358. (Following Hauswirth v. Butcher, 4 Mont. | made, segregating his mining claim from the 299; 1 Pac. Rep. 714.) agricultural claim. Creswell M. Co. v. Johnson, 8 L. D. 440; S. C. on review, 8 L. D. 443. 65. The lines of a survey must necessarily conform to the course of the vein and not to congressional surveys. Reynolds v. Iron Silver M. Co., 116 U. S. 687. 66. Surveys to segregate mineral from agricultural land should be made only by direction of the General Land Office. Com'r to Surveyor General of California, May 21, 1892. 67. A survey to segregate a mining claim from agricultural land may be made at the expense of an agricultural claimant desirous of entering the land. Walter Bond, 18 L. D. 418. 68. The owner of an unsurveyed mining claim in conflict with an agricultural entry, and which the Land Department holds should be excluded from the agricultural entry, must have an official survey of his claim made. Winters v. Bliss, 14 L. D. 59. 74. Where a placer claim is described as consisting of a certain part of an irregular, fractional lot, a survey thereof may be required, if necessary, to definitely fix the boundaries and extent of the claim. G. A. Khern, 6 L. D. 580. 75. An entry of a placer claim may be patented where the land entered is described as certain portions of lots (as the N. E. of lot 1 of a certain section), as the excess or deficiency of area will be taken to fall upon the north and west sides of the fractional In re Ten Per Cent Placer. Contra, Com'r to lot. Com'r to Redding Office, July 18, 1896, Leadville Office, August 21, 1896, In re Monitor No. 1 Placer. 76. The land remaining in a forty-acre sub69. Where an agricultural entry is shown division after the deduction of the areas of to embrace a valid mining claim, the agricult-mining claims should be given a lot number ural claimant must have a survey made at by the Surveyor General. George B. Foote, his expense, under the direction of the Surveyor General, segregating the mineral from the agricultural land. Darragh v. Holdman, 11 L. D. 409. 70. Where, upon a contest, it is decided that the land in conflict between an agricultural entry and an unsurveyed mining claim is mineral in character, a segregation survey must be made at the expense of the mineral claimant. Creswell M. Co. v. Johnson, 8 L. D. 440. 71. The failure of mineral claimants to comply with a Departmental order, and show by a segregation survey the extent of an alleged conflict with an agricultural entry, warrants the conclusion, in the disposition of said entry, that no such conflicts exist. Winters v. Bliss, 19 L. D. 287. 72. An agricultural claimant who relinquishes the ground in conflict with an unsurveyed mining claim must have a survey made, segregating such mining claim from his agricultural claim. Departmental decision of June 13, 1896, In re Arthur Chambers. 9 C. L. O. 113. 77. The failure of government surveyors to segregate mineral from agricultural lands cannot operate to the injury of occupant miners. Gold Hill Quartz M. Co. v. Ish, 5 Oreg. 104; 11 Mor. Min. Rep. 635. 78. A hearing may be allowed for the submission of evidence in explanation of an apparent discrepancy between the survey and the claim as marked out on the ground and described in the location. Emma Lode, 7 L. D. 169. 79. A hearing may be had to identify the claim as surveyed with the claim as located. Jackson v. Dyer, 8 C. L. O. 3. 80. Inaccuracies in surveys of mining claims may be investigated through the office of the Surveyor General, not by a hearing. St. Lawrence M. Co. v. Albion Cons. M. Co., 4 L. D. 117. 81. An actual survey must be made of the entire adverse claim. An adverse claimant is not permitted to color a portion of the applicant's survey and treat it as his entire adverse claim. Bates v. Chambers, 1 C. L. O. 98. 73. Where the owner of a mining claim 82. If it is impossible to make a survey to in conflict with a homestead entry secures show the boundaries of an adverse claim, its the cancellation of the homestead entry as absence may be waived if the conflict is to the conflict because of the mineral char-shown as nearly as practicable from informaacter of the land, he must have a survey | tion available. J. S. Wallace, 1 L. D. 582. Polk's Lessee v. Wendall, 9 Cranch, 87; St. 83. The nature and extent of an adverse | v. North Star M. Co., 73 Fed. Rep. 597. (Citing claim may be shown by unofficial survey if it is impracticable to obtain an official survey by a United States Deputy Mineral Surveyor. Hoffman v. Beecher, 31 Pac. Rep. 92. 