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Court, Montana, to determine the right of ward Probert and certain other parties up with your letter dated August 11, 1881. possession of the Monarch of the North claiming to act as the Board of Trustees My attention having been called to the Lode.

of the St. Lawrence Mining Company, fact that you had never rendered a decision The question thus presented goes to the adopted March 5, 1880, Resolutions, de- in the premises further than to suspend validity of the Pine Tree Location, but as claring the action of L. L. Robinson et al. proceedings on the filing of the adverse all questions touching the right of posses- in assuming the oflice of directors or trus- claim, the papers were returned to your sion have been relegated to the court, tees of the company, and in passing the office October 21, 1882, and you were inwhich is invested by the statute with exclu- resolution authorizing the withdrawal of structed that if a proper application to sive jurisdiction of the whole matter, fur- the adverse claim, fraudulent and void. enter the claim should be made to act ther action by the Land Department must Said resolutions purport to set aside the upon it and allow the right of appeal. therefore be suspended pending the ad- action of the Robinson directors, and to The Albion Company filed in your office judication of the questions at issue. authorize the President to institute suit November 3, 1882, a formal application to

Your decision dismissing the protest is against said parties. A copy of these Re- enter the Albion No. 1 Lode Claim, and accordingly affirmed.

solutions was transmitted to this office tendered the purchase money.

March 11, 1880. April 3, 1880, the adjected the same, and the applicant appealed ST. LAWRENCE MINING CO. ET AL. VS.

verse claimant filed in your office certified to this office. The attorneys for the apALBION Mg, Co.

copies of the complaint and summons in a pellant in their argument, claim that the

suit brought by Edward Probert, J. o. waiver of the adverse claim by the St. Adverse Claim- Waiver.- Where suit has been commenced on an adverse claim, a waiver McGrath et al. against L. L. Robinson et Lawrence Mining Co. was in proper form thereof to be effective must be submitted the al. in the Superior Court of the city and and prima facie sufficient to destroy the Court, and the suit dismissed.

county of San Francisco, California, the adverse claim. That L. L. Robinson and De Facto Board of Trustees.—Consideration of St. Lawrence Mining Company being his associates were, at least, de facto trusthe powers and acts of a de facto board of a corporation organized and existing tees of the corporation, and that whatever trustees in this case. Hearing-Conflict with Patented Claim.--A hear

under and by virtue of the laws of that could have been done by a board of trusing is ordered to determine the question of State. An amended complaint was after- tees de jure, could have been done by a conflict with a mining claim already patented, wards filed by the Attorney-General in the board de facto, and hence the acts of the involving a question of legality in the pro- name of the people of California on rela- de facto trustees, Robinson et al., were

ceedings to obtain patent. · Where a protestant alleges that part of the ap- defendants. This suit was in the nature pany. Upon this proposition of law they

tion of the same plaintiffs against the same binding on the St. Lawrence Mining Complied for premises is not subject to such application, the Land Department has jurisdic- of quo warranto, and it is alleged in the cite numerous authorities.

They urge tion.

complaint among other things, that the further, that if the waiver and conveyance COMMISSIONER MCFARLAND to Reg. and Rec., pretended election of directors of the cor- were invalid at the date they were made, Eureka, Neo., April 7, 1883. (A. Y.) poration on or about June 8, 1880, under they became valid by a subsequent ratifi

I have this day considered the case of which election L. L. Robinson et al. claim cation by the stockholders at a meeting the St. Lawrence and the Richmond Min- to have acted, was invalid and void, and held in January, 1881. As to the protest ing Companies is. The Albion Mining Com- without authority of law, for the reason of the Richmond Company, they contend pany, applicant for patent for the Albion that there was not a majority of the share- that it has no merit in it, that it is made No. 1 Lode.

