proper to recite the "condition" in the patent for the "land adjoining," whether it is absolutely necessary to make such recital or not. It may be that the law would sufficiently protect the patentee without any such recital, but I think it can do no harm to insert it, and that the Land Office may properly make the insertion whenever it is shown, by its own records, that there has been a previous patent for a mineral lode on land adjoining that applied for.

You directed that the exception should be in these words: "Excepting from this conveyance the surface ground and lode conveyed to the said International Mining and Exchange Company by said patent, dated September 3, A. D. 1872."

It is objected to this form of expression, that it finds that the lode referred to does run under the premises of the Seven-Thirty, and that you have no right to find such a fact.

I am of opinion that the rights of all parties will be protected by inserting in the patent to the Seven-Thirty the following clause, which is hereby directed to be done, to wit: "Excepting from this conveyance the surface ground conveyed to the said International Mining and Exchange Company by its patent, dated September 3, a. D. 1872, and also excepting from this conveyance so much of the Hercules lode, if any there be, as was legally conveyed to the said International Mining and Exchange Company by its aforesaid patent."

To this extent I modify your decision. The papers transmitted with your letter of December 1 last are herewith returned. Very respectfully,

C. DELANO, Secretary.

To the Commissioner of the General Land Office.

No. 11. Excepting clause inserted in patents to railroad companies.
DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE,

WASHINGTON, D. C., March 21, 1877.

Register and Receiver, Marysville, California.

GENTLEMEN: Referring to your letter of the fifth ult., I have to state that all patents issued to the California and Oregon R. R. Co. contain a clause in accordance with the

requirements of law, as follows: "Excluding and excepting from the transfer by these presents 'all mineral lands,' should any such be found to exist in the tracts described in the foregoing; but this exclusion and exception, according to the terms of the statute, shall not be construed to include coal and iron lands."

The fractional E. of Sec. 5, T. 15 N., R. 6 E., Mt. Do. Mer., was patented with other lands to the California and Oregon R. R. Company on the seventh March, 1875, but under the law, no title was thereby acquired to mineral lands other than coal and iron. If, therefore, mining claims existed upon said tract, no title to the same has been acquired by said company, but, on the contrary, the title thereto remains in the government.

Should parties who have the possession and the right of possession to mining claims upon said tract desire to secure titles thereto, you will receive their applications for patents therefor. Very respectfully, your obedient servant,

J. A. WILLIAMSON, Commissioner.

No. 12. Central City town site. Town-site surface occupation of lode claims.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE,

WASHINGTON, D. C., December 23, 1875.

Register and Receiver, Central City, Colorado.

GENTLEMEN: Town-site entry No. 211, of Central City, made May 27, 1874, amendatory of entry No. 148, made May 16, 1873, has this day been approved, and patent will issne therefor in due course, but with a proviso in the following form:

Proviso inserted in town-site patent.

"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

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*The clause in the patent of the United States to the Western Pacific Railroad Company for land granted to aid the construction of its railroad, which excepts all mineral lands, should any be found to exist in the tracts described," is equivalent to an exception of all the subdivisions which were mineral lands. "In other words, the patent grants all of the tracts named in it which are not mineral lands." McLaughlin v. Powell, 50 Cal. 64.

declared to be subject to all the conditions, limitations, and restrictions contained in section two thousand three hundred and eighty-six of the Revised Statutes of the United States, so far as the same are applicable thereto."

Section 2386, above quoted, is in the following words: "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; but nothing contained in this section shall be so construed as to recognize any color of title in possessors for mining purposes, as against the United States."