84. The fact that a survey made for the purpose of showing the boundaries and extent of an adverse claim is slightly erroneous will not invalidate the adverse claim. Hoffman v. Beecher, 31 Pac. Rep. 92. 85. An adverse complaint should allege all material facts as to plaintiff's ownership, that application for patent has been filed by defendant, that suit is based on adverse claim duly filed, and should show conflict between claims. Cronin v. Bear Creek Gold M. Co.. 32 Pac. Rep. 204; Mattingly v. Lewisohn, 8 Mo t. 259; 19 Pac. Rep. 310; Anthony v. Jillson, so Cal. 296; 23 Pac. Rep. 419. 86. An application to make mineral entry by a successful adverse claimant must be accompanied by official plat and field-notes describing the tract awarded him, and by a certificate of the United States Surveyor General of an expenditure of $500 upon the tract sought to be entered. Albert F. Harsh, 2 L. D. 706. 91. Where several contiguous locations are embraced in one survey, the boundaries of every separate location must be shown. S. F. Mackie, 5 L. D. 199; Golden Sun M. Co., 6 L. D. 808. 92. Where several locations are embraced in one survey, the corners of every location should be numbered, commencing in every case with No. 1. Topography should not be shown on the plats of mineral surveys. Com'r to Surveyor General of South Dakota, March 31, 1892, and to Surveyor General of Colorado, April 7, 1892. 93. Where separate applications and entries are made for the several locations surveyed as one claim, the claimant may file a and make a new entry therefor nunc pro tunc. new application for the consolidated claim Frederick A. Williams, 15 L. D. 532. 94. Though placer claims on surveyed lands are required to conform, "as near as practicable," with legal subdivisions, they may be located along a stream or canyon, as it is not the intent of the law to compel the placer claimant to take land unfit for mining. Will iam Rablin, 2 L. D. 764. 87. An applicant for patent may abandon the part adversely claimed, and after survey receive a patent for the part not in contro95. A placer entry of a long narrow strip versy. Fairmount G. & S. M. Co., 1 C. L. O. 82. of land covering a stream of water on sur88. "The last position of the court below, veyed land, held to conform as near as reathat the owner of contiguous locations who sonably practicable with the public surveys, seeks a patent must present a separate appli-land was valueless for mining. (In this case where it was shown that the surrounding cation for each, and obtain a separate survey, and prove that upon each the required work has been performed is as untenable as the rulings already considered." St. Louis Smelting Co. v. Kemp, 104 U. S. 636; 11 Mor. Min. Rep. 673. 89. Where several contiguous mining claims are owned in common they may be embraced in one survey. Good Return M. Co., 4 L. D. 221; S. F. Mackie, 5 L. D. 199; Circular, March 24, 1887, 8 L. D. 505. 90. While the law prescribes a limitation to the size of a single location, there is no limitation to the number of claims one person may hold by purchase, or that may be inclosed in a single patent, and as I understand, that may be included in a single survey, showing only the exterior boundaries, and omitting all interior lines of the several smaller claims." Carson City G. & S. M. Co. four entries covered a strip of land from five to five hundred feet wide and about eighteen miles long.) Pearsall & Freeman, 6 L. D. 227. 96. A location of a placer claim by legal subdivisions must be made to conform therewith in the matter of exact description of the land as shown by the township plat. Fractional subdivisions designated by the United States Surveyor General as lots must be so described. Reins v. Murray, 22 L. D. 409. 97. The plats of mineral surveys, prepared for the claimant, the local land office and the General Land Office should all be signed by the Surveyor General, all being originals. Blue-print copies should not be made instead of originals. Com'r to Surveyor General of New Mexico, Sept. 17, 1891. 