PLACER PATENT-KNOWN LODE-MINERAL ENTRY.

PIKE'S PEAK LODE.

A placer patent for land including a known lode, not specifically described and excluded, operates to convey title to all of said land, and terminate the jurisdiction of the Department over the land covered thereby.

An entry of a lode claim in conflict with a patented placer need not be canceled, but may be properly suspended with due opportunity given for the institution of proceedings looking toward the vacation of the placer patent as to the land in conflict.

In the exercise of its proper supervision over the disposition of the public lands the Department may waive questions affecting the regularity of proceedings below, and render such judgment as shall seem just and proper in the case.

Secretary Noble to the Commissioner of the General Land Office, January 13, 1892.

This appeal is taken by Patrick A. Largey from the action of your office rejecting his application for a patent to the Pike's Peak lode claim, lot No. 174, T. 3 N., R. 8 W., Helena, Montana.

It appears that said claim lies wholly within the limits of the Upton et al. placer claim; that application to enter said placer claim was made July 18, 1879, and that the same containing 153.49 acres was patented April 15, 1881; that Largey made mineral entry for the said lode claim July 14, 1881; that April 9, 1883, your office returned the plat and field notes of the Pike's Peak survey and directed the same to be amended under the ruling in the Shonbar lode (1 L. D., 551; same 3 L. D., 388;) so as to be reduced to twenty-five feet on each side of the vein (section 2333 R. S.); that no action was taken with reference to said order; that November 25, 1889, Largey filed in your office said application for patent to the full extent of said lode claim; that January 8, 1890, you denied the same; that January 22, 1890, Largey filed a motion to review said decision; that by letter of January 30, 1890, you submitted the case to this Department for instructions; which were given by letter dated February 21, 1890, (10 L. D., 200); that thereupon you, on March 5, 1890, denied said motion and held Largey's entry "for cancellation as a whole" and that the pending appeal was then taken.

The Pike's Peak claim is based upon a relocation of the Excelsis lode claim. The Excelsis lode was located by William Reagan, October 15, 1875, for fifteen hundred linear feet on the lode and one hundred and twenty-five feet on each side thereof, and filed with the county recorder November 8, 1875. Said lode was relocated as the Pike's Peak November 10, 1879, by Morgan Connell and recorded in like manner November 12, 1879. Largey claims through conveyance from Connell.

In the Shonbar case, supra, it was held that claimants to a previously located lode within the limits named in a placer patent, who failed to adverse the placer application, were restricted by the statute, section

2333, to their lode "and twenty-five feet of surface on each side thereof." Section 2333, supra, provides:

Where the same person, association, or corporation is in possession of a placer claim, and also a vein or lode included within the boundaries thereof, application shall be made for a patent for the placer-claim, with the statement that it includes such vein or lode, and in such case a patent shall issue for the placer-claim, subject to the provisions of this chapter, including such vein or lode, upon the payment of five dollars per acre for such vein or lode claim, and twenty-five feet of surface on each side thereof. The remainder of the placer-claim, or any placer-claim not embracing any vein or lode claim, shall be paid for at the rate of two dollars and fifty cents per acre, together with all costs of proceedings, and where a vein or lode, such as is described in section twenty-three hundred and twenty, is known to exist within the boundaries of a placer-claim, an application for a patent for such placer-claim which does not include an application for the vein or lode claim shall be construed as a conclusive declaration that the claimant of the placer-claim has no right of possession of the vein or lode claim; but where the existence of a vein or lode in a placer-claim is not known, a patent for the placer-claim shall convey all valuable mineral and other deposits within the boundaries thereof.

In the pending application counsel insist that by reason of its prior location the Pike's Peak lode was "known" and therefore under said section excepted from the placer patent, and that the claimants consequently were not required to adverse the placer application.

