"The acts of July 1, 1862, and July 2, 1864, which donated nearly 100,000,000 acres to railroad corporations, gave the coal and iron lands within their limits, but excepted other mineral lands from the grants. In the act of July, 1862, the following is the excepting clause: 'Provided, That all mineral lands shall be excepted from the operation of this act; but where the same shall contain timber, the timber thereon is hereby granted to said company.'

"In the act of July 2, 1864, section 4 contains this language: "And the term "mineral land", wherever the same occurs in this act and the act to which this is an amendment, shall not be construed to include coal and iron land. And any lands granted by this act, or the act to which this is an amendment, shall not defeat or impair any pre-emption, homestead, swamp land, or other lawful claim, nor include any government reservation, or mineral lands, or the improvements of any bona fide settler, or (on) any lands returned and denominated as mineral lands, and the timber necessary to support his said improvements as a miner or agriculturist to be ascertained under such rules as have been or may be established by the Commissioner of the General Land-Office, in conformity with the provisions of the pre-emption laws: Provided, That the quantity thus exempted by the operation of this act and the act to which this act is an amendment, shall not exceed one hundred and sixty acres for each settler who claims as an agriculturist, and such quantity for each settler who claims as a miner as the said Commissioner may establish by general regulation: Provided, also, That the phrase "but where the same shall contain timber, the timber thereon is hereby granted to said company", in the proviso to said section three, shall not apply to the timber growing or being on any land further than ten miles from the center line of any one of said roads or branches mentioned in said act or in this act.'

"STATE GRANTS.-In the earlier congressional grants of land to states minerals were not mentioned in terms. A general exception was made of all reserved lands. In the river-improvement grants in Iowa and Wisconsin there was no reservation of mineral lands, but in the grants to aid the ship canals in Michigan (March 3, 1865; April 10, 1866; and July 3, 1866) mineral lands were excluded.

"The internal improvement, swamp, and educational grants do not mention mineral lands until after 1860, so far as observed. The agricultural college act of July 2, 1862, excluded 'mineral lands'.

"In the acts admitting states to the Union, mineral lands, as a rule, are not particularized. Only in those states notoriously rich in minerals, like California, are the mineral lands noticed prior to 1860.

"II.-TRESPASS.

"Digging for minerals on the public domain prior to the act of July 26, 1866, was a trespass, entitling the government to damages, and was such a waste as could be restrained by an injunction.

"THE ILLINOIS LEAD CASE.-Upon the construction of the fifth section of the act of March 3, 1807 (2 Stats., 448), and the act of June 26, 1834 (4 Stats., 686), the Supreme Court decided the case of Gear, holding the defendant guilty of trespass in mining for lead upon the public land in Illinois, and enjoining him from the commission of waste (3 How., 120).

"GEAR'S CASE.-The case of Gear was affirmed in Cotton vs. The United States (11 How., 229), where the principle was extended or applied to an action of trespass for cutting timber upon the public land. As the owner of the land it was the government's right to protect its property in the same manner as an individual would. On these questions the inquirer may consult United States vs. Schuler (6 McLean, 28).

"THE NEW ALMADEN QUICKSILVER CASE.-An implied license from the government to mine upon the public land, by reason of its indulgence, if not direct encouragement, was denied in the case of the United States vs. Parrott, involving title to the New Almaden mine in California. (See United States vs. Castillero, 2 Black's Supreme Court Reports for 1862, wherein this mine was also involved.)

"In Sparrow vs. Strong (3 Wallace, 104) the United States Supreme Court recognized the local mining rules.

"III.-FREEDOM AND SALE.

"The act of July 11, 1846 (9 Stats., 36), authorized the sale of the reserved mineral lands in the states of Illinois and Arkansas and the territories of Wisconsin and Iowa, but still excepted the lead-mines from pre-emption. The reserved mineral lands in Missouri had shortly before been offered at sale. This act acknowledged the failure of the lease system. In the following year (1847) the mineral lands in Michigan were offered at sale. The act of September 26, 1850, apparently ended the distinction between mineral and agricultural lands in Michigan and Wisconsin. It enacted that the mineral lands therein shall be offered at public sale in the same manner and be subject to the same minimum price and the same rights of pre-emption as other public lands of the United States'. "The act of July 26, 1866, threw open the mineral lands of the United States to exploration and occupation, and it was thereafter no longer a trespass to dig ore or engage in mining operations on the public domain. The acts amendatory of this liberal law, including the Sutro tunnel grant, will be found elsewhere in this volume."