98. It cannot be objected that any plats or field-notes are copies and not originals in a mining case, as four plats and field-notes in duplicate are prepared by the Surveyor General. Juniper Mine, 4 C. L. O. 115. 99. The approved plat of survey of a mining claim must show the date of location of the claim. Hall v. Street, 3 L. D. 40. 100. Expenditure of $500 must be shown upon the plat and field-notes of all mining claims. Com'r to Surveyor General, March 10, 1874, 1 C. L. O. 2. 101. No plat of a lode discovered in a tunnel will be made until the exact surface ground is ascertained. William L. Campbell, 4 C. L. O. 102. 102. The plat of survey which is part of the patent is often entitled to as much, and perhaps more, weight than the courses and distances. Serrano v. Rawson, 47 Cal. 55. 103. An approved mineral survey may be amended only by direction of the General Land Office. Com'r to Surveyor General of Utah, Nov. 10, 1891. 104. During the pendency of a suit based upon an adverse claim against a mineral application, an amended survey of the claim applied for will not be ordered. Com'r to Surveyor General of Colorado, May 13, 1893, In re Comstock Lode, and June 26, 1896, In re Mollie C. Lode. 1C5. If the survey of a mining claim is found to be erroneous, and the Deputy Surveyor by whom it was made has since ceased to occupy that position, claimant must have the amended survey made by another Deputy at his own expense. Com'r to Surveyor General of Montana, Dec. 10, 1891. 106. If an amended survey or a resurvey is required, through the fault of the Deputy Surveyor, he must bear the expense thereof. Com'r to Surveyor General of Colorado, April 3, 1895, In re New York Lode, and July 30, 1895, In re Oranoke Lode. 107. Where a survey which is not in accordance with the law and regulations is approved by the United States Surveyor General, if an amended survey is ordered, the claimant should not be required to make another deposit for office work, and the Deputy Surveyor must do the necessary field work without expense to the claimant. Edward Hickey, 9 C. L. O. 163. 108. Errors in the sworn field-notes of a Deputy United States Mineral Surveyor should be corrected by him. Com'r to Surveyor General at San Francisco, Cal., Dec. 11, 1878, 5 C. L. O. 162. 109. In requiring an amended survey of an entered mining claim, the General Land Office should direct that claimant be allowed a certain time within which to take proper steps, under penalty of cancellation of the entry. Vanderbilt Lode, 16 L. D. 105. 110. Where a mineral patent issues based on an erroneous survey, a new patent in lieu thereof may not be issued without new notice, based on a correct survey, where the original survey is so erroneous as not to cover any portion of the claim. If such patentee refuses to surrender the erroneous patent, and to reconvey the land covered thereby, suit to vacate patent will be recommended by the Land Department. United States v. Rumsey, 22 L. D. 101. 111. The Surveyor General has no authority to have made a resurvey of a patented mining claim because of errors in the survey made the basis of the description in the patent. Com'r to Surveyor General of California, May 2, 1891. 112. Where the survey of a mining claim and the published notice based thereon are erroneous in describing the claim as being in a county other than the one in which it is actually situate, to the injury of adverse claimants, an amended survey and republication will be required. Henry v. Castner, 17 L. D. 565. 113. An application for a lode patent was made by A. B., the owner of a conflicting lode claim, filed an adverse claim and commenced suit thereon, alleging prior location of the ground in conflict. A. filed an answer, but thereafter amended the survey of his claim by so shortening it as to eliminate from it all conflict with the claim of B., and was allowed to make entry in the land office of the reduced area. He then withdrew his answer, and B., on testimony submitted, secured judgment for the land in controversy. Held: (1) That the withdrawal of the answer and abandonment of the application for patent as to the conflict did not remove the cause from the jurisdiction of the court. (2) That, in view of the first holding, the judgment is conclusive as between A. and B. of the priority of the location of B. Last Chance M. Co. v. Tyler M. Co., 157 U. S. 683. 