holders of the corporation thereat, either for delay, and that if there should appear The application for patent was filed in in person or by proxy. The cause was to be an error in the survey, as alleged, the local office July 9, 1878, and notice tried by the Court in December, 1880, and the Surveyor General should be directed thereof was given from that date to Sep- judgment was given for the plaintiffs. The to make an examination of the ground tember 9, 1878. On September 3, 1878, Court found that the election of the de- before passing upon the points discussed the St. Lawrence Mining Company filed fendants January 8, 1880, was invalid and by the counsel. It is necessary to conits adverse claim and instituted suit there- void, and without authority of law, and sider whether the waiver conceding it was on within thirty days thereafter in the that there has never been any such office as formal and authorized was sufficient to proper court. The suit appears to be still director of said corporation, but that the cor- justify this office in allowing the appending and undetermined The original porate powers are vested in a board of five plicant to proceed with his application for papers in the case were destroyed by fire trustees. It was accordingly decreed and patent while the suit on the adverse claim in April, 1879, together with other records adjudged that the defendants, L. L. Robin- is still pending in court. and papers, and duplicates of such as are son, E. U. Robinson, and Hale Rix, be ex- Upon the institution of a suit on deemed necessary have been substituted cluded from the offices of trustees, and (adverse claim all questions relating to the in their place. The duplicate of the St. that James 0. McGrath be held to be the conflicting rights of the parties, are by the Lawrence Mining Company's adverse claim sole, legal, and rightful occupant of the provisions of the mining law, to be dedoes not appear among the other papers. office of trustee. An appeal from this de- termined by the court, and if there is a No question, however, was made as to its cision was taken to the Supreme Court of waiver or relinquishment by either of the validity, and it was held to be sufficient, California, where the case is now pending. parties of his right in the premises, such and action on the application for patent The Richmond Mining Company on waiver or relinquishment should be filed was thereupon suspended. There was filed May 18, 1881, filed in your office a protest in the court. It is the proper tribunal to in your office June 15, 1880, a paper pur- against the application for patent for the pass upon the question as to whether the porting to be a withdrawal and waiver by Albion No. 1 claim, wherein it is alleged waiver or relinquishment is in proper form the St. Lawrence Mining Company of its that the stakes set to mark the boundaries and sufficient in law. See office decision adverse claim. This paper was under the of said claim do not correspond with the dated January 19th 1883 in the matter of seal of the company, and was signed by description of the claim contained in the application for patent for the Lookout L.L. Robinson, as its President. Attached application for patent and the published lode and, also, the decisions of the Deto the same is what purports to be a Re- and posted notices, and that the survey partment in the cases of the Sacramento solution of the Board of Directors of the does not conform to the location, but it us. the Last Chance (Copp's M. L. p. 202) corporation authorizing and instructing has been so made as to conflict with the the and the Charles mine vs. the Mount its President to withdraw and dismiss its Tip Top Mine, which has been patented Pleasant mine, (ibid p. 204.) The waiver of adverse claim, and waive all objections to and is now owned by the protestant. It the adverse claim in this case appears not the issuance of patent to the Albion Min- is sworn to by Thomas Wreen, and Deputy to have been filed in or passed upon by the ing Company for the Albion No. 1 Lode. Mineral Surveyor N. Westcourt.

Court having jurisdiction of the matter L. L. Robinson as such President, also In compliance with the instructions of in controversy, and for this reason I am conveyed said claim to the applicant. Ed-'this office, the papers in the case were sent of the opinion that the adverse claim has

an

was

no

The pro

not been waived in the manner contem- and the only question to be considered is with regularly defined surface ground, plated by law.

whether such a hearing should be ordered shown by accompanying evidence to have The waiver is also defective, in that it while action on the application for patent been necessary to the use and actually used was not executed by an authorized officer is suspended on account of the suit, pend- for the working and operating of the mines. or agent of the company,

ing in Court on the adverse claim. The In all the cases examined by me I find that That the acts of de facto officers of a subject matter of the protest appears, not the continuity of the claims, as respects corporation are binding on the corpora- to be, in any way, involved in the suit, and possession and transfer, has been shown tion is true, as a general principle of law, it relates solely to question of non-compli- from a period anterior to the town-site but it appears to be applicable only where ance with law by the applicant in his pro- entry, and in two or three instances surthe acts concern third parties and there was ceedings for patent. If the protest is true, face ground has been applied for, and its a consideration therefore, or where such a portion of the land was not subject to use proved, 250 feet in width on each side third parties had no sufficient notice of the application for patent, and that is a of the vein—which was the limit allowed the defect in the title of the de facto question for this office, and it can be in- by the rules of the mining district. officers. There

