lished, the declaratory statements provided for in the foregoing acts may be filed with the Surveyor-General of the proper district.

Very respectfully,

Jos. S. WILSON, Commissioner.

Approved: W. T. OTTO, Acting Secretary.

No. 267 B.

Cities and towns on the public lands, acts July 1, 1864, and March 3,

1865.

By the act of July 1, 1864, it is "provided that any actual settler upon any one lot as aforesaid, and upon any additional lot in which he may have substantial improvements, shall be entitled to prove up and purchase the same as a pre-emption, at said minimum, at any time before the day fixed for the public sale."

The Registers and Receivers of the local offices have been instructed that, under this proviso, any actual settler may pre-empt the lot upon which he resides, with one additional lot upon which he has substantial improvements; that no more than two lots can be pre-empted by any one settler; and that the persons claiming the benefit of this proviso must be actual residents of the town or city in which the lots claimed may be situated, and must have the personal qualifications required by the general pre-emption laws.

The General Land Office holds that this limitation is clearly to one additional lot and no more; that, had the legislative mind intended otherwise, the word lots would have been used instead of lot, as it now stands in the statute, but that the department will, in cases where expensive municipal or business improvements, as mills, warehouses, furnaces, machine shops, &c., are shown to exist, take care that no such interests shall suffer by the intrusion of an adverse claim, or purpose to purchase to the prejudice of the owner of such interest, such protection of course to be subordinate to the requirements of law in regard to public sales.

The substantial improvements for the purposes contemplated in this statute are understood to mean permanent buildings or works for municipal use; a mere inclosure by temporary fence for gardening or other incidental use not being considered as satisfying this requirement of law.

In some sections of the country cases of hardship have arisen under the provisions of the statute, and particularly on the Pacific slope, where some of the towns the claims of which are pending under the acts of July 1, 1864, and March 3, 1865, have considerable population, and are located upon old Mexican or Spanish grants, but recently declared to be invalid, and where it is represented that many persons own more than two lots each, purchased oftentimes at great expense and containing valuable improvements upon which the claimants have paid taxes and received rents for many years, without any question ever having been raised as to their title.

It is claimed that to limit such persons to a pre-emption of but two lots, and to expose to sale other lots worth oftentimes thousands of dollars, and compel them to purchase the second time at their market value, or even to suffer them to pass into other hands without the consent of those who had held them under a title recognized as valid in many cases for more than fifteen years, would be an act of great injustice.

It is also contended that in most of the new towns of the west, many of the lots and improvements are owned by persons residing elsewhere; that many of the miners in the western Territories purchase lots in the neighboring towns with the view of making their future residences upon them; and that where none but actual residents are allowed to pre-empt lots they must necessarily suffer loss, which in mining towns is often considerable, unless provision is made, which is recommended, to relieve this particular class of cases, and also to relieve the class possessing more than two lots, where the excess lot is covered by valuable improvements.

The aforesaid act of 1864 declares that where parties have founded or may desire to found a city or town on the public lands, it shall and may be lawful "for them to cause to be filed with the recorder for the county in which the land is situated a plat thereof for not exceeding 640 acres, describing its exterior boundaries," giving the name of the city or town, and exhibiting the streets, squares, blocks, lots, and alleys, the size of the same, with measurements and area of the municipal subdivision, the statement of the extent and general character of the improvements, the map and statement to be verified under oath by the party acting for and in behalf of the persons proposing to establish the city or town, and within one month after the filing there shall be transmitted to the General Land Office a verified transcript map and statement, accompanied by the testimony of two witnesses, that such city or town has been established in good faith.

It is further required that the exterior lines of the whole city be run and established by actual survey, to be perpetuated by permanent visible objects, and said actual lines by a scientific surveyor must be shown on the map with the exact measurement of the exterior lines, and also of the municipal subdivisions as specifically designated in the statute.

The verified manuscript map is required to be sent to this office with an authenticated copy of the field-notes of survey. The map of survey must also be accompanied by the sworn statements of the parties as “to the extent and general character of the improvements," and with it should be transmitted a general map of the region, indicating the locality of the town site as near as possible to some prominent place in the geography of the country.

A point has been made as to the hardship of requiring municipal settlers to pay the cost of survey, while non-residents are permitted to purchase within the limits of a town who may not have contributed to the payment of the expense of such survey. This objection is obviated by restricting the survey to the area applied for by the settlers; yet should there be surplus lots not claimed, the sale of them would enhance the value of the settlement, as increase of population is increase of the productive power, thereby offsetting any inconsiderable outlay originally incurred in founding the city. (Annual Report of the Hon. Joseph S. Wilson, Commissioner, for 1866, pp. 20, 21.)

No. 267 B.

Cities and towns on the public lands.

Rulings contained in the report of the Hon. Joseph S. Wilson, Commissioner, for the year 1869:

Various questions have arisen as to the location of towns in the mineral regions, and as to the authority of the mayor of a town to receive a patent

in trust for persons residing and owning lots outside of corporate limits. Under date of April 21, 1869, the commissioner decided that the town of Nevada City, California, could enter a certain tract which had been once used for mining, the evidence showing the mines were worked out and exhausted, and the premises more valuable for purposes of trade and agriculture than for mining.

