-6 persons, claim a vein or lode of quartz, or other rock in place, bear- ing 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 thereon 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 claim- ants 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 re- ceive a patent therefor, granting such mine, together with the right to follow such vein or lode, with its dips, angles, and variations, to any depth, although it may enter the land ad- joining, which land adjoining shall be sold subject to this con- dition." 1 § 5. Limitation of the right to obtain patents under the Act of 1866. This section limited the right to apply for and receive patents for mining claims to persons : 1st. TV ho had occupied and improved their claims according to the local customs or rules of miners. 2d. AVho had, by themselves or their, grantors, held and worked their claims for a period equal to the time prescribed by the Statute of Limitations for min- ing claims of the State or Territory where the same might be situated. 3d. Who had expended, in actual labor and im- provements upon their respective claims, an amount of not less than one thousand dollars. 4th. In regard to whose possession there was no controversy or opposing claim. 2 § 6. Applicants for patent must have had the local pos- sessory rights. The mining acl authorized applications lor pat- ents by persons having previously occupied and improved their claims according to the local customs and rules ut' miners, and who had expended in actual labor and improvements (hereon an amount not less than $1,000 on each claim, and such claim- ants were authorized to include in their applications only those i ah .,f July 26th, L866; 1 1 U.S. Stat. 251. I., tractions A.ug. 8th, L870; Copp'a I '. S. Mining I (ecisiona, 266. § 6 THE FIRST MIXING ACT. 7 claims to which they had possessory titles, under and by virtue of such local customs, and they had no right to include prem- ises to which no such possessory rights had attached. Persons having no possessory rights according to the local mining laws and regulations, and who had not made the im- provements required by the mining act, were not authorized to apply for patents, and the attempt to do so was held to be a fraud, not only against the rightful owners, but against the policy of the act itself. 1 The evidence was required to show that the proper notice and diagram were posted upon the premises, and identify the claims alleged in the petition and advertisement. Proof of citizenship was required, and the amount of land could not exceed that authorized by law. The vein or lode of quartz, or other rock in place, bearing gold, silver, cinnabar, or copper, to which a patent could be obtained, was one Avhich had been previously occupied and im- proved according to local customs, and on which not less than $1,000 had been expended in actual labor and improvements, and also one " in regard to whose possession there was no controversy or opposing claim." 2 1 Decision Commissioner, January 2Sth, 1S69; Copp's U. S. Mining Decisions, 20. 2 Evidence required — In a given case, a company, being the applicants, pre- sented the following documents to substantiate their claim : 1st. The written application of the company; 2d. Copy of the original loca- tion; Sd. Copy of three sections of the mining customs of the district; 4th. Affi- davits as to posting the notice and diagram on the claim: 5th. A copy of the notice and diagram; 6th. The register's certificate of application to enter the land; 7. Copy of published notice; 8th. Receiver's receipt for the price of the land; 9th. The register's certificate of entry and payment of purchase-money; 10th. Receipt of newspaper publisher; 11th. The certificate of the Surveyor- General of payment of fees for surveying and office work. In addition to this evidence, the company was required to present: 12th. Evidence under the State law that the company was incorporated as stated, and that the applicants were entitled to represent the same as trustees; 13th. Evidence of the character of the vein exposed, the evidence to be furnished by the Surveyor-General by indorsing it on the plat; 14th. Evidence that not less than si, 000 had been ex- pended on the claim in actual labor and improvements. This fact, in regard to the actual labor and improvements, was also to be certified by the Surveyor- General, by indorsement on the plat, in addition to which there was required an affidavit, or the verbal testimony reduced to writing by the local land officers, of two or more reliable persons cognizant of the facts of such improvements, who would state particularly of what the improvements consisted, when they were made, and by what claimants, and estimate the value of the 8 INTRODUCTORY. § 6 Congress had the power to make such qualifications in grant- ing mineral lands as it saw fit. It chose to say that no such same specifically. 15th. The notice of location was required to name the lode. Some proof was required of holding the possessory title, and that the copy of the original location transmitted referred to the lode claimed. 16th. The land office recognized the mode of transfer from the original locator to the applicant authorized by the State law. The proof as to how title was acquired by applicants was required to be such as to enable the commissioner to act understandingly. If parties held by deed or bill of sale, a properly certified copy of the same was to be transmitted ; and where a law sanctioned a verbal sale of a mining claim accompanied by immediate transfer, proof of the vendee's title, actual possession at the time of the sale, accompanied by im- mediate transfer of the same to the vendees, were also ordered to be furnished, together with a certificate, from the county recorder that no adverse conveyance appeared on his records for the premises claimed; 17th. Proof was required (a certificate from the officers being sufficient) that a diagram of the claim had been filed in the local land office, and a notice of the application posted in the register's office; 18th. A certified copy of a portion of the mining regulations was deemed insufficient. A certified copy of all the customs complete, as they existed at the date of the location, was required; 19th. The survey and plat of the claim was also ordered to be transmitted to the General Land Office, together with a copy of the field-notes, with an approved plat, having on it the indorse- ments required by the third section of the Act of 1866, and representing the claim in relation to the township and standard liues of the public surveys; 20th. An affidavit was required of reliable person, or persons, acquainted with the premises, to the effect that the claim, as surveyed and platted, contained but one known vein or lode. When applicants presented, as proof of important facts, the affidavits of absent persons, the local officers were ordered to have the characters for truth of such absent deponents vouched for by some responsible officer to whom they were known, and if this were not done in good faith, and the officers satisfied of the credibility of the deponents, the affidavits were not to lie received. All transmittals were to be accompanied with a letterof advice, tin- testimony in the case, and the joint opinion of the register and receiver on tin- claims. (Decision of Com. June 6th, 1868; lure Kelsey Lode, Zabriskie's Land Laws, 212.) In still another case the papers were found satisfactory on the following points : 1st. 'flu- character of the vein exposed; 2d. The expenditure' in labor and improvements; 3d. Thai diagram and notice were filed and posted in the register's office fur ninety days, and thai thr required notice was published in a newspaper for the same period; 4th. That the claim was surveyed and platted, ami survey and plat approved and indorsed as required by statute; 5th. That i spi rises of survey, plat, ami notice, ami the price of the land, had been paid by the claimants ; 6th. A.s to the citizenship of the claimants; 7th. As to certain transfers oJ interest, the proof was round insufficient, and further proof required ; 8th. That the notice and diagram were posted in a conspicuous place on the claim, as required by the statute; 9th. That the premises claimed and surveyed contained hut one vein or lode; LOth. in l oca t ions of so large a size as 1,000 feet, the printed copy of the mining laws transmitted was considered insufficient proof, and was required to be supported by the corroborative testimony of at leasl two Intelligent prat tical miners of the district, familiar with its mining customs and regulations. Proof was allowed to be furnished cither orally in the office, to be reduced to writing, or by affidavits; bul in case the latter § 6 THE FIRST MINING ACT. 9 lands should be patented unless they were those that were free from all questions relating to the possession. Not content with saying that the possession should be free from controversy, which might imply active assertion of right by proceedings in Court, or otherwise, it did say that the mines should be free from all opposing claims. That is to say, no patent shall issue for any mineral lands about which any one, other than the petitioner, asserts any right of possession, and all 3ontroversy must relate to possession, for title is in the Govern- ment, and therefore cannot be in question. A controversy and opposing claim was, therefore, sufficient, irrespective of its merits, to prevent the issuance of a patent until the claim was decided. 1 Section two was the most important, and the controlling section of the act. The occupation, either before or after the act, preceded the right of entry. The expenditure in actual labor or 'improvements on the claim, in a sum equal to that named in the act under the district laws, was absolutely essen- tial as the condition of development. This provision was not a condition subsequent, merely directory, to be dispensed with at discretion, but one to be performed in good faith. Such is the rule of interpretation under the Spanish code, which applies the principle of strictissimi juris to the necessary work. If a con- troversy occurred about the title to the claim, the entry could not be made till it was judicially decided. But the existence of a controversy did not prevent the filing of the application for an entry of the claim as a jurisdictional fact, necessary to be averred negatively, as the right to make the application could not be defeated by any loose or indefinite assertion of title, but method was adopted, the credibility of the deponents was to be properly vouched for by a responsible officer, to whom they were either personally known, or who, upon information obtained from competent and reliable sources, would feel himself justified in certifying to their characters for truth and vo- racity, and, in matters requiring judgment and discrimination, to their intelli- gence also. The papers transmitted Avere required to be accompanied with an opinion as to the character and intelligence of all the witnesses and the good faith of the whole proceeding. (In re Clear Creek Quicksilver Mine, Degision of Commissioner, May 15th, 1868; Zabriskie's Land Laws, 216. x New Idria Case, Opinion of Assistant Atty.-Gen. U. S. July 21st, 1871. Decision Acting Secretary of Interior, August 4th, 1871; Copp's U. S. Mining Decisions, 47. 10 INTRODUCTORY. § 7 was to be presented under the act in form, in order to be rec* ognized as a controversy. This section did not explicitly require a written application for the title or patent to the claim or mine. The claimant was only required " to file in the local office a diagram of the same." The third section spoke of the notice of an " intention to apply for a patent." In no other part of the act was reference made to written applications for a patent. The first subdivision of the instructions under the section referred to " the application filed as aforesaid," but the language was not to be found in the section. It was, however, necessarily implied, and the implica- tion had all the force of positive expression. The written application should have possessed all the requisites stated by the law as conditions precedent, and shown upon its face, by a plain and succinct statement, that the applicant brought himself within the terms of the law. The form should have possessed the substantial requisites of a pleading; as the source of title it became the original muni- ment in the claim of title, followed by the final paper — the patent. 