This is stated to be sustained by the decision of the supreme court in the case of Noyes v. Mantle (127 U. S., 348), that (page 354)

Where a location of a vein or lode has been made under the law, and its bounda ries have been specifically marked on the surface, so as to be readily traced, and notice of the location is recorded in the usual books of record within the district, we think it may safely be said that the vein or lode is known to exist, although personal knowledge of the fact may not be possessed by the applicant for a patent of a placer claim. The information which the law requires the locator to give to the public must be deemed sufficient to acquaint the applicant with the existence of the vein or lode.

In your decision of January 8, 1890, you say, "deeming the decisions of the Department in the Shonbar case the precedents which this office must follow in this class of cases until another and different course of procedure is laid down by the Hon. Secretary" declined to "take notice of the decision of the supreme court in the case of Noyes v. Mantle, supra, except in so far as it affects the particular case therein considered," and denied said application.

By said letter of March 5, 1890, denying appellant's motion for review, you found under the departmental instructions of February 21, 1890, supra, "that no appeal having been taken from the decision of April 9, 1883, aforesaid, ordering the amended survey that the same is final."

In its said instructions this Department found it unnecessary to discuss the conflict between the decision in Noyes v. Mantle and the Shonbar case, supra, for the reason that "in this particular case your office would not have jurisdiction to review the decision of your predecessor rendered on April 9, 1883, which has become final there being no appeal."

The appellant, however, alleges that the said order of April 9, 1883, was not a final action in the case and consequently not appealable.

Without passing upon this contention and waiving the question of your authority to reverse a final decision by your predecessor involving the same matter, it is sufficient to say that the question being now here this Department by virtue of the "just supervision" that the law vests in the Secretary of the Interior over "all proceedings instituted to acquire portions of the public lands" has jurisdiction to consider the case and render such decision as in his opinion shall be meet and proper under the circumstances. McDonogh School Fund (8 L. D., 463); Charles W. Filkins (5 L. D., 49).

Concerning its merits, the appellant's case proceeds upon the theory that his said lode claim, having been known to exist at the date of said placer application, and not having been included therein, was by the terms of section 2333, supra, excepted from the placer patent and that the title to said lode claim thus remaining in the government, this Department has jurisdiction to consider his application and issue to him a patent for the said lode.

By its patent issued to the placer claimants, the government conveyed (subject to certain exceptions not affecting the Pike's Peak lode claim) the tracts described in their application. The said patent contained the general proviso that "should any vein or lode

be claimed or known to exist within the above described premises at the date hereof the same is expressly excepted and excluded from these presents," but contained no specific reservation of the Pike's Peak lode claim.

In the said letter of instructions (10 L. D., 200), the question whether or not the issue of patent to the placer claimants for land including the lode claim here in question, operated to pass the government's title to said lode claim, was discussed at length. It was then held in effect that a placer patent for land including a known lode not specifically described and excluded, conveyed all said land and formed no exception to the general rule that "the issuance of patent terminates the jurisdiction of the Department over the land covered thereby and such patent can be invalidated only by proceedings in the proper court."

This ruling was followed in the recent and analogous case of the Pacific Slope lode (12 L. D., 686), where a known lode claim based on a record location was embraced in a townsite patent which contained the proviso that "no title shall be hereby acquired to any mine of gold, silver, cinnabar or copper, or to any valid mining claim or possession held under existing laws of Congress." In the case just referred to, it was held that although the lode claim was known to exist at the date of the townsite entry, and notwithstanding the said provision, the issue of the townsite patent terminated the departmental authority over the ground embraced in the lode claim. It is true that section 2333, supra, 14561-VOL 14

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was not involved in the Pacific Slope case, supra. But the conditions of the patent considered in that case being substantially the same as those contained in the patent involved in the case at bar, I am of the opinion that the ruling in said case is in line with the doctrine announced in the said letter of instructions, supra.

