Adverse claims under statute of July 26, 1863.-Ninety-day rule required. Owing to the somewhat ambiguous language employed in the third and sixth sections of the mining act of July 26, 1866, in relation to filing adverse claims, much difference of opinion always existed among parties interested respecting the time within which adverse filings could be made to have legal effect and serve as a bar to proceedings for patent. The construction given the act by my predecessor, allowing these adverse filings to take effect where made at any time before the approval of the survey by the surveyor general, having been called into question in the case of the Flagstaff Mining Claim, in Utah Territory, against which application adverse claims had been filed after the ninety days' notice had expired, but before the approval of the final survey by the surveyor general, the head of the Department, upon a full examination of the law, reversed the rule under which adverse filings had been allowed after the ninety days' notice had expired; his decision in the premises being as follows: DEPARTMENT OF THE INTERIOR, SIR: I have had under consideration the appeal from decision in the matter of the Flagstaff Lode, in Utah Territory The only ground upon which you declined to issue a patent was that certain adverse claims had been filed with the register after the expiration of the ninety days from the date of the published notice, and before the approval of the corrected survey. It appears that the notice was published on the 24th day of June, 1870, and one of the adverse claims was filed on the 28th of December, 1871, and the other on the 10th of January, 1872. The original survey was approved by the surveyor general on the 18th of September, 1871. The corrected survey was approved on the 16th of January, 1872. The original was not approved by the Commissioner or Department, because it did not conform to the original application and diagram in this, to wit: The application and diagram purported to start at a given course and distance from mineral monument No. 4, and the survey at the same course and distance from mineral monument No. 3. The application and diagram represented the surface premises to extend from the discovery shaft south 36 west 1,200 feet, and north 36 east 1,400 feet. The survey represented the tract as extending from the discovery shaft south 49' cast 1,200 feet, and north 45° 39' west 1,400 feet. There was then no evidence in the case showing that mineral monuments Nos. 3 and 4 were identical. Now that fact is clearly shown, and it is also shown that the corrected survey corresponds with the original application and survey, and that the original. survey covered the identical discovery shaft, now contained in the corrected survey, and that both the original and corrected surveys cover the identical discovery shaft set forth and included in the application and diagram. I state these facts for the purpose of showing that the adverse claimants are not prejudiced by the filing of the corrected survey, for it covers the identical discovery shaft included in the original published notice, which notice they disregarded. They did not file any adverse claim under it within ninety days from its publication, or at any time. If they could safely omit to file, under that notice, it seems to me that they can safely do so under the present corrected survey. The original survey was approved before any adverse claim was filed. That survey was not set aside. It was ordered to be corrected. It has been corrected. It may well be doubted whether it, as corrected, is such a new survey as would permit the filing of an adverse claim between the dates of the approval of the original and the approval of the corrected survey, even admitting that the law allowed adverse filings at any time before approval and did not limit them to ninety days from the publication of the notice. But does the law permit such adverse filings after the expiration of ninety days from the publication of the notice? The second section of the mining act of July 26, 1866, provides that the claimant, who has previously occupied and improved a vein or lode and expended in labor or improvements not less than one thousand dollars, shall file, in the local land office, a diagram of the same, so extended laterally, or otherwise, as to conform to the local laws, and that it shall be lawful for him to enter such tract and receive a patent therefor. The third section provides that upon the filing of the diagram, as provided in said second section, and posting the same in a conspicuous place on the claim, together with a notice of intention to apply for a patent, the register of the land office shall publish a notice of the same in a newspaper published nearest the location of said claim, and 44 REPORT OF THE SECRETARY OF THE INTERIOR. shall also post such notice in his office for the period of ninety days," and after the Is this rule, thus clearly stated, changed by the sixth section of the same act? That section provides: "That whenever any adverse claimants to any mine, located and claimed as aforesaid, shall appear before the approval of the survey, as provided in the third section of this act, all proceedings shall be stayed until final settlement and adjudication in the court of competent jurisdiction of the rights of possession to such claim, when a patent may issue as in other cases." The object of this section is shall appear before to declare what shall be done when an adverse claim has been filed. It is not to declarwhen an adverse claim shall be filed. That had already been done in the third settion. It recites that when "any adverse claimants the approval of the survey, as provided in the third section of this act," then all p* ~ ceedings shall be stayed, &c. Of course, it must be "before the approval of the survey," if done in accordance with the third section, for that section requires the advers claim to be filed within the ninety days. Any other construction would allow an alverse claim to be filed at any time before approval of the survey. A survey might b in the main correct, but yet erroneous in description or otherwise, in some slight particulars; and yet, in such a case, an adverse clain might be filed, which