1 § 7. Citizenship required. — There was a difference between the restricted language of the first section, giving the freedom of the mines to citizens of the United States and those who declared their intention of becoming citizens ; and the unqualified language of the second section : " Any person, or association of persons " " who claim a vein or lode," etc. There was a question whether an alien in possession of a lode, who had expended the neces- sary sum and conformed to the local rules and customs of miners, could make an application alone, or with his associates, f or a patent. The instructions wen- at first silent. Ordinarily, an alien might be entitled to make application. The genera] language of the section was not restrained by the (ir-i section, whirl, had no relation to titles. That aliens were in possession <>l' such claims, alone and associated with citizens, u;i a well-known Eact, and thai foreign capital had assisted to ;| large extent in developing our mines was also well-known. There was no provision of the law to deprive them of their i V;il'-'s Mining Claims, 362. § 8 THE FIRST MINING ACT. 11 claims by confiscation, or providing for a proceeding in the na- ture of office found, the subject will be more fully discussed hereafter in considering applications under the Act of 1872 and the Revised Statutes. 1 § 8. Entry and diagram. — Under the Departmental In- structions, it was held that mining claims might be entered at any district land office in the United States under this law, by any person or association of persons, corporate or incorporate In making the entry, however, such a description of the tract was required to be filed as would indicate the vein or lode, or part or portion thereof, claimed, together with a diagram repre- senting, by reference to some natural or artificial monument, the position and location of the claim, and the boundaries thereof, so far as such boundaries could be ascertained. In all cases, the number of feet in length claimed, on the vein or lode, was to be stated in the application filed, and the lines limiting the length of the claim were required in all cases to be exhibited on the diagram, and the course or direction of such end-lines, when not fixed by agreement with the adjoining claim- ants, nor by the the local customs or rules of the miners of the district, were ordered to be drawn at right angles to the ascertained or apparent general course of the vein or lode. 2 Where, by the local laws, customs, or rules of miners of the district, no surface ground was permitted to be occupied for min- ing purposes, except the surface of the vein or lode, and the walls of such vein or lode were unascertained and the lateral extent of such vein or lode unknown, it was sufficient, after giving the description and diagram, to state the fact that the extent of such vein or lode could not be ascertained by actual measurement, but that the vein or lode was bounded on each side by the wall of the same, and to estimate the amount of ground contained between the given end-lines and the unascertained Avails of the vein or lode ; and in such case the patent issued for all the land contained between such end-lines and side-walls, with the right to follow such vein or lode, with all its dips, angles, and varia- 1 Yale's Mining Claims and Water Rights, 3G1, 362, 363. 2 Instructions Jan. 14th, 1867; Zabriskie's Land Laws, 200; Copp's U. S. Min- ing Decisions, 239. 12 INTRODUCTORY. § 8 tions, to any depth, although it might enter the land adjoining : provided, the estimated quantity should be equal to a horizontal plane bounded by the given end-lines, and the walls on the sides of such vein or lode. 1 Where, by the local laws, customs, or rules of miners of the district, a given quantity of surface- ground was fixed for the purpose of mining or milling the ore, the diagram and description in the entry were required to cor- respond with and include so much of the surface as was allowed by such laws, customs, or rules for that purpose. But where, by such customs and rules, no surface-ground was permitted to be occupied for mining purposes, except the sur- face of the vein or lode, and the walls of such vein or lode were ascertained and well-known, such wall was required to be named in the description and marked in the diagram in connection with the end-lines of such claims. In the absence of uniform rules in any mining district, limiting the amount of surface to be used for mining purposes, actual and j^eaceable use and occupation for mining or milling purposes were to be regarded as evidence of a custom of miners authorizing the same. And the ground so occupied and used in connection with the vein or lode, and being adjacent thereto, might be included within the entry, and the diagram was to embrace the same as appurtenant to the mine. 2 Where the claimant or claimants desired to include within their entry and diagram any surface-ground beyond the surface of the vein, it was necessary, upon filing the application, to fur- oish the register of the land office with proof of the usage, law, or custom under which he or they claimed such surface-ground, and such evidence might consist either of the written rnles of the miners of the district, or the testimony of two credible witnesses to the uniform custom, or the actual use and occupation ; which testimony was required to be reduced to writing by the register and receiver, and filed in the register's office with the applica- tion, a record thereof to be made. 3 Where the diagram showed and the application stated that "no surface-ground is claimed 1 [natructioin .Ian. Ilth, Isiii; /aliriskic's Land Laws, 200; Copp's U. S. Min- ing I tecisions, 239. -Il.i.l. 8 II, Hi. § 9 THE FIRST MINING ACT. 13 along the line of the lode," this, it was held, failed to comply with the requirement of a diagram " so extended, laterally or otherwise, as to conform to the local laws, customs, and rules of miners." Such an application was rejected. 1 § 9. Defects in the instructions. — The greater part of the instructions related to the mode of the surveys, descriptive of the land to be patented. The law did not change the system of sur- veys applicable to the public lands, except in ordering the survey of the claims upon the land not " hitherto surveyed by townships, ranges, and sections," from established base and meridian lines. The deviation from the rectangular system, authorized by this law, exists in certain cases in the general laws, where rectangular lines are impracticable and inexpedient, as remarked by Mr. Yale, 2 the proviso in the instructions under the second section, that the estimated quantity of the land surveyed should be equal to a horizontal plane bounded by the given end-lines, and the walls on the sides of each vein or lode, and the other parts of the instructions under this section, making the walls of the lode the lateral boundaries, whether ascertained or unascertained, where the local laws did not give surface-ground beyond the walls, were found inadequate to the purposes of the law. Such local laws were not generally found in force in any important mining camp, as surface-ground beyond the known, probable position of the walls of the veins is nearly always absolutely required for working purposes, independent of drifting, when necessary. Nor was the instruction consistent with the geological forma- tions of metalliferous veins, whether we adopt the theory of the filling of a fissure vein by an expansive force from below, as applicable to true fissure lodes, or an injection, as it is sometimes called, or by infiltration from above, as applicable to another class of lodes. " Each theory," says Yale, " is correct in given cases, according to received opinions. In the first case, where the walls of the vein are rough, an increase of mineral is ex- pected with an increase of depth and frequent irregularities of width in the vein ; and in the second case, where the vein 1 In re Gould and Conde Lodes, and McKibben Lode. Decision of Comr. March 24«h, 1873; Copp's U. S. Mining Decisions, 165. 2 Yale's Mining Claims, 3G3. 14 INTRODUCTORY § 10 is wide at top, with smooth walls of the same material on both sides, we are justified in assuming that the vein is wedge- shaped, thinning gradually as the walls converge. A large pro- portion of metalliferous veins have their opposite walls nearly parallel, and Lyell gives an example in the celebrated vein of Audrensburg, in the Hartz, which has been worked at a depth of 500 yards perpendicularly and 200 horizontally, retaining almost the entire length a uniform width of three feet. But many lodes are extremely variable in size, being only one or two inches in one part and eight or ten feet in others, and again narrowing as before. Such alternate swelling and COn- tracting is characteristic of these lodes, and is fully explained." " De la Beche observes that the walls of fissures in general are rarely perfect planes throughout their entire course ; nor could we well expect them to be so, since they commonly pass through rocks of unequal hardness and of different mineral composition. If, therefore, the opposite sides of such irregular fissures slide upon each other, or if there be a fault, as in the case of so many lodes, the parallelism of the opposite walls is at once entirely destroyed. The great mother-vein of Mariposa and Tuolumne, according to Prof. Whitney's report, is very irregular in width, varying from two feet to several rods. A surface width, upon a horizontal plane, bounded by the ascertained walls of the lode at the surface, did not satisfy the law by giving the entire lode within the length to the claimant, including its increased width as ascertained in descending. 1 The law itself gives the right to follow the lode with its dips, angles, and variations. The instructions were belter adapted to the Comstock lode, which is very wide near the surface, than to lodes in general." § 10. The application, under the Acts of 18GG and 1870, was required by the Land Department to be in writing, and filed in the office of the register and receiver of the land district in which the claim lay. It staled the name of the applicant, and whether the claim was applied for by an individual, an asso- ciation, 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 rfjustoms; 1 Kale's Milling Claims and Water Bights, 361-3G4. § 10 TIIE FIRST MINING ACT. 15 where the same was recorded ; whether the applicant claimed as a locator or purchaser ; gave a description of the premises claimed, and the nature of the improvements made or labor performed ; and finally, that the claimant had 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 the posting. With the application the claimant filed a copy of the " dia- gram " posted on the claim, which " diagram " was recpaired to represent the boundaries of the premises, as fixed by the local laws, customs, or rules of miners ; and when the claim lay up- on surveyed land, it showed its relation to the public surveys. Diagrams of placer claims upon surveyed lands represented the subdivision which the claimant desired to enter, as the act required such entries in their exterior limits to conform to the legal subdivisions. With the diagram, it was necessary to file a copy of the " notice " posted upon the claim. This notice stated the name of the claimant ; described the claim ; gave the names of the adjoining claims, or if none adjoined, the names of the nearest claims ; stated whether it was a placer or rock claim : if the former, the approximate area ; if the latter, the estimated extent of the 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 dis- trict, county, and State in which it lay ; 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 stated that it was the intention of the claimant to apply for a patent for the premises designated, and upon which it was posted. 1 There was also to be filed with the application satisfactory evi- dence that the applicant had the possessory right to the claim, agreeably to the local laws or customs of miners. This con- sisted 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, of a certificate under seal, of the county or mining recorder, instructions Aug. 8th, 1870, Copp's M. D. 25G; Instructions Jan. 14th, 18G7, Ibid. 241; Zahriskie's Land Laws, 200. 16 INTRODUCTORY. § 11 giving a copy of the record of the original location of the claim, with the name or names of the locators ; and, if the applicant claimed as a purchaser, an abstract of title was to be filed, tracing the right of possession from the original locators to the applicant. Where applicants furnished satisfactory evidence that they and their grantors had held and worked their claims for a period equal to the time prescribed by the Statute of Limi- tations of mining claims of the State or Territory where the same might be situated, such evidence being sufficient to estab- lish 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 above enumerated were not required. 