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Amicable Arrangement between Miners and Agriculturists for Segregation of Claims Suggested.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., Nov. 14, 1872. Register and Receiver, Sacramento, California:

GENTLEMEN: The papers and testimony transmitted with the Register's letter of April 23, 1872, in the case of Henry Tremain, pre-emption claimant, Robert Brydon, mineral contestant, and others, have been examined.

It appears that the plat of Tp. 16, N. R. 8 E., was filed in your office February 20, 1868, and the land in controversy is within the limits of withdrawal of October 4, 1864, for the Central Pacific Railroad.

March 27, 1868, Henry Tremain filed D. S. No. 68 on the S. E. quarter of Sec. 34 in said Tp. 16, N. R. 8 E., alleging settlement thereon May 10, 1867; and on the twelfth August, 1871, he abandoned the N. W. quarter of the quarter section filed upon.

April 25, 1868, Robert Brydon filed D. S. No. 147 on the N. half of said S. E. quarter and the N. E. quarter of S. W. quarter of said Sec. 34, and August 24, 1871, abandoned his right to the same as a pre-emptor.

May 14, 1868, S. R. Michaels filed D. S. No. 217 on the N. E. quarter of S. W. quarter and N. W. quarter of S. E. quarter, Sec. 34, T. 16, N. R. 8 E., alleging settlement Oct. 10, 1861.

Several mineral affidavits were filed by A. B. Dibble and others in the years 1868 and 1869 on this quarter section in question.

A hearing was had before you, August 12, 1871, to determine the character of the land in controversy. The testimony then taken and the proof offered at a hearing had March 12, 1869, show this S. E. quarter of the said Sec. 34 to be near Grass Valley, in probably the richest mining district of California and within a mile of some of the best paying mines in the State. On at least three forty-acre tracts of the land in question are gold-bearing ledges of unknown value and extent; and the placer claims of Brydon & Co. covered the greater part of the north half of this quarter section and extend into the S. W. forty-acre subdivision.

The north half of the land in dispute is clearly mineral land, and your decision to that effect is affirmed.

On the S. E. quarter of the said S. E. quarter, Tremain has valuable improvements, and the land appears to be more valuable for agriculture than for mining; and your decision o that effect is also affirmed.

On the S. W. forty-acre tract there appears to be both agricultural and mineral land, and it is suggested that an amicable arrangement be made between the claimants in order that the agricultural may be segregated from the mineral portion, in accordance with circular instructions of May 6, 1871. Otherwise the entire S. W. quarter of the S. E. quarter of Sec. 34, Tp. 16, N. R. 8 E., will be reserved as more valuable for mining than for agricultural purposes.

* * *

Very respectfully, etc.,

W. W. CURTIS, Acting Commissioner.

New Trial must be Granted Unconditionally to Warrant further Suspension of a Case.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., Nov. 18, 1872. Register and Receiver, Central City, Colorado:

GENTLEMEN On the eighth May, 1872, this office rendered a decision in the matter of the application of John M. Osborn, for patent for three thousand linear feet of the Bank of Commerce lode, against which an adverse claim had been asserted by Eli D. Bashford et al., in which decision you were directed to inform all parties in interest that thirty days from the date of your notification would be allowed in which to institute proceedings in court to adjudicate the right of possession to the premises in dispute.

From your letter of the fifteenth ultimo, and the inclosures therewith, to wit, certificates of the clerk of the court of the Second Judicial District, Colorado, it appears that suit was instituted in accordance with said decision, and a verdict rendered by the jury in favor of John M. Osborn, the applicant for patent. Whereupon, the plaintiffs in said. suit, Eli D. Bashford et al., moved for "a new trial under the statute, which was granted on the payment of costs."

From your letter and said certificates of the clerk, it does not appear that the application for a new trial had been perfected, in accordance with the requirements of the law of Colorado (vide Revised Statutes of Colorado, sec. 76, page 278), there being as conditions precedent to the granting of a new trial

First. The payment of all costs; and

Second. The vacating of the judgment rendered in former trial, by the court.

It will be necessary for the adverse claimant to show that their motion for a new trial has been granted without conditions.

This office cannot recognize their simple application for

a new trial as of sufficient force to warrant a further suspension of the case; and you are hereby instructed to notify said Eli D. Bashford et al. that thirty days from the date of notification will be allowed them to make such show

your

ing.

You will acknowledge the receipt hereof, and report what action is taken in the matter.

Very respectfully,

W. W. CURTIS, Acting Commissioner.

Land Adjudged Agricultural cannot be Entered as Mineral unless New Developments or Discoveries are made thereon.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, WASHINGTON, D. C., Dec. 2. 1872. Hon. A. A. SARGENT, Washington, D. C.:

SIR: I have the honor to state, in reply to your letter of the twenty-eighth ultimo, that the N.W. of the N.W. Sec. 9, T. 16, N. R. 9 E., Mt. Do. Mer., is within the limits of withdrawal for the Central Pacific Railroad Company, but has never been listed to said company, as affidavits had been filed with the Register and Receiver at Sacramento, Cal., alleging the mineral character thereof.