of itself would suspend the approval of the survey until it was adjudicated. Another claim might be filed before that was disposed of, or the survey approved, and thus adverse claims might lap over each other until it would be almost an impossibility for a claimant to be in a condition where he could demand an approval of his survey, and the issuing et his patent. A construction which leads to such consequences ought not to prevail. I have concluded to adopt the one which requires the filing to be made within the ninety days. Your decision is, therefore, reversed, and the papers, together with your letter of tur 28th ultimo, herewith returned. Very respectfully, Hon. WILLIS DRUMMOND, Commissioner General Land Office. C. DELANO, Scor ta Mining statute of May 10, 1872. Under this act, the following circular instructions have been issued: June 10, 1-72 DEPARTMENT OF THE INTERIOR, GENERAL LAND OFFICE, GENTLEMEN: Your attention is invited to the act of Congress approved May 1 1872, which is as follows, to wit: 64 AN ACT to pro note the development of the mining resources of the United States Be it enacted by the Senate and House of Representetires of the United States of Aa rent in Congress assembled, That all valuable mineral deposits in lands belonging to the United States, both surveyed and unsurveyed, are hereby declared to be free and ope to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States and those who have declared their intention to become such, under regulations prescribed by law, and according to the local cus toms or rules of miners, in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the United States. SEC. 2. That mining claims upon veins or lodes of quartz or other rock in place bearing gold, silver, cinnabar, lead, tin, copper, or other valuable deposits, heretofore located, shall be governed as to length along the vein or lode by the customs, regulations, and laws in force at the date of their location. A mining claim located after the passage of this act, whether located by one or more persons, may equal, but shall not exceed, one thousand five hundred feet in length along the vein or lode; but no location of a mining claim shall be made until the discovery of the vein or lode within the limits of the claim located. No claim shall extend more than three hundred feet on each side of the middle of the vein at the surface, nor shall any claim be limited by any mining regulation to less than twenty-five feet on each side of the middle of the vein at the surface, except where adverse rights existing at the passage of this act shall render such limitation necessary. The end lines of each claim shall be parallel to each other. SEC. 3. That the locators of all mining locations heretofore made, or which shall hereafter be made, on any mineral vein, lode, or ledge, situated on the public domain, their heirs and assigns, where no adverse claim exists at the passage of this act, so long as they comply with the laws of the United States, and the State, territorial, and local regulations not in conflict with said laws of the United States governing their possessory title, shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations, and of all veins, lodes, and ledges throughout their entire depth, the top or apex of which lies inside of such surface lines extended downward vertically, although such veins, lodes, or ledges may so far depart from a perpendicular in their course downward as to extend outside the vertical side lines of said surface locations: Provided, That their right of possession to such outside parts of such veins or ledges shall be confined to such portions thereof as lie between vertical planes drawn downward as aforesaid, through the end lines of their locations, so continued in their own direction that such planes will intersect such exterior parts of said veins or ledges: And provided further, That nothing in this section shall authorize the locator or possessor of a vein or lode which extends in its downward course beyond the vertical lines of his claim to enter upon the surface of a claim owned or possessed by another. SEC. 4. That where a tunnel is run for the development of a vein or lode, or for the discovery of mines, the owners of such tunnel shall have the right of possession of all veins or lodes within three thousand feet from the face of such tunnel on the line thereof, not previously known to exist, discovered in such tunnel, to the same extent as if discovered from the surface; and locations on the line of such tunnel of veins or lodes not appearing on the surface, made by other parties after the commencement of the tunnel, and while the same is being prosecuted with reasonable diligence, shall be invalid; but failure to prosecute the work on the tunnel for six months shall be considered as an abandonment of the right to all undiscovered veins on the line of said tunnel. SEC. 5. That the miners of each mining district may make rules and regulations not in conflict with the laws of the United States, or with the laws of the State or Territory in which the district is situated, governing the location, manner of recording, amount of work necessary to hold possession of a mining claim, subject to the following requirements: The location must be distinctly marked on the ground so that its boundaries can be readily traced. All records of mining claims hereafter made shall contain the name or names of the locators, the date of the location, and such a description of the claim or claims located by reference to some natural object or permanent monument as will identify the claim. On each claim located after the passage of this act, and until a patent shall have been issued therefor, not less than one hundred dollars' worth of labor shall be performed or improvements made during each year. On all claims located prior to the passage of this act, ten dollars' worth of labor shall be performed or improvements made each year for each one hundred feet in length along the vein until a patent shall have been issued therefor; but where such claims are held in common such expenditure may be made upon any one claim; and upon a failure to comply with these conditions, the claim or mine upon which such failure occurred shall be open to