Official Letters to Registers and Receivers are United States Property.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D,C., April 14, 1873. Register and Receiver, Austin, Nevada:

GENTLEMEN: In the Register's letter of the thirtieth ultimo, he states that, "I do not know the status of this application as the ex-Register refuses to let me see his letter book."

All official letters sent to, as well as the official record of letters sent by the Register and Receiver, are the property of the United States, and as such should be retained in the office of such Register and Receiver.

If, therefore, the former Register has taken from the office any letters, documents or records, which are of the character of official communications or records, you will immediately demand their return to your office.

You are requested to give this matter your immediate attention, and report to this office what action you take. Very respectfully, your obedient servant,

WILLIS DRUMMOND, Commissioner.

Case of the Santa Rita del Cobre Copper Mine, New Mexico.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D.C., April 15, 1873. Register and Receiver, Santa Fe, New Mexico:

GENTLEMEN: On the eighteenth day of April, 1867, James H. Carleton, Robt. B. Mitchell, John Pratt, C. P. Clever, Thomas J. Buel, H. M. Enos and N. Y. Ancheta, filed in your office an application for patent for two thousand linear feet of the Santa Rita del Cobre mine, New Mexico.

On the twenty-first day of April, 1870, my predecessor decided this case against the applicants for patent, and no appeal having been taken from said decision, it has become final.

It is not necessary now to determine whether that decision is sufficient to preclude me from opening and reconsidering the case, as however much I may differ from him in his reasoning on some points, I fully agree with him in his conclusions.

In his decision he states that, "the Santa Rita Del Cobre is therefore of the kind of property which in the seventh section of the Territorial mining act of January 18, 1865, is classed as 'mines and mineral ground heretofore occupied in this Territory,' and is subject to relocation only

after mining has ceased to be prosecuted regularly for a period of ten years or more; and not even in that case, if the fee simple title to the land has ever been granted by competent authority to those claiming the same; or if the claimant has remained in actual and unquestionable possession and occupation.

"Hence when a patent is applied for a re-located mine in New Mexico, the applicants must show by prima facie evidence that it is subject to such relocation; or, in other words, that it is one upon which mining has not been prosecuted regularly for ten years or more; that no record evidence of a title by competent authority is found in the locality where such record should be kept, and that no bona fide claimant has been in actual and unquestionable possession within ten years preceding the application.

"The Santa Rita has not been abandoned voluntarily or involuntarily for a period of ten years or more, and if not so abandoned, it is not subject to relocation, and consequently the applicants cannot occupy and improve it according to the customs and mining regulations of New Mexico, and if they cannot place themselves in that position, the General Land Office is not authorized to issue a patent to them under the act of July 26, 1866.

"Sweet and La Coste occupied under a lease from the widow of de Alqua, which only expired in 1865."

This statement of my predecessor is fully sustained not only by historical and other records of the Territory of New Mexico, but by the papers in the case, and the admissions of the applicants for patent.

The Surveyor who made the survey for the applicants on the twenty-sixth of June, 1869, in his report, which was approved by the Surveyor-general, after giving a history of this mine from the date of its discovery, near the close of the last century, and showing by whom, at various periods, it had been worked, says with reference to the last occupancy, that Sweet and La Coste worked this mine until 1862, and that their lease of the same expired in 1865.

It is elsewhere shown that Sweet and La Coste abandoned this mine in 1862, because of Indian depredations.

In describing the mine, the surveyor further says that the upper level is about sixty feet from the surface, and entrance can be had to a number of galleries that were worked out from 1860 to 1862.

Mr. Pratt, secretary of the Santa Rita mining association, in a communication to this office, dated February 12, 1870, says that the mine had been unoccupied and unworked since 1862, thus admitting by clear implication that it had been occupied and worked to that time.

Mr. Elkins, attorney for the company, in his argument

in this case, dated March 1, 1873, discusses the case as one coming under the seventh section of the mining act of the Territory of New Mexico, and not as one of original discovery and location, taking the position that it is not incumbent upon the applicants to show that the mine has been abandoned, but that the prior occupants, if they are entitled to any notice or consideration at all, should be compelled to show "that they have not failed to prosecute mining for a period of ten years on the mine, and prove it." Considering the fact that the Territorial statute does not declare a forfeiture unless the mine shall have been abandoned for a period of ten years or more, this position does not appear to me to be correct, but by it Mr. Elkins admits, by implication at least, that the applicants for patent are not entitled to a patent by right of original discovery, but that if they can claim anything, it is by virtue of relocation, under the seventh section of the mining act of New Mexico, relating to the relocation of mining claims which have been abandoned for ten years.

As ten years had not elapsed in 1866, a relocation by the parties, if made in due form, would have been clearly illegal, and all subsequent proceedings based thereon void.