The foregoing is taken from Copp's United States Mineral Lands as a fair statement of the status of the mineral lands of the United States prior to the act of July 26, 1866, which opened said lands to exploration, occupation, and purchase to all qualified persons.

Referring to existing legislation for the sale and disposition of the public lands, and excepting from such disposition all mineral lands, it is sufficient to state, without specifying each of said laws, that section 2318, Revised Statutes of the United States, provides that "In all cases lands valuable for minerals shall be reserved from sale except as otherwise expressly directed by law".

In the states of Missouri, Kansas, Minnesota, Michigan, and Wisconsin there is an express direction by law that all lands shall be sold as agricultural lands, but such direction exists nowhere else.

AN ACT for the disposal of coal-lands and of town property in the public domain. (Approved July 1, 1864. U. S. Stat., v. 13, p. 343.) Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That where any tracts embracing coal-beds or coal-fields, constituting portions of the public domain, and which, as "mines", are excluded from the pre-emption act of eighteen hundred and forty-one, and which, under past legislation, are not liable to ordinary private entry, it shall and may be lawful for the President to cause such tracts, in suitable legal subdivisions, to be offered at public sale to the highest bidder, after public notice of not less than three months, at a minimum price of twenty dollars per acre; and any lands not thus disposed of shall thereafter be liable to private entry at said minimum.

SEC. 2. And be it further enacted, That in any case in which parties have already founded, or may hereafter 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 same is situated, a plat thereof for not exceeding six hundred and forty acres, describing its exterior boundaries according to the lines of the public surveys, where such surveys have been executed; also giving the name of such city or town, and exhibiting the streets, squares, blocks, lots, and alleys, the size of the same, with measurements and area of each municipal subdivision, the lots in which shall each not exceed four thousand two hundred square feet, with a statement of the extent and general character of the improvements; the said map and statement to be verified under oath by the party acting for and in behalf of the persons proposing to establish such city or town; and within one month after such filing there shall be transmitted to the General Land-Office a verified transcript of such map and statement, accompanied by the testimony of two witnesses that such city or town has been established in good faith; and when the premises are within the limits of an organized land district, a similar map and statement shall be filed with the register and receiver; and, at any time after the filing of such map, statement, and testimony in the General Land-Office, it shall and may be lawful for the President to cause the lots embraced within the limits of such city or town to be offered at public sale to the highest bidder, subject to a minimum of ten dollars for each lot; and such lots as may not be disposed of at public sale shall thereafter be liable to private entry at said minimum, or at such reasonable increase or diminution thereafter as the Secretary of the Interior may order from time to time, after at least three months' notice, in view of the increase or decrease in the value of the municipal property: 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.

SEC. 3. And be it further enacted, That when such cities or towns are established upon unsurveyed lands, it shall and may be lawful, after the extension thereto of the public surveys, to adjust the extension limits of the premises according to those lines, where it can be done without interference with rights which may be vested by sale; and patents for all lots so disposed of at public or private sale shall issue as in ordinary cases.

SEC. 4. And be it further enacted, That if, within twelve months from the establishment of a city or town, as aforesaid, in the public domain, the parties interested shall refuse or fail to file in the General Land-Office transcript map, with the statement and testimony called for by the provisions of the second section of this act, it shall and may be lawful for the Secretary of the Interior to cause a survey and plat to be made of such city or town, and thereafter the lots in the same shall be disposed of as required by said provisions, with this exception, that they shall each be at an increase of fifty per centum on the aforesaid minimum of ten dollars per lot.

SEO. 5. And be it further enacted, That effect shall be given to the foregoing act, according to such regulations as may be prescribed by the Secretary of the Interior. The act entitled "An act for the relief of the citizens of towns upon the lands of the United States, under certain circumstances," approved May twenty-three, anno Domini eighteen hundred and forty-four, and all other acts and part of acts inconsistent with this act, be and the same are hereby repealed.

[Circular.]

Instructions to give effect to the act of Congress, approved July 1, 1864, for the disposal of "coal-lands" and of "town property" in the public domain.

INTERIOR DEPARTMENT, GENERAL LAND-OFFICE, August 20, 1864. GENTLEMEN: Annexed is the act of Congress, approved July 1, 1864, for the disposal of "coal-land" and of "town property on the public domain".

