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SEC. 2223. Every surveyor-general shall engage a sufficient number of skillful surveyors as his deputies, to whom he is authorized to administer the necessary oaths upon their appointments. He shall have authority to frame regulations for their direction, not inconsistent with law or the instructions of the General Land-Office, and to remove them for negligence or misconduct in office.
CHAP. 2.-Registers and receivers. SEC. 2234. There shall be appointed by the President, by and with the advice and consent of the Senate, a register of the land-office and a receiver of public moneys for each land district established by law.
SEC. 2238. Registers and receivers, in addition to their salaries, shall be allowed each the following fees and commissions, namely:
Ninth. A fee of five dollars for filing and acting upon each application for patent or adverse claim filed for mineral lands, to be paid by the respective parties.
Tenth. Registers and receivers are allowed, jointly, at the rate of fifteen cents per hundred words for testimony reduced by them to writing for claimants in establishing pre-emption and homestead rights.
Eleventh. A like fee as provided in the preceding subdivision, when such writing is done in the land-office, in establishing claims for mineral lands.
Twelfth. Registers and receivers in California, Oregon, Washington, Nevada, Colorado, Idaho, New Mexico, Arizona, Utah, Wyoming, and Montana are each entitled to collect and receive fifty per centum on the fees and commissions provided for in the first, third, and tenth subdivisions of this section.
CHAP. 4.-Pre-emptions. SEC. 2257. All lands belonging to the United States, to which the Indian title has been, or may hereafter be, extinguished, shall be subject to the right of pre-emption under the conditions, restrictions, and stipulations provided by law.
SEC. 2258. The following classes of lands, unless otherwise specially provided for by law, shall not be subject to the rights of pre-emption, to wit:
Fourth. Lands on which are situated any known salines or mines.
SEC. 2289. Every person who is the head of a family, or who has arrived at the age of twenty-one years and is a citizen of the United States, or who has filed his declaration of intention to become such, as required by the naturalization laws, shall be entitled to enter one-quarter section or a less quantity of unappropriated public lands upon which such person may have filed a pre-emption claim, or which may, at the time the application is made, be subject to pre-emption.
CHAP. 8.-Reservation and sale of town-sites on the public lands.
SEC. 2386. Where mineral veins are possessed, which possession is recognized by local authority, and to the extent so possessed and recognized, the title to town lots to be acquired shall be subject to such recognized possession and the necessary use thereof; but nothing contained in this section shall be so construed as to recognize any color of title in possessors for mining purposes as against the United States.
SEC. 2392. No title shall be acquired under the foregoing provisions of this chapter to any mine of gold, silver, cinnabar, or copper; or to any valid mining-claim or possession held under existing laws.
CHAP. 9.–Survey of the public lands. SEC. 2406. There shall be no further geological survey by the government, unless hereafter authorized by law. The public surveys shall extend over all mineral lands; and all subdividing of surveyed lands into lots less than one hundred and sixty acres may be done by county and local surveyors at the expense of claimants; but nothing in this section contained shall require the survey of waste or useless lands.
CHAP. 11.-The public lands. SEC. 2471. Every person who falsely makes, alters, forges, or counterfeits, or causes or procures to be falsely made, altered, forged, or counterfeited, or willingly aids and assists in the false making, altering, forging, or
counterfeiting any petition, certificate, order, report, decree, concession, denouncement, deed, patent, confirmation, diseño, map, expediente or part of an expediente, or any title-paper, or evidence of right, title, or claim to lands, mines, or minerals in California, or any instrument of writing whatever in relation to lands or mines or minerals in the state of California, for the purpose of setting up or establishing against the United States any claim, right, or title to lands, mines, or minerals within the state of California, or for the purpose of enabling any person to set up or establish any such claim; and every person who, for such purpose, utters or publishes as true and genuine any such false, forged, altered, or counterfeited petition, certificate, order, report, decree, concession, denouncement, deed, patent, confirmation, diseño, map, expediente or part of an expediente, title-paper, evidence of right, title, or claim to lands or mines or minerals in the state of California, or any instrument of writing whatever in relation to lands or mines or minerals in the state of California, shall be punishable by imprisonment at hard labor not less than three years and not more than ten years, and by a fine of not more than ten thousand dollars. (18 May, 1858, c. 40, s. 1, v. 11, p. 290.)
