DECISIONS

RELATING TO

THE PUBLIC LANDS.

MINING CLAIM-DISCOVERY-LOCATION.

POPLAR CREEK CONSOLIDATED QUARTZ MINE.

A discovery of mineral must be treated as an entirety, and the proper basis of but one location, and therefore, not susceptible of sub-division for the purpose of two locations having a common end line that bisects the discovery shaft. Secretary Noble to the Commissioner of the General Land Office, January 3, 1893.

On December 19, 1890, J. F. Bigelow made mineral entry No. 267 for the Poplar Creek Consolidated Quartz Mine, Marysville, California, comprising the Pine Nut and Gorilla locations, both made on January 5, 1888, and thereafter purchased by him.

You held the entry for cancellation on April 15, 1892, deciding that both the locations in question were based upon one discovery. Bigelow has appealed from your judgment to this Department.

It appears from the plat and field notes that the south end line of the Pine Nut location forms the north end line of the Gorilla location. These locations were made, as we have seen, on the same day-one by D. M. Bull and the other by Joseph Braden, the latter transferring his claim to the former a few days later for a consideration stated to be one dollar, and Bull transferred by deed both the locations to Bigelow and others.

Neither of the location notices recites that the maker thereof has discovered a vein or lode, but each states that the locator

hereby gives notice that he claims

fifteen hundred (1,500) feet in length by a width of three hundred (300) feet on each side of the center of that certain vein or ledge of quartz containing gold and other metals, situated on the south side of Poplar Valley, Quartz township, Plumas county, State of California.

Then follows a description of each.

The only account of any discovery is found in the field notes of survey, and there it is stated that:

The improvements on the claim consist of a shaft on the lode at the line between the two locations, which is about sixty feet in depth, and a tunnel which has been driven towards the shaft, a distance of two hundred and twenty-five feet

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The whole cost and value of the improvements, in my opinion, amount to $2,000. All the improvements on this claim have been made by Mr. Bigelow, the applicant for patent, but $1,200 has been expended by him on these improvements since his purchase of the Pine Nut and Gorilla locations. These improvements are for the development of both locations, although the principal work is on the Pine Nut location.

It is further stated that "the ledge, as developed, shows a thickness of from six to ten feet; is not easily traced upon the surface."

Good faith is required of those who locate lands for minerals and make entry thereof, and no valid location can be made unless there has first been an actual discovery.

Section 2320 of the Revised Statutes provides that all mining claims, located after the 10th day of May, 1872, whether located by one or more persons, may equal, but shall not exceed, one thousand five hundred feet in length along the vein or lode; but that no location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located. These located claims shall extend no more than three hundred feet on each side of the middle of the vein at the surface.

The law evidently contemplates that the discoverer shall have a right to locate his claim to the exclusion of others, and, if the discovery is made by two parties, but one location can be made by them, for it is but a single discovery. No man, nor set of men, being rational, would discover a vein or lode and so describe the location as to make one of the end lines run through the center of the discovery shaft, thus leaving territory not located in which it was demonstrated ore existed, and which might have been included in the description.

There was but one discovery made upon which both these locations were based. Both Bull and Braden may have discovered the vein or lode, but each could not claim the discovery as his own. It was one discovery made by two men, and only entitled the two, or either of them, to make one location. If the law could be so construed as to allow two locations in a case like this, it would also have to be held that one discovery would entitle the discoverers to make four locations, placing one-fourth of the discovery to the credit of each. The law is not susceptible of any such a construction. A discovery is a whole, and may not be divided and parceled out among the discoverers.

Attorneys for appellant have cited the case of Larkin v. Upton (144 U. S., 20,) as authority for holding that the one discovery shaft was sufficient for two locations, but an examination of that case fails to convince me that it is decisive of the question at issue. In that case it is held that the top or apex of a vein must be within the boundaries of the claim, in order to enable the locator to perfect his location and obtain title. It was also held that this apex is not necessarily a point, but may be a line of great length, and if this be true, and a portion of it can be found within the limits of a claim, that is sufficient discovery to entitle the locator to obtain title. In that case there was a patented

claim, and its south end line formed the north end line of the claim in question, and the question arose as to whether there had been a discovery on the south claim. The discovery shaft in that case was sunk by the claimants of the unpatented claim very near, if not on the boundary line between the claims, and the owners of the patented claim asserted that the discovery was made on their side of the line. The jury below rendered a special finding, to the effect that the vein or lode was discovered south of the line and within the limits of the unpatented claim, and that the top or apex of such vein was not within the limits of the patented claim, and the supreme court affirmed the court below in its judgment that there was a valid discovery. In that case there were adverse interests, and the only question decided was as to whom the benefit of a discovery inured, while in the case at bar no discovery has been made on either of the locations, except in one shaft, and it is not a question here as to which of these locators is entitled to the benefit of the discovery, but as to whether the two locators by combining may initiate two claims. In that case one claim had been located on a discovery made doubtless at some distance from the boundary line and had been patented, while in this a right is sought to be initiated to claim two locations upon but a single discovery. It is a plain attempt to evade the law and secure a mineral claim, three thousand feet in length, where the law would allow but one thousand five hundred feet.

A single discovery should not be construed into two discoveries, in order to support two locations, by merely running an imaginary line through the discovery point.

Your judgment is accordingly affirmed.

RAILROAD LANDS-ACT OF JANUARY 13, 1881.

