Patent Recalled only when Errors have been made in Name or Description.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, April 5, 1872.

HON. J. B. CHAFFEE, M. C., House of Representatives: SIR: Referring to the subject of the inclosed letter from Hon. E. T. Wells, recently filed by you, I have the honor to state that the Register and Receiver at Central City, Colorado Territory, were on the fourth inst. directed to deliver to Alfred Rollings and E. T. Wells, the patent heretofore issued to the Chicago and Clear Creek Gold and Silver Mining Company" for seven hundred feet of the Washington lode in Idaho Mining District, Clear Creek County, Colorado Territory;

After a patent has once issued, it is contrary to the fixed policy of the department to recall the same, unless it were shown that an error had been committed in the description of the tract, or a mistake made in the name of the patentee; such not being the case in the present instance, this office is unable to comply with the request of Mr. Wells that a new patent be issued for said lode to Mr. Rollings and himself. Very respectfully,

Your obedient servant,

W. W. CURTIS, Acting Commissioner.

Rights of Persons making Entry pending Contest.

DEPARTMENT OF THE INTERIOR,

WASHINGTON, D. C., April 19, 1872.

SIR: *** From this decision, Butler has appealed. He alleges that in point of fact the land is not mineral, and that, having entered and paid for it, and received a duplicate receipt, he has a vested interest therein, which it was not competent for the Commissioner of the General Land Office to disturb. The decision of the local officers in matters of this kind is not final, but is subject to revision by the Commissioner. It was the duty of those officers to have submitted the question to the Commissioner, for his decision, before they received the final proof and payment from Butler. The power of the Commissioner to review and revise their action, was not taken away by their neglect to report the case until after the duplicate receipt had issued.

And Butler, by making payment pending the contest, and before the Commissioner had acted, only acquired a vested right, on condition that the Commissioner and other supe

rior authority, should finally concur in the opinion of the local officers. To hold otherwise, would deprive the Government of all protection against the hasty and ill-advised acts of its inferior officers. * * *

Very respectfully,

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

Proceedings in case of Special Agreement between Opposing Claimants.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., April 19, 1872. Register and Receiver, Central City, Colorado:

GENTLEMEN: On the twenty-seventh January last, you were directed to inform Neil D. McKenzie, adverse claimant to the application of Benjamin Woodbury and James B. Norton, for patent for the Coral lode, that sixty days would be allowed him to institute proceedings in court, to adjudicate the right of possession to the premises in dispute.

In order to avoid the expense and delay of litigating this case in court, the applicants for patent and the adverse claimant, on the fourth March, 1872, entered into a written agreement, wherein it is stipulated that "The said application for patent is to be and remain suspended in said Land Office, until the said adverse claimant shall obtain a patent for his claim upon the Bowlder County lode, described in his abstract of title thereto, on file in said Land Office, with his protest in the case, provided he shall proceed without unnecessary delay to make application therefor, and shall, with reasonable diligence, prosecute his said claim to patent," etc.

The question is now submitted, whether this adverse claimant can proceed with his application for patent while his adverse claim is still on file to the application of Woodbury and Norton.

It certainly is true, if McKenzie makes himself an adverse claimant to Woodbury and Norton, he, by the same process, makes Woodbury and Norton adverse claimants to himself, inasmuch as McKenzie's claim could not conflict with that of Woodbury and Norton, without the latter at the same time conflicting with the former.

This difficulty may be obviated, however, by McKenzie withdrawing his adverse claim to said application, in which event the application of Woodbury and Norton will remain suspended, in accordance with the terms of said agreement. * * *

Very respectfully,

WILLIS DRUMMOND, Commissioner.

Final Survey must Cover Ground applied for.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, WASHINGTON, April 19, 1872.

Register and Receiver, Central City, Colorado:

GENTLEMEN: This office has had under consideration the papers received with your letters of the twenty-second January, thirty-first January, and fifth February last, in relation to the Hercules lode, from which it appears as follows, to wit:

On the seventh August, 1871, the "International Mining and Exchange Company," by its superintendent, E. P. Sexton, filed in your office a diagram and a notice of intention to apply for a patent for three thousand (3,000) linear feet of the Hercules lode, with surface ground fifty (50) feet in width, situated on Queen's or Griffith Mining District, Clear Creek County, Colorado, described as follows, viz:

"Beginning in center of discovery shaft, from which the John J. Roe lode discovery shaft bears south 61° 32′, east 148 feet; thence north 66°, east 3,000 feet, to the eastern boundary of the claim, embracing a surface claim of twentyfive feet on each side of the center of the lode, and containing 150,000 square feet. Adjoining claimants on the west, A. F. Hall and Leonard Calkins, located in Sec. 13, T. 4, S. R. 75 west."

It is shown that a copy of said diagram and notice remained posted in a conspicuous place upon the claimed premises for the period of ninety days, to wit: from the fifth of August to the eleventh of November, 1871.

By the certificate of the Register, it appears that a copy of the said diagram and notice was posted in his office for the period of ninety days, from and after the seventh day of August, 1871.

It is also shown, under oath, that said notice was published in the Weekly Colorado Miner, a newspaper published at Georgetown, in said county, for the period of ninety days, the first publication of the said notice appearing in the issue of said paper of the tenth August, 1871, and the last one on the ninth November following.

It is likewise shown that not less than one thousand dollars have been expended in actual labor and improvements upon said claim.

On the third November, 1871, and before the expiration of the period of notice, George L. Graves filed in your office objections to the granting of a patent for said claim by reason of alleged interference with the John E. McClung lode, claimed by himself and Oliver Graves.

By your letter of thirty-first January, 1872, it appears that said objections were withdrawn unconditionally.

The Surveyor-general approved the plat of survey of this claim on the fourteenth day of February, 1872, the same being designated lot No, 112, in Sec. 13, T. 4, S. R. 75 west.

Previous to this approval, however, and on the second day of February, 1872, a protest or adverse claim was filed by John M. Isaacs et al., alleging interference and identity with the Seven Thirty lode, claimed by them under local customs and rules.

As this adverse filing was not made until after the expiration of the ninety days notice given by the Hercules claimants, it cannot be considered, in view of the decision of the Hon. Secretary of the Interior, of the fourteenth ultimo, in the case of the Flagstaff lode, a copy of which you have received. The matter being entirely between the claimants of the patent and the United States, the question for consideration is, whether the claimants have made such a compliance with the law as will authorize the granting of a patent.

It appears, from a certified abstract from the records of Clear Creek County, Colorado Territory, that the three thousand feet of the Hercules lode applied for were located and recorded on the first day of June, 1868, by Robert Guithus and thirteen other persons; the said Guithus, as discoverer, taking four hundred (400) feet and each of his associates taking two hundred (200) feet on the course of the vein or lode, as contemplated by the first and second provisions to the fourth section of the mining statute of Congress, approved July 26, 1866 (14 Stats. p. 251.) Said abstract further shows, that the present applicants for patent acquired, by purchase, the possessory right to the number of feet taken up under said location.

At the date of said location the law of the Territory of Colorado, approved February 9, 1866 (Revised Statutes Col. p. 467), was in force and constituted the local customs and rules of miners in that Territory, as regards the number of feet which could be located upon a lode.

This statute provided, that a discoverer of a vein or lode should be entitled to fourteen hundred feet thereof, to be called the discovery claim, of which the discovery shaft should be the center.

This provision of law, after the date of the said Congressional enactment of July 26, 1866, being in direct conflict with the maximum fixed by the first proviso to the said fourth section of the latter act, was void, in so far as it sanctions locations in excess of two hundred feet to a locator or four hundred feet to a discoverer.

After the passage of the said Congressional law, much diversity of opinion existed among the miners in Colorado as to the proper course to pursue in making locations of

newly-discovered lodes, some following the Territorial law aforesaid, while others endeavored to conform to the law of Congress, according to their several interpretations of the

same.

In the case now under consideration the original locators followed substantially the Congressional enactment, taking at the rate of two hundred feet to each locator, with an additional claim of two hundred feet to the discoverer, until the maximum of three thousand feet was reached.

With the view of harmonizing the Territorial with the Congressional law in the matter of locations of lodes, the Legislature of Colorado Territory, on the eleventh February, 1870, passed an act for the relief of pre-emptors and locators of veins or lodes of quartz, the first section of which provided as follows, viz :

"No statutory law of Colorado Territory shall be so construed as to prohibit the location of 3000 feet or less on any vein or lode, in the manner prescribed in section four of an act of Congress, approved July twenty-sixth, one thousand eight hundred and sixty-six, entitled an act granting the right of way to ditch and canal owners over the public lands, and for other purposes, nor to obtain patents for the same, as provided in said act.

"SEC. 2. All pre-emptions and locations of 3000 feet or less, on any vein, lode or ledge made since the passage of the said act of Congress, and conforming to the same, shall be good and valid.'

The Hercules location, it will at once be perceived, is one of those coming within the scope and meaning of this enactment, which was made retroactive in its character, with the express purpose of curing defect as to locations, occasioned by the want of harmony between the Territorial and Congressional laws, as aforesaid.

It is accordingly ruled, that the said Hercules lode, to the extent of 3000 feet, as claimed in said application, is a proper location, under the laws of Congress and of Colorado Territory.

It appears by the affidavit of E. P. Sexton, that Amos T. Hall, John M. Wilson, Caleb S. Stowell, Louis M. Andrick, Leonard G. Calkins, and Edmund P. Sexton, compose the said "International Mining and Exchange Company," and by their several affidavits, these parties are shown to be citizens of the United States.

It does not appear, from the papers, whether said company is incorporated or not. This information should be furnished, and if it is incorporated, a certified copy of their certificate of incorporation should be furnished, or other competent proof on that point.

Upon comparing the final survey with the original notice