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position of the entry, should it be decided legal in respect to the points now under consideration.

At present I shall only consider the merits of the pending controversy, which consists of the intervention and claim of Clarence Smith as relocator of the Darling and Spangler mines, to wit, lots 38 and 39, and of F. W. Clute, as relocator of the American Hill mine, lot 37. Said relocations were made April 28, 1878.

Questions decided.

In behalf of said relocations it is alleged, under oath, that there was no labor performed or improvements made upon said claim on January 1, 1875, nor subsequent thereto until April 28, 1878, when said relocators entered upon said claims, explored the same, and ascertained that a lode, ledge, or vein of gold-bearing quartz deposited therein, whereupon they relocated and claimed the same, posted notices, and caused the same to be recorded in the office of County Recorder, and said relocators ask an order dismissing the application of Vanclief et al. for patent, and such other orders and rulings herein as may be required and mentioned by the laws and regulations in cases of this character. The questions that arise for immediate decision are: 1. Is a mining claim subject to relocation subsequent to entry of the same; and, 2. Does a failure to perform that labor, or make the improvements required by section 2324 Revised Statutes of the United States, between date of entry and the delivery of patent, work a forfeiture of all rights acquired by entry and demand cancellation of the same, when such failure is brought to the attention of this office by such relocation or otherwise?

Lands disposed of.

On the first point, I quote from the decision of the Supreme Court of the Uuited States in case of Carroll v. Safford, 3 How. 441, referred to by counsel for Vanclief et al. "Now, lands which have been sold by the United States can in no sense be called the property of the United States. They are no more the property of the United States than lands patented. So far as the right of the purchaser is concerned they are protected under the patent certificate as fully as under a patent. Suppose the officers of the gov

ernment had sold a tract of land, received the purchasemoney, and issued a patent certificate; can it be contended that they could sell it again, and convey a good title? They could no more do this than they could sell land a second time which had been previously patented. When sold, the government, until the patent shall issue, holds the mere legal title for the land in trust for the purchaser, and any second purchaser would take the land charged with the trust."

In Witherspoon v. Duncan, 4 Wallace, 210, the Supreme Court say: "According to the well-known mode of proceeding at the Land Office (established for the mutual convenience of buyer and seller), if the party is entitled by law to enter the land, the Receiver gives him a certificate of entry, reciting the facts, by means of which, in due time, he receives a patent. The contract of purchase is complete when the certificate of entry is executed and delivered, and thereafter the land ceases to be a part of the public domain. The government agrees to make a proper conveyance as soon as it can, and in the mean time holds the naked legal fee in trust for the purchaser, who has the equitable title." Referring to donation and cash entry: "In either case, when the entry is made and certificate given, the particular land is segregated from the mass of public lands and becomes private property. In the one case the entry is complete when the money is paid, and in the other when the required proofs are furnished. In neither case can the patent be withheld if the original entry was lawful."

In Stark v. Starrs, 6 Wallace, 402, the court say: "The right to a patent once vested is treated by the government when dealing with the public lands as equivalent to a patent issued. When, in fact, the patent does issue, it relates back to the inception of the right of the patentee, so far as it may be necessary to cut off intervening claimants."

In Hutchings v. Low, 15 Wallace, 77, the court say: "That under the pre-emption laws, mere occupation and improvement of any portion of the public lands of the United States, with a view to pre-emption, do not confer upon the settler any rights in the land occupied, as against the United States, or impair in any respect the power of Congress to dispose of the land in any way it may deem proper; and that the

power of regulation and disposition conferred upon Congress by the Constitution only ceases when all the preliminary acts prescribed by those laws for the acquisition of the title, including the payment of the price of the land, have been performed by the settler. When these prerequisites have been complied with, the settler for the first time acquires a vested interest in the premises occupied by him, of which he can not be subsequently deprived."

