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Mining District, in said territory. The claims purport to have been located in pursuance of section 2323 of the Revised Statutes, notices of the location of which were regularly recorded. The surveys above mentioned are of those locations. There is no charge of misconduct against the deputy who executed the surveys, nor is the correctness of his work in any way questioned. The protest is based upon the alleged fact that the surveys embrace the surface ground of other claims of prior location, founded upon discoveries made from the surface, which claims have already been surveyed, and for which, it is alleged, applications for patents are pending
Upon the filing of the protest in his office, the Surveyorgeneral forwarded the same to your office, together with the field notes and plats of the surveys, and copies of the said notices of location, and asked to be instructed in the premises. Findivg the facts to be as above stated, and that the locations were correctly surveyed, your office, under date of June 11, 1880, instructed the surveyor-general to approve the said surveys; whereupon the protestant, under date of the twenty-first of June, applied by telegram to have the Surveyor-general instructed to withhold his approval, and to be allowed thirty days within which to appeal from your instructions. You report the whole matter to this Department, and recommend, in effect, that the application be denied. I fully agree with your recommendation. Claimant entitled to have his location surveyed and plotted un
der the direction of the Surveyor-general. In the first place, a claimant having a mining claim which has been located and recorded according to law, has the right to have it accurately surveyed and plotted, in accordance with the location, by or under the direction of the Surveyor-general; and, in order that he may use such survey and plat in the proper prosecution of any right which he may have or allege to patent for such claim from the United States, he is entitled to the Surveyor-general's approval of the survey, and his usual certificate showing that the same was made in accordance with the law and instructions, and that the plat is correct; provided always, that the claimant pays the expenses of the survey (Revised Statutes, secs. 2325, 2326, and 2334); and no one, in my opinion, has the right to be heard before the Surveyor-general, your office, or this Department, by protest or otherwise, in opposition to the making or the approving of such survey, or the granting of such certificate, except the party entitled to the survey. The procuring of an official survey of a mining claim is, from its very nature, an ex parte proceeding, in which the claimant alone is interested. It prejudices the rights of no one, and settles or decides nothing as regards the title of the claim. When such a survey is procured, it may be used as evidence by the claimant in proceedings for patent. If there be a previous application for a patent of the same lands, such survey can not be of any value until such prior application be rejected, because such application would withdraw the lands described from subsequent application. If such prior application be rejected, it would, however, be of value to the party making the claim. It is the kind of evidence expressly provided by law for the purpose of identifying a claim, and showing its exact location and boundaries; and it is a fundamental legal principle that a party may produce competent evidence in support of an asserted right. But such a survey is not conclusive evidence, and may be objected to by an adverse claimant, and overthrown by competent testimony. By this right of objection all adverse parties in interest are fully protected, and may be heard at the proper time before tribunals having jurisdiction and ample authority in the premises. Until introduced as evidence, survey of mining claim not sub
ject to objection by any person other than the applicant
therefor. Until introduced in evidence for the purposes contemplated by the mining statutes, a survey of a mining claim is not subject to objection by any one but the applicant therefor, nor until then is there any occasion for objection or protest, save by the party for whom the survey is being made. A mining location, or record of location, might with equal propriety be objected to or protested against by parties not claiming under it. In every proceeding for patent under the mining statutes, not only does the tribunal before which the matter is pending examive into and pass upon the correctness and legality of the survey, but it considers and decides the question of the legality of the location itself. Your office and this department have undoubted authority to make and enforce all proper and needful regulations concerning the manner of making surveys of mining claims, and exercise general supervisory powers in the premises, and may investigate cases of misconduct or inşubordination on the part of deputy surveyors and surveyorsgeneral, and enforce the production of honest and accurate surveys. Circular of November 20, 1873, approved.
And I think the enforcement of the circular instructions of your office of November 20, 1873, which I fully approve, will secure proper surveys of mines, and leave no cause for complaint by any one.
From what hås been said, it necessarily follows that no one except a claimant reqnesting a survey of a mining claim, hås the right of appeal from a proposed or an actual approval or disapproval of a survey of such .claim, or to appeal from any instructions of your office to the Surveyorgeneral regarding such a survey.
The papers submitted by your letter are herewith returned.