TURNER v. SOUTHERN PACIFIC R. R. Co.

The right of purchase accorded by the act of January 13, 1881, can not be exercised by one who is qualified to take the land in question under the timber culture law, where said land is subject to such appropriation.

Secretary Noble to the Commissioner of the General Land Office, January 3, 1893.

This controversy involves the E. of the NE. 1, the NW. 1 of the NE. 4, and the NE. 4 of the NW. 4 of Sec. 31, T. 6 N., R. 4 W., S. B. M., Los Angeles land district, California.

You report that said land is within the limits of the indemnity withdrawal made in 1867, for the benefit of the Southern Pacific Railroad Company, under the grant of July 27, 1866 (14 Stat., 292), which withdrawal was revoked by departmental order of August 15, 1887, (6 L. D.,

93), and the lands embraced therein restored to the public domain, and that said lands were opened to entry on the 7th of October, 1887.

On said 7th of October, 1887, the Southern Pacific Railroad Company filed its indemnity selection No. 29, which embraced the whole of said section 31. On the same day, Robert Turner made application to purchase the land under the act of January 13, 1881, (21 Stat., 315).

The local officers transmitted both these applications to your office for instructions, and on the 16th of June, 1888, you held Turner's application for allowance, and the railroad's selection for cancellation. The company appealed to the Department, and on the 19th of September, 1890, it was held that the record failed to disclose whether Turner's application to purchase, or the company's application to select, was first filed, but as the company's selection had been received and recorded, its rights could not be summarily disposed of upon ex-parte affidavits. A hearing was therefore ordered, for the purpose of giving Turner an opportunity to offer testimony in support of his allegations, and the company to submit evidence in support of its selection.

Such hearing took place before the local officers on the 18th of December, 1890, and their decision was rendered on the 22d of May, 1891. From the testimony, they found that Turner lived on the land from January 1, 1887, until after the date of his application to purchase; that he had improvements of considerable value thereon, which he had purchased in large part from a former occupant; that the land was practically devoid of timber, and clearly subject to entry under the timber culture law; that the selection of the railroad company was filed as early as ten o'clock, a. m., October 7, 1887, and the application of Turner about noon of the same day. They concluded that Turner was not qualified to enter the land under the law governing his appli cation, and that the selection by the Southern Pacific Railroad Company was a valid one.

This decision was reversed by you on the 25th of November, 1891, and an appeal by the company from your decision, again brings the case to the Department.

It was only persons who were not authorized to enter the land under the homestead, pre-emption, or timber culture laws of the United States, who were authorized to purchase it under the act of January 13, 1881. The provisions of that act were as follows:

That all persons who shall have settled and made valuable and permanent improvements upon any odd-numbered section of land within any railroad withdrawal in good faith and with the permission or license of the railroad company for whose benefit the same shall have been made, and with the expectation of purchasing of such company the land so settled upon, which land so settled upon and improved, may, for any cause, be restored to the public domain, and who, at the time of such restoration, may not be entitled to enter and acquire title to such land under the pre-emption, hom estead, or timber culture acts of the United States, shall be permitted, at any time within three months after such restoration, and under such rules and regulations as the Commissioner of the General Land Office may prescribe, to

purchase not to exceed one hundred and sixty acres in extent of the same by legal subdivisions, at the price of two dollars and fifty cents per acre, and to receive patents therefor.

As to the amount of timber upon the section which embraces the land in question, only two witnesses testified. One was Turner, the claimant, and the other was Swarthout, one of his corroborating witnesses. In answer to the question: How much timber and what kind of timber is there growing on this whole section of land? his answer was: There are about ten or twelve trees; three of them are cottonwood, and the rest willows; all are of a scrubby nature. He further testified that there were no other trees growing on the section.

Harley Swarthout, his corroborating witness, in his testimony, in answer to the question: Is there any timber on section 31? answered: "There are a few scattering trees; can't tell the number; a few cottonwoods and some willows; most of them have been set out by people, I think." This being all the evidence in the case on the subject of timber upon the section, I think the local officers were justified in saying: "It is also clear, from the testimony, that the land is such as may be entered under the timber culture act."

The evidence shows that Turner had exercised his rights under the homestead law, and that he had moved from his patented homestead to the land in question, which prevented him from acquiring it under the pre-emption law. It appears, however, that he was qualified to take land under the timber culture law, and that this land was subject to entry under such law.

In the 7th paragraph of the circular of instructions, issued by your office, and approved by the Department, in connection with the act of January 13, 1881, (5 L. D., 165), it was said, if the applicant "is qualified to make either a homestead, pre-emption, or timber culture entry, and the land is subject to the entry he is qualified to make, then he is not allowed to make an entry under this act." In the case of Benjamin H. Eaton (8 L. D., 344), it was held that "A purchaser under said act must show actual settlement on the land, and that he is not entitled to acquire title under the pre-emption, homestead, or timber culture law." In view of the provisions of the law quoted, and the circular and de. cision cited, and the showing made by the evidence in the case, that Turner was qualified to make timber-culture entry, and that the land in question was subject to such entry it is clear that he was not qualified to purchase the land under the act of January 13, 1881. This renders a further consideration of the case, and of the questions raised, unnecessary. The decision appealed from is reversed, and the selection by the Southern Pacific Railroad Company will be allowed to remain in force, unless there are objections thereto, other than Turner's claim.