SEC. 2472. Every person who makes, or causes or procures to be made, or willingly aids and assists in making any falsely.dated petition, certificate, order, report, decree, concession, denouncement, deed, patent, confirmation, diseño, map, expediente or part of an expediente, or any title-paper, or written evidence of right, title, or claim, under Mexican authority, to any lands, mines, or minerals in the state of California, or any instrument of writing in relation to lands or mines or minerals in the state of California, having a false date, or falsely purporting to be made by any Mexican officer or authority prior to the seventh day of July, eighteen hundred and forty-six, for the purpose of setting up or establishing any claim against the United States to lands or mines or minerals within the state of California, or of enabling any person to set up or establish any such claim; and every person wbo signs his name as governor, secretary, or other public officer acting under Mexican authority, to any instrument of writing falsely purporting to be a grant, concession, or denouncement under Mexican authority, and during its existence in California, of lands, mines, or minerals, or falsely purporting to be an informe, report, record, confirmation, or other proceeding on an application for a gránt, concession, or denouncement under Mexican authority, during its existence in California, of lands, mines, or minerals, shall be punishable as prescribed in the preceding section. (18 May, 1858, c. 40, s. 2, v. 11, p. 291.)
SEC. 2473. Every person who, for the purpose of setting up or establishing any claim against the United States to lands, mines, or minerals, within the state of California, presents, or causes, or procures to be presented, before any court, judge, commission, or commissioner, or other officer of the United States, any false, forged, altered, or counterfeited petition, certificate, order, report, decree, concession, denouncement, deed, patent, diseño, map, expediente or part of an expediente, title-paper, or written evidence of right, title, or claim to lands, minerals, or mines in the state of California, knowing the same to be false, forged, altered, or counterfeited, or any falsely-slated petition, certificate, order, report, decrce, concession, denouncement, deed, patent, confirmation, diseño, map, expediente or part of an expediente, title-paper, or written evidence of right, title, or claim to lands, mines, or minerals in California, knowing the same to be falsely dated; and every person who prosecutes in any court of the United States, by appeal or otherwise, any claim against the United States for lands, mines, or minerals in California, which claim is founded upon, or evidenced by, any petition, certificate, order, report, decree, concession, denouncement, deed, patent, confirmation, diseño, map, expediente or part of an expediente, title-paper, or written evidence of right, title, or claim, which has been forged, altered, counterfeited, or falsely dated, knowing the same to be forged, altered, counterfeited, or falsely dated, shall be punishable as prescribed in section twenty-four hundred and seventy-one.
TITLE XIII.-CHAP. 17.-THE JUDICIARY. (U. S. Rev. Stats., p. 172.)
SECTION 910. No possessory action between persons in any court of the United States for the recovery of any mining title, or for damages to any such title, shall be affected by the fact that the paramount title to the land in which such mines lie is in the United States, but each case shall be adjudged by the law of possession. AN ACT making appropriations for the legislative, executive, and judicial expenses of the government for the fiscal year ending Jane
thirtieth, eighteen hundred and seventy-nine, and for other purposes. (Approved June 19, 1878. U. S. Stats., v. 20, p. 178.)
And the duties prescribed by section of the Revised Statutes numbered four hundred and fifty shall devolve upon and be discharged by one of the executive clerks, to be designated by the President for that purpose.
AN ACT making appropriations for sundry civil expenses of the government for the fiscal year ending Jane thirtieth, eighteen hundred
and eighty, and for other purposes. (Approved March 3, 1879. U. S. Stats., v. 20, p. 394.)