relocation in the same manner as if no location of the same had ever been made: Provided, That the original locators, their heirs, assigns, or legal representatives, have not resumed work upon the claim after such failure and before such location. Upon the failure of any one of several co-owners to contribute his proportion of the expenditures required by this act, the co-owners who have performed the labor or made the improvements may, at the expiration of the year, give such delinquent co-owner personal notice in writing or notice by publication in the newspaper published nearest the claim, for at least once a week for ninety days, and if at the expiration of ninety days after such notice in writing or by publication such delinquent should fail or refuse to contribute his proportion to comply with this act, his 46 REPORT OF THE SECRETARY OF THE INTERIOR. interest in the claim shall become the property of his co-owners who have made the required expenditures. SEC. 6. That a patent for any land claimed and located for valuable deposits may be obtained in the following manner: Any person, association, or corporation authorized to locate a claim under this act, having claimed and located a piece of land for such purposes, who has, or have, complied with the terms of this act, may file in the proper land office an application for a patent, under oath, showing such compliance, together with a plat and field-notes of the claim or claims in common, made by or under the direction of the United States surveyor general, showing accurately the boundaries of the claim or claims, which shall be distinctly marked by monuments on the ground, and shall post a copy of such plat, together with a notice of such application for a patent, in a conspicuous place on the land embraced in such plat previous to the filing of the application for a patent, and shall file an affidavit of at least two persons that such notice has been duly posted as aforesaid, and shall file a copy of said notice in such land office, and shall thereupon be entitled to a patent for said land, in the manner following: The register of the land office, upon the filing of such application, plat, field-notes, notices, and affidavits, shall publish a notice that such application has been made, for the period of sixty days, in a newspaper to be by him designated as published nearest to said claim; and he shall also post such notice in his office for the same period The claimant at the time of filing this application, or at any time thereafter, within the sixty days of publication, shall file with the register a certificate of the United States surveyor general that five hundred dollars' worth of labor has been expended or improvements made upon the claim by himself or grantors; that the plat is correct, with such further description by such reference to natural objects or permanent monuments as shall identify the claim, and furnish an accurate description, to be incorporated in the patent. At the expiration of the sixty days of publication the claimant shall file his affidavit, showing that the plat and notice have been posted in a conspicuous place on the claim during said period of publication. If no adverse claim shall have been filed with the register and the receiver of the proper land office at the expiration of the sixty days of publication it shall be assumed that the applicant is entitled to a patent, upon the payment to the proper officer of five dollars per acre, and that no adverse claim exists; and thereafter no objection from third parties to the issuance of a patent shall be heard, except it be shown that the applicant has failed to comply with this act. SEC. 7. That where an adverse claim shall be filed during the period of publication it shall be upon oath of the person or persons making the same, and shall show the nature, boundaries, and extent of such adverse claim, and all proceedings, except the publication of notice and making and filing of the affidavit thereof, shall be stayed until the controversy shall have been settled or decided by a court of competent juris diction, or the adverse claim waived. It shall be the duty of the adverse claimant, within thirty days after filing his claim, to commence proceedings in a court of competent jurisdiction, to determine the question of the right of possession, and prosecute the same with reasonable diligence to final judgment; and a failure so to do shall be a waiver of his adverse claim. After such judgment shall have been rendered, the party entitled to the possession of the claim, or any portion thereof, may, without giving further notice, file a certified copy of the judgment-roll with the register of the land office, together with the certificate of the surveyor general that the requisite amount of labor has been expended, or improvements made thereon, and the description required in other cases, and shall pay to the receiver five dollars per acre for his claim, together with the proper fees, whereupon the whole proceedings and the judgment-roll shall be certified by the register to the Commissioner of the General Land Office, and a patent shall issue thereon for the claim, or such portion thereof as the applicant shall appear, from the decision of the court, to rightly possess. If it shall appear, from the decision of the court, that several parties are entitled to separate and different portions of the claim, each party may pay for his portion of the claim, with the proper fees, and file the certificate and description by the surveyor general, whereupon the register shall certify the proceelings and judgment-roll to the Commissioner of the General Land Office, as in the preceding case, and patents shall issue to the several parties according to their respective rights. Proof of citizenship under this act, or the acts of July twenty-sixth, eighteen hundred and sixty-six, and July ninth, eighteen hundred and seventy, in the case of an individual, may consist of his own affidavit thereof, and in case of an association of persons unincorporated of the affidavit of their authorized agent, made on his own knowledge or upon information and belief, and in case of a corporation organized under the laws of the United States, or of any State or Territory