The principle thus declared by the Supreme Court has uniformly been respected by the executive departments. Whenever an entry has been made in the district land office, no adverse claim can be initiated by a third party until the entry shall have been canceled in such office. This rule is enforced almost daily in the administration of this and the local land offices, and is too well established to admit of question. I find no authority in the mineral laws of the United States, direct or inferential, to a different intent on this point. Section 2324, Revised Statutes, so far as it declares mineral land subject to location on failure of the original locator or owner to make the specified annual expenditures, contemplates, in my opinion, only the period. prior to entry. This section deals only with possessory titles. When entry has been made, purchase-money paid, and a patent certificate issued, the purchaser has a higher title than that of mere rightful possession, and with that title this section can not be reasonably construed to interfere. The land entered is withdrawn from the body of the public lands and all incidents thereto pertaining. The provisions subsequent to section 2324 preclude even the assertion of an adverse claim of prior inception after entry; and much less could a new claim be initiated. Such being the status of the land under the laws of the United States, it is obvious that a relocation after entry can not derive authority from the laws of any State, Territory, or locality. I therefore conclude that there can be no valid relocation of a mineral claim subsequent to its entry in the local land office. On the second point, does a failure to perform the labor or make the improvements required by section 2324, Revised Statutes, between date of entry and delivery of patent, work a forfeiture of all rights acquired by entry, and demand cancellation of the same when such failure is brought

to the attention of this office by such relocation or otherwise? I think not. The interveners in this case seem to rely upon the language of section 2324, where it requires certain annual expenditures on each claim "until a patent has been issued therefor.

For the purposes of this case the mining laws of the United States may be divided into two parts: 1. That granting, on certain conditions, the right of use and possession; 2. That providing for purchase and sale of the fee.

Section 2324 provides for the right of possession without purchase.

A mere possessory title is subject to be defeated on failure to make the specified annual expenditures by a location of another party. This is the scope of the provision; nothing else is named therein; nothing else is evidently contemplated.

The mining laws nowhere compel a party to purchase either the mine or the surface ground from the government. They give the right of exploration and occupation; perpetuity of possession, without purchase, is dependent upon a compliance with certain requirements and the failure by any qualified party to relocate during a period of legal abandonment. It is important to note that a mere failure to make the annual improvements does not of itself conclude the possessory right. A mere resumption of work prior to relocation, by the party in default, his heirs, assigns, or legal representatives, prevents relocation. The law, while necessarily establishing a condition on which the possessory title shall be supported, and on failure of which the possession shall be liable to be defeated, evidently permits a sacrifice. of interests and investments with extreme reluctance, and only enforces a forfeiture when, after failure is complete, another party duly qualified initiates a legal claim during the period of actual abandonment.

The necessity for annual expenditures continues, not for a particular term of years; not for a period equal to that prescribed by the statutes of limitation of the State in which the mine is situated, but until the owner of the possession shall become the owner of the property. And it was this point of time which Congress sought to mark by the words of limitation employed.

In the execution of all prior laws relating to land patents, the date when a party who, having fulfilled the requirements of law, submitted his final proof thereof, paid the purchase money, and received his patent certificate, has with great uniformity been held by the Supreme Court of the United States to be when he acquired a vested right in the land of which he could not be divested except by the exercise of the right of eminent domain. (See case of Hutchings v. Low, above quoted.) This point of time has been regarded as the date when the right of property left the government and rested in him.

The land, therefore, exempt from taxation and execution became at once thereafter subject to all the incidents of a fee simple under the State laws. He could deal with it in all respects as his own. He might make final proof and pay for his pre-emption claim, and at once thereafter initiate a claim by entry under the homestead laws. He could sell or abandon it for any reason as soon as his entry was completed, and the acts constituted no basis for official inquiry, because the right of property was in him and the United States had no right to control his use. He was the absolute equitable owner, and the necessary delay in the preparation and delivering of patent has never been held to abridge his rights or increase his duties. It is hardly to be presumed that Congress, having in mind this familiar doctrine, than which no other is perhaps better established or known, and having the evident intent of requiring an annual expenditure, to support an annual possession for that period only while the claim should be held by a possessory title, intended by an expression, used unquestionably to mark the date of a change of ownership, to impose the extraordinary condition which is substantially claimed by the interveners. in this case. Had such been their intention, it is not unreasonable to believe they would have declared in terms that the annual expenditures could not be suspended upon entry and issue of patent certificate, but must be continued until actual delivery of the patent itself. It is my opinion that the language actually employed was used simply to emphasize the legislative intent that said expenditures could be dispensed with for no reason, even when the possession might otherwise be protected by the State statute of limita

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