Page images

diately in hand, not by any awaiting the return of work not yet executed, although previously ordered. This is the only reward of diligence; that in all stages of the proceeding, the first in time is the first in right, and, if the execution of the work by the agent selected by the applicant is not completed as early as the work of another by whom he fears he may be anticipated, he must nevertheless accept the situation, and pursue his right accordingly in the subsequent proceedings, whether he shall succeed in securing the advantage of an applicant for patent, or be relegated to the position of adverse claimant. Any other rule would work injustice to the party thus compelled to await action upon the other surveys, and subject him to the delays incident to laches, caprice, favoritism, and the like, or, where these do not intervene, to the possibilities of holding a small amount of work for the completion of a much larger contract, with which, except in a small part, his claim is not in conflict.

In so far, therefore, as the action of the Surveyor-general or your instruction went beyond these well-defined limits of proper executive action, and made the rights of the parties dependent upon each other, without regard to the condition of the work when it was reached in its proper order, I think there was error. Having no right to question the regularity or sufficiency of the more application for a survey by other parties until confronted with such survey as matter of evidence in a proper proceeding upon the merits, after issue joined in a competent tribunal, there could arise no question of priority, unless raised by the surveyor-general bimself in holding the one survey to be dependent upon the other, and attempting to control the priority of application for patent before the register by his own will and discretion in the approval and delivery of the plats. This he could not lawfully do; and if he should at

. tempt to so discriminate, his action would be just subject of complaint and protest, and liable to be overruled by you. Prior to delivery of the plats, it might, possibly, upon proper foundation laid, be subject to appeal; but after such delivery there would, as a matter of fact, be no power to afford a remedy; as the res of the action would have passed beyond jurisdiction. Consequently, in such a case, recourse to appeal would be futile.

[ocr errors]

In the present instance, such appears to be the condition of the matter. There being nothing to adjudge upon the appeal, it must be dismissed. The practice to be affected will, however, be governed by the foregoing suggestions, and wherever occasion may require, may be enforced by your office by proper instructions.

The papers submitted by your letter of June 1, 1880, are returned.

Very respectfully,

A. BELL, Acting Secretary. The Commissioner of the General Land Office.

No. 3. UNION TUNNEL-COMMISSIONER'S DECISION. 1. When a certain claim has been surveyed as the basis for patent, and a party applies for the survey of the same claim, he must furnish a certificate of the register of the local office, that application for patent, based on the prior survey, is not pending.

2. When the subsequent survey applied for represents mere conflict with prior survey, and not conflict in claim, there is no obstacle to the approval thereof, and the claimant under the prior survey must protect himself by filing an adverse claim.

3. Questions of possession must be settled in the courts, and not by the surveyor-general.



WASHINGTON, D. C., June 11, 1880. FREDERICK SALOMAN, U. S. Surveyor-general, Salt Lake City,

Utah, SIR: Your letter of the twenty-fifth of March, transmitting to this office the notices of location, field-notes, and plats of the surveys of the Orient, Occident, Union Tunnel No. 1, and Union Tunnel No. 2 Lodes, and the accompanying papers of the protest of M. Shaughnessy against the approval of said surveys, is at hand, and has been considered. The facts in the case are briefly as follows: In running a tunnel four lodes have been discovered, these have been located, recorded, and surveyed according to the laws and regulations governing such cases. But it appears that all of the surface-ground claimed under said locations, is held under prior locations, made previous to the commencement of the tunnel, except a portion of the surface belonging to the Orient Lode.

An examination of each of the cases referred to, shows that the notices of location have been properly made and recorded.

The surveys have each been made in accordance with the law, and the rules and regulations of this office, and over the identical ground called for in the notices of location. The question thus presented is one which relates solely to the duty of the Surveyor-general in cases of conflicting surveys.

This question is not a new one, but has been repeatedly presented, and the instructions of this office of date November 5, 1874 (Land Owner, vol. 1, p. 133); April 20, 1877 (Land Owner, vol. 4, p. 35), have become the established rule, and govern in all such cases.