114. Land surveyed prior to the admission | compensation given by claimants." Com'r to of a State, and known to contain coal at the Surveyor General of Utah, April 9, 1892. date of such admission, does not pass under a grant of school lands to the State. State of Montana v. Buley, 23 L. D. 116. 115. A State admitted before the survey of lands is entitled to sections 16 and 36 under its school grant if they are not known to be mineral at date of the approval of the survey, and a discovery of mineral thereon subsequently will not defeat the right of the State. The State acquires no rights, how ever, by an irregular survey which is approved and thereafter suspended. Virginia Lode, 7 L. D. 459; Town Site of Silver Cliff v. State of Colorado, 6 C. L. O. 152; J. Dartt, 5 C. L. O. 178; State of Colorado, 6 L. D. 412; 7 L. D. 490. 116. The right of the State under a school grant attaches, as to non-mineral lands previously surveyed, at date of the admission of the State. As to non-mineral lands surveyed subsequent to the admission of the State, the right attaches at date of approval of the survey. Warren v. State of Colorado, 14 L. D. 681. 119. To be excepted from a grant of school lands to a State, land must have been known to be valuable for mineral as a fact at the date of the approval of the survey thereof when the State was admitted prior to such survey. Frees v. State of Colorado, 22 L. D. 510. 120. "The length of every line run in the survey of a mining claim is to be ascertained by precise horizontal measurement, as nearly approximating an air line as is possible." Com'r to P. Rasmusser, Oct. 4, 1892. 121. The Surveyor General is prohibited from "expediting the examination of mineral surveys in his office by allowing his employees to work outside of office hours for extra 122. No part of a mineral entry can stand if made on a false survey and publication. Gustavus Hagland, 1 L. D. 593. 123. The position of corners of the claim as found on the ground should be shown by the plat and field-notes of a mineral survey. Com'r to Surveyor General of Nevada, 1 L. D. 581. 124. The survey of a mining claim must show location lines. Philip Dephanger, 8 C. L. O. 189. 125. The survey of a mining claim must be within the lines of the location as marked on the ground. Com'r to Surveyor General or Arizona, Oct. 31, 1891, In re Homestake Lode. claim or town site is a public survey. Eugene 126. The survey of a patented mining McCarthy, 14 L. D. 105. (But see S. C. on review, 14 L. D. 294.) 127. A survey under the mining act does not withdraw the land from sale unless followed by application for patent. William L. Campbell (2), 4 C. L. O. 35. 128. The survey of a mining claim should properly show the conflicts with prior surveys, and when the ground claimed is shown, it should be that described by the applicant, as neither the Deputy nor the Surveyor General has authority to require an applicant to include or to exclude from his claim any portion or any particular tract even if within his own knowledge the same has been otherwise appropriated. His power in this respect is advisory only. Com'r to Surveyor General of Colorado, Jan. 7, 1889, 15 C. L. O. 255. 129. The United States Surveyor General may not require a claimant to exclude land from the claim surveyed. Antediluvian Lode & Mill Site, 8 L. D. 602. 130. The Surveyor General has no authority to determine questions of title in mining property. Thor Mine, 5 C. L. O. 51; J. H. Russell Lode, 5 C. L. O. 18. 131. A report should be made by the United States Deputy Mineral Surveyor on all placer claims surveyed by him as to soil, timber, streams, proximity of the claim to centers of trade or residence, and to lodes, adaptability for placer mining, water supply, improvements, etc. Circular of Sept. 22, 1882, 1 L. D, 685. 