Said section gives no rights in other words to agricultural claimants, except to such lands as are clearly and properly agricultural. If the theory advocated by you in said decision was to be received as the proper construction of said act of Congress of July 26th, 1866, the law would be a nullity and patents could only issue for such mining claims as had been discovered prior to July 26th, 1866. This portion of your decision is also reversed. * * * * Very respectfully, etc. * * * WILLIS DRUMMOND, Commissioner. DEPARTMENT OF THE INTERIOR, Washington, D. C., Dec. 14, 1872. SIR: I have examined the case of Ekin Smith v. Absalom Stewart, involving the right of said Smith to enter under the pre-emption law as agricultural land, the S. W. ‡ S. W. section 31 T. 10, N. R. 10 E., and N. W. N. W. ‡ section 6, T. 9, N. R. 10 E., M. D. M., California, on appeal from your decision of August 6, 1872. Two questions are presented on appeal, one relating to the character of the land claimed, the other calling for a construction of the tenth section of the mineral act of July 26, 1866 (14 Stat., 253), on both of which questions your decision was adverse to the pre-emption claimant. After a careful review of the voluminous testimony taken before the local officers, I am satisfied that the land in controversy is mineral in character, and should be held for disposition under the mining statutes. It is claimed on behalf of the pre-emption claimant, that the tenth section of the act of 1866 gave to qualified persons, who had, prior to the passage of said act, made homesteads on lands theretofore designated as mineral, and excluded from survey and sale, a right of pre-emption or homestead therein, unless, before the passage of said act, valuable mines of gold, silver, cinnabar, or copper, had been discovered thereon; and further, that the subsequent discovery of such mines did not affect the right of preemption or homestead thus acquired. I fully agree with you that this is not the proper construction to be given to the act referred to. Congress did not, I think, intend in this act to do away with the well established distinction, so long recognized by legislation, between agricultural and mineral lands, or to allow lands actually mineral to be acquired under agricultural laws. I think the object of the tenth section was to give to persons, who had, in good faith, made agricultural settlements on public lands theretofore designated as mineral, but subse quently determined to be agricultural, a preference in preempting or entering the land as homesteads, over those admitted to similar rights by the eleventh section. The Department has heretofore given this construction to the act in question, by approving your instructions of December second and seventh, 1871, and March 20, 1872, to the Register and Receiver at Stockton, California, directing the withdrawal from disposition under agricultural laws, of certain lands theretofore classed as agricultural, until the non-mineral character of the same should be affirmatively established. I therefore affirm your decision, and return herewith the papers transmitted with your letter of the twenty-sixth ultimo. Very respectfully, B. R. COWEN, Acting Secretary. Hon. WILLIS DRUMMOND, Com'r General Land Office. Proof of Citizenship in case Applicant's Father was a Naturalized Citizen. DEPARTMENT OF THE INTERIOR, GENERAL LAND OFFICE, WASHINGTON, D. C., Aug. 13, 1872. Register and Receiver, Central City, Colorado: GENTLEMEN: In case of the application of John H. Schweder, for patent for his claim upon the Billing's lode, you will call upon the applicant to furnish additional proof of citizenship. Mr. Schweder makes affidavit that he was born in Germany, that he came to this country at the age of six years, and that he has an honorable discharge from the army. In case Mr. Schweder's parents became naturalized before he arrived at the age of twenty-one, proof should be made of this point, as in this case he would be regarded a citizen. The twenty-first section of the act of Congress approved July 17, 1862 (12 Stat., page 597), provides that any alien who has an honorable discharge from the regular or volunteer army, may become a citizen of the United States, upon his petition, without any previous declaration of intention to become a citizen of the United States. You will inform Mr. Schweder of the proof required, and transmit the same to this office. Very respectfully, etc., WILLIS DRUMMOND, Commissioner. [NOTE. Mr. Schweder thereupon made affidavit that his father was naturalized in Wisconsin before he, the son, arrived at the age of twentyone; and, in the absence of an adverse claim, a patent was issued to him April 4, 1873.] Annual Expenditure required on all Claims until Patent shall have issued. DEPARTMENT OF THE INTERIOR, GENERAL LAND OFFICE, Washington, D. C., August 17, 1872. WM. M. SLAUGHTER, Esq., Denver, Colorado: SIR Referring to your letter of the ninth instant, I have to state that the act of Congress, approved May 10, 1872, expressly states in the fifth section, that "on all claims located prior to the passage of this act, ten dollars worth of labor shall be performed, or improvements made each year, for each one hundred feet in length along the vein, until a patent shall have been issued therefor." This being the law, this office has no power to go outside of the law, and rule that section five only had reference to such claims as have not been improved to the amount of five hundred dollars, the amount required by section six to be expended upon a claim before patent can issue. Section five applies to all claims which have not been patented. Very respectfully, etc., WILLIS DRUMMOND, Commissioner. Mining Claims may be Patented when within Town