No. 1. No. 2. CHAPTER IV. SURVEY OF MINING CLAIMS. A survey made prior to location can not be used as a survey for patent. Orders for survey and approvals of surveys should be done in regular order. First in time, first in right. No. 3. Union Tunnel, Commissioner's decision. No. 4. When a claim has been surveyed for patent, and another person applies for survey of same claim, he must furnish a certificate of the register of the local office that application for patent, based on prior survey, is not pending. b. When subsequent survey represents mere surface conflict, no obstacle. Union Tunnel, Secretary's decision. а. Claimant entitled to have his location surveyed under the direction of the Surveyor-general. b. Until introduced as evidence, such survey not subject to objection by any other person. .. Circular of November 20, 1873, approved. No. 5. Adjoining claimants have no right to protest, object, file evidence, or appeal on a question of survey until same is filed as evidence. Applicant entitled to survey. No. 6. a. b. Survey should show conflict with prior survey. C. Certified copy of location notice to accompany field-notes. d. Surveyor-general to be satisfied that five hundred dollars' worth of improvements have been made. No. 7. Effect of survey. a. Application therefor a withdrawal of claim from market. Instructions in regard to establishment of mineral monuments. Lateral measurement can not extend on either side of lode be-yond limit allowed by local law. No. 8. No. 9. b. No. 12. No. 13. No. 14. No. 15. Field-notes of survey filed without deposit for office work. Courses and distances yield to fixed objects. The land department can not disregard the decisions of the courts in case of conflicting claims. No. 16. Act of 1866. Surveyor-general not to approve surveys until Register certifies that there is no adverse claim. b. Register to pass upon question of regularity of application. No. 17. Instructions to Deputy Surveyors in States where the Commissioner of the General Land Office is ex officio Surveyor-general. No. 18. Survey to show conflict with prior survey, town lots, streets, etc., but where conflict is only with town lots, etc., all of surface to be included in entry. For surveys on adverse claims, see Nos. 30, 31, 32, 34, and 38 of that chapter. No. 1. Survey prior to location not survey for patent. DEPARTMENT OF THE INTERIOR, WASHINGTON, September 6, 1878. SIR: I am in receipt of your letter of April 10, last, transmitting the papers in the case of the applications for patents for the X Sulphur mine and the Sulphur King mine, Gordon mining district, Utah. Strictly speaking there is no question connected with the case before me for decision. No appeal has been taken from your decision rejecting the application of Edward Reilly for a patent for the X Sulphur mine, or from your decision approving the application for a patent for the Sulphur King mine. There are questions raised in your decision, however, which, though not material so far as the present case is involved, are of importance in the administration of the mining law, and should be considered. It is asserted by Mr. Ferdinand Dickert that the survey of certain mines, including the X Sulphur mine, was made before they were on record or had any recognized existence. The facts in relation to the survey of this mine are stated by you to be as follows: "The records of this office show that on the twenty-first of February, 1876, a survey was made of the X placer claim by M. T. Burgess, deputy mineral surveyor; that the same day the claim was located by Reilly, the location notice containing the same description as that given in the field-notes; that the location notice was recorded February 22, 1876; that application for the official order for the survey of said claim was made February 28, 1876; that the survey made February 21 was submitted to the Surveyor-general as the official survey of said claim, and by him approved on the third of March, 1876.” You further stated that "from the foregoing it will be seen that but one survey was made of said claim, and this prior to and for the evident purpose of securing description of the location. There certainly can be no legal objection to a locator taking this precaution to secure an accurate description of the premises he desires to appropriate by location, and where such survey is made by a deputy mineral surveyor, and is found to have been correctly executed, there is no reason why such survey may not receive the approval of the Surveyor-general." The statute on this does not appear to be definite and specific. Section two thousand three hundred and twentyfour of the revised statutes provides that the miners of each mining district may make regulations not in conflict with the laws of the United States, or the State or Territory in which the district is situated, governing the location, etc., of a mining claim. It would seem, from the wording of the act, that the law contemplated the location of a mine as the first step towards obtaining title to the same. It is further provided that the location must be distinctly marked on the ground, so that its boundaries can be readily traced. Section two thousand three hundred and twenty-five of the revised statutes provides that "a patent for any land claimed and located for valuable deposits may be obtained in the manner following: Any person, association, or