It will be observed that the word "mines", as used in the pre-emption act of 1841, is recognized in the first section

of this law as importing any tracts of the public domain embracing "coal-beds or coal-fields", which are to be treated as mineral lands, and not subject to ordinary private entry.

2d. That said tracts are to be disposed of at public sale, on not less than three months' public notice, to the highest bidder, in such "suitable legal subdivisions" as the President may direct, at the minimum price of $20 per acre; all tracts not thus disposed of are thereafter to be liable to private entry at said minimum.

3d. In order that this office may have reliable information as to what lands embrace "coal-beds or coal-fields", it will be your duty to institute proper inquiries, directed to reliable sources, as to the mineral character of the lands in your district; to ascertain what tracts of land come within the meaning of the terms "coal-beds or coal-fields”, and make a prompt report of all such lands to this office.

4th. In reference to this matter, special orders will be given to the United States surveyors-general to require their deputy surveyors, in executing the public surveys, carefully to designate in their field notes all localities of coal-beds or coal-fields in the smallest legal subdivision; and thereafter to have the same properly delineated on the official township plats returned to the general and district land-offices.

5th. The second section of this act relates to "town property ", or the founding of cities or towns on the public domain, and limits the extent of the area of the city or town to 640 acres, to be laid off into lots, and which, after filing in the General Land-Office the transcript, statement, and testimony required by the act, are to be offered at public sale, to the highest bidder, at a minimum of $10 for each lot. Lots not thus disposed of are made thereafter liable to private entry at said minimum, or at such reasonable price as the Secretary of the Interior may order from time to time, as the municipal property may increase or decrease, after at least three months' notice.

A privilege, however, is granted to any actual settler upon any one lot of pre-empting that, and any additional lot on which he may have "substantial improvements", at said minimum, at any time before the day fixed for the public sale.

There are, however, certain preliminary conditions to be complied with, in order to the enjoyment of the privileges granted in this section.

Parties who have already founded, or may hereafter found, a city or town are required—

6th. To file with the recorder of the county in which the town or city is situate a plat thereof, not exceeding 640 acres, describing its exterior boundaries according to the lines of the public surveys, where such surveys have been executed.

7th. Also the plat or map of such city or town must exhibit the name of the city or town, the streets, squares, blocks, lots, and alleys; the size of the same, with measurements and area of each municipal subdivision, the lots in which shall each not exceed 4,200 square feet, with a statement of the extent and general character of improvements. 8th. Further, the said map and statement to be verified by oath by the party acting for and in the behalf of the founders of the city or town.

9th. Within one month after filing the map or plat with the recorder of the county, a verified copy of said map and statement is to be sent to the General Land-Office, accompanied by the testimony of two witnesses, that such city or town has been established in good faith.

10th. When the city or town is within the limits of an organized land district, a similar copy of the map and statement must be filed with the register and receiver.

11th. The third section provides for cities or towns founded on unsurveyed lands, and directs that it may be lawful to adjust the exterior limits of the premises with the lines of the public surveys, where it can be done without impairing the rights of others. Patents are to issue for all lots sold under the provisions of this act, as in ordinary

cases.

12th. Section 4 authorizes the Secretary of the Interior, in case the parties interested shall fail or refuse, within twelve months of the founding of a city or town on the public domain, to file in the General Land-Office a copy of the map, with the statement and testimony called for by the second section, to cause a survey and plat to be made of the said city or town, and thereafter the lots to be sold as provided, at an increase of 50 per cent. on the minimum price of $10 per lot.

13th. The fifth section repeals the act for the relief of the citizens of towns on the public lands, approved 23d May, 1844, and all other acts or parts of acts inconsistent with this act. You are requested to acknowledge the receipt of this circular.

Very respectfully,

REGISTERS AND RECEIVERS,

United States Land-Offices.

JOS. S. WILSON,
Acting Commissioner.

AN ACT supplemental to the act approved first July, eighteen hundred and sixty-four, "for the disposal of coal-lands and of town property in the public domain." (Approved March 3, 1865. U. S. Stats., v. 13, p. 529.)