In the case of the application of the corporate authorities of Grass Valley, California, it was held, that it was not the intention of the statute in donating lands for town-site purposes, to extend the operation of the grant beyond the limits of an incorporated town; for the reason that the trust must be executed by the mayor or other corporate authorities, in his or their official capacity, for the benefit of the actual residents of the town, and not for those residing outside the corporate limits.

TITLE V.

Mineral Lands and Mining Claims.

No. 268 B.

Circular.

In relation to mining claims under the act of Congress approved July 26, 1866.United States Statutes, page 251, chapter cclxii.

DEPARTMENT OF THE INTERIOR, GENERAL LAND OFFICE, January 14, 1867. Gentlemen-Herewith will be found the act of Congress approved 26th July, 1866,* “ granting the right of way to ditch and canal owners over the public lands, and for other purposes."

By the first section of this act all the mineral lands of the United States, surveyed and unsurveyed, are laid open to "all citizens of the United States, and to those who have declared their intention to become such, subject to statutory regulations," and also "to the local customs or rules of miners in the several mining districts not in conflict with the laws of the United States.' 19

It therefore becomes your duty, in limine, to acquaint yourselves with the local mining customs and usages in the district in which you may be called upon to do those official acts which are required by law, whether the same are reduced to authentic written form, or are to be ascertained by the testimony of intelligent miners, which you are to obtain as occasion may require and justify, in acting upon individual claims, a perfect record whereof is to be carefully taken and preserved by the Register and Receiver, and to be accompanied by a diagram or plat fixing the out boundaries of the district in which such customs and usages exist.

The second section of the act declares that "wherever any person or association of persons claim a vein or lode of quartz or other rock in place, bearing gold, silver, cinnabar, or copper, having previously occupied and improved the same according to the local custom or rules of miners in the district where the same is situated, and having expended in actual labor and improvements thereon an amount of not less than one thousand dollars, and in regard to whose possession there is no controversy or opposing claim, it shall and may be lawful for said claimant, or association of claimants, to file in the local land office a diagram of the same, so extended laterally or otherwise, as to conform to the local laws, customs and rules of miners, and to enter such tract and receive a patent therefor, granting such mine, together with the right to follow such vein or lode with its dips, angles, and variations, to any depth, although it may enter the land adjoining, which land adjoining shall be sold subject to this condition."

* No. 174 B.

Mining claims may be entered at any district land office in the United States under this law by any person, or association of persons, corporate or incorporate. In making the entry, however, such a description of the tract must be filed as will indicate the vein or lode, or part or portion thereof claimed, together with a diagram representing, by reference to some natural or artificial monument, the position and location of the claim and the boundaries thereof, so far as such boundaries can be ascertained. First. In all cases the number of feet in length claimed on the vein or lode shall be stated in the application filed as aforesaid, and the lines limiting the length of the claim shall, also, in all cases be exhibited on the diagram, and the course or direction of such end lines, when not fixed by agreement with the adjoining claimants, nor by the local customs or rules of the miners of the district, shall be drawn at right angles to the ascertained or apparent general course of the vein or lode.

Second. Where, by the local laws, customs, or rules of miners of the district, no surface ground is permitted to be occupied for mining purposes except the surface of the vein or lode, and the walls of such vein or lode are unascertained, and the lateral extent of such vein or lode unknown, it shall be sufficient, after giving the description and diagram aforesaid, to state the fact that the extent of such vein or lode cannot be ascertained by actual measurement, but that the said vein or lode is bounded on each side by the wall of the same, and to estimate the amount of ground contained between the given end lines and the unascertained walls of the vein or lode; and in such case the patent will issue for all the land contained between such end lines and side walls, with the right to follow such vein or lode, with all its dips, angles, and variations, to any depth, although it may enter the land adjoining: Provided, The estimated quantity shall be equal to a horizontal plane bounded by the given end lines, and the walls on the sides of such vein or lode.

Third. Where, by the local laws, customs, or rules of miners of the district, no surface ground is permitted to be occupied for mining purposes, except the surface of the vein or lode, and the walls of such vein or lode are ascertained and well known, such wall shall be named in the description, and marked in the diagram, in connection with the end lines of such claims.

Fourth. Where, by the laws, customs, or rules of miners of the district, a given quantity of surface ground is fixed for the purpose of mining or milling the ore, the aforesaid diagram and description in the entry shall correspond with and include so much of the surface as shall be allowed by such laws, customs, or rules for the purpose aforesaid.

Fifth. In the absence of uniform rules in any mining district limiting the amount of surface to be used for mining purposes, actual and peaceable use and occupation for mining or milling purposes shall be regarded as evidence of a custom of miners authorizing the same, and the ground so occupied and used in connection with the vein or lode, and being adjacent thereto, may be included within the entry aforesaid, and the diagram shall embrace the same as appurtenant to the mine.

Where the claimant or claimants desire to include within their entry and diagram any surface ground beyond the surface of the vein, it shall be necessary, upon filing the application, to furnish the Register of the land office with proof of the usage, law, or custom under which he or they claim such surface ground, and such evidence may consist either of the written rules of the miners of the district or the testimony of two credible witnesses to the uniform custom or the actual use and occupation as aforesaid, which testimony shall be reduced to writing by the Register