1 § 11. Publication of the notice. — Upon filing these papers, the register and receiver gave the same careful examination, and if found to be regular, the register ordered 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 required the claimant to enter into an agreement with the publisher' to the effect that no claim or demand should be made against the United States for the payment of such publication, until the filing of which agreement the register was required to decline to order the publication. The cost of the pub- lication of notice was, therefore, not to be estimated by the Sur- veyor-General. The register also posted copies of the "notice" and " diagram " in his office for ninety days, and on forwarding the case to the General Land Office, certified that they were so posted. On the expiration of the ninety days, the claimant, or bis duly authorized agent, filed with the register his own affida- vit, supported by at least one other person, cognizant of the fact, thai the "notice" and "diagram" were posted in a con- spicuous place upon the claim for the period of ninety consecu- tive days, giving the date of the same. The affidavit of the publisher was also required to be filed, to the effect that the •• notice," ;i jniiitcfl copy of which was attached, was published in hi- newspaper Eor ninety days, giving the dates on which Mich publication commenced and ended, and that he had re- ceived payment in full Eor the same. These affidavits were to 1 [natructions Aug. 8th, L870j Copp's I'. S. Mining Decisions, 257. § 12 THE FIRST MINING ACT. 17 be taken before the register and receiver, or any officer author- ized to administer oaths within their district ; but if taken before a magistrate without an official seal, his official character was to be authenticated under seal by the county clerk, in the usual manner. If all the proof furnished was satisfactory to the register and receiver, and no adverse claim had been filed, those officers, at the end of the ninety days, so informed the applicant for patent, and the Surveyor-General, who made 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 was required, and when the claimant 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 filed with the Surveyor-General one of the duplicate certificates of deposit, that officer ordered the claim to be surveyed and plat- ted in accordance with the regulations, except in cases where the claimant had 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 might be platted and adopted by the Surveyor- General for the final survey. Copies of plat and field-notes of survey were to be sent to the register and receiver, and to the General Land Office, the latter accompanied by the certificate of deposit. 1 The register and receiver examined the returns of survey, and, if satisfactory, allowed the entry to be completed at the rate o£ five dollars per acre, or fractional part of an acre, for lode claims, or two and one-half dollars per acre for placer claims,, and transmitted all the papers on their files bearing upon the case to the General Land Office, together with their joint opin- ion thereon, so that a patent might be issued if the proceed- ings were found regular. 2 § 12. The duties of claimants, registers, and receivers under the Act of 1866, were abstracted by the Department as fol- 1 Instructions August 8th, 1870; Copp's U. S. Mining Decisions, 258. 2 Ibid. W. C.— 2. 18 INTRODUCTORY. § 12 lows : " Claimant to post a notice on the claim, giving information of his intention to apply for a patent ; to file a diagram with the register, together with the evidence of the rules of miners in support of the claim and its extent. After the diagram and notice have been posted ninety days, and no adverse claim filed, the claimant to apply to the Surveyor-General for a survey of the claim, deposit the amount estimated by the Surveyor-Gen- era] to cover the expenses of the survey, platting, and notice, with any Assistant United States Treasurer, or designated de- pository in favor of the United States Treasurer, to be passed to the credit of the fund created by " individual depositors for the surveys of public lands," taking duplicate certificate of deposit, filing one with the Surveyer-General, to be sent to the General Land Office, and retaining the other ; and when the survey is approved, and diagram thereof, together with the Surveyor-General's certificate as to improvements, and charac- ter of the vein exposed, the claimant to pay to the receiver the price of the claim. The register and receiver to examine the tes- timony filed by the claimant, showing the applicability of miners' rules in reference to the extent of the claim, which testimony is to be reduced to writing, and filed with the claimant's application in the register's office ; also to examine the returns of survey approved by the Surveyor-General, and filed by the claimant. Receiver to receive from the claimant the price of the claim on his filing with the i*egister and receiver the approved plat and certificate of the Surveyor-General, as to the value of im- provements and character of vein exposed, based on the testi- mony of two reliable witnesses. '1 he register's diagram of the claim being filed by the claim- ant, tlic register shall publish a notice in a newspaper nearest the claim, naming the mine, claimant, adjoining claimant, dis- trict, and county, informing the public that application has been made £or a patent. The register will post the notice in his office for ninety days, ami on the publisher presenting his ac- count to the register, immediately on the expiration of the ninety days he will transmit it to the Surveyor-General; and on the receipt fnnn the claimants of the Surveyor-General's certificate of the improvements on tin; claim, together with plat and other evidence of the survey approved, also the receiver's receipt for § 13 THE FIRST MINING ACT. 19 the payment for the claim, the register will transmit the same, with proof indorsed by the register and receiver as satisfactory, to the Commissioner of the General Land Office for patent." * "Surveyor- General's duty when no adverse claim is filed, proof furnished that the diagram and notice had been posted for ninety days, and on receiving also from the register the ac- count of the publisher of the notice. "The Surveyor-General, when applied to by the claimant for the survey of his claim, shall estimate the expense of the survey, platting, and notice, and when a certificate of deposit is filed with him by the claimant, he shall order the survey to be made and transmit the certificate of deposit to the General Land Office. When the returns of survey are made to the Surveyor- General's office, he will approve the same, hand the necessary evidence thereof to the claimant, to be filed by him in the reg- ister's and receiver's office, for examination and final prepara- tion of patent certificate by the register for transmission to the Commissioner of the General Land Office. The Surveyor- General will also transmit returns of the survey to the commis- sioner, with the account of the surveyor, and that of the pub- lishers of the notice for direct payment from the United States Treasury to the parties entitled, as in case of payments made out of the funds deposited under tenth section of the Act of Congress, approved May 30th, 1862, and joint resolution of June 1st, 1864." 2 § 13. What a patent conveyed. — Every patent issued un- der the act expressly conveyed to the patentee the surface-ground embraced by the exterior boundaries of the survey of his claim, together with the right to follow the vein or lode along the course to the number of feet expressed in the patent, with its dips, angles, and variations, to any depth, although the lode should, in its dip or course, leave the surface-ground patented, and enter the land adjoining. The restriction was to one vein or lode. None of the patentees' rights existing under this sec- tion were affected by its i-epeal.' 3 In all applications, therefore, 1 Instructions June 25th, 18G7; Copp's U. S. Mining Decisions, 247. 2 Ibid. s Act of 1872, Sees. 9, 12, 1G; 17 U. S. Stats. 92. 20 INTRODUCTORY. § 14 pending at the date of the passage of the Act of 1872, although the patents were not issued till afterward, they conveyed the surface-ground embraced by the interior boundaries of the sur- vey, and the right to follow the vein as above indicated, and also all other veins, lodes, or ledges, throughout their entire depth, the top or apex of which lay inside of such surface-lines extended downward vertically, although such other veins, lodes, or ledges, might so far depart from a perpendicular in their course down- ward as to extend outside the vertical side-lines of the surface- location, provided, that their right of possession to such out- side parts of such other veins, lodes, or ledges was confined to such portions thereof as lay between vertical planes drawn downward through the end-lines of their location, so continued in their direction that such planes would intersect such ex- terior parts of such veins, lodes, or ledges ; no right being granted, however, to the claimant of a vein or lode which ex- tended in its downward course beyond the vertical lines of his claim, to enter upon the surface of a claim owned or possessed by another. The Act of 1872 enlarged those rights, and in the applications for patents pending at the date of its passage, May 10th, 1872, authorized the issuance of patents upon such applications, which patents, in addition to granting to the patentee the right to follow the particular vein or lode along its course, although it might enter the land adjoining, to the number of feet ex- pressed in the patent along the course thereof, and to any depth, also gave such patentee the right to follow all other veins, lodes, or ledges, the top or apex of which should lie within the exterior boundaries, if the same were not adversely claimed on May 10th, 1872, only to such extent, however, along the course thereof as might be embraced by such external boundaries, but to any depth ; and furthermore, the act granted the exclusive right <»i possession to the surface-ground embraced by the sur* vey. 1 § 14. Diagram, notice, survey, and patent. — The third section, which was also repealed by the Act of 1872, read as 1 In re Hercules Lode ; Decision of Commissioner, Dec. 2Gth, 1872 ; Copp's U. S. Mitring I (eel long, 154. § 14 THE FIRST MINING ACT. 21 follows : " Sec. 3. That upon the filing of the diagram as pro- vided in the second section of this act, and posting the same in a conspicuous place on the claim, together with a notice of in- tention 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.'' 1 Notice. — The notice required in the third section was re- quired to state the name of the claimant, the name of the mine, the name of adjoining claimants on each end of the claim, the dis- trict and county in which the mine Avas situated, informing the public that application had been made for a patent for the same. If no adverse claim was filed, and satisfactory proof was pro- duced that the diagram and notice had been posted in the manner and for the period stipulated in the statute, it became the duty of the Surveyor-General to proceed in the manner pointed out in the section. 2 The register was to give the notice required for the period of ninety days, and adverse claimants had the entire ninety days in which to file their claims ; and immediately upon the expira- tion of the ninety days, if there had been no adverse claim filed, the claimant had the right to apply to the Surveyor-General i Act of July 26th, 1866, 14 U. S. Stat. 252. 2 Instructions Jan. 14th, 1867; Zabriskie's L. L. 200; Copp's Decis. 239. 22 INTRODUCTORY. § 15 for a survey, and upon its being approved, and the land paid for and the proper papers forwarded to the Commissioner, he was entitled to his patent. Ninety days were given in which to file adverse claims. They were required to be filed within that period. 1 Where there was no evidence that a proper notice or diagram was posted on the claim, and the affidavits that were filed did not describe the notice or diagram, and did not state when they were posted up, this was held not to be a compliance with the statute. There was, besides, no proof that the published notice agreed with the description in the application, and the application was rejected. 2 § 15. Survey. — As preliminary to the survey, the Surveyor- General was required to estimate the expense of surveying and platting, and ascertain from the register the cost of the publication of notice, the amount of all of which was to be deposited by the applicant for survey 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 the surveys of the public lands." Duplicate certificates of such deposits were to be filed with the Surveyor- General for transmission to the General Land Office, as in the case of deposits for surveys of public lands, under the tenth section of the Act of Congress approved May 30th, 1862, and joint resolution of July 1st, 1864. Alter the survey thus paid for was duly executed, and the plat thereof approved by the Surveyor-General, designating the number and the description of the location, accompanied by his official certificate of the value of the labor and improvements, and character of the vein exposed, with the testimony of two or more reliable persons cognizant of the facts on which his certifi- cate was founded as to the value of the labor and improvements, thi' party claiming filed the same with the register and re- ceiver, and thereupon paid to the receiver five dollars per acre 1 In re- Flagstaff Lode, Decision of Secretary, March 14th, 1872; Copp's U. S. Mining l decisions', ?'