For the salary of the director of the geological survey, which office is hereby established under the Interior Department, who shall be appointed by the President, by and with the advice and consent of the Senate, six thousand dollars: Provided, That this officer shall have the direction of the geological survey and the classification of the public lands and examination of the geological structure, mineral resources, and products of the national domain. And that the director and members of the geological survey shall have no personal or private interests in the lands or mineral wealth of the region under survey, and shall execute no surveys or examinations for private parties or corporations; and the geological and geographical survey of the territories, and the geographical and geological survey of the Rocky mountain region, under the Department of the Interior, and the geographical surveys west of the one hundredth meridian, under the War Department, are hereby discontinued, to take effect on the thirtieth day of June, eighteen hundred and seventy-nine. And all collections of rocks, minerals, soils, fossils, and objects of natural history, archæology, and ethnology made by the coast and interior survey, the geological survey, or by any other parties, for the government of the United States, when no longer needed for investigations in progress, shall be deposited in the National Museum.
The publications of the geological survey shall consist of the annual report of operations, geological and economic maps illustrating the resources and classification of the lands, and reports upon general and economic geology and paleontology. The annual report of operations of the geological survey shall accompany the annual report of the Secretary of the Interior. All special memoirs and reports of said survey shall be issued in uniform quarto series if deemed necessary by the director, but otherwise in ordinary octavos. Three thousand copies of each shall be published for scientific exchanges, and for sale at the price of publication, and all literary and cartographic materials received in exchange, shall be the property of the United States and form a part of the library of the organization; and the money resulting from the sale of such publications shall be covered into the Treasury of the United States, under the direction of the Secretary of the Interior.
DEPARTMENT OF THE INTERIOR, GENERAL LAND-OFFICE,
Washington, D. C., May 9, 1882. To REGISTERS AND RECEIVERS, UNITED STATES DISTRICT LAND-OFFICES:
GENTLEMEN: Your attention is directed to the provisions of the following act of Congress, approved April 26, 1882:
AN ACT to amend section twenty-three hundred and twenty-six of the Revised Statutes, in regard to mineral lands, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That the adverse claim required by section twenty-three hundred and twenty-six of the Revised Statutes may be verified by the oath of any duly authorized agent or attorney-in-fact of the adverse claimant cognizant of the facts stated ; and the adverse claimant, if residing or at the time being beyond the limits of the district wherein the claim is situated, may make oath to the adverse claim before the clerk of any court of record of the United States or the state or territory where the adverse claimant may then be, or before any notary public of such state or territory.
Sec. 2. That applicants for mineral patents, if residing beyond the limits of the district wherein the claim is situated, may make any oath or affidavit required for proof of citizenship before the clerk of any court of record, or before any notary public of any state or territory.
1. It will be observed that the act is not retroactive, and hence cannot affect proceedings had prior to its approval; where citizenship, however, has not been proven, it may be established as provided by section 2 of this act.
2. Where an agent or attorney-in-fact verifies the adverse claim, he must distinctly swear that he is such agent or attorney, and accompany his affidavit by proof thereof.
3. The agent or attorney-in-fact must make the affidavit in verification of the adverse claim within the land district where the claim is situated. Very respectfully,
N. C. MCFARLAND,
DEPARTMENT OF THE INTERIOR, May 26, 1882.
H. M. TELLER,
Decision of July 6, 1882, by Secretary of the Interior, relative to town-sites and mineral locations on the same land.
RICO TOWN-SITE CASE.
1. Tho location of a mill-site claim upon the public land of the United States does not operate as an appropriation thereof so as to reserve
it from town-site location. 2. Burden of proof rests with the protestants. They should show location, title, and compliance with law as regards both lode and mill-sito,
as would be required in a court of justice to establish such claim. 3. Town-sites may be located on mineral land. The question of the relative legal rights of the town-site and the mineral claimant as to
occupation or possessory title to the surface must be left to courts of competent jurisdiction to settle. 4. The practice of the department of inserting in town-site and mineral-land patents mutual clauses of reservation adhered to.
DEPARTMENT OF THE INTERIOR,
Washington, July 6, 1882. THE COMMISSIONER OF THE GENERAL LAND-OFFICE:
SIR: I have considered the case of the “Gulch”, the “Independent”, and the “Maid of Athens” Mill-sites v. The Town-site of Rico, in the Lake City land district, Colorado, on appeal by the latter from your decision of March 4, 1882, holding its entry for cancellation.