consideration vestigated and determined without regard The present application was filed Octowhatever in this case, and the President to the pending suit. The proceedings, ber 7, 1878, and publication was made Ocof the Albion Mining Company, L. L. which are required by law to be suspended, tober 17th, following. It calls for “ Fifteen Robinson, was one of the directors elected are those relating to the patenting of the hundred linear feet of the Enterprise or at the meeting January, 1880, and was the claim, and this office is not barred by the Pacific lode *** together with surface officers selected to file the waiver in ques- filing of an adverse claim, from investi- ground as herein applied for,” referring to tion. He was evidently cognizant of all gating the collateral fact, as to whether the accompanying plat and field notes the facts connected with this illegal pro- the application embraces land not subject (survey No. 56, executed in August, 1878), ceeding and must have been fully advised to the same. Such action has no tendency for particular description, and setting up of the invalidity of the election of him- to advance the application for patent, nor an alleged location of the claim on the 19th self and others as directors. Notice of to interfere in any way with the matters of March, 1878. The survey shows the these facts to Mr. Robinson, was notice properly referred to the court. You will vein and surface ground about 1409 feet to the Albion Mining Company, of which accordingly order a hearing to determine in length, and 200 feet in width at one end, he was President. Said company is there the truth or falsity of the allegations in the diminished after running a few chains by fore not in a position to take advantage of Richmond Mining Company's Protest. offsets exhibiting other claims on either the acts of these de facto officers and to

side so as to extend but about 150 feet in insist upon such acts being treated as PAPINA VS. ALDERSON et al.

width at the other end : the whole embraclegal or valid by this office. I am un- Toron Site vs. Minerals.- Review of the town

ing 4.33 acres. able to find that the waiver and conveyance,

site laws affecting mining claims.

The record of location desoribes the above mentioned were ever ratified by Adverse Clirim.-A town lot may be the subject same as, “ The Second Northerly Extenthe legal Board of Trustees of the St. of an adverse claim to land embraced within sion of the Pacific Lode or Ledge **** Lawrence Mining Company.

an application for patent for a lode claim. Vein- Surface Ground Patented Torensite.

commencing at a stake and pile of stones ceedings in attempting to ratify the acts

To what extent within a patented townsite a

standing 600 feet north of Spring Street of the Robinson directors appear to be lode claimant may be permitted by the Land on line of Pacific Lode, running thence but little more than a repetition by the Department to take surface ground.

North Fifteen Hundred (1500) feet on line same parties of the proceedings directing SECRETARY TELLER to Commissioner Mc Fur- of said lode or ledge to a stake and pile of the withdrawal of the adverse claim. The land, April 18, 1883.

stones standing on Quartz Hill, together parties who passed resolutions ratifying I have considered the case of Batista with three Hundred feet, on each side of the action of Robinson et al. were evi- Papina vs. Thomas Alderson, Stephen the centre of said lode or ledge. dently not elected by the holders of a Cocking and Charles Weiner, applicants No out-boundaries are alleged to have majority of the shares comprising the for patent to the Enterprise Mining Claim been staked or marked by which to trace legitimate capital stock of the St. Law- situated in section 7, 10 N., 11 E.; Sacra- the lines of the claim. rence Mining Company. The attorneys mento District, California, within the On the plat of survey filed for patent, for the appellant suggest that if the find- limits of the Placerville town-site, entered no lines are placed showing the crossing ing of the Superior Court of San Fran- July 7, 1871, patented September 10,1872. of municipal lots, blocks or streets, nor cisco, that McGrath was the sole and The patent to the city authorities con- are any buildings or other objects, except rightful occupant of the oflice of trustee, tained this reservation :

tunnels, shafts, ditches, and two or three be adopted, then the same state of facts ex “No title shall be hereby acquired to fences noted. isted when the adverse claim was filed and any mine of gold, silver, cinnabar or cop On the 14th of December, 1878, within hence there

quorum of the per, or to any valid mining claim or pos- the period of publication, Batista Papina trustees and the adverse claim was un- session held under existing laws of Con- filed notice of conflicts of surface ground authorized by the company and void. It gress ;" following the language of the act to the extent of 1.82 acres, with his imhaving been decided at the time the ad- of March 2, 1867 (14 Stat., 541), and the provements, situated on lot No. 19, block verse claim was filed, that it was valid, cumulative provision of the amendatory No. 37, City of Placerville, held by deed this office will not now review that act of June 8, 1868 (15 Stat., 57).

from the proper authorities under the question. It was filed in the name and on The lands embraced in said town-site town-site patent, and denied the right of behalf of the Company and was sufficient had been declared non-mineral, after regu- Alderson et al. to obtain patent to such upon which to base a suit, and its validity lar hearing by the decision of your office surface ground, or to any claim for mines or invalidity will be left to the court to rendered November 17, 1871, from which therein ; accompanying his notice with a determine.

no appeal had been taken, but after said plat exhibiting the alleged conflict, and For the reasons above stated I affirm decision mineral affidavits were received, copies of his deed dated April 11, 1874, and your decision holding that the adverse resulting in delay in issuing the patent, of the record of said patent. He further alclaim of the St. Lawrence Mining Com- and in the filing of certain communications leged residence and improvement upon the pany has not been waived, subject to ap- on behalf of the Mayor and corporate au- land for upwards of nine years, and that peal within 60 days.

