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to the settlement of the estate; that he saw them, and, in pursuance of their advice and instruction, returned and made sale, under the order of the Probate Court, of all the estate belonging to said Prescott at the time of his decease, including the said claim No. 6, as appears by the deed for the same, a copy of which he attaches to his affidavit; that he started on the journey to New York on the third of May, 1870, and five days prior to the application for patent by said Reed and Sanders, and that he did not know of the application of said Reed and Sanders until the tenth day of October following, three days after he made sale of the aforesaid property; that he then proceeded to obtain an abstract of title of said claim, which he attached to his affidavit.

On the first of November last, you wrote to the local officers at Central City, that the abstract of title furnished by Mr. Potter, shows the claim to have been located by Prescott Russell on the second of November, 1861, and that the certified abstract furnished by the applicants for the patent, fails to show this, but shows the claim to have been located by said Reed and Sanders, May 27, 1869, and again on the eighth of the following June; and that the abstract furnished by Potter, shows the claim to have been located by different parties, at various dates after the location of Russell, and before the location of Reed and Sanders.

Your predecessor, therefore, considered that the right of the applicants to pre-empt or locate the property, was not shown to his satisfaction, and he opened the case for a trial upon its merits, in the proper local courts.

The applicants have appealed to this Department. Neither the act of Congress, nor the regulations approved by my predecessor, on the ninth of August last, confer authority upon the local office, the General Land Office, or this De- . partment, to determine adverse or conflicting rights to the possession of a lode covered by a mining claim, under that act. The sixth section prescribes, that where the adverse claimant appears before the approval of the survey, as provided in the third section, all proceedings shall be stayed, until a settlement and adjudication of the right to possession of such claim shall have been made by the courts of competent jurisdiction.

If no adverse claim has been filed within the prescribed time, it is the duty of the Surveyor-general to make the survey; and if no adverse claimants appear before his approval of it, the right of the applicant to a patent seems to be established, if his proceedings are in good faith, and in strict conformity to law.

The only objection made by Potter rests upon the alleged fact that he had no knowledge of the application of Reed and Sanders, until the tenth day of October.

Congress has only required that the diagram of the vein or lode of quartz, or other rock in place, should be filed in the local office, and posted in a conspicuous place on the claim, together with notice of an intention to apply for a patent. The Register shall publish such notice, and post the same in his office in the mode and for a period prescribed by the act. It was for that body to determine how a party claiming adversely, should be notified of the pending application. If their requirements have been strictly observed, the want of actual personal notice to a person whose alleged rights may be injuriously affected, affords no just ground for staying the proceedings. Such a person is bound, at least so far as the Department is concerned, if the required notice has been duly given. It is, therefore, entirely immaterial whether, in this case, said Potter did or did not know of the application, until a month after the approval of the survey.

I may remark, however, that on the seventeenth of June last, he made application to the Probate Court of Clear Creek County, Colorado, to sell the real estate of Prescott Russell. His application was granted, and the purchaser, one Charles H. Myers, obtained all the title which the intestate had in the premises, if the proceedings were in due form and authorized by law, Potter, as the representative of Russell, had, subsequently to such sale, no interest in the property, and he does not make any claim in his own right. He is not interested, therefore, in the subject-matter, and no other party resists the application.

The appearance of an adverse party before the Surveyorgeneral's approval of the survey, is the only contingency mentioned in the sixth section, upon the happening of which the proceedings for a patent shall be stayed until the conflicting rights of the parties to the possession of the claim be judicially determined. In the absence of such a contingency, I am of opinion that when the proceedings are in good faith and strictly regular, they cannot be rightfully stayed, nor can the applicants be required to assert and establish their rights in the courts. It is true that your bureau possesses a general supervision over its subordinate officers, and is clothed with ample powers to prevent the consequences of fraud and collusion, and to correct irregularities, cases under this act may occur in which these powers should be exercised; but this case is not one of them, and I am of opinion that a patent should be issued.

The papers are returned.

I am, Sir, very respectfully,
Your obedient servant,

C. DELANO, Secretary. The Commissioner of the General Land Office.

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Placer Claims on Surveyed and Unsurveyed Lands.
DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, March 1, 1871.

Hon. A. A. Sargent, House of Representatives:

SIR: * ** In mining districts over which the lines of the public surveys have not yet been extended, a placer claim held and occupied according to the district regulations, and upon which not less than $1,000 have been expended, may, in the absence of an adverse claimant and after the usual proceedings, be surveyed, entered and patented, whatever may be its shape or area, provided that such claim was located at a date prior to the passage of said statute of July 9, 1870, which interdicts, after that date, the location of a claim by any person, or association of persons, in extent exceeding one hundred and sixty acres, whatever the mining regulations of the district may prescribe. But upon lands which have been surveyed, no lot or claim smaller than ten acres can be patented to any person, or association of persons, under said act; the subdivision of forty-acre tracts into ten-acre legal subdivisions, to be effected in the manner prescribed by the law and instructions.