-'. -In re New idria Mining Company's Application; " McGarrahan's Case," Decision of A.cting Secretary, Aug, 4th, L871; Opinion of Assistant Attorney. ( .. neral, -Inly 21st, 1871 ; Copp's U. S. Mining Decisions, 47-50. § 16 THE FIRST MINING ACT. 23 for the premises embraced in the survey, and filed with those officers a triplicate certificate of deposit, showing- the payment of the cost of survey, plat, and notice, with satisfactory evi- dence, which was the testimony of at least two credible witnesses, that the diagram and notice were posted on the claim for a period of ninety days as required by law. Thereupon, it was the duty of the register to transmit to the General Land Office the plat, survey, and description, with the proof indorsed as satisfactory by the register and receiver, so that a patent might issue if the proceedings were found regular ; but neither the plat, survey, description, nor patent was allowed to issue for more than one vein or lode. 1 The unity of the surveying system was to be maintained by extending over the mining districts the rectangular method, at least so far as township lines were concerned. The contemplated surveys of the mineral lands were to be made by district deputies, under contracts, according to the mode adopted in the survey of the public lands and private land claims, embracing in them all such veins or lodes as might be called for by claimants entitled to have them surveyed. In consideration of the very limited scope of surveying in- volved in each mining claim, the per mileage allowed by law was not considered adequate to secure the services of scientific surveyors, and hence the necessity of resorting to a per diem principle, it being thought the most equitable under the circum- stances. The Surveyor-General was, therefore, authorized to commis- . sion resident mineral surveyors for different districts, where, isolated from each other, and absolutely inconvenient for one surveyor promptly to attend to the several calls for surveying in such localities, the compensation not to exceed $10 per diem, including all expenses incident thereto. Bonds in the sum of $10,000 were required from such surveyors. 2 § 16. Posting the notice of application to make the entry. — The details of the instructions under this section, and of the section itself, were to be strictly attended to. 1 Instructions January 14th, 1867; Zabriskie's L. L. 200; Copp's Decis. 239. 2 Ibid. 24 INTRODUCTORY. § 17 The application to the Surveyor-General to make the survey after the register and receiver had acted, was to be made by the claimant in writing, the necessary proof made before him of the work and its value, and payment made of the money for the survey by the deposit. When the survey was approved by him, and his certificate given to the claimant, based upon the testimony of two witnesses, the certificate was to be filed with the register and receiver, into whose hands the case came for the second time. Evidence was then given before them of the posting of the notice and diagram for ninety days on the claim, by two witnesses. Five dollars per acre was then paid to the receiver for the quantity of land embraced in the survey. The two officers then transmitted to the General Land Office " the plat, survey, and description, with the proof indorsed as satis- factory." It was not stated whether the written application of the claimant was to be transmitted or not. The patent was then issued " if the proceedings were found regular " for the limited quantity of one vein or lode. 1 § 17. Effect of irregularities — Notice of application — Requisites. — The purpose of the diagram and notice was analo- gous to a legal summons, by which any and all parties are noti- fied that unless within a given time they come forward and de- fend any rights or interest they may have in certain premises, their rights to do so shall become barred, and judgment rendered for claimant. The diagram and notice should, therefore, have been carefully prepared : any deception in the notice might have been a cause for the rejection of the claim.' 2 But immaterial discrepancies, not likely to deceive parties to be notified, have been disre- garded. 3 Enformal and irregular applications were not countenanced. A case presented the following irregularities : the notice was published nearly a month prior to the date of the application, and lor the same length of time before the notices and diagrams 1 Kale's Mining ( Slaima and Water Rights, 366, 367. -In re Flagstaff Lode, Decision of Commissioner, December 8th, 1871; Copp's Decia. 75. :; in re Flagstaff Lode, Decision of Secretary, Nov. 24th, 1.S71 ; Ibid. 71. § 18 THE FIKST MINING ACT. 25 were posted on the claim and in the office of the register, and not during the ninety days of posting notices ; the description and location of the premises as given in the notices and diagrams were meager and incorrect ; the evidence submitted by the ap- plicant showed that he had the record title to 240 linear feet only, whereas the application was for 1,200 feet. The office declined to issue a patent under these circumstances, and rejected the application. The applicant subsequently made a motion for a rehearing, and filed an abstract of title showing that at the time of the motion he had the record title to 1,200 linear feet of the lode, but as the applicant had not become sole owner until eleven months after the application for patent, the motion for rehearing was overruled. 1 If the proceedings were irregular by a defect in the applica- tion, either in the allegations on substantial points in the failure to prove the necessary work and expenditure, the posting and advertisement, the proof of the local laws, the compliance with them, the diagram and survey, and the payment for the land and expenses, the amplication for the patent was rejected, and the applicant left without evidence of title. These were the equities to be maintained before the Government parted with the fee. 2 § 18. Fees of surveyors. — The per diem allowance to dep- uty surveyors, including all expenses of assistants for surveys of mineral claims, (see Instructions Jan. 14th, 1867) having been found inadequate, and in consequence, parties, in order to induce deputies to make the surveys, found it necessary to pay ad- ditional sums as on private account, the surveyors-general were authorized to increase the maximum per diem allowance accord- ing to the difficulty of the service, taking care, however, to have the work performed on the most economical scale by skillful and responsible surveyors, and in no case to exceed a maximum of twenty dollars per day. In each case where over ten dollars per day were allowed, the reasons showing the necessity thereof 1 In re Red Warrior Lode, Decision Acting Commissioner, June 18th, 1873; Copp's U. S Mining Decisions, 204, 206; Decision of Commissioner, October Sth, 1873; Ibid. 2 Yale's Mining Claims, 3GG, 3G7. 26 INTRODUCTORY. §§ 19-20 were required to be stated in the contract and then reported to the General Land Office ; and no extra compensation was to be exacted or received by the deputy under penalty of forfeiting the contract, and exclusion from the public surveying service. 1 § 19. Size of locations-^-Adjustment of surveys. — The fourth section provided : " Sec. 4. 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 j>ossession 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 conve- nient 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." 2 § 20. Duties of deputy-surveyors. — The deputy-surveyors were required to be scientific men, capable of examining and re- porting fully on every lode they surveyed, and to bring in dupli- cate specimens of the ore, one of which was ordered to be sent to the ( reneral Land Office, and the other the Surveyor-General was authorized to keep, to lie ultimately turned over with the sur- viving archives to the State authorities. The surveyors of mineral claims, whether on surveyed or unsurveyed lands, were ordered to designate those claims by a progressive series of numbers, beginning with No. 37, so as to avoid interference in that respect with the regular sectional series <>l numbers in each township; and were to designate the four corners of each claim, where the side-lines of the same 1 in Lug, siii, 1870; <'nji|>'s r. s. Mining Decisions, 2D3. a An <,f July 26th, 1866, n D". S, Stat. 252. § 21 THE FIRST MINING ACT. 27 were known, so that such corners could be given by either trees, if any were found standing in place, or any corner-rocks existing in place, or posts might be set diagonally, and deeply imbedded, with four sides facing adjoining claims, sufficiently flattened to admit of inscriptions thereon ; but where the cor- ners were unknown, it was sufficient to place a well-built, solid mound at each end of the claim. The beginning corner of the claim nearest to any corners of the public surveys was to be connected by course and distance, so as to ascertain the rel- ative position of each claim in reference to township and range when the same had been surveyed ; but in those parts of the surveying district where no such lines had been extended, it was the duty of surveyors-general to have the same surveyed and marked, at least so far as standard and township lines were concerned, at the per mileage allowed, so as to embrace the mineral region, and to connect the nearest corners of the min- eral claims with the corners of the public surveys. If found impracticable to establish independent base and meridian lines, or to extend township lines over the region containing mineral claims required to be surveyed under the law, then there was to be surveyed, in the first instance, such a claim, the initial point of which would start either from a confluence of waters, or such natural and permanent objects as would unmistakably identify the point of the beginning of the survey of the claim, upon which other surveys would depend. 1 § 21. Following the vein to any depth. — An applicant for a patent under the Act of I860 might include surface-ground ly- ing oh either or both sides of the vein, as part of his claim, or apply for a patent for the vein alone. His rights upon the vein and in working into it were precisely the same, whatever might be the form of his surface-ground, or whether he had any or none. His end-lines and the distance between them were the same at all depths as upon the surface, no matter whether the position of the vein was vertical, or whether it dipped at a less or great- er angle. This resulted directly from the right granted to the miner by all the local mining customs, as well as by the national 1 Instructions Jan. 14th, 1867 ; Zabriskie's L. L. 200; Copp's Decis. 239. 28 INTRODUCTORY. § 22 mining act, of following the vein with all its dips, angles, and variations. The Congressional enactment adopted in this respect the pro- visions of the mining customs, subordinating the rights of a patentee in respect to the surface-ground to the more important rights in respect to the vein, "granting the right to follow the latter, with all its dips, angles, and variations, although it might enter the land adjoining, and requiring the adjoining land to be sold subject to this condition. If a vein descends vertically into the earth, no controversy "will arise. The measurement at the bottom is the same as at the surface. Suppose the cavity to have been made, and by a convulsion of nature the vein is swung from a vertical position to that of an angle, the first cavity in its last position represents the rights of a miner where the vein dips or inclines. 