DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE,

WASHINGTON, D. C., December 18, 1879.

Register and Receiver, Pueblo, Colorado,

GENTLEMEN: I have examined the record of proceedings and proof in the case of the Townsite of Silver Cliff v. The State of Colorado, involving the right of the authorities of the town of Silver Cliff to enter, under the laws of the United States, as a town site, certain lands in section 16, township 22 south, range 72 west, your district.

The application to make such entry by the commissioners appointed for that purpose by the board of trustees of the town, was refused by you on the ground that the land involved was a school section, and inured to the State of Colorado under its grant of sections 16 and 36 for school purposes.

The declaration of the claim of the town was filed, and after due notice to the State, a hearing was had, commencing May 8, 1879, to determine the character of the land in said section 16, and whether it was known as mineral land prior to survey. Said section was surveyed from January 20 to 30, 1872, and the survey approved February 10, 1872. The report of the surveyor does not name any indications of minerals.

At said hearing all parties were present. The testimony submitted shows beyond a reasonable doubt, that the land was known as mineral as early as 1864, and that at different times between that date and 1872, various parties prospected the laud, took out specimens of minerals, some of which were assayed and found to yield a good return in silver, with traces of gold. The State cross-examined the witnesses, but introduced none.

The legislation of Congress relating to sections 16 and 36 in each township in Colorado, is as follows:

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Section 14 of "An act to provide a temporary government for the Territory of Colorado," approved February 28, 1861 (12 Stats. 172), provides "That when the land in the said Territory shall be surveyed under the direction of (the) government of the United States, preparatory to bringing the same into market, sections numbered sixteen

and thirty-six in each township in said Territory shall be, and the same are hereby, reserved for the purpose of being applied to schools in the States hereafter to be erected out of the same."

Reservation of school sections.

This was a reservation, not a grant. Said sections remained the property of the United States, and while the purpose of the reservation was indicated, the power remained in the government to make any other disposition of said sections it might subsequently deem advisable.

The act entitled "An act to enable the people of Colrado to form a constitution and State government, and for the admission of the said State into the Union on an equal footing with the original States," approved March 3, 1875, in section 7, provided, "That sections numbered sixteen and thirty-six in every township, and where such sections. have been sold or otherwise disposed of by any act of Congress, other lands equivalent thereto, in legal subdivisions of not more than one quarter section, and as contiguous as may be, are hereby granted to said State for the support of common schools.”

Section 15 of the same act further provides, "That all mineral lands shall be excepted from the operation and grants of this act." (18 Stats. 474.)

Prior to said act of 1875, Congress had, by acts of July 26, 1866, and May 10, 1872, indicated its policy concerning mineral lands, and provided that they should not be disposed of except as specially provided by law.

Colorado was admitted as a State by proclamation of the President, August 1, 1876 (19 Stats. 665), pursuant to the provisions of said act of March 3, 1875.

When grant takes effect.

In the present case it is immaterial whether the land was known as mineral prior to the survey or subsequent thereto, provided it was so known prior to the admission of the State into the Union, for at that date, and not sooner, said grant took effect as to non-mineral lands in said sections, which had then been surveyed.

The grant, as to such sections surveyed subsequent to the

admission of the State, took effect at date of the approval of the survey by the United States Surveyor-general.

In the case now under consideration the land was known to be mineral prior to both survey and admission of the State, and it is immaterial that the surveyor did not discover its true character.

It is also immaterial that said land was not worked and developed for its mineral until a recent period, for said act of March 3, 1875, does not provide that land which is worked for minerals shall be excepted from the grant, but "all miueral lands," whether worked or not.

The land in question is clearly not within the grant to Colorado for school purposes, but is government land and subject to sale only under her laws.

The claim of the State is accordingly rejected. You will give due notice hereof to all parties in interest, allow sixty days for appeal, and thereafter promptly report action to

this office.

Exception in patent.

