Leadville v. A. D. Searle et al., involving certain tracts of land in sections 23 and 24, township 9 S., range 80 W., Leadville district, Colorado. The only question at issue or raised by the appeal is, as to the character of the land, the townsite application being resisted on the ground that the tracts are valuable for minerals. The undisputed facts are that the tracts were returned by the Surveyor-general as mineral land, and that they are in the midst of, and in close proximity to, very valuable gold placers, and lode or carbonate mines producing silver. But the testimony of witnesses who have worked or prospected the land for minerals, gold and silver, and who were introduced as expert miners, is conflicting. Some found gold in paying quantities, and unhesitatingly gave it as their opinion that the land is valuable for minerals and will pay well for mining purposes, while others failed to find such results or indications as to convince them that the tracts are valuable mineral land, and others unhesitatingly say that they have no value whatever for mining by any known process. That the land contains valuable minerals hardly any one denies; but upon the question whether the minerals are in paying quantities, the opinions of the witnesses, based upon the results of actual prospecting and comparison of surface indications with those of the surrounding lands which are being profitably worked, are very conflicting; and the question arises whether the evidence is sufficient to overcome the presumption of the Surveyor-general's return, and that raised by the fact of the proximity of known valuable mines. I think not. After a consideration of all the testimony and of the arguments, both written and oral, I am of the opinion that the Surveyor-general's return is not overcome by proof, and that the land should be held as valuable for minerals within the meaning of section 2318 of the U. S. Revised Statutes.* Your decision dismissing the application of the county judge to enter the tracts as a townsite, and sustaining the Surveyor-general's return, is affirmed. * * * C. SCHURZ, Secretary. The Commissioner of the General Land Office. * See circulars of April 27 and September 23, 1880, Nos. 3 and 4. No. 15. A placer is a surface claim, and where such claim is anterior to the town occupation no exception will be inserted in the placer patent in favor of the town site. DEPARTMENT OF THE INTERIOR, GENERAL LAND OFFICE, WASHINGTON, D. C., October 26, 1878. Register and Receiver, Fairplay, Colorado. GENTLEMEN: I have examined the record of testimony submitted at a hearing in your office in the matter of a protest of Thomas Kemp against Thomas Starr's application (number one hundred and seventy-seven, in the mineral series of your office), for a patent to the "Starr Placer" claim, filed in your office March 18, 1878. Publication was made in the Lake County Reveille, a newspaper published at Leadville, Lake county, Colorado, weekly, from the twenty-third day of March to the first day of June, 1878. Posting of notice and plat was made on the claim and in your office for the legal period. On allegations by Thomas Kemp et al., that the land involved in said application was non-mineral in character, you were authorized to hold a hearing to determine the fact. This hearing was commenced July 30, 1878, and the record was forwarded with your letter of sixth of September last. In the trial it was sought by Kemp et al. to show that the land was non-mineral, and of more value for a town site than for mining purposes, the claim of Starr being within the limits of the town of Leadville. Weight of evidence. The weight of testimony shows that all the land embraced in this claim was regarded as placer mining ground as early as 1860; that it was prospected with favorable results in different localities; that it has not all been worked because of the limited supply of water and want of proper facilities; that "California Gulch," which is a part of this claim, and lies on the southerly portion thereof, has been work for a long time, and a large amount of gold taken therefrom; that placer mining is being extended from said gulch northwardly towards the settled portion of the town; and that, while gold has been found in all parts of this claim, no one has opened a shaft on the northern part of the claim, which has been sunk to bed-rock, and it is manifestly im possible to estimate with any certainty the value of that part of the claim as mineral land; yet that it is mineral land, of more or less value, is clearly established by the record. It also appears that it is not feasible to work the northern portion of the claim until after the lower portion shall have been worked out; it shall be reached by slow approaches in the regular progress of operations, which are gradually being extended from California Gulch towards the north; and hence the fact that it has not been worked can not have the effect of raising even a presumption of its non-mineral character. It also appears that a portion of this claim was purchased for the St. Louis Smelting and Refining Company, by A. R. Mayer, its agent, and that expensive reduction works have been erected thereon. This enterprise, together with the reputation of the surrounding country for its mineral resources, has, within the last few months, induced a sudden influx of population, whose residence or occupancy will doubtless depend upon the mining prosperity of the locality. The evidence shows that