1 § 22. Mode of survey — Quantity and restriction to one claim. — The first instructions under this section were explicit except on three points : 1st. The number and quantity allowed each person or associ- ation before the passage of the act. 2d. The number of persons Avho constituted an association under the act, to take up 3,000 feet. 3d. Whether an indefinite number of claims could be taken up by the same individual by complying with the act, on different lodes. The first omission was partly supplied by the law itself, as the quantity was referred to the local laws of the district, which governed before the law was passed. The second by the subsequent interpretation which the Com- missioner put upon the act. The third point was left to the General Law, as the act con- tained do restriction as to the number of claims by an individual or association, excepl that not more than one should be taken up on the same lode. The mining laws limited the number of claims by location to one in the district, with an additional quantity to the discoverer ; by the General Law, the number by 1 In r«- Mount joy Lode, Decision of Commissioner, Jan. 7th, 1870; Copp's U. S. Mining Decisions, 27, § 23 THE FIRST MINING ACT. 29 purchase could not be limited by the district laws of the mines. The pre-emption laws limit the right to one location, and the declaration of the claimant made under oath is stringent in this respect. This act followed none of the analogies of the pre- emption laws in these particulars. The third section having provided that the plat, survey, and patent should in no case cover more than one vein or lode, and that this should be expressed in the patent, this section again declared that no person could take more than one location on the same lode. The reasonable quantity of surface for the convenient work- ing of the claim was fixed by local rules, and should always have included sufficient ground for mills, workshops, dwellings, stables, drifting, and structures for manipulating the ores. Points for convenient drainage should always have been located with the claim, in anticipation of the necessity which might arise. The incident of timber was secured with the claim, but unless the surface-survey included a sufficient quantity, and there was timbered land in the vicinity, a pre-emption claim should have been located in connection with the mining claim, as there was nothing in the pre-emption acts prohibiting an entry to a lode under the act, in addition to the pre-emption claim. The limitation of quantity under this act superseded all dis- trict laws, allowing a greater quantity than 200 feet to an indi- vidual location. The district laws generally limited the quan- tity fixed upon as so much for each man, and partners or cor- porations could only take up a number of feet corresponding to the number of the original locators. § 23. Deviation from the rectangular form of survey. — The phrase, " circumstances of the country," undoubtedly meant the physical conformation of certain localities not admit- ting of lines at right angles in the location and description of mining claims. There were no local rules to comply with res- pecting the forms of the claims to which the surveys were to be adapted, but the extent and location of claims were regulated in many instances by the accidental conformation of the diggings and claims marked out with reference to the cardinal points or the form of the lines comprising the boundaries. In lode-claims 30 INTRODUCTORY. § 24 located on the sides of hills or in ravines, the regulation is in- dispensable, and the form of the claim must take the shape of the country. 1 § 24. Number of feet located. — There was, after the pas- sage of the Act of 1866, no authority of law for the location of more than 1,200 feet by five persons, provided they were dis- coverers, or 1,000 feet if claimed simply as locators. Where certain applicants had applied for more, a patent was refused, but they, claiming as discoverers, were allowed to take 1,200 feet along the line of the lode, in which event they were instructed to have their monuments moved by a United States deputy-surveyor, and the plat and field-notes amended accordingly, a re-survey of the premises being held not neces- sary. They were also given the option of making re-locations under the Act of 1872, in which case they wGre recpiired to commence de novo, after filing notice of location with the proper local officer, the proceedings being the same as if no previous application had been made. In this event, the Surveyor- General was allowed to adopt the field-notes of survey already made, with the necessary amendments as to distances along the vein and corner monuments, thus saving the applicants the ex- pense of a re-survey. 2 The act fixed a limit for claims on all veins or lodes from and after its passage, which limit could not be exceeded, no matter what the local regulations allowed, the Congressional maximum being 200 feet along the course of the lode to each locator, with an additional claim of 200 feet for discovery, and fixed 3,000 feet as the utmost extent that could be located or claimed upon the -.inn' by any association of persons after the 26th of July, 1866. After this date no individual in any district could " locate : " or " claim " more than 200 feet on the course of any Lode discovered thereafter unless he was the discoverer, when lie could take an extra claim of 200 feet, and not more than 3,000 feet could thereafter be located or claimed upon any one vein by any association of persons, and to locate 3,000 feet of such 1 Yal<-'s Mining Claims and Wat it I lights in California, 369, 370. -in re San Xavier Mine, Decision Commissioner, July 10th, 1873; Copp'sU. S. Mining Decisions, 209, § 24 TIIE FIRST MINING ACT. 31 lode required not less than fourteen bona fide locators to be associated together, each taking a claim of 200 feet, with 200 feet additional to the discoverer, or fifteen locators where they claimed without regard to the discovery right. In making these locations, the miners had the option of taking up and re- cording their claims either as segregated individual locations of 200 feet each, and working or disposing of them as such, or they could associate together and locate a number of these claims in common, provided the legal maximum of 3,000 feet was not exceeded, after the 26th day of July, 1866. This statute did not fix any amount of work or expenditure as necessary to hold a claim, but left that to be regulated by the miners themselves. It did, however, prescribe that an amount of not less than $1,000 should be expended on the claim as one of the conditions precedent to obtaining a patent?- Where an applicant filed affidavit that the lode was discovered prior to the passage of the Act of 1866, and the record evi- dence showed it was not located till after the passage, the rec- ord evidence was held to control, and the act governed as to amount of location; and where 3,000 feet had been located the monuments were ordered removed by the deputy United States surveyor and placed at the four corners of 1,000 feet, the grant- ors having claimed by virtue of discovery, and the locators be- ing only four in number, and the plat and field-notes were ordered to be amended accordingly. 2 The construction first placed by the Land Office upon the provisos was that the limitation of claims in the aggregate to 3,000 feet on a lode to any person or association was wholly pros- pective, and related entirely to claims taken up after the date of said act, leaving the parties who held the possessory rights to claims previously located, although in excess of that maximum, at liberty to apply for and receive patents therefor, but the Assistant Attorney-General, in the New Idria Case, 3 had advised, 1 In re Helmick Silver Mining Co. Decision of Commissioner, August 27th, 1872; Decision Acting Secretary, September 4th, 1872; Copp's U. S. Mining Decisions, 136, 139. 2 In re Dunkirk Lode, Decision of Commissioner, Sept. 17th and Oct. 11th, 1873; Copp's U. S. Mining Decisions, 224. 3 Decision of Assistant Atty.-Gen. July 21st, 1871; Copp's U. S. Mining Decisions, 57. 32 INTRODUCTORY. § 24 and the Acting Secretary of the Interior had followed the ad- vice, 1 and held, reversing the decision of the Commissioner, that although the local law allowed in mining for cinnabar an ap- propriation of 160 acres, the statute limiting the claim to 3,000 feet controlled, and that Congress did not intend to provide that all new claims originating after the passage of the act should be limited to the 3,000 feet for each association, and at the same time provide that claims originating before its passage should be entitled to more. Following this view, the office, on March 27th, 1872, 2 refused and declined to issue patents conveying more than 3,000 feet along the vein or lode, whether the location was made before or after the date of the Act of 1866. The last proviso of this section limited the quantity of land that could be appropriated by any one association to 3,000 feet. Local rules when conflicting must give way to statutory provis- ions. 3 1 Decision of Acting Secretary, August 4th, 1871; Copp's U. S. Mining De- cisions, 47. 2 Decision of Commissioner, March 27th, 1872; Copp's IT. S. Mining Decisions, 83. -Many controversies arose in regard to the proper construction of the fourth section, some contending that under it a company formed merely for mining purposes and locating claims could take 3,000 feet on the vein, although such company or association might be composed of less than fourteen individuals. It was held by the Land Office that the manner of making locations, and the num- berof feel thai could he taken on the same vein or lode by an individual or an iation, depended upon the rules and customs of miners of the respective districts, the Act of 1866 in no respect superseding or modifying those customs, except wlare they authorized, the location of more than 200 feet on the same 1 de i\. an .. one person, ormorethan 3,000 feet by any association of persons. !n in i • i i the statute restricted and reduced locations made after the act to the above named quantities respectively, as the maximum in each case. And this was the only difference existing between the local mining regulations and the controlling acl " f Congress. ,\i, individual could aot, therefore, locate more than 200 feet on the same lode. ,,,,i an a sociation more than 3,00C feet, no matter how many persons might be associated together, or what the local customs prescribed. Whether a company or association could take as much as .".,000 feel depended upon the mining regu- lations of the particular district, and the number of persons associated in such company. Individual could aot, by forming themselves into companies, locate a greater number of Eee1 to each person than could be done by each acting sep- arately, 'i bey mighl Locate as a company or an association at the rate of 200 to each individual embraced in it, with an additional 200 feet to the discov- , ,-, ., . [f ti,,- local ■ ii torn ■ permitted that much to be taken, until 3,000 feet wer© Located, after which no additional quantity could be claimed on the same lodo § 25 THE FIRST MINING ACT. 33 § 25. Adverse claims and contests. — Section 6 (also ex- pressly repealed) provided as follows : " Sec. G. That when 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 a final settlement and adjudication in the Courts of com- petent jurisdiction of the rights of possession to such claim, when a patent may issue as in other cases." This provision was intended to protect the rights of third parties against the claim of the applicant, and authorized a con- test before the proper tribunals, so that the right to the mine might be determined between the claimant and the contestant, and the patent issue to the proper party. Under our land system, the registers and receivers of the Land Office have authority to determine contests between two or more pre-emptors claiming the same quarter-section of land, sub- ject to the decision of the Commissioner, and an appeal from him lies to the Secretary of the Interior. So far, the question belongs to the Executive Department, and the decision is min- isterial, although involving judicial questions. These decisions, however, may be revised by the judiciary in proper cases, and are not always conclusive. This provision, transferring the con- by the same company, whatever might be the number of its members. In dis- tricts where the mining regulations limited locations to less than 200 feet to each individual, or less than 3,000 feet to any association of persons, claimants were restricted accordingly, such regulations remaining in full force, being, unaffected by the act of Congress. These remarks, however, applied wholly to original locations, made in pursu- ance of the rules and regulations of miners in the several mining districts. They had no application to claims in the hands of purchasers, and a mining claim of 3,000 feet might be owned and controlled by an association of less than four- teen persons, where possession was obtained by bona fide purchases for valua- ble consideration, or partly by purchase and partly by location, there being nothing in the act to prevent an association composed of any number of indi- viduals from holding such claim, and, upon proper application and proof, obtaining a patent for it. But as to associations or companies, formed for the purpose of locating claims, they were subject to the limitations of the fourth section, and the restriction of 200 feet to each locator could not be evaded by forming an association. The restriction to 3,000 feet was applied, whether the location was made prior or subsequent to the date of the act. (Decision of Commissioner, July, 18G9; Za- briskie's L. L. 224; Land Office Reports, 1868-9, Report of Secretary of Interior, 144; Decision Commissioner, March 27th, 1872; Copp's M. D. 83; New Idria Case Opinion of Assistant Att'y-Gen. U. S. July 21st, 1871; Copp's M. D. 51.) W. C— 3. 