thorities conceding the fact of the existence prior to the location in 1878, no mining The protest of the Richmond Mining of several known mines and claims, and had within that time been done thereon. Company is deemed sufficient to author- consenting to the insertion of the reserva The Register did not stay the proceedize a hearing to ascertain whether or tion in the patent, as defined by law. ings and refer him to the courts, but seems not the survey of the Albion No. 1, cor Since that date several of these old to have treated the notice as a protest, and responds with the location of the claim,' claims have been applied for and patented, on the 30th of December, 1878, forwarded

was

no

or

the application for entry to your office with-town-site, and its extent must be measured several provisons, together with the subseout any opinion or recommendation. as of that date. All passed to him by his quent amendments of the mining laws.

April 26, 1880, your office decided that deed, not expressly excepted. For Con Having now found the order of the law, Papina had no standing as an adverse gress, in enlarging the methods of acqui- which has first granted the town right, claimant, because the land was subject to sition of title to public lands, provided for and afterward abridged it only so far as to no claim except a mineral claim, if in fact towns on the public domain prior to the admit the new relations presented by the mineral; and to entitle him to such recog- recognition of minerat rights. See stat- enactment of the mining statutes, the reanition he must be actually claiming a vein, utes of July 1, 1864 (13 Stat., 343), and son of the whole seems to result in this. lode or mining claim in opposition to an- March 3, 1865 (Ibid, 529), authorizing the That by the acquisition of title to a townother.

platting of such towns either by “parties” site no right remains to proceed for patent You further held that “the town patent or the Secretary of the Interior, and sale for mining ground under the reservations conveyed title only to such land as is non- of the lots under certain provisions. The of law, except : mineral, and an express exception is made former of these acts making no exception 1st. For the mines, with only such inof mineral claims. Hence, the proper of “mines “mining claims,” but the cidents of surface ground, and the like as proceeding for Mr. Papina would be to act of 1865 while not excepting " mines,” are actually necessary to the use and opershow, if possible, that the land in question as such, did provide, “That where mineral ating of the same; and, is not valuable for minerals."

veins are possessed, which possession is 2d. For such iine and possessory rights, You thereupon dismissed his protest, at recognized by local authority and to the including surface ground not in excess of the same time offering to permit him to extent so possessed and recognized, the that recognized by law at the date of locafile allegations of the distinctively agri- title to town lots to be acquired shall be tion, as were acquired by the applicant or cultural character of the land, and to have subject to such recognized possession and his grantors, privies in interest, before the a hearing upon that point. the necessary use thereof."

legal inception of the patented town right. From this decision he appeals, and the Here was no withholding of title, but But as with the grant of mines the powrecord is now before me. In the mean- only a subjection of the same to a recog- er to dig them is impliedly given (Shep. time, however, it appears that a paper de- nized possession and use; and there can Touchst. 89), so by the reservation of scribed “as containing evidence in behalf be no question that a town lot so conveyed mines the power necessary to their enjoyof the mineral applicants,” transmitted by would have passed in fee, with absolute ment must be also reserved; and this rethe Register January 25, 1879, has been ownership of the vein, upon the cessation servation to and by the government must mislaid, and there is no record of what it or abandonment of the miner's recognized enure under the mining laws to citizens of may have purported to show, upon which possession. There is nothing incompati- the United States authorized to explore to base a judgment, and after being called ble with the grant of the fee, burdened and possess them, and acquire the governupon to supply it, the applicants have only by the use of an actual occupant by ment title thereto. (Maxwell or Interprefailed to do so, sending up merely argu- prior possession. And the statute was tation, 319.) mentative statements in its stead.

especially guarded against the idea of any If, then, an applicant, as in this case, There is also a material discrepancy in thing beyond a possession and necessary seeks to acquire patent for a mine (lode or the locus of the ground as exhibited by use by further providing, “that nothing vein) within a patented town-site, based the plat filed by the applicants and that contained herein shall be so construed as upon a location subsequent to such patent, filed by Papina to illustrate the conflict to recognize any color of title in possessors he must be required to show affirmatively alleged, although the latter was made by for mining purposes as against the govern- the existence of such mine and its true the same deputy, one J. M. Anderson, who ment of the United States."

location, and prove his possessory right surveyed the claim and is certified by him The great change which introduced an and value of work performed, as in other as correctly showing the true relative entirely new system of mining law, differ- applications. He will not, however, be position of the claim with respect to the ing from that of any existing government, permitted to proceed as for a claim with town lot and adjoining claims.