I cannot see how my predecessor could have arrived at any other conclusion than that expressed in his said decision of April 21, 1870.

The location being illegal and void, the subsequent proceedings, if in due form, would be invalid; and it is not necessary to enter into a detailed statement of the defects therein.

It is sufficient to say that such proceedings are not only informal and irregular, but lacking in almost everything necessary to give this office jurisdiction, or to enable it to pass the case to patent.

As the case is one that cannot be cured by supplying deficiencies in the record, and in which the applicants for patent, if they have any rights, can only protect the same by the commencement of new proceedings, after a full and complete abandonment of the mine by prior occupants not holding the fee simple title, the entry will be held for cancellation, subject to the right of appeal within sixty days from service of notice.

You will inform all parties in interest of this decision, allowing sixty days within which an appeal may be taken to the Hon. Secretary of the Interior.

Should no appeal be taken within the time prescribed, the entry will be cancelled.

You will acknowledge the receipt hereof.

Very respectfully,

WILLIS DRUMMOND, Commissioner.

DEPARTMENT OF THE INTERIOR,

Washington, D. C., November 6, 1873.

SIR: I have examined the appeal of the Santa Rita Del Cobre mining association from your adverse decision of the fifteenth of April last.

I affirm your decision, and herewith return the papers transmitted with your letter of July 11, ultimo.

Very respectfully,

W. H. SMITH, Acting Secretary. Hon. W. DRUMMOND, Commissioner General Land Office.

Miners Claiming Adversely to Agriculturists must be confined to Original Locations.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., April 15, 1873. Register and Receiver, Sacramento, California:

GENTLEMEN: The papers transmitted with the Register's letter of October 15, 1872, in the case of John C. Ham, pre-emption claimant, v. Louis Ludekins, R. K. McCoy and others, mineral applicants and affiants, have been examined.

It appears that the official plat of Township 6, N. R. 12 E., Mt. Do. Mer., was filed in your office June 29, 1870, and the land in question is returned thereon as agricultural in character.

July 29, 1870, John C. Ham filed D. S. No. 1393, on the N. of S. E. and S. W. of S. E. section 3, and N. W. of N. E. section 10 of said township, alleging settlement thereon, October 6, 1854. November 17, 1871, he abandoned the N. W. of N. W. of N. E. of said section 10, as this tract was included in the application, dated July 12, 1871, of R. K. McCoy et al., for patent for a placer mining claim.

July 26, 1870, R. K. McCoy and others filed mineral affidavit No. 287 on several tracts of land, including the ones under consideration, alleging the mineral character thereof. November 14, 1871, Louis Ludekins filed an application for patent for a placer mine, embracing the S. of N. E. of S. E. 1, E. of N. W. of N. E. of S. E. 4, W. N. E. of N. E. 1 of S. E., E. of S. W. of S. E. N. E., and W. of S. E. of S. E. of N. E. section 3 of said township.

of

of

November 17, 1871, was the day set for a hearing in the case, when all parties were present in person and by counsel. The testimony offered at this hearing is, in some respects, conflicting and unsatisfactory. However, it appears that

the mineral applicant has made a blind drain or tunnel, sunk shafts and run drifts at considerable expense, and obtained good prospects on his claim. In his testimony (page 32) he states that "by taking a legal subdivision, he included in his application land that was not embraced in his original location, and that he never claimed as mineral before."

The act of Congress, approved May 10, 1872, provides in the tenth section thereof that "where placer claims cannot be conformed to legal subdivisions, survey and plat shall be made as on unsurveyed land." Mr. Ludekins will therefore be allowed to proceed with his application, embracing therein only so much land as is included in the original locations, made in accordance with the local rules and customs of miners, in the mining district wherein the claim is situated.

The remaining portion of the land embraced in the preemption claim of John C. Ham, is held to be agricultural in character, and will be dealt with accordingly.

You will notify all parties in interest of this decision, allowing sixty days from the date of your notification, in which an appeal may be taken to the Honorable Secretary of the Interior.

Please acknowledge the receipt hereof as "N" by its date. Very respectfully,

WILLIS DRUMMOND, Commissioner.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C,, Nov. 19, 1873. SIR: I have considered the case of John C. Ham, preemption claimant, v. Louis Ludekins, B. K. McCoy, et al., mineral applicants and affiants, involving the right to, and character of, certain described tracts of land in sections 3 and 10, T. 6, N. R. 12 E., Sacramento land district, California.

I affirm your decision, and herewith return the papers transmitted with your letter of seventh August last.

I am, sir, very respectfully, your obedient servant, C. DELANO, Secretary. Hon. WILLIS DRUMMOND, Com'r General Land Office.