34 INTRODUCTORY. § 25 test to the judiciary, was an innovation in the public land system. The provision was defective in many particulars. Under the third section, the notice of the filing of the claim was to be given for the period of ninety days, and after the ex- piration of that period, if no adverse claim was filed, the Sur- veyor-General made the survey under the provision of this section, the adverse claimant might appear at any time before the approval of the survey, as provided in the third section. This extended the period indefinitely until the approval of the survey, and consecpiently, the contest might not be limited to the ninety days previously specified. As the surveyor did not get posses- sion of the case till the lapse of the ninety days after the proof had been made in the register's office, this additional time was necessarily indefinite, as no time was limited within which the survey was to be made, other than reasonable convenience de- manded. This section did not state the mode of contesting the applica- tion before the land officers. No form of contest was indicated, whether written or oral. But the adverse claim was to be by necessary implication in writing, setting forth substantially the grounds of the contest by claiming the mine as against the ap- plicant and all others. All proceedings were then stayed, both by the surveyor and the land-owners, " until a final settlement and adjudication in the Courts of competent jurisdiction of the rights of possession to such claim." What were the Courts of competent jurisdiction was a matter left tQ be determined by the existing laws. No Court was des- ignated as the competent tribunal, no attempt was made to confer jurisdiction upon Federal Courts, as Congress might have done, nor was an attempt made to give jurisdiction to State Courts, which already possessed it. The question to be determined was distinctly stated, viz : the rigid of possession. No other right could be involved, as no title had yet passed from the I 'nit' I States. The Federal Courts had already jurisdiction to determine such actions, in cases brought directly before them, under the Nevada Judicial Act of 1865, general in its provisions to all ( lourts. But under that act the jurisdiction was over the subject ; and the jurisdiction over the parties must have been derived from existing laws other than the Act of 18GG, where the paramount title was in the United States. § 26 THE FIRST MIXING ACT. 35 Where the applicant claimed under a derivative title from the locators, or those claiming under the locators, and the adverse claimant derived his title from the same original source, it was a proper case of contest, and the Court should have awarded the patent to the proper party. There was no limita- tion in the act within which the contest must have been com- menced in the Courts after filing the adverse, claim, or by which a party could be coerced to a speedy trial. 1 § 26. Proceedings on adverse claims. — Should a party appear as an " adverse claimant," as contemplated by the sixth section of the act, the register was ordered to require such person to show by proof the claim or interest he might have in the mine, and if satisfactory to the register, all proceedings were to be stayed until a final settlement and adjudication should be had in the Courts. But in case the adverse claimant, after proceedings had been stayed, failed to institute action in the Courts, either pending or at their next ensuing session, with a view to a final adjustment of the claims, the register was ordered to proceed with the case as if no objection had been filed. The sufficiency of the adverse claim was a matter expressly referred to the local Courts by the statute, but the land officers were to be satisfied that the opposing claim was such as was contemplated by the sixth section. They were not to suffer the forms of law to be fraudulently used by pretended claimants, having in fact no rights worthy of investigation in the Courts. For instance, if it appeared that the adverse claim relied upon, related to a settlement claimed under the Pre-emption or Home- stead Laws of the United States, it would have been decided not to be such a claim as was to be referred to the judicial tri- bunals for determination, and upon the filing of which the pro- ceedings were to be stayed, and the case suspended to await trial in Court, these tribunals having no jurisdiction of claims arising under the Pre-emption and Homestead Laws. The adverse claim must have been one arising under the local customs and rules of miners. The claimant was required to file an affidavit stating fully the nature of his claim, and if the facts 1 Yale's Mining Claims and Water Rights, 372, 373. 379. 36 INTRODUCTORY. § 27 disclosed present opposing interests under these regulations, or the local laws of the State or Territory, the proceedings were to be stayed ; after which, it became the duty of the party out of possession to carry the case into the Courts, and have his rights judicially determined. The language of the second sec- tion, " having previously occupied and improved the same," did not refer to an occupancy at some remote period. It meant an occupancy continuing up to the date of the application for a patent, otherwise the mine could not be said to be one " in re- gard to whose possession there was no controversy or opposing claim." The very fact, therefore, of the applicant being out of possession, and an adverse party in possession, showed the claim to be one for adjudication in the Courts before it could be dis- posed of in the Land Office. Hence, it was the duty of all applicants under the Mining Act to state in their applications whether they were occupying the premises for which a patent was asked ; and if not, whether an adverse party was in possession. If the latter was the case, the party was notified that an appli- cation for a patent was made, in order that he might file an affidavit of his claim, 1 and the case was then suspended for ac- tion in the Courts. § 27. Miscellaneous. — The register was ordered to enter claims under the act in separate tract-books from those used for agricultural lands — dividing the books into townships and ranges, allowing about eight pages to each township. A new series of numbers was ordered to be commenced — beginning with No. 1, and continued in regular order. As no special fee was provided for, registers and receivers were allowed one per cent, each on amount of purchase-money, as in cash sales. The: money received was to be accounted for in the receiver's returns as cash received from sale of mineral claims. 2 W'liei-e the rules of miners did not permit ground to be occu- pied, except the surface of the vein or lode, the claims presented might contain Less than an acre of ground. In such cases, the Land Office does not deal with a fraction, and the price of five 1 in itructions July, 1869; Zabriskie's I-. L. 239. - [nstructions June 25th, L867;Copp'a U.S. Mining Decisions. 245; Instructions July. 1869; Zabriskie's L L. 239. § 27 THE FIRST MINING ACT. 37 dollars was to be paid for the same. If the area exceeded that quantity, ten dollars ; if more than two acres, fifteen dollars, and so on. In applications for mineral claims it was necessary, where a claim contained less than one acre, that the agreement expressed should be to pay five dollars for the claim. 1 1 Instructions June 25th. 1867; Copp's U. S. Mining Decisions, 245. 38 RESERVATIONS AND EXCEPTIONS. § 28 CHAPTEE IL RESERVATIONS AND EXCEPTIONS OF MINERAL LANDS IN GRANTS BY THE GOVERNMENT. § 28. Mineral lands reserved. § 29. Mineral lands in certain States not excepted. § 30. Exception from certain grants. § 31. The policy of the Government in reserving or excepting mineral lands. § 32. Excepting clause in placer and agricultural patents. § 33. Saline lands. § 34. School lands containing mmeral. § 35. School lands in Nevada. § 36. Mineral lands in railroad grants. § 28. Mineral lands reserved. — Sec. 2318 of the Eevised Statutes of the United States provides as follows : " In all cases, lands valuable for minerals shall be reserved from sale, except as otherwise expressly directed by law." 1 And by Sec. 2258 of the Eevised Statutes it is provided that : " The following classes of lands, unless otherwise specially pro- vided for by law, shall not be subject to the rights of pre-emp- tion, to wit : First. Lands included in any reservation by any treaty, law, or proclamation of the President, for any purpose. Second. Lands included within the limits of any incorporated town, or selected as the site of a city or town. Third. Lands actually settled and occupied for purposes of trade and busi- aess, and not for agriculture. Fourth. Lands on which are sit- uated any known salines or mines." 2 Minerals in the Indian Territory arc said to be not reserved by tli' United States, and the Land Office has no control over such land.' in such Territory. 3 I See Art, of July 4th, 1866, 1 1 U. S. Stats. 8G. - Rev. Stat. 2268, Bee. 10, Act Sept. 4th, 1841; 5 U. S. Stat. 455. See Wilcox v. Jackson, 13 Pet. 498; Josephs v. 0.8.1 N. & II. 197; Turners. Am. B. Union, 5 McLean, 844; U. S. V. B, B. Bridge Co. 6 McLean, 517; Russell v. Beebe, Hemps. 704. ■ 1 1' < Isionoi CominissioiK-r, June 26th, 1873, Copp'sU. S. Mining Decisions, 208. §§ 29-31 RESERVATIONS AND EXCEPTIONS. 39 § 29. Mineral lands in certain States not excepted. — Sec. 2345 of the Revised Statutes reads : " The provisions of the preceding sections of this chapter shall not apply to the mineral lands situated in the States of Michigan, Wisconsin, and Min- nesota, which are declared free and open to exploration and pur- chase, according to legal subdivisions, in like manner as before the tenth day of May, one thousand eight hundred and seventy- two. And any bona fide entries of such lands within the States named, since the tenth day of May, one thousand eight hundred and seventy-two, may be patented without reference to any of the foregoing provisions of this chapter. Such lands shall be of- fered for public sale in the same manner, at the same minimum price, and under the same rights of pre-emption as other public lands." 3 Exceptions from the operation of the act. — By an act to ex- clude the States of Missouri and Kansas from the provisions of the Act of May 10th, 1872, it is provided that, within the States of Missouri and Kansas, deposits of coal, iron, lead, or other mineral, are excluded from the operation of the Act of 1872, and all lands in those States are declared subject to disposal as agricultural lands. 2 Non-mineral affidavits, therefore, are not required from parties who desire to secure title to land within those States. 3 § 30. Certain grants not to include mineral lands. — " No act passed at the first session of the thirty-eighth Congress, granting lands to States or corporations to aid in the construc- tion of roads or for other purposes, or to extend the time of grants made prior to the thirtieth day of January, one thousand eight hundred and sixty-five, shall be so construed as to embi*ace mineral lands, which in all cases are reserved exclusively to the United States, unless otherwise specially provided in the act or acts making the grant." f § 31. The policy ot the Government in reserving or excepting mineral lands. — It has already been stated that it 1 Rev. Stat. 2345; Act Feh. 18th, 1873; 17 U. S. Stat. 4G5. 2 Act approved May 5th, 1876. 3 Decision of Commissioner, July 21st, 187G, 3 Copp's Land-owner, 132 * Rev. St. 2316; Act, Jan. 30th, 1S65: 13 U. S. Stat. 567. 40 RESERVATIONS AXD EXCEPTIONS. § 31 had always been the policy of the Government of the United States to reserve from sale and pre-emption entry lands contain- ing minerals or " known mines." 1 The truth of this statement will be demonstrated by reference to various acts of Congress. " In 1785, the Continental Congress reserved one-third part of gold, silver, lead, and copper mines ; but this principle was after- ward abandoned. Salt-springs and lead mines were reserved by subsequent laws, and leased by the Government. The former were generally given to the new States on their admission ; but under restrictions. They could not be sold, nor leased for a period exceeding ten years. By Acts passed in 1846, (9 Stat, at L. 37) and 1847, (Id. 181) the States were authorized to dispose of their salt springs ; and lead and copper mines in the northwest were thrown open to settlers, and made subject to pre-emption. The Acts of July 1st, 1864, (13 Stat, at L. 343) and March 3d, 1865, (Id. 529) threw open coal lands to entry, but fixed the minimum price at twenty dollars per acre, instead of allowing pre-emption at the ordinary rate." 2 The ordinance of the Revolutionary Congress, continuing until the Constitutional Congress of 1789, for ascertaining the mode of disposing of the lands in the western territory, passed May 20th, 1785 — and which is the basis of our present land system — reserved " one-third part of all gold, silver, lead, and copper mines, to be sold, or otherwise disposed of, as Con- gress shall hereafter direct" ; and in the form of grant, or patent prescribed by the act, the language is, " excepting and reserving one-third part of all gold, silver, lead, and copper mines within the same, for future sale or disposition." 3 In numerous instances, from 1807, where lands were author- ized to be sold in particular sections of the country, lead mines were reserved from sale ; and by an Act of the 3d March, 1807, (2 Stat, at L. 445j the President was authorized to lease the lead mines for a period not exceeding three years. The Supreme Court of the United States held that power was given to Con- 1 Ant.-. Bee. i. Gold Mill Quartz M. Co. u. Isn. 6 Oregon, 107. - Am. Law Review, Vol. 2, p. 388. ;: American State Papers, Public Lands, Part l, 13, it ; Yale's Mining Claims. 320 § 31 RESERVATIONS AND EXCEPTIONS. 