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No. 6. Circular. N.


GENERAL LAND OFFICE, WASHINGTON, D. C., September, 13, 1878. To U.S. Surveyors-general.

By direction of the Hon. Secretary for the Interior, under date of the sixth instant, you are hereby instructed as follows:

Survey for patent must be made subsequent to recording of lo

cation of mine. 1. The survey and plat of mineral claims, required by section 2325 Revised Statutes of the United States, to be filed in the proper land office with application for patent, must be made subsequent to the recording of the location of the mine; and when the original location is made by survey of a United States Deputy Surveyor, such location survey can not be substituted for that required by the statute as above indicated.

Deputy to report value etc. of improvements.

2. The Surveyor-general should derive his information upon which to base his certificate as to the value of labor expended or improvements made, from his deputy who makes the actual survey and examination upon the premises) and such deputy should specify with particularity and full detail the character and extent of such improvements.

I desire also to call your attention to section 2320, U. S. Revised States, referring to vein or lode claims, which requires that “the end lines of each claim shall be parallel to each other."

It appears that in some instances this explicit statutory requirement has been disregarded. Hereafter you will approve no survey of such claims unless the end lines thereof are parallel to each other. Promptly instruct your deputy surveyors accordingly.

Very respectfully,

U. J. BAXTER, Acting Commissioner.

No. 7.


WASHINGTON, D. C., January 20, 1879. Registers and Receivers, U. S. Land Offices.

Hereafter, when a mineral entry is made in your office, you will promptly report the fact, with proper description, to the Surveyor-general of your district. You will likewise report cancellations of mineral entries.

Very respectfully,

J. A. WILLIAMSON, Commissioner.

No. 8.


WASHINGTON, D. C., September 24, 1879. T. United States Surveyors-general.

GENTLEMEN: You will please instruct all United States deputy mineral surveyors in your respective districts that they are precluded from acting, either directly or indirectly, as attorneys in mineral claims.

You will also forth with transmit to this office a list of all your deputy mineral surveyors, with the post-office address of each. Advise this office of subsequent appointments as soon as made, and promptly report any violation of this order. Very respectfully,

J. M. ARMSTRONG, Acting Commissioner. Approved. A. BELL, Acting Secretary.

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No. 9. Circular in relation to newspaper publication of notice of application for patent. DEPARTMENT OF THE INTERIOR,


WASHINGTON, D. C., November 22, 1880. Registers and Receivers, United Stales District Land Offices.

GENTLEMEN: It has been represented to me by the publishers of newspapers and numerous other persons interested, that the rate of compensation prescribed by me and promulgated in official circular of April 19, 1880, for the publication of notices of intention to apply for patent to miving claims, is inequitable, and in many instances inadequate.

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Since the promulgation of the former circular, additional facts have been brought to my attention, and I am led to believe that a more just and satisfactory rule would be to make the price to be charged for the publication of such notices depend upon the space which they occupy in the columns of the newspaper designated by the Registers.

For the reasons stated, I have concluded to modify the former circular in this respect, and direct that hereafter the maximum charges for such notices shall not exceed five ($5) dollars for each ten lines of space occupied, when a weekly paper is designated as the medium of publication, and seven dollars when a daily newspaper is designated, said sums to be in full payment for publication in each issue of the newspaper designated for the entire period required by law.

It should be borne in mind that these notices must not be so abbreviated as to curtail the description essential to a perfect notice, and the said rates are established upon the understanding that they are to be in the usual body-type, as nonpariel.

For the publication of citations in contests or hearings involving the character of lands, the charges shall not exceed eight ($8) dollars for five publications in weekly newspapers, or ten ($10) dollars for publication in daily newspapers for thirty-one days. You will give due notice hereof to all persons interested.

Very respectfully,

J. A. WILLIAMSON, Commissioner.


No. 1. Achison v. Peterson, water right.
No. 2. Basey et al. v. Gallagher, water right.
No. 3. Heydenfeldt v. Daney G. and S. Mining Co., sections 16 and 36, in

the State of Nevada.
No. 4. Forbes v. Gracey, right of State to tax.
No. 5. Davis v. Alroyd, mechanic's lien.
No. 6. Water and Mining Company v. Bugbey, grant of sections 16 and

36 to the State of California. No. 7. McGarrahan v. Mining Company, execution of patent. No. 8. Jennison, Executor of Titcomb, v. Kirk, water rights and mining

claim in California. No. 9. Flagstaff Mining Co. v. Tabert, question of location. No. 10. Campbell v. Rankin, value of records in a mining district as evi.

No. 11. Mining Company v. Taylor, ejectment.
No. 12. Ivanhoe Mining Co. v. Keystone Consolidated Mining Co,
No. 13. United States ex rel. Thomas McBride v. Carl Schurz.


(Reported in 20 Wallace, 507.) 1. On the mineral lands of the public domain in the Pacific States and Territories, the doctrines of the common law, declaratory of the rights of riparian proprietors respecting the use of running waters, are inapplicable, or applicable only in a very limited extent, to the necessities of miners, and inadequate to their protection; their prior appropriation gives the better right to running waters to the extent, in quantity and quality, necessary for the uses to which the water is applied.

2. What diminution of quantity, or deterioration in quality, will constitute an invasion of the rights of the first appropriator will depend upon the special circumstances of each case; and in controversies between him and parties subsequently claiming the water, the question for determination is whether his use and enjoyment of the water to the extent of the original appropriation have been impaired by the acts of the other parties.

3. Whether, upon a petition or bill asserting that the prior rights of the first appropriator have been invaded, a court of equity will interfere to restrain the acts of the party

complained of, will depend upon the character and extent of the injury alleged, whether it be irremediable in its nature, whether an action at law would afford adequate remedy, whether the parties are able to respond for the damages resulting from the injury, and other considerations which ordinarily govern a court of equity in the exercise of its preventive process of injunction.


(Reported in 20 Wallace, 670.) 1. In the Pacific States and Territories a right to running waters on the public lands of the United States for purposes of irrigation, may be acquired by prior appropriation, as against parties not having the title of the government. The right, exercised within reasonable limits, having reference to the condition of the country, and the necessities of the community, is entitled to protection. This rule obtains in the Territory of Montana, and is sanctioned by its legislation.

2. By the act of Congress of July 26, 1866, which provides "that whenever by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same,” the customary law with respect to the use of water, which had grown up among occupants of the public land under the peculiar necessities of their condition, is recognized as valid. That law may be shown by evidence of the local customs, or by the legislation of the State or Territory, or the decisions of the courts. The union of the three conditions in any particular case is not essential to the perfection of the right by priority; and in case of conflict between a local custom and a statutory regulation, the latter, as of superior authority, will control. No. 3. HEYDENFELDT v. DANEY GOLD AND SILVER MINING


(Reported in 3 Otto, 634.) Error to the Supreme Court of the State of Nevada.

This is an action of ejectment, brought by Heydenfeldt in the district court of the first judicial district of Nevada,

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