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the claim according to local mining customs; having expended thereon in actual labor and improvements an amount of not less than one thousand dollars; that the mine is one producing either gold, silver, cinnabar, or copper; that applicant has posted diagram and notice in a conspicuous place on the premises as required by law ; that the applicants are an incorporated company, or, if such is not the case, that they are citizens, or have filed declaration of intention to become citizens, and that a diagram of the claim is filed with the application. It should always contain a description of the premises as represented in the diagram.
OF THE EARLY PROCEEDINGS UNDER THE UNITED STATES MINING LAW.
During the first eighteen months after the passage of this enactment by Congress, delay occurred from want of familiarity on the part of the occupants of mines, and also in the local administration, in regard to the proceedings required. This inconvenience was at first unavoidable, and is not unusual in the execution of new enactments. It is now in great measure removed by the adoption of a system of rules, after a careful and thorough analysis of the subject, by which the liberal intentions of the framers of the law are being realized.
In some of the earlier cases reported it was brought to light that claims might be asserted, under new names, to old mines having expensive improvements thereon, without the knowledge of the real owners, in consequence of the notices being published and posted during their temporary absence, or, in remote and unoccupied districts, during the suspension in winter of mining operations.
The only way to prevent occasional acts of injustice in issuing patents to parties not entitled to them under the law is to require every claimant to file with his application some appropriate evidence of his possessory title under the local rules or customs of miners in the district in which his claim lies. ~
EFFECT OF THE TOCAL MINING CUSTOMS AND LAWS.
It was evidently the intention of the framers of the mining act not only to recognize the validity of these local mining customs and laws, and rights acquired under them, but to interfere as little as possible with them ; and in administering the act this policy is steadily kept in view in this office, and patents are only issued to claimants holding the possessory right under and by virtue of such mining regulations.
In some of the States and Territories these local customs and rules of miners are enacted by the miners themselves, at miners’ meetings, and observed as rules in their respective districts. In other cases the legislature of the States and Territories have passed general laws prescribing rules by which all the miners in the several districts are governed.
It has been insisted sometimes that territorial legislatures have no power to pass laws limiting mining claims, for the reason that the organic laws of such territories inhibit such legislatures from interfering in any way with the primary disposal of the soil, and that the mining act of Congress recognizes not these enactments of State or territorial assembly, but the customs of the miners themselves.
It is held by the commissioner. that a State or territorial enactment regulating a more possessory claim, is in no way in conflict with the congressional enactment, but is in subordination to the constitutional power of Congress to deal as may seem most proper with regard to the disposal of the national domain, whether mineral or agricultural ; and even if there were in fact any interference by a territorial act with the primary disposal of the soil, it was perfectly competent for Congress, by subseQuent legislation, such as the mining act, to legalize the same, even though it were at variance with territorial organic law ; and as the mining law extends the privilege of applying for a patent only to such as have previously occupied and improved their claims according to the local customs and rules of miners in the respective districts, the congressional enactment evidently recognizes the binding force of such rules. With regard to the point sometimes made that the mining act recognizes only the regulations adopted by the miners themselves, and not the enactments of the territorial legislature, it is replied that the question as to how or by whom the rules or customs were passed or enacted is not at all involved. . The real point is, what are the regulations by which the miners in the several districts determine the validity of claims; what body of rules are applied to them when questions of conflict come before the local courts; and what laws are appealed to in cases where records are made or notices filed with the mining recorder, or when forfeitures are declared. The regulations controlling in such cases are the rules recognized by the mining act of Congress; and whether the miners adopted them at miners’ meetings or found them in a volume of territorial statutes is a matter of entire indifference, providing they use them in determining the nature and extent of mining rights. It has been suggested that no authority is conferred upon the territorial assembly to prescribe mining rules. Clearly no authority had previously been conferred upon miners’ meetings to pass laws or rules of an obligatory character, and yet it is admitted the mining act recognizes such regulations; and certainly, if an act of Congress can impart a legal character to rules adopted by a mere town meeting, it is equally competent for Congress to give binding force to a territorial statute, even if in the first instance there had been a want of power to pass such statute. , It is not doubted that a territorial act setting apart in perpetuity a certain number of feet on every newly-discovered lode for the benefit of the public schools, adopted in one or more Territories, would be void for want of power in the territorial legislature to pass such an act; because, if not void, the United States Government would be precluded from selling the reserved portion of these lodes to whomsoever it chose to make its vendee. This would be an interference with the primary disposal of the soil, and hence void unless legalized by a subsequent act of Congress. The question as to what rules are in vogue among the miners and what is prescribed by them are matters of proof to be furnished by applicants for patents.
