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MINERAL LAW DIGEST

ABRAOLNG

A DIGEST OF DECISIONS OF THE COURTS AND OF THE LAN
DEPARTMENT, UNDER THE PUBLIC MINERAL LAND LAWS;
A BRIEF MANUAL OF PROCEDURE, WITH FORMS;
AND A MANUAL OF MINERAL SURVEYS AND

DEPARTMENTAL REGULATIONS.

BY

HORACE F. CLARK,
LAND AND MINING ATTORNEY, WASHINGTON, D. C.

CHARLES C. HELTMAN,
ASSISTANT CHIEF, MINERAL DIVISION, GENERAL LAND OFFICE

CHARLES F. CONSAUL,
EXAMINER OF CONTESTS, MINERAL DIVISION, GENERAL LAND OFFICE.

CHICAGO:
CALLAGHAN AND COMPANY.

1897.

COPYRIGHT, 1897,

BY

HORACE F. CLARK, CHARLES C. HELTMAN, AND CHARLES F. CONSAUL

STATE JOURNAL PRINTING COMPANY,
PRINTERS AND STEREOTYPERS,

MADISON, WIS.

INTRODUCTION.

The public mineral land laws of the United States, governing the disposal of the public mineral lands and regulating the rights of claimants thereunder, are applicable to the following States and Territories:

Alaska, Arkansas, Arizona, California, Colorado, Florida, Idaho, Montana, Nevada, New Mexico, North Dakota, Oregon, South Dakota, Utah, Washington and Wyoming.

The first official recognition of the existence of minerals within the United States is found in the "Resolution under the Confederation and Acts of Congress under the present form of government relating to the public lands."

Resolution No. 26, of May 20, 1785, after directing that a survey be made of the Western Territory, and providing for the disposal of public lands therein, contains the following provision: “There shall be reserved the lot No. 16 of every township; also, one-third part of all gold, silver, lead, and copper mines, to be sold or otherwise disposed of as Congress shall hereafter direct."

There is no apparent reason for supposing that the insertion of the words “gold” and “silver” in said resolution should be attributed to any special prescience on the part of the statesmen of that time, but it is rather to be inferred that the use of these words proceeded from the extreme caution characterizing the legislation of that period.

Resolution No. 91, of April 16, 1800, provides “That the President of the United States be authorized to employ an agent, who shall be instructed to collect all material information relative to the copper mines on the south side of Lake Superior, and to ascertain whether the Indian title to such lands as might be required for the use of the United States in case they should deem it expedient to work the said mines be yet subsisting,” etc., thus showing that Congress contemplated the possible operation of said mines by the general government.

Resolution No. 133, of March 3, 1807, section 2, after providing for the granting of permission to actual settlers to hold the possessory title to lands settled upon, as against third parties, contains the following proviso: “That in all cases where the tract of land applied for includes either a lead mine or a salt spring, no permission to work the same shall be granted without the approbation of the President of the United States, who is hereby authorized to cause such mines or springs to be leased for a term not exceeding three years,” etc., thus demonstrating a policy of government control and ownership over mines in the public domain.

Resolution No. 135, of the same date, section 5, provides “That the several lead mines in Indiana Territory, together with as many sections contiguous 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; any grant which may hereafter be made for any tract of land containing a lead mine, which has been discovered previous to the purchase of such tract from the United States shall be considered fraudulent and null; and the President of the United States shall be and is, hereby authorized to lease any lead mine which has been or may hereafter be discovered in Indiana Territory, for a term not exceeding five years."

The use of lands for milling or dumping purposes is evidently provided for in the clause reserving lands contiguous to mines, necessary to the successful working thereof.

Resolution No. 268, of April 19, 1816, contains the following: “Provided the said Legislature [of Indiana] shall never sell, nor lease the same [salt springs] for a longer period than ten years at any one time.”

Resolution No. 271, of April 24, 1816, shows that the previous legislation empowering the President to lease mineral lands had been acted upon, as it contains the following: “That the President be and is hereby authorized to lease the U. S. Saline near the Wabash river for a term not exceeding seven years from and after the present term," etc.

It is to be observed that the later resolutions indicate a policy of making longer leases than at first allowed.

The sale of mineral lands was first authorized by the act of March 3, 1829, which conferred upon the President power to sell as other public lands “the reserved lead mines and contiguous lands in the State of Missouri.”

By act of July 11, 1846, Congress ordered the sale of the mines and contiguous lands in Illinois, Arkansas, Wisconsin and Iowa, reserving the same from pre-emption entry, however, until after a public offering.

By act of March 1, 1847, the sale of mineral lands in Michigan was authorized at a minimum price of $5 per acre.

By act of March 3, 1847, the same rule of disposition was extended to mineral lands in the Chippewa district of Wisconsin.

By act of September 26, 1850, the lands affected by the last two acts above cited were ordered sold at the ordinary price.

The acts of 1862 and 1864, making grants of land in aid of the construction of the transcontinental railroads, contained reservations of mineral other than coal and iron.

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The mineral lands were first expressly thrown open to the public and the fee-simple title thereto offered to the miner by the act of July 26, 1866 (14 Stat. 251), the extensive mining done upon public lands between the discovery of gold in California in 1848 and the passage of said act having been rendered possible by the forbearance of the government, but not having any legal sanction.

By said act only claims of veins or lodes were recognized, no mention being made of placer claims, provision for the disposal of which was first made by the act of July 9, 1870 (16 Stat. 217).

By the act of May 10, 1872 (17 Stat. 91), the acts of 1866 and 1870 were amended and consolidated, the amendments being in favor of the mineral claimants. The act of 1872 was, in turn, embraced in Chapter 6 of Title XXXII of the United States Revised Statutes, which has been made the subject of very little change.

While the National law on this subject covers but a few pages in the statute books, it has been greatly supplemented by enactments by the State legislatures, and by the adoption of rules and regulations by the miners of the several mining districts.

The cases arising under these laws have been made the basis of a large number of decisions, both by the courts, Federal and State, and by the Land Department, and the practitioner having to deal with any of the numerous questions arising under these laws finds it necessary to examine many decisions in order to determine the interpretation given the law.

The lack of a complete digest of this branch of the law has caused the compilers much laborious research, and the material gathered in their daily duties accumulated until it suggested a systematic study of the decisions and the compilation of a digest thereof.

The compilers believe that the digest now offered the profession is exhaustive of the subject treated, reference being made under the proper head to all of the published decisions, and even to some unpublished decisions of the Land Department.

It will be noticed that there is much conflict of authorities on some points. With respect to these the compilers have expressed no opinion, leaving the practitioner to judge for himself which one of conflicting decisions correctly states the law, taking into consideration the dates of the decisions and the tribunals by which rendered.

This book is divided into three parts, as follows:

PART I contains the various sections of the United States Revised Statutes with supplemental or amendatory acts. Under every section are arranged those regulations of the Land Department pertinent to the subject-matter of

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