Very respectfully, etc.,

WILLIS DRUMMOND, Commissioner.

Mineral Lands cannot be Approved as State Selections.
DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., March 14, 1871. W. H. Lowry, Esq., Attorney-at-Law, Washington, D. C.: SIR: Referring to your letter of May 13, 1870, and 11th instant, desiring the approval as State selections of Lot 4 of Sec. 17, Lots 1 and 2, and the N. W. of N. W.

of Sec. 20, and the N. E. 4 of N. E. of Sec. 19, all in township seven (7) north of range five (5) west, Mt. Do. mer., California. I have now to inform you that upon an examination of the returns of the survey of said township, it is found that all of the aforesaid tracts are returned by the surveyor as mineral land, and consequently they cannot be approved as State selections, nor disposed in any manner other than that stipulated in the mining statutes of July 26, 1866, and July 9, 1870, unless the mineral character of each tract be first disproved in the manner contemplated by the inclosed circular.

Very respectfully,

WILLIS DRUMMOND, Commissioner.

Placers must be treated as on Unsurveyed Land until Township Plat is Filed in Local Office.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., March 22, 1371.

Register and Receiver, Sacramento, California:

GENTLEMEN: With the Register's letter of the 6th inst. were received copies of the papers filed in the application of John C. Bower et al., for patent under the act of July 9, 1870, for what is known as the "Powell" placer claim, situated in Todd's Valley Mining District, Placer County, California, and with reference to the inquiries I would reply, that if (as stated) the township plat had not been filed in your office at the date of this application, you should have considered the claim as upon unsurveyed land, and dealt with it accordingly.

You are, therefore, directed to immediately notify these applicants that they will be allowed to proceed with their application, and to include in their diagram and notice only the mining ground and premises to which they hold the right of possession agreeably to the local customs, rules or regulations of the miners in the district, or which they have by themselves, or grantors, held and worked for a period equal to the time prescribed by the statute of limitations for mining claims in the State of California.

In all cases you will deal with claims of this kind as upon unsurveyed land, until the township plat approved by the Surveyor-general shall have been filed in your office. * * * Very respectfully,

WILLIS DRUMMOND, Commissioner.

Proceedings when an Error is discovered in Patent. DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, April 11, 1871. J. R. HARDENBERGH, Esq., Surveyor-general, San Francisco,

California:

SIR: Referring to your letter of twentieth ultimo, returning the patent issued to the Empire Mining Company for their claim on the Ophir Hill ledge or lode, dated March 14, 1870, which, though an error in the plat and field notes. had been described as located in T. 15, N. R. 8 E. Mt. Do. Mer., but which is now shown to be located in T. 16, N. R. 8 E., 1 have to state that a new patent has been prepared, and will be issued to said Empire Mining Company, for their said claim, as in Township sixteen (16), north of

Range eight (8) East, Mt. Do. Mer., upon the claimants thereof making a relinquishment in writing on the back of the patent already issued, of all right, claim, title, or interest to the premises described therein; said relinquishment to be attested under seal, by the clerk of any court within the land district in which the claim is situated.

The patent referred to is herewith returned for that purpose, and you will inform the Empire Mining Company of the contents of this letter, and return said patent to this office, when the proper indorsement has been made thereon. Very respectfully,

WILLIS DRUMMOND, Commissioner.

Right of Drainage and Easement Protected.
DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., April 16, 1871. Register and Receiver, Helena, Montana:

GENTLEMEN: I have had under consideration the papers submitted with the Register's letter of eighteenth February, 1871, in the application made by Jessie F. Taylor and Jerry G. Smith for a patent under the mining law of ninth July, 1870, for 2910 acres of placer mining ground.

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The foregoing objections of Bernard Collins and Nicholas Wail, do not, in the judgment of this office, constitute such an adverse interest as is contemplated by said sixth section. They claim none of the mining ground included in said application for patent, but simply that they have a right to construct a drain ditch and bed-rock flume through or across it, to connect with their dumping-ground, as aforesaid; and no suspension of proceedings will be ordered in consideration of the foregoing objections.

However, lest there exist any misapprehension upon the subject, it is thought proper to state, and you will be particular to so inform all the parties in interest, that in every patent issued by this office for either a lode or placer claim, a condition, in view of the fifth section of the mining act, is inserted as follows, viz:

"That in absence of necessary legislation by Congress, the Legislature of may provide rules for working the mine hereby granted, involving easements, drainage, and other necessary means to its complete development.

It is believed that this condition gives to the Legislature of the State or Territory in which a patented claim is situated, ample power and authority for the enactment of all necessary rules and regulations for the proper working and development of the mines, and this as completely in regard

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