Sites. DEPARTMENT OF THE INTERIOR, GENERAL LAND OFFICE, Washington, D. C., August 19, 1872. Register and Receiver, Sacramento, California: GENTLEMEN: Complaint has been made to this office that you refuse to receive applications for patents for mining claims, when the premises described in said applications conflict with patents issued for town sites. In granting patents for town sites, an excepting clause i inserted as follows, to wit: "That no title shall be hereby acquired to any mine of gold, silver, cinnabar, or copper, or to any valid mining claim or possession held under existing laws of Congress. You will, therefore, in the future allow applications for mining claims to be filed, even though the same may conflict with or be embraced by the exterior boundaries of a town-site application. Very respectfully, WILLIS DRUMMOND, Commissioner. New or Additional Evidence cannot be Submitted on DEPARTMENT OF THE INTERIOR, GENERAL LAND OFFICE, WASHINGTON, D. C., Aug. 21, 1872. Register and Receiver, Salt Lake City, Utah: GENTLEMEN: Your letter of the thirteenth instant, unsigned, with inclosure has been received. I return herewith the inclosure, which is an appeal from our decision of June 13, 1872, attached to which are several affidavits, which are referred to in the argument on appeal. In cases of appeal from the decisions of this office to the Hon. Secretary of the Interior, no new or additional evidence can be submitted, otherwise the decision of the Secretary would be an original decision, and not a review of ours. You will, therefore, inform Mr. Nounnan that it will be necessary for him to submit an argument simply in support of his appeal, and that the affidavits and evidence attached to his argument cannot be filed with the case. Very respectfully, etc., WILLIS DRUMMOND, Commissioner. lares in C Expenditures in Running a Mining Tunnel, before a Lode is struck therein, not tantamount to Expenditures on the Lode. DEPARTMENT OF THE INTERIOR, GENERAL LAND OFFICE, Washington, D. C., Aug. 27, 1872. HON. C. DELANO, Secretary of the Interior: SIR: Herewith I have the honor to submit two communications, dated the thirteenth and seventeenth instants respectively, from R. M. Douglas, Esq., desiring a construction of the fifth section of the mining statute of the tenth May, 1872, and in this connection I would state as follows: Previous to the passage of the mining act of July 26, 1866 (14 Statutes, 251), upon the discovery of mineralbearing veins or lodes in any portion of the public domain, the miners in the locality would at once call a meeting and adopt a code of laws or regulations governing the length of claims upon lodes, and the width of surface ground which might be taken therewith; the amount of work or expenditure necessary to be made annually upon each claim, in order to hold it and prevent it from being subject to relocation; fix the boundaries of the district within which these regulations should be enforced; provide for the election of a recorder of mining claims for such district, etc. In the great number of mining districts thus formed in the public domain the regulations adopted, although preserving a similarity in some leading points, differed materially in others. For instance, while the regulations of one district permitted an individual to locate three hundred feet on the course or strike of the lode, another district would allow but two hundred feet to be taken, and another district perhaps still less. Like differences existing with regard to the width of surface ground taken for the convenience of working the lode, and the amount of labor necessary to be done, or improvements made thereon, to hold one of these "claims" or "locations" for a specified time. After these claims or locations had been taken up and recorded at the mining recorder's office, they became the property of the locators, and could, under all the mining regulations, be bought and sold as real estate; the courts of the mineral States and Territories recognizing these titles as good and sufficient as against all persons and powers, except the United States, the purchaser of one of these possessory claims assuming the same obligations to do the annual amount of labor, or make the expenditure necessary to hold the claim so purchased, as the district laws required of his predecessor in interest; a failure to do which subjected the claim to relocation by others. These local regulations have constituted the miners' laws, and have formed the basis of miners' titles, since the first discoveries of the precious metals in the public domain. The congressional mining statute of July 26, 1866 (14 Stat., 251), was the first general legislation by that body, looking toward the disposal of these carefully reserved mineral lands, and it being the policy of Congress to disturb as little as possible the existing order of things in the mining regions, said enactment provided the means by which these possessory rights, having their inception under district regulations, could be converted into complete titles by patent from the United States; one of the conditions, precedent to the sale of a mining claim by the United States, being that the applicant for title must have previously occupied and improved his claim, in accordance with the local customs and rules of the mining district in which it was situated. Said act, in its fourth section, 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; said congressional maximum being 200 feet along the course of the lode to each locator, with an additional claim of 200 feet for discovery to the discoverer of the lode, and fixed 3,000 feet as the utmost extent that could be located or claimed upon the same by any association of persons after the twenty-sixth July, 1866. |