On the ninth November, 1869, at the instance of S. W. Austin, a hearing was held before the local land officers to determine the character of said tract, and on the tenth of July, 1872, the Hon. Secretary of the Interior decided the whole tract to be agricultural in character, an appeal hẩving been taken from the decision of this office of January 24, 1872, in reference thereto.

This land, having been adjudged agricultural upon the evidence taken at said hearing, cannot be entered under the mining acts of Congress, unless such discoveries or developments have been made since the date of said hearing, to wit, November 9th, 1869, as to show that the tract described is of more value for purposes of mining than agriculture.

I return herewith the letter from Deal and Clark, dated Nevada City, November 20, 1872, which was referred to this office by you.

Very respectfully,

Your obedient servant,

WILLIS DRUMMOND, Commissioner.

Relative to Hearings held to Determine the Character of Land in Dispute.-The Party upon whom the Burden of Proof Rests.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., Dec. 2, 1872. O. B. O'BANNON, Esq., 1314 G Street, Washington, D. C.: SIR: Referring to your letter of the twenty-ninth ultimo, I have to state that on the eighteenth September, 1872, this office instructed the Register and Receiver at Helena, Montana, "to cause a hearing to be held to determine the mineral or agricultural character" of the S. E. of S. W. of section 21, and the N. E. of N. W. of section 28, T. 9, N. R. 13 W., Montana, an affidavit having been filed with the local land officers, alleging the mineral character of said tracts.

Where land has been returned as agricultural, as in this case, and affidavits are filed alleging the mineral character thereof, a hearing is held, in accordance with inclosed circulars, before the Register and Receiver, or any other officer authorized to administer oaths, within the land district where the land is situated-the burden of proof being upon the mineral affiant, or party seeking to disprove the correctness of such return, and vice versa, where the land has been returned as mineral.

In the case of contest, each party is held responsible for the expense incurred by reducing the testimony of his own witnesses to writing.

As attorney for the agricultural claimant, Patrick Fay, you desire that the Register and Receiver be instructed to cause said hearing to be held, before some officer authorized to administer oaths in the county within which said tracts of land are situate, as the land in dispute is some sixty or seventy miles from the land office, and separated by the main chain of the Rocky Mountains.

It is the intention of this office to save as much as possible the expense, trouble and delay incident to taking proof as to the mineral or agricultural character of the lands, and hence the Register and Receiver will be instructed to cause said hearing to be held before some officer authorized to administer oaths in the county where said land is situate. Very respectfully, etc.,

WILLIS DRUMMOND, Commissioner.

Proceedings to Cancel Patent issued to the Owners of the Wyoming Mine, Utah.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., Dec. 7, 1872. Hon. COLUMBUS DELANO, Secretary of the Interior:

SIR: I have the honor to state, that on the twentieth day of March, 1872, Alexander Majors, Allen Fowler, and R. C. Chambers, filed with the Register and Receiver at Salt Lake City, Utah, an application for patent for 1000 linear feet of the Wyoming Mine, situate in American Fork mining district, Utah.

On the thirtieth day of September, 1872, patent issued for said claim as applied for, no objection, protest, or adverse claim being on file in this office.

On the seventeenth day of October, 1872, the Register at Salt Lake City forwarded a protest and adverse claim of the Miller Mining and Smelting Company to said application for patent, which protest and adverse claim was filed with said Register, before the ninety days publication required by law had expired, and should have been forwarded to this office, with the other papers in the case, before entry was allowed.

Upon the receipt at this office of said adverse claim, the Register and Receiver at Salt Lake City were directed to demand the return of said patent, the same having been delivered to said Fowler, Majors and Chambers in the mean time, which demand they refused to comply with.

In view of the fact that a patent has inadvertently and unlawfully issued to said applicants, which they refuse to return, I have the honor to suggest that the matter may be brought to the attention of the Attorney-general, with a request that the adverse claimants, to wit: the Miller mining and smelting company, be permitted to prosecute a suit in the name of the United States, to secure the cancellation of said patent.

I am, sir, very respectfully,

WILLIS DRUMMOND, Commissioner.

DEPARTMENT OF THE INTERIOR,

WASHINGTON, D. C., 17th January, 1873. SIR: I transmit herewith for your information a copy of a letter of the fourteenth instant, from the Attorney-general of the United States, in relation to the setting aside of a patent improperly issued for certain mineral lands in Utah Territory.

Very respectfully,

B. R. COWEN, Acting Secretary. Hon. WILLIS DRUMMOND, Com'r General Land Office.

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