SECTION 1. That in the case of any citizen of the United States who, at the passage of this act, may be in the business of bona fide actual coal mining on the public lands, except on lands reserved by the President of the

United States for public uses, for purposes of commerce, such citizen, upon making proof satisfactory to the register and receiver to that effect, shall have the right to enter, according to legal subdivisions, a quantity of land not exceeding one hundred and sixty acres, to embrace his improvements and mining premises at the minimum price of twenty dollars per acre, fixed in the coal and town property act of first July, eighteen hundred and sixty-four: Provided, That where the mining improvements and premises are on land surveyed at the passage of this act, a sworn declaratory statement descriptive of the tract and premises, showing also the extent and character of the improvements, shall be filed within six months from the date of this act; and proof and payment shall be made within one year from the date of such filing; but where such mining premises may be on lands hereafter to be surveyed, such declaratory statement shall be filed within three months from the return to the district land-office of the official township plat, and proof and payment shall be made within one year from the date of such filing. SEC. 2. That in the case of any city or town which, at the passage of this act, may be existing on the public lands, in which the lots therein may be variant as to size from the limitation fixed in the said act of first July, eighteen hundred and sixty-four, and in which the lots and buildings as municipal improvements shall cover an area greater than six hundred and forty acres, such variance as to size of lots or excess in area shall prove no bar to such city or town claim, under said act of first July, eighteen hundred and sixty-four, effect to be given to this act according to such regulations as may be prescribed by the Secretary of the Interior: Provided, That the minimum price of each said lots in any such town or city, which may contain a greater number of square feet than the maximum named in the act to which this is an amendment, shall be increased to such reasonable amount as the Secretary of the Interior may by rule establish: Provided further, That where mineral veins are possessed, which possession is recognized by local authority, and to the extent so possessed and recognized, the title to town lots to be acquired shall be subject to such recognized possession and the necessary use thereof: Provided, however, That nothing contained herein shall be so construed as to recognize any color of title in possessors for mining purposes as against the government of the United States.

Circular in relation to the supplemental act, approved March 3, 1865, for the disposal of coal-lands and town property on the public domain. (Vol. 2, Lester's Land Laws, Regulations, and Decisions, page 306.) DEPARTMENT OF THE INTERIOR, GENERAL LAND-OFFICE,

TO REGISTERS AND RECEIVERS:

April 26, 1865.

The act of Congress of 3d March, 1865, copy hereto appended, supplementary to the act of July 1, 1864, "for the disposal of coal-lands and of town property in the public domain," is to enable citizens of the United States who, at the date of the "act, may be in the business of bona fide actual coal mining on the public lands, for the purpose of commerce", to enter 160 acres, or less quantity, in legal subdivisions, including their improvements and mining premises, at the premium price of $20 per acre. The law, however, expressly excludes from its provisions any lands "reserved by the President of the United States for public uses".

The privilege granted is not a general one, but restricted to a single entry by a designated class of individuals, viz, such as are citizens, and who, on the 3d March, 1865, the date of the act, were actually engaged for "purposes of commerce" in "the business of bona fide actual coal mining". All persons not so occupied at that date are excluded from the enjoyment of the privilege.

1st. Testimony should be produced satisfactory to the register and receiver, showing the party to be a citizen of the United States, and that, at date of the act, he was engaged "in the business of bona fide actual coal mining on the public lands", and "for the purposes of commerce".

The facts must be stated in detail, both as to the nature and extent of the coal mining, the period in which the business has been conducted, and in regard to the coal being made by the party an article of commerce, so that a correct judgment may be formed from these facts as to whether the case comes within the purview of the statute. When the proof is clear and conclusive, the register and receiver are authorized to permit the entry, according to "legal subdivisions", in compact form, and so as not to exceed 160 acres.

2d. Where the mining improvements and premises are on land surveyed "at the passage of this act", it is required that a sworn declaratory statement descriptive of the tract and premises, and also of the extent and character of the improvements, be filed within six months from the date of the act, and that proof and payment must be made within one year from the date of such filing.

3d. If the mining premises be on land which may be surveyed after the passage of said act, then the declaratory statement shall be filed within three months from the return of the plat to the district land-office, and proof and payment must be made within one year from the date of such filing.

4th. [Town lots.] The second section of the act relates to any city or town existing on the public lands at the date of the act, and modifies the limitation as to the extent of the areas of the town claim and town lots imposed by the act of 1st July, 1864.