STATUS OF AGRICULTURAL LANDS IN MINING DISTRICTS.
Representations were made to this office that farmers, who had for years occupied and cultivated some of the finest agricultural lands, were interfered with by gold-seekers endeavoring to develop placer deposits beneath the surface of their fields; and that such farmers were deterred from erecting valuable buildings, setting out orchards, or making other improvements of an expensive and permanent character. .
In view of such representations, the Register affti Receiver of the proper district were instructed to the following effect : That as there are many tracts in what are called the mineral districts of no value for mining purposes, but well adapted to agriculture and horticulture, it would be a benefit to the country to promote their settlement and improvement by permanent residents, it not being the policy of the United States to keep such lands open for exploration for an indefinite period, from the mere possibility that some day or other gold, silver, cinnabar, or copper might be discovered thereon. The local officers are instructed to endeavor to prevent unnecessary litigation and improper obstructions being thrown in the way of making agricultural entries where the tracts are more valuable for agriculture than for mining. If a tract, say forty acres, has a mine upon it occupied and worked by the occupant in pursuance of the mining customs, there certainly can be no trouble in proving the fact, and it requires no tedious and expensive investigation to determine whether the same is subject to entry under the pre-emption or homestead law. If, on the contrary, the adjoining fortyacre tract is well adapted to farming or gardening, and has never had thereon a mine, and presents no positive indications of valuable deposits of precious metals, the facts are capable of ready proof. . A certain subdivision either has a mine upon it, and is occupied by miners in pursuance of the mining customs of the district, or it is not improved and occupied as a mine. In either case the facts may be readily and satisfactorily established by proof. If it is occupied as a mine, or if a vein of quartz or other rock in place, bearing gold, silver, cinnabar, or copper, has there been traced, it is mineral land ; but if it has no existing mine upon it, and no metalliferous vein of quartz or other rock is known to pass through or penetrate the tract, the land is not properly classed as mineral, although, contrary to present indications, gold, silver, cinnabar, or copper may at some future time be discovered upon it. One part of a quarter section may be mineral land and another only fit for agriculture, but it does not follow from one forty or eighty acre tract having mining improvements upon it, that the other eighty cannot be entered under the pre-emption or homestead law. Where a mine exists, the miner should be allowed such additional quantity of land as may be necessary for the convenient working of the mine, but beyond this he ought not to be permitted to interfere with the disposal of the public domain ; and if the residue of a quarter section is farming land, it should be disposed of accordingly. These questions of contest, it is supposed, generally arise upon lands claimed to contain placer deposits, but upon which no placers have yet been opened, or, if once opened, are no longer worked. Lands containing mineral veins or lodes are usually of such marked geological structure that litigation is not likely to grow out of adverse claims on the part of agricultural settlers. Besides, under local customs vein miners are only allowed a certain number of feet on each side of the vein or lode. If beyond such allowance no other veins are found, and the land is adapted to farming, the rights of the agricultural settlers must be recognized. . The Registers and Receivers are directed to afford all proper facilities to bona fide settlers for obtaining titles to agricultural lands; while on the other hand they are enjoined to take care to avoid interference with the mines or mining improvements of mining occupants. Whenever the character of a tract applied for by an agricultural settler is contested, the Register and Receiver are directed to institute an examination, requiring the applicant to serve notice upon the contestants, which may be done by posting written notices at several prominent points in the vicinity of the land, or by publishing notice in the newspaper nearest the land in dispute. The local land offices are directed to apply to this office for any further instructions desired, and to report promptly all contested cases, that they may be disposed of without unnecessary delay.
SURVEYING INSTRUCTIONS WITH REFERENCE TO MINING CLAIMS.
In regard to surveying mineral claims in Colorado the attention of the Surveyor-General at Denver was called, under date of the 24th June last, to the fact that in certain cases claims connected with the regular public surveys are connected by broken lines of different bearings; no direct line from the nearest public corner to the beginning point of the claim having been calculated and specified in the plat or field-notes, thus rendering it impracticable for this office, in the description introduced into mining patents, to locate each claim in the particular township, section, and subdivision, which will embrace it when the public surveys are completed. .