41 gross by the Constitution to dispose of the public lands, and that power included the power to lease as well as to sell. 1 By the eighth section of the Act of the 3d of March, 1849, (9 Stat, at L. 396) the powers of the Secretary of the Treasury over lead and other mines, relating to their supervision and lease, and the accounts with agents, were transferred to the Department of the Interior created by that act. The tenth section of the General Pre-emption Law of 1841 (5 Stat, at L. 453) expressly excepted from the operation of the law " all lands on which are situated any known salines or mines." The grants to railroad companies contain similar reservations of mineral lands ; and even the Sutro Tunnel Act, while grant- ing all the minerals discovered in the construction of the tunnel, and a pre-emption to two sections of land near the mouth of the tunnel for the use of the same, excepts the minerals con- tained in the land, and declares that the land shall not be selected from mineral land. 2 By the Act of March 3d, 1853, (10 Stats, at L. 244) to pro- vide for the survey of public lands in California, and to grant pre-emption rights thereon, the Act of September 4th, 1841, is extended to California, and the Surveyor-General prohibited from running other than township lines on mineral lands. The right of pre-emption on unsurveyed lands was limited to the period of one year, and mineral lands were excluded from its operation. The inhibition is repeated throughout the act. Min- eral lands arc excepted by the sixth section, and by the seventh section, which provides that no person shall obtain the benefits of the act by a settlement or location on mineral lands. (10 Stats. 244.) The Act of July 23d, 18GG, to quiet land titles in California, which required an approval of the selection under a school-land warrant issued by the State authorities, also, by Sec. 1, excepts mineral lands from the selections. (14 IT. S. Stat, at L. 218.) Reservations in railroad grants. — Sec. 10 of the Act of July 25th, 18GG, (14 Stats. 239) granting lands to aid in the con- struction of a railroad from the line of the Central Pacific Rail- 1 United States v. Gratiot, 14 Pet. 526. 2 Sec. 2, Act of July 25th. 1868; 11 U. S. Stats. ^42. 42 RESERVATIONS AND EXCEPTIONS. § 31 road, in California, to Portland, Oregon, limits the grant to alternate sections of land not mineral. The third section of the Act of 1862, (12 Stats. 489) to aid in the construction of a rail- road from the Missouri River to the Pacific Ocean, reserves the mineral land, but grants the timber on it. By Sec. 2 of the Act of July 13th, 1866, (14 Stats. 94) to aid in the construction of a railroad from Folsom to Placer ville, in California, ten alternate sections per mile, designated by odd numbers, on each side of the line, " not containing gold or sil- ver," were granted. The proviso is added that the word " mineral " shall not be held to include iron or coal. On the 30th of January, 1865, a joint resolution, reserving mineral lands from the operation of all acts of the first session of the Thirty-eighth Congress, was passed. (13 Stats. 567.) But Fletcher v. Peck, 6 Cranch, 87, decides that where a right vests by legislative grant, even in the case where a fraud was committed by the party interested in obtaining it, a repeal of the act cannot divest the right ; and certainly a legislative dec- laration could not effect it. While, therefore, such a resolu- tion might be important as showing the intention of Congress, if an act had actually granted mineral land, and there was no room for construction, it would probably be inoperative. 1 The Government never parted with the right to the mines. — It was said, in U. S. v. Parrott, 1 McAllister, C. C. 271, (which was ;i branch of the celebrated Castillcro litigation, relative to the ^scw Almaden quicksilver mine) that neither the policy nor legislation of a State could deprive the United States of any legal right they had to the mines. The Act of 1850, (9 U. S. Stats. 452) admitting California into the Union, expressly provided that the people of that State, through their legislature, or otherwise, should never interfere with the primary disposal of the public lands within its limits, and should pass no law and do no act whereby the title of the United States to, and right to dispose of, said lands should be impaired or questioned. Congress had never parted with the 1 Yule's Mining Churns. '.V2'J. § 31 RESERVATIONS AND EXCEPTIONS. 43 mines nor the right to dispose of them, but had a right at any moment to dispose of them. 1 Reservations in grants to the States. — The Pre-emption Act of 1841, granting to certain States therein named, and to all new States afterward admitted, 500,000 acres of land, excluded reserved lands, salines, and known mines from sale. It was held, in California, that the question as to whether mineral or agricultural land prevailed, having been ascertained by the officers of the State, and the selection approved by the United States, a State patent would hold the land. 2 By the seventy-two section grant for the use of a seminary of learning, and by the ten-section grant for public buildings, (see Sees. 12 and 13, Act of March 3d, 1853, 10 Stats. 248) mineral lands and reserved lands Avere reserved from location. So, also, with the Act of May 30th, 1862, extending the pre- emption laws, Sec. 7 (12 Stats. 410). And the Act of July 2d, 1862, (12 Stats. 503) for mining colleges. The Illinois lead case. — Digging for minerals on the public domain of the United States, before the passage of the Mining Act of 1866, was a trespass, entitling the Government to dam- ages in an action at law, and was such waste as might have been restrained by injunction. 3 By an Act of the 3d of March, 1807, 2 U. S. Stats. 445, the lead mines of Indiana Territory, and afterward the State of Illinois, were reserved from sale, and the President authorized to lease them for a period not exceeding three years, and a grant of land, containing a lead mine discovered before the sale, was declared to be fraudulent and void; and, in U. S. v. Gear, 3 How. 120, the defendant in a civil action was held guilty of trespass, in mining for lead upon land in the State of Illinois, and an injunction was granted restraining hiin from the commission of waste. By the fifth section of the act, the lead mines were reserved from sale. By the Act of June 26th, 1834, to create additional land districts in the State of Illinois and elsewhere, in connec- tion with the Pre-emption Acts of 1830 and 1832, all the lands described in the Act of 1834 became the subject of sale and pre- iU. S. v. Parrott. 1 McAll. C. C. 271. 2 Ah Yew v Choate, 24 Cal. 562. 3 U. S. v. Gear. 3 How. U. S. 120. 44 RESERVATIONS AND EXCEPTIONS. § 31 eruption ; and the question in Gear's case was, whether the Act of 1834 repealed the reservation contained in the Act of 1807, and subjected the land in question, containing lead ore, to pre- emption and sale. The Court held that there was no repeal, and that the land was not open to settlement by reason of the reservation ; besides, the right of the Government, as owner of the land, to restrain the trespass, was complete and perfect. 1 Implied license. — That there was ever an implied license from the Government to mine for the precious metals upon the public land, by reason of its indulgence, if not the direct en- couragement extended to the mining population, was always denied in the Courts of the United States. The defendant, in the case of U. S. v. Parrott, claimed this license, and through it, immunity from damages for waste, but the claim was de- nied. 2 The sale of lead mines. — By an Act of July 11th, 1846, (9 Stats. 37) Congress authorized the sale of the reserved lead mines in the States of Illinois and Arkansas, and the then Ter- ritories of Wisconsin and Iowa, at an increased rate of $1.25 per acre, as the minimum at public sale, but still excepting the lead mines from the operation of the pre-emption laws, until after they had been offered at public sale. By the Act of March 3d, 1847, (9 Stats. 179) to create an additional land district in Wisconsin, pre-emption was granted to parties in the possession of lead mines by occupation, through discovery, or lease, under the United States. By the Act of March 1st, 1847, (9 Stats. 14G) the copper mines of Michigan were ordered to be sold, civino; certain preferences to lessees under the Government, and persons in possession. But by the Act of Sept. 2Gth, 1850, (9 Stats. 472) both of these were repealed, and this placed the mineral lands within these districts upon the same footing, as to sale, private entry, and pre-emption, as other public lands of the United States, sav. iii' r certain vested rights. 8 i Bee Coo. ,n /•. I . S. ]| Eow. U. S. L"J'.>; Yale's Mining Claims, 331. -r. S. ,-. Parrott, I McAU. C. C. Rep. 271 ; ('. S. v. Castillcro, 2 Black. U. S. ]7; Yale's Mining Claims, p. 333. "• See ' 'ooper v. Robert >, L8 I lew. 173; Higgins v. Houghton, 25 Cal. 252. § 31 RESERVATIONS AND EXCEPTIONS. 45 Sale and 'pre-emption of coal lands. — Coal lands having been reserved under the General Pre-emption Act of 1841, an Act of July 1st, 1864, (13 Stats. 343) for the disposal of coal lands and town property on the public domain, authorized tracts em- bracing coal fields, or coal beds — and which by that act and past legislation were excluded, as mines, from ordinary private en- try — to be sold. By an amendatory Act of March 3d, 1865, (13 Stats. 529) citizens of the United States, who at that date were actually engaged in bona fide coal mining, on public lands not reserved for purposes of commerce, had a pre-emption to 160 acres of land, and might enter the same. Grants from Indian Tribes in America. — The character of the grant of mines from Indian tribes came up for discussion in the important case of Chouteau v. Moloney, (16 How. U. S. 203) which was an action in the nature of ejectment for a large tract of land, including the whole city of Dubuque, Iowa, and which tract was formerly a part of the Louisiana territory acquired by the United States from France under the Treaty of Paris of 1803. It was admitted that the defendant had all the title that the United States possessed under the treaty. But the plaintiff claimed that he had acquired title to the land before the treaty ; and, as private property was excepted from the cession to the United States by the terms of the treaty, the Government of the United States never had any title to give, nor any interest that could pass by its patent. It is to be remembered that the French had retained possession of Louisiana up to 1762, when they ceded it to Spain ; but in 1800, Bonaparte, then First Consul, induced the Spanish Gov- ernment to retrocede it to France, and it remained French terri- tory until the cession to the UnitedtStates in 1803. During the interval of time when it was the property of Spain — viz, in 1788 — the tribe of Indians called the Foxes sold to the person under whom plaintiff claimed, a permit to work at a cer- tain mine as long as he pleased, and also sold and abandoned to him all the adjacent coast and contents of the mine. In 1796, the grantee or licensee presented his petition to the governor of the territory, under the Spanish rule, for a confirmation of the sale, and a grant of the mine and land, and the governor made 46 RESERVATIONS AND EXCEPTIONS. § 31 confirmation and grant accordingly. The question, therefore, was, did the title then pass ? The question was to be decided under the Spanish laws and regulations then in force, and under those laws and regulations it was held, in the first place, that the Indian tribes never had any right to interfere with or dispose of the mines within the dominion of Spain. The right of the Indians, as recognized by the latter country, extended to occupancy, but never to sale of the territory. In that case, it was also held that the Avords of the grant from the Indians did not show an intent to part with anything more than a mining privilege, and that the governor, in his subsequent grants, only intended to confirm such rights as the Indians had previously given; and, further, that the proceedings to obtain the grant for the lands were irregular under the Spanish laws, and no complete title passed. The title confirmed and granted was good as a permission to dig and work the mines, but nothing more. 1 By Article 4 of the Treaty, proclaimed January 17th, 1865, concluded on the 12th of October, 1863, between the United States and the Shoshone-Goship bands of Indians at Tuilla Valley, Utah, (now a part of Montana) it was provided that the country of the tribe might be explored or prospected for gold and silver, and other minerals and metals, and when mines were discovered that they might be Avorked, etc. (13 Stats. 682.) This is the first declaration to be found in the laws of the United States, authorizing, with the consent of Indian chiefs, the digging of gold upon public land — if such a provision can be called an authorization. Further acts of Congress. — By the Act of February 27th, 1865, it was provided that no possessory action between indi- viduals in any of the Courts of the United States, for the recovery of any mining title, or for damages to any such title, should be affected by the fact that the paramount title to the land on wliidi the mines were was in the United States, but each case was l<> be adjudged by the law of possession. (13 Stnts. 