The act of July 1, 1864, limits the town claim to 640 acres, and the town lots to 4,200 feet each; but

5th. This supplemental act embraces interests "in which the lots and buildings, as municipal improvements,

shall cover an area greater than” 640 acres, and removes the limitation in regard to subsisting cases by declaring that any city or town existing on 3d March, 1865, shall not be debarred entry because of such excess of area over, or of variance from, the size of the town claim or town lots as limited by the act of 1st July, 1864; that, for the excess of square feet contained in said lots beyond the maximum named in the act to which this is amendatory, the minimum price of each lot shall be increased to such reasonable amount as the Secretary may establish.

6th. In the second section of this supplemental act it is provided that parties having a possessory right to mineral veins, "which possession is recognized by local authority," are to be protected therein; and titles to be acquired to town lots under this act are made subject to "such recognized possession and the necessary use thereof", yet with an express saving of the paramount title of the United States.

7th. The act of 1st July, 1864, relating to town property, is only modified as regards the extent of the town claim and the size of town lots, and by it you will be governed when not in conflict with this supplemental act. Hence it will be necessary for the citizens of the town or city existing at the date of the supplementary act

First. To file with the recorder of the county in which the town or city is situate a plat thereof, describing its exterior boundaries, and according to the lines of the public surveys where such surveys have been executed.

Second. Also the plat or map of such city or town must exhibit the name of the city or town, the streets, squares, blocks, lots, and alleys, the size of the same, with actual measurements and area of each municipal division, and a statement of the extent and general character of improvements.

Third. Further, the said map and statement to be verified by oath of the party acting for and on behalf of the city or town; and,

Fourth. Within one month after filing the map or plat with the recorder of the county a verified copy of said map and statement must be sent to the Commissioner of the General Land-Office, with the testimony of two witnesses that such a town is a bona fide one, established and existing at the date of this act.

Fifth. Where the city or town is within the limits of an organized land district a similar copy of the map and statement must be filed with the register and receiver thereof.

Sixth. When the city or town is founded on unsurveyed lands, the exterior lines of the same must be distinctly marked and established, so that when the lines of the public surveys shall hereafter be run they may be properly closed thereon; and yet it may be lawful to adjust the exterior limits of the premises with the lines of the public surveys, when it can be done without impairing the rights of others.

Seventh. Patents are to issue for all lots sold under the provisions of this act.

Eighth. By the second section of the act of 1st July, 1864, after the transcript and statement have been filed in the General Land-Office, the lots are to be offered at public sale to the highest bidder at a minimum of $10 per lot; but, by the supplemental act, when the area of each lot exceeds the maximum of 4,200 square feet the minimum price of each lot shall be increased to such reasonable amount as the Secretary of the Interior may establish. A privilege, however, is granted to any actual settler upon any one lot of pre-empting that, and any additional lot on which he may have "substantial improvements", at said minimum or increased price, at any time before the day fixed for the public sale.

Very respectfully,

Approved:

J. M. EDMUNDS,
Commissioner.

JAS. HARLAN, Secretary of the Interior.

Supplemental instructions under coal and town property act of July 1, 1864, and March 3, 1865.
DEPARTMENT OF THE INTERIOR, GENERAL LAND-OFFICE,

TO REGISTERS AND RECEIVERS, UNITED STATES LAND-OFFICES:

October 20, 1865.

Referring to the circulars from this office, bearing date August 20, 1864, and April 26, 1865, in relation to the act of Congress approved July 1, 1864, and the amendatory law of March 3, 1865, relating to "coal-land and town property" on the public domain, I now herewith append, for your information and government in the matter therein specified, the ruling of the Hon. James Harlan, Secretary of the Interior, under date of October 16, 1865:

In accordance with the authority vested in me by the acts of Congress approved July 1, 1864, and March 3, 1865, I hereby prescribe the following regulations for the disposal of coal-lands and town property in the public domain:

The minimum price of each lot in a town surveyed before the above-named act of July 1, 1864, took effect, containing over 4,200 square feet and not more than 8,400 square feet, shall be $15; of each lot containing over 8,400 square feet and not more than 12,600 square feet the minimum price shall be $18; of each lot containing over 12,600 square feet and not more than 16,800 square feet the minimum price shall be $20; and for larger lots the price shall be increased $2 for every additional 4,200 square feet.

In the case of out-lots in any such village, town, or city, the minimum price of such out-lots shall be $10; of such out-lots containing more than one acre the minimum price shall be $10 for the first acre, and $5 for each additional acre in such lot.

J. M. EDMUNDS,

Commissioner.