tend to grant, and did not grant, to the State any mineral lands that, by survey, are shown to be in sections 16 and 36. The act was passed soon after the discovery of the great mineral wealth of California had been made. The attention of the country and of Congress was called to the question of the disposition of such lands. No plan had been adopted. Congress for the first time undertook to legislate in regard to the public lands in that State.

A careful examination of the act will show that Congress did not intend to dispose of any of its mineral lands, but contemplated a future disposition of them. The eighth section provides that the inhabitants of towns located on or near mineral lands, shall have the right of occupation and cultivation "only until such time as Congress shall dispose of the same. It evidently did not then suppose that it was disposing of a considerable portion of them. The act, in a great many of its provisions, very carefully reserves the mineral lands from its operation. Thus, in the sixth section, it is provided that the mineral lands shall be excepted from the lands subject to the pre-emption laws; in the seventh section it is provided that no person shall obtain the benefits of this act "by a settlement or location on mineral lands," and in the eighth section it is provided that the inhabitants of towns located on or near mineral lands, shall have the right of occupation and cultivation only until such time as Congress shall dispose of the same. And, in the twelfth section, it is provided that the State shall have the right to select two townships, or seventy-two sections, for the use of a seminary of learning: "Provided, however, That no mineral lands shall be subject to such selection; and in the thirteenth section the State is given the right to select ten sections for the purpose of erecting the public buildings of the State: "Provided, however, That none of said selections shall be made of mineral lands." Why all this care and painstaking to exclude mineral lands from these minor provisions, if it were intended to give the State mineral lands in the major provision relating to the sixteenth and thirty-sixth sections? I think Congress intended to reserve all the mineral lands from the operation of the act, and that there might be no doubt about this reservation as to the sixteenth and thirty-sixth sections, it expressly provided in the third section "that none other than township lines shall be surveyed when the lands are mineral." As I have before attempted to show, the grant could not take effect until survey, and this third section, which must be construed as a part of the act, and in connection with all its other provisions, expressly prohibits the only survey that could possibly locate these sections. It therefore, in connection with the other express reservations, satisfies my

mind that Congress did not intend to make a grant of mineral lands to the State, and that those members of Congress who undertook to speak for the committees having the matter in charge, were correct when they stated in debate that no mineral lands were granted by the act. (See Cong. Globe, vol. 25, pp. 1036–1038.)

I regard the act of July 26, 1866, as providing an exclusive method for appropriating the mineral lands of the United States. It was the first act passed by Congress, and perhaps the first ever passed by any government which undertook to dispose of its mineral lands. It provided in its first section, "That the mineral lands of the public domain," (which is equivalent to saying all the mineral lands of the public domain,) "both surveyed and unsurveyed, are hereby declared to be free and open to exploration and occupation, by all citizens of the United States, and those who have declared their intention to become citizens, subject to such regulations as may be prescribed by law, and subject also to the local customs or rules of miners in the several mining districts, so far as the same may not be in conflict with the laws of the United States.'

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It required every person claiming any mine to occupy and improve the same, and expend thereon in labor or improvements not less than $1,000, and to do and perform certain other things. It limited the location of any individual to two hundred feet along the vein, with an additional two hundred feet for discovery, and any association to not more than three thousand feet, and required payment at the rate of $5 per acre. It provided that, when the mineral lands should be surveyed, the Secretary of the Interior might designate and set apart such portions of the same as were clearly agricultural, and that the same should be subject to pre-emption and sale as other public lands. In short, it adopted a system for the disposition of the mineral lands, and such a system as would give every citizen an equal opportunity to engage in the business of developing them. It was evidently intended to be the only method by which mineral lands could be appropriated. It made no exceptions in favor of school or other grants.

If the State should obtain two sections in every mineral township, it might establish a mineral system for itself, and one in conflict with that of the General Government. In my opinion Congress never intended to make such a state of things possible.

No surveys of mineral lands were authorized or made until the passage of the act of July 9, 1870, (16 Stat., 217, sec. 16,) and long after the passage of the act of 1866.

I am constrained to hold that no mineral lands were granted by the act of 1853. If I am in error, the State can

lose nothing, for she has an easy method of presenting the question for decision of the Supreme Court, where it will doubtless finally go. If, however, my decision should be in favor of the State, and it should be erroneous, there would be very many cases in which I am unadvised of any way by which the error could be corrected.

I affirm your decision and herewith return the papers transmitted, with your letter of the twenty-first of October last.

Very respectfully,

C. DELANO, Secretary.

Hon. W. DRUMMOND, Com'r General Land Office.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., May 14, 1373. Register and Receiver, Sacramento, California:

GENTLEMEN: I inclose herewith a printed copy of the decision of this office and of the Hon. Secretary of the Interior in case of the Keystone Mining Company, Eureka Quartz Mining Company, Original Amador Mining Company, Bunker Hill Quartz Mining Company and the Townsite of Amador City v. the State of California. You will allow said companies to proceed with their applications for patents.