A. BELL, Acting Secrelary. The Commissioner of the General Land Office.
No. 5. Adjoining claimants have no right to protest, object, file evidence, or appeal on a question of survey, until the same is presented as evidence in an application for patent.
DEPARTMENT OF THE INTERIOR,
WASHINGTON, October 26, 1880. SIR: I am in receipt of your letter of the twenty-fifth instant, accompanying the papers in the matter of the surveys of the Beatrice and Monitor mines, claimed by the Ivanpah Consolidated Mill and Mining Company, together with the appeal of Julius A. Bidwell from your instructions therein of August 16, 1880, to the Surveyor-general of California, and a letter lately prepared by you, addressed to the Surveyor-general, directing him to approve and deliver plats of said surveys to the proper parties without further delay.
You request me to dismiss said appeal, to approve your letter to the Surveyor-general, to give you explicit authority to dismiss all other like appeals, and to direct the Surveyorgeneral to refuse to receive any protest or appeal relative to the survey of a mining claim, except from the party entitled to such survey.
The appeal in this case was filed with the Surveyor-general September 3, and by him forwarded to your office September 6, 1880, nearly a month after my decision in the matter of the surveys of the Occident, Orient, and other mines, under which decision it should not have been accepted and forwarded by the Surveyor-general, provided that officer had received instructions in accordance therewith; but having been received and forwarded, it should have been promptly dismissed by your office.
No right to protest against proposed survey by adjoining
claimants. The practice of permitting adjoining claimants, or persons not applicants for the survey, in a case like this, to protest, object, file evidence, and appeal, where no case to which they are parties, or in which any question of their right of possession or to a patent is involved, is before this department for decision or final action, is, in my opinion, altogether wrong, and the sooner it is entirely discontinued, the better it will be for all parties concerned. Every proper objection can be made to the survey whenever it is put or offered to be put in evidence in support of an opposing or conflicting right or claim. The anticipation of such objection before the plat is offered in proof in support of a claim seems to me a little worse than useless.
I do not think it necessary for me to approve your letter to the Surveyor-general, for it is not at all likely that he will refuse to obey your instructions. I will say, with reference to letters of that character, directing the approval of such surveys, that they are not to be considered in any way as decisions affecting the merits of cases. They will not preclude objections to surveys presented in support of applications for patent, or adverse claims, and the approvals of surveys by direction from your office are not to be considered as having any more or greater force or weight than
ordinary approvals of surveys of mining claims by the Surveyor-general without reference to your office or direction therefrom.
I think my decision of August 9, 1880, in the case above mentioned, gives you full authority to do what you request me specially to direct in this matter. If special instructions to Surveyors-general thereunder are deemed necessary, that decision is ample warrant for your issuing them.
I will say here that the approval, by letter of August 9, 1880, of instructions heretofore issued by your office to Surveyors-general, regarding the manner of making surveys of mining claims, is not to be understood as extending to any instructions in conflict with the principles of the decision.
The papers submitted with your letter are herewith returned.
A. BELL, Acting Secretary. The Commissioner of the General Land Office.
No. 6. 1. Each applicant is entitled to a survey of his claim as located.
2. Where in running the exterior boundaries of a claim it is found that two surveys conflict, the plat and field-notes should show the extent of the conflict, etc.
3. A certified copy of the location notice should accompany the field-notes of the deputy surveyor in every instance.
4. The Surveyor-general should be satisfied that five hundred dollars worth of improvements have been made. DEPARTMENT OF THE INTERIOR,
GENERAL LAND OFFICE,
WASHINGTON, D. C., November 30, 1877. R. H. Mason, Esq., U. S. Surveyor-general, Montana.
Sir: With your letter of the fifth inst., you transmitted the plat and field-notes of survey of the J. H. Russell lode, designated as Lot No. 77, township 8 north, range
5 west, Montana, together with protest against your approval of
It appears from the papers submitted that on the twentyfirst of September, 1877, J. H. Russell made application for an order for survey of said J. H. Russell lode, and that on the twenty-sixth of the same month B. F. Marsh, deputy mineral surveyor, executed a survey of said mining claim.
John W. Gonu filed a protest against your approval of this survey, alleging: