Patents cannot be issued conveying more than Three Thousand Feet of a Lode.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., March 27, 1872. Hon. A. A. SARGENT, M. C., House of Representatives:

SIR: In response to your inquiry in letter of twenty-fourth instant, inclosing a letter from Hartson and Burnell, dated at Napa City, Cal., the eleventh instant, I have the honor to state, the construction which this office had placed upon the first and second provisos to the fourth section of the mining act of July 26, 1866, was that the limitation of claims in the aggregate to three thousand feet on a lode, to any person or association, was wholly prospective, and related entirely to claims taken up after the date of said act, leaving the parties who held the possessory right to claims previously located, although in excess of that maximum, at liberty to apply for and receive patents therefor.

In the case of the New Idria Mining Company, the acting Secretary of the Interior, concurring in the opinion of the Assistant Attorney-general, failed to coincide with this office in its interpretation of the law upon this point, and I am therefore unable to issue patents conveying more than 3000 feet along the vein or lode, no matter whether the location thereof was made prior or subsequent to the date of the mining act of July 26, 1866.

It is understood, unofficially, that it is intended by certain parties in interest, to present a case involving this question, before the Hon. Secretary of the Interior for review. The letter of Messrs. Hartson and Burnell is herewith returned.

I am, sir, very respectfully,

Your obedient servant,

WILLIS DRUMMOND, Commissioner.

Adverse Claim rejected, because Identity of Lodes was not alleged.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., April 1, 1872. Register and Receiver, Austin, Nevada:

GENTLEMEN: On the thirteenth June, 1871, Ed. Powers, M. M. Egan, J. W. Kenneda, Ed. Curran, Thomas Kelly, and John H. Daly, filed in your office an application for patent for 1000 linear feet of the Sierra Nevada lode south, situate in White Pine District, White Pine County, Nevada.

On the sixteenth of the same month, they published their notice of intention to apply for a patent. From an abstract of title on file in the case, from the office of the County Re

corder, it appears that said lode was located on the twentyfifth April, 1868, and record thereof made on the same day, and that the applicants for patent have the record title to 1000 linear feet thereof.

On the sixth September, 1871, Michael Meagher, for himself and his co-tenants, filed an adverse claim to said application. In his sworn statement, he alleges that said application for patent includes the Edgar mining claim; that said lodes or deposits are separate and distinct from each other; that he and his co-tenants and their predecessors in interest, have been in the quiet, peaceable and exclusive possession of said Edgar lode for more than two years last past, and that he and his co-tenants have performed the work necessary to hold a mining claim, under the laws of White Pine Mining District.

From an abstract of title on file in the case, from the office of the County Recorder of White Pine County, it appears that the Edgar lode was located on the 4th of June, 1868, and record thereof made on the 20th June, 1868, and that Chas. E. De Long, M. Meagher, J. P. Garvey and Annie Meagher, have now the record title to 1200 linear feet thereof.

From the foregoing it will be perceived that the mining ground sought to be patented was located prior to said Edgar lode, and inasmuch as said deponent avers that the Edgar is a separate and distinct lode from the one for which said application for patent is made, it is held that said protestant has failed to present an adverse claim within the law and for the following reasons, viz:

First. Every patent issued for mining property contains an express clause by which all other veins or lodes, except the one named in the grant, are excepted and excluded from the conveyance according to the terms of the mining statute.

Second. Under the mining regulations of White Pine district, a locator is entitled to hold one hundred feet of surface ground on each side of his lead, lode, or ledge, but this surface right gives him no title or claim to any other distinct or parallel ledges which may be found to exist within such surface.

This opposing party having made no claim to the ledge sought to be patented, but to another lode separate and distinct therefrom, and, as priority of location determines the right to surface ground, it is ruled that this adverse filing does not constitute such an adverse claim, either to the lode or surface ground, as is contemplated by the sixth section of the mining statute and the same is accordingly rejected.

*

*

*

*

Very respectfully,

Your obedient servant,

*

W. W. CURTIS, Acting Commissioner.

Patent may be Delivered to Owner of the Mine, though he may not be the Party named in the Patent. DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., April 4, 1872. Register and Receiver, Central City, Colorado Territory : GENTLEMEN: It appears from the records and files of this office that on the ninth July, 1867, the "Chicago and Clear Creek Gold and Silver Mining Company," a corporation existing under the laws of the State of Illinois, applied for a patent for one thousand (1,000) linear feet of the Washington lode, described in said application as being a gold and silver bearing vein of rock in place, situate in Idaho Mining District, County of Clear Creek, and Territory of Colorado.

This claim was subsequently reduced in its linear extent to seven hundred (700) feet along the lode, and due notice having been given, a survey thereof was executed, which received the Surveyor-general's approval May 25, 1870, being designated as "Lot No. 65," in Section 25, T. 3, S. R. 73 W., Colorado Territory.

Said claim was, on the fifteenth February, 1871, patented to said applicants in their incorporate name, to wit: to the Chicago and Clear Creek Gold and Silver Mining Company, and the patent was transmitted to you for delivery with letter of February 18, 1871.

On the eighteenth ultimo, this office received a letter from the Receiver at Central City, Colorado, inclosing a number of papers, and stating that said final survey of the Washington lode was applied for May 11, 1870, and money therefor deposited by Alex. Huyett, a stockholder in said company; that said Huyett exhibited a letter of authority, signed by the Secretary of said company, instructing him to complete the application; that the entry was made August 30, 1870, and said Huyett informed that the duplicate receipt was ready for him; that he never called for it, but soon afterward went to Utah Territory, his whereabouts not being known to the Receiver.

The Receiver further states, that a communication was addressed to Wm. Aldrich, the President of said company, at Chicago, Illinois, but no reply was received, and that he is unable to find any representative of the company.

It appears from the papers now received, that Alfred Rollings, at the September term of the District Court for the County of Clear Creek and Territory of Colorado, recovered a judgment against the "Clear Creek Silver Mining Company" for the sum of $318.88 damages and $35.10 costs of suit, upon which judgment a special execution was issued,

dated the seventh December, 1870, and directed to the Sheriff of said county, who afterward levied upon and sold, under said execution, "the whole of the Washington lode, situated upon the same mountain as the Veto lode, and the discovery shaft of which is about two hundred yards up the mountain from the discovery shaft of the said Veto lode and in a northwestern direction from the said Veto shaft, situated in Idaho Mining District, Clear Creek County, Colorado Territory," the said Alfred Rollings being the purchaser of said lode at said sale.

It further appears, that said Rollings afterward assigned. one half of his certificate of purchase under said execution to Ebenezer T. Wells, and that on the seventh November, 1871, the Sheriff conveyed the said lode by deed to said Rollings and Wells, who now apply to have the undelivered patent recalled and another issued to them for the same property, or that said patent be delivered to them as the rightful owners of the premises thereby conveyed.

In explanation of the misnomer in bringing this action, the said Rollings, under oath, deposes and says:

"That he did not, at the time of commencing his said suit, certainly know the true name of said corporation, but deponent knew that one Alex. Huyett, then of said Territory of Colorado, was a stockholder in the corporation, which was indebted to him, and deponent thereupon caused process in his suit to be served on said Huyett, as, according to the statute of the Territory of Colorado in that behalf, he lawfully might.'

"Deponent further saith, that the corporation against which this demand and cause of action in his said suit existed, was the same corporation, by whatever name known, which had theretofore been in possession of the Washington lode, in Idaho District, County of Clear Creek and Territory of Colorado, and engaged in working the same, under the management and superintendence of one J. Augustine; that one Alex. Huyett, lately of said County of Clear Creek, the same person upon whom the writ of attachment in deponent's said suit was served, was also a member of said corporation, and at times, during the absence of Augustine, had assumed to have charge of said Washington lode and the operations of said company therein, and that deponent's demand and cause of action, upon which in his said suit he obtained judgment, was for deponent's work and labor as a miner, done and performed, under the employment of said Augustine, upon and in the said Washington lode. Deponent further says, that he hath resided within the said Idaho District, and in the immediate vicinity thereof, during all the time for the past years, and that there is no other lode called the Washington lode, or which is

known or claimed by that name, in said Idaho District, save the one upon which deponent worked, and for his work upon which the demand in said suit occurred, and that no other corporation, save the one of which said Augustine was agent and said Huyett a member, and for which deponent worked as aforesaid, ever had possession of any part of said Washington lode, or ever asserted any claim thereto," etc.

The fourth section of the Practice Act of the Territory of Colorado, (Revised Statutes, p. 501,) provides that, “In all suits against any incorporated company, summons shall be served on the president thereof, if he resides in the county, but if he do not reside in the county, or be absent from the county, or cannot be found, then the summons shall be served by leaving a copy thereof with any clerk, secretary, cashier or agent of said company, within such time and under such regulations as are herein provided for the service of such process in suits against natural persons. Provided, that if there shall be no such president, clerk, secretary, cashier or agent of said company to be found in said county, the summons aforesaid shall be served on some stockholder of said company, and such service shall in such cases be deemed as effectual and valid as if made on any of the officers of said company."

It appears that in the suit brought by Rollings no officer or agent of the company could be found, and in accordance with said act the writ was served upon a stockholder in said company, the said Huyett.

of

The said Rollings alleges in his sworn statement, "that on or about the day A.D., 1871, deponent and said Wells went into possession of said Washington lode; he is now in full possession of the said lode and every part thereof, whereof the said company were at any time possessed, and of the workings and improvements therein and every part of said workings and improvements.'

In consideration of the evidence presented, and of the fact that misnomer was not pleaded in abatement by the defendants in said action, who, on the contrary, allowed the case to go by default, it is decided that the said patent should be delivered to the said Rollings and Wells, who, it is quite satisfactorily shown, have the possessory title to the lode, thereby conveyed in view of said sheriff's deed.

You will deliver said patent accordingly, being particular to take their receipt therefor, and report your action in this behalf.

Very respectfully, etc.,

W. W. CURTIS, Acting Commissioner.