441. j This section is general in its terms, and applies to all Federal Courts. 1 Chouteau v. Moloney, 1G How. 203. § 32 RESERVATIONS AND EXCEPTIONS. 47 The Act of May 5th, 1866, Section 2, (14 Stats. 43) concerning the boundaries of the State of Nevada, recognized and protected possessory rights to mining claims in Nevada, but proceeded further to state that the act was not to be construed as o-rantino- a title in fee to any mineral lands held by possessory titles in the mining States and Territories. Next came the Act of July 25th, 1866, (14 Stats. 242) granting the right of way, and other privileges, to Adolph Sutro and his assigns, and commonly known as the Sutro Tunnel Act. This was the first act of Congress which, in express terms, granted a mining privilege on public land to any individual, or the public at large. § 32. Excepting clauses in placer and agricultural pat- ents. — A patent for a placer claim conveys " all valuable mineral and other deposits within the boundaries thereof," if no veins or lodes are claimed or known to exist within the exterior limits . of the claim patented at the date of patent. In cases arising under the eleventh section, 1 an excepting clause is inserted as follows: "That, should any other vein, or lode, of quartz, or other rock in place, bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposit, be claimed or known to exist within the above described premises at the date hereof, the same is expressly excepted and excluded from these presents." In all agricultural land patents the following clause is inserted, viz : " Subject to any vested and accrued water-rights for min- ing, agricultural, manufacturing, or other purposes, and rights to ditches and reservoirs used in connection with such water- rights as may be recognized and acknowledged by the local cus- toms, laws, and decisions of Courts, and also subject to the right of the proprietor of a vein or lode to extract and remove his ore therefrom should the same be found to penetrate or intersect the premises hereby granted, as provided by law." No title to a mining claim can be secured under an agricul- tural land patent. (See Sec. 2258, Eev. Stat.) 2 1 Rev. Stat. U. S. Sec. 2333. 2 Decision of Commissioner, July 29th, 1875, 2 Copp's Land-owner, 82. 48 RESERVATIONS AND EXCEPTIONS. § 33 § 33. Saline lands. — These lands sire not subject to home- stead or pre-emption entry. (See Sees. 2258 and 2289, Rev. Stat. U. S.) The policy of the Government has been uniform since the inauguration of the land system, to reserve from sale salt-springs. The Act of May 18th, 1796, (1 U. S. Stat. 466) requires every surveyor to note in his field-book the true situation of all mines, salt-licks, and salt-springs, and reserves for future disposi- tion by the United States every salt-spring which may be dis- covered, together with the section of one mile square which in eludes it. The Act of May 10th, 1800, (2 U. S. Stat. 73) continued these reservations, and authorized sales to be made of the public lands by the Register and Receiver, excluding the sections re- served by the above mentioned act. The Act of March 26th, 1804, (2 U. S. Stat. 277) providing for the disposal of the public lands in the Indiana Territory, declares that " the several salt-springs in the said Territory, to- gether with as many contiguous sections to each as shall be deemed necessary by the President of the United States, shall be reserved for the future disposal of the United States." It has been the policy of the Government to reserve these salt-springs and lands from sale, as is evidenced by the text of the different acts regulating the disposal of the public lands. The Act of April 30th, 1802, (2 U. S. Stat. 173) admitting the State of Ohio, granted to the State certain salt-springs. The Act of April 18th, 1818, (3 U. S. Stat. 429) authoriz- ing the admission of the State of Illinois, grants all the salt- springs and the lands reserved for the use of the same to the State. The Act of March 6th, 1820, (3 U. S. Stat. 545) authoriz- ing the people of Missouri to form a State government and for the admission of the State, provides "that all salt-springs, not exceeding twelve in number, with six sections of land adjoin- ing to each, shall be granted to the said State for the use of said Stati'. Provided, that no salt-spring, the right whereof now Is, or hereafter shall be, confirmed or adjudged to any individual or individuals, shall by this section be granted to the -aid Stud-." § 33 RESERVATIONS AND EXCEPTIONS. 49 The same provision is made in the acts providing for the ad- mission of the following named States, as was provided in case of Missouri, viz : Arkansas, 5 U. S. Stat. 58 ; Michigan, 5 U. S. Stat. 59 ; Florida, 5 U. S. Stat. 789 ; Iowa, 5 U. S. Stat. 789 ; Wisconsin, 9 U. S. Stat. 58 ; Minnesota, 11 U. S. Stat. 166 ; Oregon, 11 U. S. Stat, 383 ; Kansas, 11 U. S. Stat. 269 ; Ne- braska, 13 U. S. Stat. 47. The Act approved March 3d, 1875, (18 U. S. Stat. 474) en- abling the people of Colorado to form a State government, and for the admission of the State into the Union, has the same provisions in regard to salt-springs as those contained in the ..■- Missouri act. The Supreme Court of the United States, in the case of Mor- ton v. Nebraska, 21 Wall. 660, construed the proviso in the ■v o-rant to Nebraska of salt lands. This proviso reads the same ?\) in the Nebraska and Colorado acts, viz : " Provided, that no salt-spring or lands, the right whereof is now vested in any in- dividual or individuals, or which hereafter shall be confirmed or adjudged to any individual or individuals, shall by this act be ^ granted to said State." The State of Nebraska is within the limits of the Louisiana purchase. That part of Colorado which embraced the salt- springs in controversy lies within the boundaries of the territory ceded by Mexico to the United States. The Court held that " the purpose Congress had in view is to be found in the unbroken line of policy in reference to saline reservations, from 1796 to the date of this act. To perpetuate this policy, and apply it equally to all the lands of the three Ter- ritories, ^Kansas, Nebraska, and New Mexico) was the controll- ing cSislJlemtion for the incorporation of the section (Sec. 4 r July<£2Jl, 1S54, 10 U. S. Stat. 308) ; and although the words of th> s£ct5>n are loose and general, their meaning is plain enough when taken in connection with the previous legislation on the subjfict^>f salines. It cannot be supposed, without an ex- press declaration to that effect, that Congress intended to per- mit the !&le of salines in Territories soon to be organized into States, and thus subvert a long established policy, by which it had been governed in similar cases." W. C— 4. ->•, 50 RESERVATIONS AND EXCEPTIONS. § 33 Where it is not shown that any valuable deposit of salt is found upon the land, but the lands appear to be valuable only on account of salt-springs, the office has no authority to dis- pose of the tracts, either as agricultural or mineral lands. Ac- cordingly, certain salt-springs in Colorado, " with six sections adjoining, and as contiguous as may be to each," were reserved, in order that Colorado might be placed on an equal footing with other States in the matter of salt-spring reservations. Filings thereon were rejected. 1 The status of saline lands and salt-springs was fully considered by the Supreme Court of the United States in the case of Morton v. Green et al. and the State of Nebraska, already adverted to. 2 The action was ejectment, plaintiff's title being based upon loca- tions of certain warrants. The real defendant, the State of Ne- braska, insisted that the locations were without authority of law, because the lands on which the warrants were laid were saline lands, and, therefore, not subject to entry. Justice Davis, deliv- ering the opinion of the Court, said : " The policy of the Govern- ment, since the acquisition of the northwest territory and the inauguration of our land system, to reserve salt-springs from sale, has been uniform. The Act of May 18th, 1796, (1 Stats. 464) the first to authorize a sale of the domain ceded by Virginia, is the basis of our present rectangular system of surveys. That act required every surveyor to note in his field-book the true sit- uation of all mines, salt-licks, and salt-springs ; and reserves for the future disposal of the United States a well-known salt- spring on the Scioto River, and every other salt-spring which should be discovered. " These reservations were continued by the Act of May 10th, 1800, (2 Stats. 73) which created land districts in Ohio, with registers and receivers, and authorized sales by them; the pre- ceding act having recognized the governor of the northwest territory and the Secretary of the Treasury as the agents for the Bale of the lands. And the same policy was observed when provision was made in 1804 for the disposal of the lands in the Indiana Territory— embracing what are now Illinois and Indi- i Hull v. Litchfield. Decision of A.c6ng Commissioner, March 2d. 1876, 2 Copp's Land-owner, it'.i. 821 Wall. c. s. 660. § 33 RESERVATIONS AND EXCEPTIONS. 51 ana. (2 Stats. 277.) It was then declared ' that the several salt-springs within said Territory, with as many contiguous sec- tions to each as shall be deemed necessary by the President, shall be reserved for the further disposal of the United States.' AYithout referring particularly to the different acts of Congress on the subject, it is enough to say that all the salines in the Virginia cession were reserved from sale, and afterward granted to the several States embraced in the ceded territory. Congress, in the disposition of the public lands in the Mississippi Territory, (2 Stats. 548 ; 3 Stats. 489) and in the Louisiana purchase, preserved the policy which it had applied to the country obtained from Virginia. Over all the territory acquired from France the general land system was extended. The same rules which were prescribed by law for the survey and sale of lands east of the Mississippi River were transferred to this new • acquisition. (2 Stats. 324.) At the first sale of lands in this region which the President Avas authorized to make, salt-springs, and lands contiguous thereto, were excepted. (2 Stats. 391.) And this exception was continued when, in 1811, a new land district was created. Prior to this time, no portion of the country north of the State of Louisiana had been brought into market. The Act of March 3d, 1811, authorized this to be done, but the President, in offering the lands for sale, was directed to except salt-springs, lead mines, and lands contiguous thereto, which were reserved for the future disposal of the States to be carved out of this immense territory, which included the present State of Nebraska. (3 Stats. QG5, Sec. 10.) And so particular was Congress not to depart from this policy, that in giving lands, in 1815, to the sufferers by the New Madrid earthquake, every lead mine and salt-spring were excluded from location. Indeed, in all the acts creating new land districts, in the territory now occu- pied by the States of Arkansas and Missouri, the manner of selling the public lands is not changed, nor. is a sale of salines in any instance authorized. On the contrary, they incorporate the same reservations and exceptions which are contained in the Act of March 3d, 1811. In all of them, the Act of 18th May, 179G, is the rule of conduct for all Surveyors-General and their deputies, as the Act of 10th May, 1800, is the rule for all reg- 52 RESERVATIONS AND EXCEPTIONS. § 33 isters, requiring them to exclude from sale all salt springs, with the sections containing them " In this state of the law of saline reservations, the Act of 22d July, 1854, was passed. It is by no means certain that the Act of March 3d, 1811, did not work the reservation of every saline in the Louisiana purchase ; but, without discussing this point, it is enough to say that the Act of 1854 leaves no doubt of the intention of Congress to extend to the territory embraced by the States of Kansas and Nebraska, the same system that had been applied to the rest of the Louisiana purchase. There was certainly no reason why a long established policy, which had permeated the land system of the country, should be abandoned. On the contrary, there was every inducement to continue, for the benefit of the States thereafter to be organized, the policy which had prevailed since the first settlement of the north- western territory. In the admission of Ohio and other States, Congress had made liberal grants of land, including the salt- springs. This it was enabled to do by reserving these springs from sale. Without this reservation, it is plain to be seen there would have been no springs to give away, for every valuable saline deposit would have been purchased as soon as it was of- fered for sale. An intention to abandon a policy which had se- cured to the States admitted before 1854 donations of great value, cannot be imputed to Congress, unless the law