of the United States, by the filing of a certified copy of their char ter or certificate of incorporation; and nothing herein contained shall be construed to prevent the alienation of the title conveyed by a patent for a mining claim to any person whatever. SEC, 8. That the description of vein or lode claims, upon surveyed lands, shall desig nate the location of the claim with reference to the lines of the public surveys, but need not conform therewith; but where a patent shall be issued as aforesaid for claims upon unsurveyed lands, the surveyor general, in extending the surveys, shall adjust the same to the boundaries of such patented claim, according to the plat or description thereof, but so as in no case to interfere with or change the location of any such patented claim. SEC. 9. That sections one, two, three, four, and six of an act entitled 'An act granting the right of way to ditch and canal owners over the public lands, and for other purposes,' approved July twenty-sixth, eighteen hundred and sixty-six, are hereby repealed, but such repeal shall not affect existing rights. Applications for patents for mining-claims now pending may be prosecuted to a final decision in the General Land Office; but in such cases where adverse rights are not affected thereby, patents may issue in pursuance of the provisions of this act; and all patents for mining claims heretofore issued under the act of July twenty-sixth, eighteen hundred and sixty-six, shall convey all the rights and privileges conferred by this act where no adverse rights exist at the time of the passage of this act. SEC. 10. That the act entitled 'An act to amend an act granting the right of way to ditch and canal owners over the public lands, and for other purposes,' approved July ninth, eighteen hundred and seventy, shall be and remain in full force, except as to the proceedings to obtain a patent, which shall be similar to the proceedings prescribed by sections six and seven of this act for obtaining patents to vein or lode claims; but where said placer claims shall be upon surveyed lands, and conform to legal subdivisions, no further survey or plat shall be required, and all placer mining claims hereafter located shall conform as near as practicable with the United States system of public land surveys and the rectangular subdivisions of such surveys, and no such location shall include more than twenty acres for each individual claimant, but where placer claims cannot be conformed to legal subdivisions, survey and plat shall be made as on ansurveyed lands: Provided, That proceedings now pending may be prosecuted to their final determination under existing laws; but the provisions of this act, when not in conflict with existing laws, shall apply to such cases: And provided also, That where by the segregation of mineral land in any legal subdivision a quantity of agricultural land less than forty acres remains, said fractional portion of agriculture land may be entered by any party qualified by law, for homestead or pre-emption purposes. SEC. 11. That where the same person, association, or corporation is in possession of a placer claim, and also a vein or lode included within the boundaries thereof, application shall be made for a patent for the placer claim, with the statement that it includes such vein or lode, and in such case (subject to the provisions of this act and the act entitled 'An act to amend an act granting the right of way to ditch and canal owners over the public lands, and for other purposes,' approved July ninth, eighteen hundred and seventy,) a patent shall issue for the placer claim, including such vein or lode, upon the payment of five dollars per acre for such vein or lode claim, and twenty-five feet of surface on each side thereof. The remainder of the placer claim, or any placer claim not embracing any vein or lode claim, shall be paid for at the rate of two dollars and fifty cents per acre, together with all costs of proceedings; and where a vein or lode, such as is described in the second section of this act, is known to exist within the boundaries of a placer claim, an application for a patent for such placer claim, which does not include an application for the vein or lode claim, shall be construed as a conclusive declaration that the claimant of the placer claim has no right of possession of the vein or lode claim; but where the existence of a vein or lode in a placer claim is not known, a patent for the placer claim shall convey all valuable and mineral and other deposits within the boundaries thereof. SEC. 12. That the surveyor general of the United States may appoint in each land district containing mineral lands as many competent surveyors as shall apply for appointment to survey mining claims. The expenses of the survey of vein or lode claims, and the survey and subdivision of placer claims into smaller quantities than one hundred and sixty acres, together with the cost of publication of notices, shall be paid by the applicants, and they shall be at liberty to obtain the same at the most reasonable rates, and they shall also be at liberty to employ any United States deputy surveyor to make the survey. The Commissioner of the General Land Office shall also have power to establish the maximum charges for surveys and publication of notices under this act; and, in case of excessive charges for publication, he may designate any newspaper published in a land district where mines are situated, for the publication of mining notices in such district, and fix the rates to be charged by such paper; and, to the end that the Commissioner may be fully informed on the subject, each applicant shall file with the register a sworn statement of all charges and fees paid by said applicant for publication and surveys, together with all fees and money paid the register and the receiver of the land office, which statement shall be transmitted, with the other papers in the case, to the Commissioner of the General Land Office. The fees of the register and the receiver shall be five dollars each for filing and acting upon each application for patent or adverse claim filed, and they shall be allowed the amount fixed by law for reducing testimony to writing, when done in the land office, such fees |