It is accordingly held that the title to the ground embraced in the Pike's Peak lode claim passed out of the United States with the issue of patent to the Upton placer claimants and that the pending applica tion for patent for such lode claim must accordingly be denied for want of jurisdiction. I cannot, however, concur in your conclusion that the Pike's Peak entry should at this time, be canceled. It is quite possible that by proper judicial proceedings such claim would be sustained under the decision in the case of Noyes v. Mantle, supra, and the provis ions of section 2333, supra, and that the Upton placer patent would be vacated to the extent of its conflict therewith.

I am therefore of the opinion that said entry should be suspended for such period as would afford the applicant an opportunity to institute such proceedings or to apply for a recommendation by this De partment of a suit to re-invest in the United States the title to the lode claim in question. The appellant's claim, as heretofore shown, being relegated to the courts, it will be unnecessary for me to discuss the effect of your said letter of April 9, 1883, or the merits of the decision in the Shonbar case therein cited.

The decision appealed from is modified in accordance with the views herein before outlined.

INADVERTENT NOTATION-SURRENDER OF PATENT.

EDDY v. UNIVERSITY OF ILLINOIS.

A tract of land is not segregated from the public domain by an inadvertent notation of its disposition on the tract book and plat in the local office.

An informal application to surrender a patent, and take certain other land, in order to correct an error of the Land Department and avoid litigation, may properly be held to reserve the land, thus applied for, from other disposition.

A patent may be surrendered and other land taken in satisfaction thereof, where, by such action, litigation to correct an error of the Land Department is avoided. First Assistant Secretary Chandler to the Commissioner of the General Land Office, January 13, 1892.

On August 7, 1867, the following location of agricultural college scrip (No. 1491) was made at the land office at St. Cloud, Minn.:

I, Illinois Industrial University, of Champaign county, State of Illinois, hereby apply to locate and do locate the SE. quarter of section No. 24, in township No. 124, of range No. 36, in the district of lands subject to sale at the land office at St. Cloud,

containing one hundred and sixty acres, in satisfaction of the attached scrip numbered 1491, State of Illinois, issued under the act of July 2, 1862. Witness my hand this 7th day of August, A. D., 1867.

ILLINOIS INDUSTRIAL UNIVERSITY.

M. C. GOLTRA, Trustee.

Attest:

H. C. WAIT, Register.

H. C. BURBANK, Receiver.

The following certificate was attached thereto:

LAND OFFICE, ST. CLOUD, MINN.,

August 7, 1867.

We hereby certify that the above location is correct, being in accordance with law and instructions.

H. C. BURBANK, Receiver.
H. C. WAIT, Register.

A patent was issued to said University for said south-east quarter March 1, 1872.

The local officers by mistake and inadvertence noted and marked said location on their tract book and plat as made on the south-west quarter of said section.

As said south-east quarter, by reason of said erroneous marking, appeared on the books of the local officers to be vacant land, they allowed the same to be again located on October 14, 1867, by Calvin F. How, in satisfaction of agricultural college scrip (No. 1000), State of Massachusetts, and a patent was issued on this location July 20, 1869, in the name of William L. Fuller, as assignee of said How.

On June 25, 1890, Frank M. Eddy made application at the land office at Marshall, Minn., to enter said south-west quarter under the provisions of the timber culture act of June 14, 1878 (20 Stat., 113), which application was rejected by the local officers because, according to their records, said land had been located by said University. An appeal was taken and said opinion was affirmed by you October 4, 1890, on the ground that,

Applications are now pending before this office in behalf of the parties interested for a correction of the locations and patents issued thereon, which withdraws from appropriation the said south-west quarter.

An appeal now brings the case before me.

Although both the local officers and yourself concur in rejecting Eddy's application, these decisions are based upon non-concurring grounds.

The finding of the local officers was based upon the ground that the said University had located the said south-west quarter, but this was an error: the said University had made no such location. The said southwest quarter had never been located or disposed of to any one. The noting upon the book and plat of the local office that it had been located did not alter the fact of its non-location. Such marking was an