Protests from claimants to mines within the town limits against granting a patent to said town which does not except therefrom specifically all surface ground embraced in such claims, and alleging location prior to town occupation, have been received at this office. Should the town make entry and patent issue thereon, it will contain only the following exception: "Provided, 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; and provided further, that the grant hereby made is held and declared to be subject to all the conditions, limitations, and restrictions contained in section 2386 of the Revised Statutes of the United States, so far as the same are applicable thereto."

In case of the Townsite of Central City, Colorado,* decided by this office December 23, 1875, and decision affirmed by the Honorable Secretary of the Interior, June 7, 1876, it was held that town-site entry could be made of land overlying lodes or veins and that patent should issue for such town site with said reservation only. Since the date of said * No. 12, Miscellaneous.

decision this rule and practice has uniformly and without exception been followed, and under it the owner of a mining claim is secured in all those rights intended to be granted by the law.

You will notify the State that, should it file a written waiver of appeal from this decision, the case will be closed and the town authorities permitted without further delay to proceed with their application for patent.

Very respectfully,

J. M. ARMSTRONG, Acting Commissioner.

No. 4. Sections sixteen and thirty-six, containing deposits of coal, are mineral in character, and do not pass to the State of Colorado under the school land grant.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, WASHINGTON, D. C., March 30, 1877.

Register and Receiver, Denver, Colorado.

GENTLEMEN: With your letter of the nineteenth instant you transmitted the application of Michael B. Fox and Thomas M. Patterson to enter the south-east quarter of section sixteen, township one south, range seventy west, as coal land. You refused this application for the reason that the tract applied for is a school section.

The question is presented whether lands which fall within. sections sixteen and thirty-six pass to the State of Colorado under the act of Congress, approved March 8, 1875, 18 Stat. 474, entitled "An Act to enable the people of Colorado to form a Constitution and State Government; and for the admission of the said State into the Union on an equal footing with the original States," where the same contain valuable deposits of coal.

The seventh section of said act provides "that sections numbered sixteen and thirty-six, in every township, and where such sections have been sold or otherwise disposed of by any act of Congress, other land equivalent thereto, in legal subdivisions of not more than one quarter section, and as contiguous as may be, are hereby granted to said State for the support of common schools."

Section fifteen of said act provides "that all mineral lands shall be excepted from the operation and grants of this act."

The words "mineral land," as they occur in the several acts regulating the disposal of the public domain, are used in contradistinction to the words "agricultural land."

That lands containing valuable deposits of coal have been considered and treated as mineral lands is evident from the text of the act of July 1, 1864, 13 Stat. 343, entitled "An Act for the disposal of coal lands and of town property in the public domain," viz.: "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 1841, and which, under past legislation, are not liable to ordinary private entry," etc.

The Revised Statutes of the United States provide for the sale of coal lands under the general term "Mineral lands and mining resources." Vide title 32, chapter 6, R. S. Coal is a mineral.

The Honorable Secretary of the Interior, on the seventh of May, 1875, affirmed the decision of this office in case of James P. Hogden et al. v. The State of California, and held that mineral lands did not pass to the State of California under the act of third of March, 1853, entitled "An Act to provide for the survey of the public lands in California, the granting of pre-emption rights therein, and for other purposes," 10 Stat. 244, and that coal lands are mineral lands.

It is therefore held that sections sixteen and thirty-six, in the several townships, do not pass to the State of Colorado under the act of third March, 1875, if the same contain valuable deposits of coal.

You will therefore allow said applicant to file upon and enter said tract upon full compliance with the law and instructions, should no appeal be taken from this decision within sixty days from the date of your notification to all parties in interest.

* * * *

Very respectfully,

J. A. WILLIAMSON, Commissioner.

No. 5. Salt springs in the State of Colorado are not subject to sale under the laws providing for the disposal of the public lands.

DEPARTMENT OF THE INTERIOR,

OFFICE OF THE SECRETARY,

WASHINGTON, D. C., February 13, 1877.

SIR: I have considered the case of C. L. Hall v. A. T.