In accordance with this decision, you will decline to certify to the State any land lying in sections sixteen or thirtysix, which has been returned as mineral by the surveyor, where, by orders from this office, the land is suspended from disposal until the non-mineral character thereof is shown by proof taken after due notice, or where affidavits have been filed alleging the land to be mineral, until this office shall have decided, upon the testimony, that the tract in question is not mineral land and that the State is entitled thereto under the grant of March 3, 1853.

You will acknowledge the receipt hereof, and inform all parties in interest.

Very respectfully, etc.,

WILLIS DRUMMOND, Commissioner.

When a Contested Case between Miners and Agriculturists may be Re-opened.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, WASHINGTON, D. C., June 20, 1872. Register, Sacramento, California:

SIR Referring to your letter of the twenty-ninth ultimo, inclosing the affidavits of Adam Brooks, Wm. P. Carpender and Wm. F. Jess as to the mineral character of certain

lands, to wit: the S. E. and the S. E. of N. E. † of Sec. 3, and the S. W. of N. W. of Sec. 2, T. 10, N. R. 11 E., M. D. M., and desiring to be instructed how to proceed in the matter so far as said mineral affidavits affect the A. C. S. location, R. & R. No. 228 of H. L. Dingman, viz: the S. of S. E. of Sec. 3 aforesaid, I have to state that, as it appears from the record that Mr. Dingman's entry was allowed, after a hearing taken subsequent to what appears to be a sufficient notice by publication and posting, and by personal service upon the former mineral affiants, who failed to appear; however, the case cannot now be re-opened upon the affidavits now presented, unless the deponents will furnish this office with satisfactory proofs that they, or any of them, have the possessory right to an actual mining claim. on the land so entered by Dingman, and if they have such claim, they must show in what specific forty-acre subdivision of the land so entered their mining location exists.

By the term, actual mining claim, is meant a claim located and held in accordance with the local customs or rules of miners in the district. Unless this can be shown, or it be established that fraud was resorted to by said agricultural claimant in giving the notices required by circular instructions in such cases, it is not perceived how the affidavits now received are to affect the land entered by Wm. Dingman, in view of the hearing already had, after due notice given by him as aforesaid.

You will inform the respective parties in interest hereof, allowing said mineral affiants thirty days from date of your notification in which to submit to you, for transmission to this office, the further evidence required, etc.

Very respectfully,

WILLIS DRUMMOND, Commissioner.

An Adverse Claimant, having Dismissed his Suit, cannot Delay Application by Second Suit.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D.C., July 8, 1872. Register and Receiver, Central City, Colorado:

GENTLEMEN: On the sixteenth of February, 1872, this office directed you to inform Harley B. Morse that thirty days from the date of your notification, would be allowed him to bring suit in the proper local court, to adjudicate the right of possession to the Pelican lode, situate in Griffith Mining District, Clear Creek County, Territory of Col

orado.

On the twenty-third of February, 1872, the Register and Receiver at Central City, Colorado, informed Mr. Morse of

the ruling of this office in said case, and on the twenty-third of March, 1872, said Morse filed his bill of complaint against said applicants for patents, and summons issued the same day upon said complaint, which summons was served upon said applicants for patent upon the first day of April, 1872. On the third of April, 1872, said defendants filed their answer to said complainant's bill of complaint.

On the nineteenth day of April, 1872, said suit was dismissed on complainant's motion, and it appears by a certificate of the clerk of the Clear Creek County District Court, under seal, that on the nineteenth day of April, 1872, there was no suit, or suits, pending in said Court bringing into controversy the title to the Pelican lode, except a suit brought by Charles H. Morris against Eli S. Streeter and Thomas McCunniff.

Morris' adverse claim to said application for patent, not having been filed within the ninety days notice by publication, cannot be considered, as will be seen by reference to the decision of the Honorable Secretary of the Interior, dated July 5th, 1872, in case of the Pelican and Zillah lodes, copies of which decision have this day been sent to your address.

On the twentieth of April, 1872, H. B. Morse filed a bill of complaint against Eli. S. Streeter, John McCunniff, Thomas McCunniff, James R. Huginin, Robert L. Martin, Silas C. Bennett, Zadock Kalbaugh, Americus Medley, John Dee, John Murley, James O'Neil, Charles Dougherty, Jasper N. Roberts, James Lees, Howard C. Chapin, Joseph H. Rogers, John Shillto and William H. Cushman, bringing into controversy the title to the said Pelican. From the foregoing it will be seen that Morse commenced his suit on the last day of the thirty days allowed him to commence suit by our decision of February 16th, 1872, and that on the nineteenth of April, 1872, he dismissed said suit.

The fact that Morse commenced another suit against the applicants for patent and other parties, long after the thirty days allowed in our said decision had expired, will not be considered by this office.

You will therefore, on the receipt hereof, allow the entry of said Pelican lode to be made and transmit all the papers in the case to this office.

Very respectfully,

WILLIS DRUMMOND, Commissioner.

DEPARTMENT OF THE INTERIOR,

Washington, D. C., November 16, 1872.

SIR: I have considered the appeal taken by H. B. Morse from your adverse decision in the case of Harley B. Morse,