corporation authorized to locate a claim under this chapter, having claimed and located a piece of land for such purposes, who has or have complied with the terms of this chapter, may file in the proper land-office an application for a patent under oath, showing such compliance, together with a plat and field-notes of the claim or claims in common," etc. The survey and plat, in support of application for patent, must be made subsequent to location. The statute requires that the survey and plat above specified shall be made subsequent to the location. This is manifest, I think, from the further provision of the section, that the claimant shall, within the sixty days of publication, file the certificate of the Surveyor-general that five hundred dollars worth of labor has been expended or improvements made upon the claim by himself or grantors. The Surveyorgeneral should derive the information upon which to base his certificate from the deputy, who makes the actual survey and examination upon the premises. This view, I think, is in accordance with the instructions Teo, A, Nomse issued to the Surveyor-general by your office, November 20, 1873, in relation to surveying mining claims. I am of the opinion that your decision to the effect that a survey made prior to date of location might receive the approval of the Surveyor-general, and thus become the official survey contemplated in section two thousand three hundred and twenty-five, upon which a patent might issue, is contrary to the intent of the law, and is erroneous. While the application for a patent for a claim thus surveyed should be rejected solely on account of said irregular proceeding, I am of the opinion that, before a patent issues, an actual survey of the claim on the ground should be made subsequent to the recording of the notice of location, as provided by law. You are therefore directed to issue specific instructions to the Surveyors-general on this point, in order that their deputies may in the future proceed in accordance with the views above expressed. The papers in the case are herewith returned. Very respectfully, C. SCHURZ, Secretary. Commissioner of the General Land Office. No. 2. In case of conflict of claim, each claimant has the right to ask and receive his own survey, in the regular order and dispatch of business, without reference to other surveys awaiting approval or in process of execu tion, in every stage of the proceeding. The first in time is the first in right. DEPARTMENT OF THE INTERIOR, WASHINGTON, August 18, 1880. SIR: I have considered the appeal from your instructions of April 12, 1880, to the Surveyor-general of California, in the matter of the delivery to John Mains et al. (styling themselves the Mountaineer Mining Company), the Big Flat Gold Mining Company, and the Big Flat Gravel Mining Company, respectively, of certain mining surveys made by him under partially conflicting locations of placer claims in Del Norte county. November 4, 1867, John Mains et al. and the Big Flat Gold Mining Company filed applications for the survey of their respective claims, and L. B. Healey, deputy surveyor, was directed to execute the same. November 6, 1879, the Big Flat Gravel Mining Company applied for survey of its claims, and Charles F. Kaufman was employed as deputy to execute the work. The grounds covered by these latter applications were a portion of those claimed in the former, although described by subsequent locations under different names, and the conflict does not appear to have been known to the Surveyorgeneral at the time of ordering the surveys. There was no proper appeal before you at the date of your instructions. Those instructions were, however, issued and made to relate to these applications for surveys; and in view of the general practice to be affected by them, I deem it proper to give them such consideration as their importance demands, with a view of deducing a correct and uniform rule for the government of future cases of this nature. In so far as you declined to take cognizance of any matters affecting the alleged ownership of the mining possessions, or to make any decision upon the same, you were undeniably correct. The reasons therefor are fully set out by you in this case, and also in the case of the protest of M. Shaughnessy against the approval of certain mineral surveys in Utah, submitted by your letter of the twenty-fourth of June last, and affirmed by me on the ninth instant. In that case it was decided that no question relating to the merits of opposing claims could be considered by the Surveyor-general, that the law has provided for the presentation of such matters to the register and receiver by the filing of an adverse claim within sixty days after the application for patent; that the merits of the proceeding for patent were then immediately transferred to the courts, unless by failure to bring suit, the adverse claim was waived. In my decision it was also expressly held that the proceeding for the procuring of an official survey of a mining claim is, from its very nature, ex parte; that it prejudices the rights of no one, and settles or decides nothing as regards title; that no one has the right to be heard before the surveying department, by protest or otherwise, in opposition to the making or the approving of the survey, except the party applicant therefor. Measured by these rules it would appear that the ques |