The mill-sites are separate and independent claims; but since all the protests filed by mill-site claimants against issuance of patent for the town-site involve the same questions, they are considered as one case. They were located, respectively, in April, May, and July, 1879, and the petition for incorporation of the town-site was filed in September following.
Your decision held that the land was non-mineral; that the mill-sites were duly located and recorded in connection with lode-claims by the proprietors thereof, whereby the land was legally appropriated; and hence that their prior location precluded location of the town-site.
I think this was erroneous.
Mill-sites are recognized by section 2337, Revised Statutes, where the land is non-mineral, and is used by the proprietor of a vein or lode, and may be included in an application for patent for such vein or lode, and be patented therewith, subject to the same preliminary requirements as to survey and notice as are applicable to veins or lodes; and, second, the owner of a quartz-m ill or reduction-works, not owning a mine in connection therewith, may also receive a patent for his mill-site, as provided in the section.
The present applications are by virtue of the first provision, under which there can be no mill-site unless there is a lode or vein to which it may attach. The mill-site claimants have not applied for a patent, and there is no evidence of a lode, vein, or claimants therefor, except as appears in the protest of the mill-site claimants against issue of patent to the town-site.
The protestants, seeking to have the mill-sites excluded from the entry of the town-site, must first establish a title to the mill-sites. To do this they must show that it is non-mineral in character. I do not think that this is done. On the contrary, it appears to be conclusively proven that such is not the character of the supposed mill-sites. It is within a mineral belt, and not less than sixteen lode-claims are marked on the map of the town. The proof is uncontradicted that mineral had been found within the town-site and on some portions of the mill-site. I do not think it worth while to discuss at length the character of the testimony on that point. The town-site entry had been made. The protestants said that it was in fraud of their rights. The burden of proof was then clearly on them, and they failed to show that the land was of such a character as authorized the location of it for mill-site purposes. But, in addition to having failed to show that the land might have been taken as a mill-site, they failed to show that they did so take in accordance with the law governing such location. It is true that the statute is silent as to the location of mill-sites; but it is not unreasonable to suppose such location must be made substantially as that of a mining-claim. Such mill-site location must be made by the owner or proprietor of a lode or a quartzmill or reduction works. The letter of the statute would seem to require that such mill-site ought to be used in connection with such lode for mining or milling purposes before a legal location can be made; it is not, however, necessary to determine that question in this case, for there is no proof that the protestants were the proprietors of any vein or lode. The protestants did introduce location certificates of lodes, and in connection with such lodes the mill-site locations; but there is no evidence that the lodes were taken in accordance with law; it does not appear that the locator complied with the local laws of the United States statutes concerning such location and the development of such lodes. Proof of location and compliance with law concerning such appropriation ought to be the same that would be required in a court of justice to establish a title to such lode-claim and mill-site; in this the protestants have signally failed. Much has been said with regard to the good faith of the protestants as to the location of the mill-sites, and it is charged that such location was not made for mill-site purposes, but to secure the same for town-site purposes. This, I think, is quite apparent from the evidence. Still, if there had been a strict compliance with the law in such location, I should not feel justified to reject the evidence of legal location on this ground alone. But such lack of faith may well be considered in determining whether the protestants ought to be further heard in support of their title. I think, as full opportunity was given to establish the
title, there ought to be no further delay in this matter, and the patent for the town-site ought to issue to the proper authorities, if their proceedings have been regular.
It has been urged that if this town-site is on mineral land the entry ought to be canceled. That a town site may be located on mineral land cannot now be questioned. What are the rights of lot owners and mineral claimants within the boundaries of such town-site after entry is a somewhat difficult question. Section 2386 provides as follows:
Where mineral veins are possessed, which possession is recognized by local authority, and to the extent so possessed and recognized, the title to town lots to be acquired shall be subject to such recognized possession and the necessary use thereof; but nothing contained in this section shall be so construed as to recognize any color of title in possessors for mining purposes as against the United States.