there are probably about twelve hundred inhabitants in Leadville. In order to prevent the land in this claim being "jumped,” and its proprietors dispossessed to the extent of such occupancy, lots for building purposes were laid out on the northern part of the survey, and various persons permitted to build thereon on certain considerations, agreements being executed to convey perfect title on receiving a patent from the United States for the claim. It seems to have been generally conceded that this mining claim was in all respects legitimate, and that title to no part thereof could be derived from any party except through the proprietors. This was evidently the understanding upon which all sales and agreements were made. Within the last few months certain parties have sought to obtain a foothold on the land embraced in this claim by building thereon without authority. It appears, however, that most of such persons were summarily removed. Mr. Kemp, protestant, went upon the northern part of this claim, whether by any proper authority does not appear, and erected a house, which, from the evidence, is used for a drinking and gambling saloon and "dance-house." It appears that there was opposition to his building, and that he then opposed the claim of Starr. It is in the evidence that Kemp offered to withdraw his protest on condition that the owners of the placer claim would give him title to certain lots thereon. This is not contradicted, and is to a degree an indication of Kemp's faith in the title thus sought to be derived through the mineral claim. The facts which are clearly established by the proof are: 1. That the land in question is mineral. 2. That the mineral claims represented by Starr had their inception long prior to the occupation of any portion of said land as a town site. 3. That a large amount of money has been expended thereon in developing the mine, in the construction of reduction works, and in bringing water from a distance to work the claim, and that the development of the mine is proceeding in good faith. From these facts I conclude that the application of Thomas Starr, when duly perfected, should be allowed, and that no exception of any town rights should be inserted in the patent for the reason that his claim is a surface claim, and is anterior to town site occupation, no adverse or conflicting right having been acquired by the town or by individual settlers who went there with record notice of the ownership of said placer ground. It is proper to add that there is no opposition to Starr's application by the town authorities of Leadville, The affidavit of Thomas Starr, stating in detail all charges and fees paid by him for publication and surveys, together with all fees and moneys paid to the register and receiver of the land office, in the matter of his said application for patent, will be required. Duly notify all parties in interest hereof, allow sixty days for appeal, and thereafter make prompt report to this office. Very respectfully, J. A. WILLIAMSON, Commissioner. No. 16. Thomas Kemp et al. v. Thomas Starr. 1. Placer mining ground "valuable for minerals" should be reserved from sale, except as provided by law regulating the sale of mineral lands. 2. In a hearing to determine the character of the land, evidence should not be submitted as to the relative value of the land for town site or mining purposes. DEPARTMENT OF THE INTERIOR, SIR: I have considered the case of Thomas Kemp et al. v. Thomas Starr, involving mineral application No. 177, Fair Play, Colorado, on appeal from your decision of October 26, 1878, holding that the land in question is mineral in character. Mr. Starr made application to enter a tract of land containing 164.61 acres as a placer mining ground, March 18, 1878. Publication was made, and notice and plat were posted as required by law. No adverse claim was filed or suit commenced within the statutory period; hence those who contest the application of Mr. Starr can, under the established rules of this department, appear only as prot estants. Subsequently, allegations were made that the land embraced in the application of Mr. Starr was not mineral in character, and an investigation was ordered by you at the local office. At the hearing held, evidence as to the character of the land was submitted, and also as to its relative value for mining and town-site purposes. The evidence of the numerous witnesses was, as is usual in such cases, conflicting and contradictory. After a careful consideration of the same, I concur with you that the land embraced in the application is land which should, under the provisions of section 2318, Revised Statutes, be held as "valuable for minerals," and should be reserved from sale, except as provided by law regulating the sale of mineral lands.* In my opinion, the evidence submitted as to the relative value of the land for town-site or mining purposes was improperly allowed. If the land is mineral, it was subject to location only under the provision of the mining law without reference to the relative value of a portion of the tract for town-site purposes. I see no reason why the rule which has been established, and uniformly followed by this department for several years, viz., that in the absence of an adverse claim, a protestant can not be recognized as an appellant from your decision, upon an application upon its merits, should be reversed in this case. See circulars of April 27, 1880, and September 23, 1880, Nos. 3 and 4. |