132. An examination of a placer claim and report thereon by an United States Deputy Mineral Surveyor under circular of September 22, 1882, at the expense of the applicant for patent is not required where the claim is taken by legal subdivisions. Rosina T. Gerhauser, 7 L. D. 390. 133. The report of a Deputy Mineral Surveyor, who examines a placer mining claim in his official capacity, which shows the land to be mineral in character, overcomes the slight presumption raised by its return by the Surveyor General as agricultural in character, and places the burden of proof upon one alleging its non-mineral character. State of Washington v. McBride, 18 L. D. 199. 134. Though several contiguous locations owned in common may be embraced in one survey (S. F. Mackie, 5 L. D. 199), if the consolidated claim, in the survey thereof, becomes two or more tracts not joined by the boundary line of a claim, such tracts may not be embraced in one survey and application. Com'r to Surveyor General of California, Oct. 28, 1891, In re Champion Consolidated Mine. 135. In the absence of a contrary showing it will be assumed that that portion of the vein on which the discovery shaft is sunk is the middle of the vein from which surface ground on each side is to be measured. Hope M. Co., 5 C. L. O. 116. 136. The fact that the location of a min ing claim may have been defective in that it was not made in accordance with the mining district rules as to width of the claim and the record of location notice is rendered immaterial by the repeal and annulment of such rules prior to allowance of mineral entry. Walter C. Childs, 10 L. D. 173. 137. The measurement of the width of a mining claim should begin from the outer walls of the lead, and not from the center of the lead itself. (Act of Montana, 1864. But see sec. 2320, U. S. Rev. Stat.) Foote v. National M. Co., 2 Mont. 402; 9 Mor. Min. Rep. 605. 138. It is presumed by the Land Department, in the absence of a contrary showing, that the lode extends in a straight line through the center of a surveyed claim. Bi-metallic M. Co., 15 L. D. 309. 139. The Surveyor General should certify that the field-notes and plat of a mineral survey are correct and contain sufficient data to definitely fix the locus thereof, and that $500 has been expended thereon by claimant or his grantors. Circular, Nov. 20, 1873, 1 C. L. O. 13. 140. The Surveyor General should be satisfied that the required expenditure has been made on a mining claim, and may call for additional evidence. J. H. Russell Lode, 5 C. L. O. 18. 141. Patent was issued based on an erroneous survey, but the notice of application for patent was so nearly correct as to be sufficient to put adverse claimants on their guard. In view of these facts, on the filing of a quitclaim deed of the patented land from the present owner to the United States, together with an abstract of title, a new and correct patent may be issued in the name of the original patentee without requiring republication. W. C. Childs, 13 C. L. O. 53. 142. The effect of an entry as regards third parties is not altered by reason of a defect in the survey which caused a temporary suspension of the entry by the Land Department. Last Chance M. Co. v. Tyler M. Co., 157 U. S. 683; 61 Fed. Rep. 557; 15 U. S. App. 456. 143. Coal lands are disposed of only by legal subdivisions. Hence a coal claim should not be made the subject of a mineral survey. Com'r to Deputy R. E. Hurst, Dec. 27, 1892. 144. A survey may be procured under the "special deposit" system by coal claimants. Circular August 7, 1895, 21 L. D. 83. 145. Public land cannot be considered as being surveyed until the plat thereof has been filed in the local land office. Buxton v. Traver, 130 U. S. 232; United States v. Curtner, 38 Fed. Rep. 1. 146. An appeal may be taken from the action of the Surveyor General in approving a survey. Instructions to Surveyor General of Colorado, Nov. 5, 1874, 1 C. L. O. 133. 147. Applications for patent should be received at the local office in order of timenot according as surveys are approved. Big Flat Gravel M. Co., 1 L. D. 562. 148. Where a survey of a mining claim has been made upon unsurveyed lands, in extending the public surveys the Surveyor General will adjust the same to the boundaries of such surveyed claims. Com'r to Surveyor General of Colorado, Jan. 7, 1889, 15 C. L. O. 255. |