This section, taken in connection with section 2392, which is as follows, "No title shall be acquired under the foregoing provisions of this chapter to any mine of gold, silver, cinnabar, or copper, or to any valid mining-claim or possession held under existing laws," must protect the mineral claimant in his possession of the vein or lode, together with the surface as recognized by law. Such lots are declared to be taken burdened with the mineral claimant's rights. Now, what are the rights of the mineral claimant to the surface of the ground held in connection with his lode or mine? Section 2322 of the Revised Statutes contains the following:
The locators of all mining locations heretofore made, or which shall hereafter be mado, on any mineral vein, lode, or ledge situated on the public domain, their heirs or assigns, where no adverse claim exists on the tenth day of May, eighteen hundred and seventy-two, so long as they comply with the laws of the United States, and with state, territorial, and local regulations not in conflict with the laws of the United States governing their possessory title, shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations, and of all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of such surface-lines extended downward vertically, although such veins, lodes, or ledges may so far depart from a perpendicular in their course downward as to extend outside the vertical side-lines of such surface locations.
It has been claimed that by virtue of this section the town-lot claimant, holding under a patent issued to the town, takes no title to the surface of a lode; but we must take all the provisions of the statute together. It is provided in section 2386 that the title to town lots to be acquired shall be subject to such recognized possession and the necessary use thereof. Now, what is the necessary use of such recognized possession? The town-site claimant takes it for building purposes; the mineral claimant for mining purposes. The mineral claimant may desire to use the ground for the purpose of sinking a shaft to his lode. He may want it for the erection of the buildings required in carrying on his mining enterprise, for reduction works, or for a mill-site; if he does, the town-lot claimant's rights are subordinated to his. The quasi title of the lot owner must give way to the title of the mineral claimant in all such cases; that is, the “necessary use thereof” for mining purposes.
Whether the lot owner does take his lot subject to the rights of the mineral claimant as to surface must depend on priority of occupation. If a portion of the public lands have been settled upon and occupied by a town-site, such occupation is a lawful one. (Chapter 8, Revised Statutes of the United States.) It is not to be supposed that the recognized right of such lot owner is to be destroyed by the subsequent discovery of a mineral vein that may have its course through such lot. Large and flourishing towns have been built on the mineral lands of the United States, valuable buildings erected on such town lots, long before the entry of such town-sites. The rights of the occupants are fully recognized by the custom and usages of the country, as well as by the statute, and provision is made for the completion of the title by patent to the corporation authorities or to the county judge in trust for such lot owners. There ought to be no conflict between the lot owner and the mineral claimant whose vein enters a town-site; and the respective rights are clearly defined both by law and custom. If the mineral claimant is in possession of a mineral vein, his possession is recognized as a valid one to the full extent of his possession and the necessary use thereof. If at the time of taking of the town lots the mineral claimant's rights exist, the lot owner will take it subject to the rights of such mineral claimant, as before stated; and although the lot owner may hold his title under the corporation authorities or county judge, having received such patent, still the title of the mineral claimant is not different from what it was before the issue of such patent, and the question must still be determined, whether his title was acquired subsequently or previously to the inception of the lot owner's claim.
All such questions must be left to courts of competent jurisdiction to settle. This department cannot, in the nature of things, be called on to adjudicate such conflicting claims. Questions of priority of occupancy, as well as the question what is the necessary use of such surface by the mineral claimant, ought to be submitted to a jury of the neighborhood where such controversies arise; and such appears to have been the legislative intent with reference to all conflicting claims concerning mineral and town-site rights. It has been the custom in the department to insert in the town-site patents a clause reserving all the mineral and mineral rights to the government, or to the legal occupant thereof, as the case might be; and to insert in the mineral claimant's patent a reservation reserving all town-site rights. Whether the language employed heretofore is the most exact that might have been employed I do not consider of any importance, for the legal effect of the patent is the same with or without the reservation.
The statute defines and determines the rights of the different claimants; and if the patent contains a reservation broader than that of the statute, it is a nullity so far as it exceeds the statutory restriction; and if it contains a reservation not authorized by law, such reservation is a nullity. (See Stark v. Starrs, 6 Wallace, 402.)