The instructions of April 20, 1877, apply to cases where application is made for the survey of a mine of which a survey has already been made. The above instructions to the Surveyor-general are as follows:

An application for patent withdraws the lands therein described from subsequent application, until the first application is withdrawn or rejected. But a survey, unless followed by an application, does not withdraw the premises therein described, from survey or entry by any qualified party who shows compliance with the terms of the act. To hold that a survey under the mining act withdraws the land embraced thereby from sale or subsequent survey, would be to place it within the power of any party who might secure a survey to a given claim, to prevent the government from disposing of its title to that portion of the public domain. Where a party desires a survey of a tract already surveyed, you will require him to file with you a certificate from the register of the local land office, that there is no application for patent pending under such prior survey.”

“The field-notes of the subsequent survey should show that they embrace the same premises as those described by such prior survey, giving the number and name of the claimants under such prior survey."

If conflicts exist they should be shown in accordance with instructions in my letter of November 5, 1874."

In said letter of November 5, 1874, the Surveyor-general was instructed that a survey may receive the approval of the Surveyor-general at any time, when po application for patent is pending, for the same mine, if it is found, upon examination, to be correct, and made in accordance with law.



[ocr errors]

"The approving of a survey of a mining claim, by the Surveyor-general, is merely an indorsement thereon over his own signature, that the survey is correct, and that it has been made in accordance with law and instructions.” * “The Surveyor-general has no jurisdiction in the matter of deciding the respective rights of parties in cases of conflicting claims; each applicant for a survey, under the mining act, is entitled to a survey of the entire mining claim as located, if held by him in accordance with the local laws and Congressional enactments.”

“If, in running the exterior boundaries of a claim, it is found that two surveys conflict, the plats and field-notes should show the extent of the conflict, giving the area embraced in both surveys, and also the distances from the established corners, at which the exterior boundaries of the respective surveys intersect each other.”

In your letter you refer to the above quoted instructions, and ask for further directions, and say: "If under these instructions an application for patent withdraws that mining claim from market, pending the final disposition of the case, it certainly withdraws every part of that claim from market, and consequently no conflicting subsequent survey should receive the approval of the Surveyor-general under the same instructions. This is a logical conclusion."

You have evidently misapprehended the meaning of my instructions, and your mistake lies in the fact that you seek to apply that portion of the instructions relating to a second survey of the same mine to cases of conflicting surveys of different mines.

You say that the closing sentences of said instructions seem to have a different meaning. This is a fact, for the sentences referred to belong to a decision concerning conflicting surveys of different claims, and not to separate surveys of the same claim.

The instructions above quoted therefore contemplate that when a certain claim has been surveyed as a basis for patent, and a party applies for a survey of the same claim, he shall be required to file with you a certificate from the register of the local land office, that application for patent, based upon such prior survey, is not pending. This is to prevent error and confusion.

But where the subsequent surveys applied for represent mere conflicts with prior surveys, there is no identity of claim, and no confusion in your office or elsewhere.

If application for patent upon the prior survey has not been made to the register and receiver, there is no obstacle to the application for patent by the owner of the subsequent survey, and in that event the party who represents the first survey must protect himself by filing an adverse claim and suit in court. He loses his affirmative position as applicant by his own neglect. In any event, questions of possessory right must be settled in court, and not by the Surveyorgeneral

If no adverse claim is filed and no suit commenced, then this office will pass upon the validity of the case.

The mines in question are not the same locations as the protestant's, but are separate and distinct locations of certain mines discovered and located in conformity with the law (see section 2323 U. S. Revised Statutes).

The surveys of said mines submitted by you have been correctly made, the boundaries carefully defined, the conflicts with prior surveys shown in accordance with instructions, and every requirement seems to have been complied with; to this there has been no denial.

The law which governs in cases of conflicting claims where only a portion of the surface ground is in conflict, must necessarily apply in cases of this kind, where the entire surface claimed is in conflict.

You are therefore instructed to approve said surveys, and interested parties must protect their rights by filing adverse claims. Very respectfully,

C. W. HOLCOMB, Acting Commissioner.

No. 4. Union Tunnel-Secretary's decision.

WASHINGTON, D. C., August 9, 1880. Sir: I am in receipt of your letter of the twenty-fourth of June, accompanied with the papers in the matter of the protest of M. Shaughnessy against approval by the Surveyorgeneral of Utah Territory, of the surveys of the following mining claims, to wit: The Orient, the Occident, Union Tunnel No. 1, and Union Tunnel No. 2, situate in Uintah

« PreviousContinue »