On behalf of certain alleged mining interests, John A. Dix, Esq., et al., protest against the issue of patent to the town, unless the following exception, or one equivalent thereto, is inserted therein, to wit: "Provided, That no title shall be acquired under this patent to any mine of gold, silver, cinnabar, or copper, nor to any surface ground over any such mine, or within fifty feet on each side of the same throughout the length of the vein, which said surface ground shall be reserved, and shall be sold with the mines for the special use and working thereof, at not less than lars per acre."

dol

I am of the opinion that this form of exception is objectionable, that it is not in conformity with law, and that its insertion would tend to cloud the title of the grantees under the town patent, without assuring or securing to mineral claimants the particular benefits or privileges evidently intended to be compassed by its terms. It is to be borne in mind that this office is not vested with a discretionary anthority in the matter of the disposal of the public lands. It can neither grant without express authority of law, nor can it limit or qualify by form of conveyance, the substance, conditions, or extent of the subject-matter granted, save as the same may be authorized to be done by express legislation. The proviso proposed by this office to be inserted. and above quoted, embraces by recitation and reference all that Congress has seen fit to enact by way of qualification in the matter under consideration, contains all of that to which appeal can be had, should the courts be applied to

for the settlement of conflicting claims, and must therefore be held to be the limit of executive authority.

Towns in mining localities.

The town-site laws clearly contemplate that towns will exist in mining localities; by clear implication town-site entries are to be permitted on mineral lands. This is indicated by the clause excepting title to mines from the title acquired by the town. It is inevitable that where the surface is suitable, it will, in a mining vicinity, be populated, and attain the character of a town or city. Where any branch of business flourishes, there capital and population will concentrate. The various trades and callings will center there. Hotels will be a necessity. Dwellings will be built, and permanent homes established; all the various interests which constitute valuable property rights as connected with the soil will be created. And this is not necessarily antagonistic to the miners. The protection of municipal government is in the miner's interest, as it is in the interest of any other class of business men.

In the case of Theodore H. Becker v. Citizens of Central City, Colorado, Becker was a mineral claimant to three thousand linear feet of the Gunnell Extension or White Lode, under act of July 26, 1866. He claimed compliance with law and was opposed by certain citizens of the town. who represented that said lode extended to a considerable distance under town lots and improvements owned and occupied by them in said city. In this case the Honorable Secretary of the Interior decided, August 7, 1871, that "in the present case the application for a patent includes the surface and soil as well as the mineral. I am of the opinion that the persons in possession of this surface are adverse claimants within the meaning of this law and are entitled to be heard in the local courts before a patent is issued."

Proviso inserted in mining patents.

The exception in the mining patents, for claims within the exterior limits of a town, having in view the legality of the possession of the surface ground by the inhabitants, is as follows, to wit: "Excepting and excluding, however, from these presents, all town property rights upon the surface, and there are hereby expressly excepted and excluded

from the same all houses, buildings, structures, lots, blocks, streets, alleys, or other municipal improvements on the surface of the above described premises, not belonging to the grantees herein, and all rights necessary or proper to the occupation, possession, and enjoyment of the same." By this exception the surface in the actual possession and occupation of the mine owner, or covered by his improvements, is as distinctly assured and conveyed to him, as is that surface to which town property rights have attached, or on which improvements by other parties have been placed excepted from his patent. I regard these correlative exceptions, inserted in the town-site and mineral patents, as securing the objects contemplated in the town-site and mineral laws. They assure to all parties just what, under the law, they are respectively entitled to claim. To grant to the miner the entire surface ground, along the whole line of the lode, with a width of one hundred feet, without regard to the acquired surface rights of others, would compel me to ignore the principle announced in said decision of the honorable secretary, as well as to do violence to my own judgment, of the proper construction of the two laws under consideration. They must be so construed that both may stand.

Under the system established as aforesaid, of inserting said exceptions in the patents to towns and mine owners, there are no occupants in Central City presenting their claims adversely in the manner provided in the mining statutes, and for the reason that, by said exception, the rights of all parties are respected and so defined that they are easily susceptible of definite ascertainment. To except from the town patent definite surveys of mineral claims, initiated or extended after surface occupation by other parties, would obviously be ignoring, to an unjustifiable extent, adverse rights which have not been presented for adjustment, by the courts, prior to the mineral entry, simply for the reason that under the practice of this office, indicated by said exceptions, it was wholly unnecessary. This non-action was based on the practice of this office, on which they had the right to rely, and no power to control, and this practice itself was based on the reasonable and essentially necessary construction of the town-site and mineral laws, whereby