The attention of the Colorado surveying department was also called to other cases, where the claims are connected with objects wanting in permanency, such as trees, stones, and cabins, liable to disappear, and thus render it difficult, and in some cases probably impossible, to determine and identify the true corners. - .
The Surveyor-General was at the same time instructed to cause the draughtsman to examine the plats in the Surveyor-General's office, and endeavor to correct them so as to correspond with a sample plat then furnished for his guidance. That officer was further advised that the plats are copied into the patents, and that in certain cases it would be out of the question to do so without reducing the scale to such an extent that the claims would scarcely be visible ; and he was informed it is unnecessary to represent upon the plat the line or lines from the public corner or initial point to the beginning point in the boundary of the claim, it being sufficient to indicate its bearing, and to state the distance without protracting it ; that the prominent thing represented on the plat should be the lode or claim ; that, in connecting it with a public corner, the nearest to the claim should be selected, and the line should be a direct, straight one, its bearings and distance being carefully and accurately ascertained; that in the field-notes the deputy should report in what township, range, section, and subdivision the claim will be located when the surveys are completed—a matter that may be easily ascertained where the surveys are so near that the claim may be connected with them.
It is required that township lines be extended over the mineral district whenever practicable ; and when this is not so, the mining survey must be connected with permanent natural objects by course and distance, so as unmistakably to identify the beginning points of the respective surveys.
It is not doubted that such objects may be found in every mineral district ; and this probability is rendered all the stronger from the fact that no difficulty appears to have been encountered in this respect in the general administration of the mining system. The plats received from other mining regions are full of references to mountain summits, prominent peaks, rocky points, buttes, and cañons, some of which are frequently selected as monumental points of whole districts; and by means of these permanent objects lode claims on unsurveyed lands are located with unerring precision.
FEES OF REGISTERS AND RECEIVERS IN MINING CASES,
The question having arisen as to the fees to which the Registers and Receivers are entitled for their services in acting upon mining cases, the commissioner has decided as follows:–
The fourth section of the act of March 21, 1864, “amendatory of the homestead law and for other purposes,” provides that the Register and Receiver shall each be entitled to one dollar for their services in acting upon pre-emption claims, and shall be allowed jointly at the rate of fifteen cents per hundred words for the testimony which may be reduced to writing by them for claimants in establishing pre-emption or homestead rights. The sixth section authorizes an addition to the above fees of fifty per centum in the States of California, Oregon, and Nevada, and in the Territories of Washington, Colorado, Idaho, New Mexico, and Arizona.
Now, a mining claim being in fact a pre-emption, as the occupant under the mining customs is the only person privileged to purchase, and an application for a patent under the act of July 26, 1866, being analogous to a declaration of intention to enter under the general pre-emption law, it is entirely proper to apply the provision as to fees in general preemption cases to the special pre-emptions under the mining act. Hence, Registers and Receivers in the political divisions above mentioned, and in those formed from them, are entitled to charge applicants for mining patents, at the time of filing the diagram or making the application, three dollars, being one dollar and a half each to the Register and Receiver; and for taking the testimony, either in the form of affidavits or in writing out the answers of witnesses, they are allowed a joint charge of twentytwo and one-half cents per hundred words. In addition to this they are allowed one per cent, each on the amount of purchase money, as in other cash sales of public lands. This last allowance, however, is not paid by the purchaser, but by the United States per Treasurer's warrant.
SIZE OF CIAIMS.
A question having been made as to the authority for issuing a patent to a company for three thousand one hundred feet on the lode, the statute designating, it was assumed, three thousand feet as the maximum to be taken in any one claim, the inquiry was answered by stating that the company in question held the possessory right to a number of claims, located agreeably to the local customs and rules of miners in that district, prior to the passage of the mining act, and that the act is not understood as intending to interfere with locations made before its enactment.
The quartz-mining customs of the district in which the claim lies entitled each locator to one hundred feet on the vein, without limit as to the number of locators that might unite in a company. The claim referred to was located in 1863 by thirty-one locators, each taking one hundred feet.
The customs of the district permit each claimant to hold one claim by location, and as many more as he may purchase in good faith for a valuable consideration, the title of which he has recorded in the books of the county recorder within ten days after such location or purchase. Hence, while the mining customs of said district undertake to restrict monopoly in the matter of locating claims, no similar precaution appears to have