had not then been adopted by Congress. surface claim limited only by the usual The only questions sharply defined are: But in the following year the act of July statutory restrictions as to width along

1st. Had the owner of the town lot a 26, 1866 (14 Stat. 251); gave with certain the vein, but will only be allowed to claim right under the law to demand a stay for restrictions, legislative sanction to the the necessary surface ground for the conthe purpose of a judicial determination of laws and customs of " local authority” af- venient working of his mine, in no case in the right of possession?

fecting possessory rights and the added excess of the legal width at date of the 2d. To what extent within a patented privilege of acquiring title to the mine it- town-site appropriation. His plat must town-site a lode claimant may be permitted self, under the authority and forms of law. distinctly show the ground so claimed with by this Department to take surface ground; This change gave such rights, even relation to all other claims and the occupait being conceded, as established by the against the government, as required some tion and improyement of others, whether decisions of this Department and of the modification of the town-site provisions, municipal or otherwise--and proof of such courts, that town-sites may exist upon and and resulted in the enactments of 1867 necessary possession and use must be furembrace mineral lands, subject only to the and 1868, previously cited, with the ex-nished sufficient to make a clear prima particular exceptions of law, and to vested press reservations against the acquisition facie, showing of his right. (Steel vs. prior rights. (Rico case, July 6, 1882, 9 of mines or valid mining claims. And it is Smelting Co., supra.) Copp, 90; Vizina case, July 11, 1882, Ibid, to be observed that the exception of such If such showing be made he may pro92; Mining Co. vs. Consolidated Mining claims by the act of June 8, 1868, was made ceed to publication, and if no adverse Co., 102 U. S., 168 ; Steel et al., vs. Smelt- with direct reference to towns whose inhabi-claim is filed may obtain his patent, coning Co., October term, 1882.)

tants, having acquired rights under the taining the usual townsite reservations, These two questions may be considered act of 1865, should elect to proceed under for the protection of any interest pretogether.

the act of 1867 instead; although it also viously acquired. Should a lot owner The deed of Papina from the city con- enlarged the general exception already ex- elect, to come forward denying the applitained in the same words as the town-site pressed in the amended act as to all titles cant's right to the possession, while it may patent the reservation of mines and valid acquired under the town-site entry and not be incumbent upon him to do so in mining claims. He took, therefore, with patent. But it still left individual lot order to preserve his own previously acexpress notice of the particular things owners free to proceed and take title to quired rights of priority under his patent, carved out of the patent in the exact lan- their own lots, burdened only by the use I see no objection to permitting him to guage of the law. This reservation, like and possession described in the act of set up his own title and allegations of the patent itself, had necessary relation to 1865. And it may be further remarked, possession as an adverse claim, and have the inception of acquisition of title by the that the Revised Statutes now contain these' a stay of proceedings for the statutory

as

period to enable him to go into court for On March 220, 1853, Congress passed lands in whatever sections the mineral may the settlement of the matter before the a law declaring that “sections 16 and 36 in be found. issue of the mining patent. This is a each township of Washington Territory That such is the policy of the Governquestion of the right of possession which shall be reserved for the purpose of being ment appears to me to be very definitely may properly, in harmony with my de- applied to common schools in that terri- settled by the case of the Ivanhoe vs. Keycision in the Rico case, determine all the tory." Here was a reservation made, a stone, recently decided by the Supreme issue involved, and the town lot owner setting a part of certain lands from the Court of the United States and cited by sees fit to assume the burden of suit he rest of the public domain. No granting counsel for appellant. In this case no exshould have that right. The applicant words were used. The title remained in ception on account of the mineral charcan not complain. He is only placed upon the United States, and the sections re-acter of sections 16 and 36 could be found the same footing with other applicants mained subject to future disposal by the in the language of the act granting said on the public lands, and it may result that Government. In the case of the townsite sections to the State of California, yet the finding of the court will conclude the of Silver Cliff vs. State of Colorado, a nevertheless the court held that “ Conmatter in favor of the town-site title, in state of facts very much similar to those gress did not intend to depart from its which case the confusion resulting from a now before me existed. The legislation uniform policy, i. e., of reserving mineral wrongful issue of patent will be prevented. on the subject provided (12 Stats., 172), lands, in this respect in the grant of those That town-site occupants may be adverse - That sections numbered 16 and 36 in sections to the State." claimants within the meaning of the mining each township in said territory shall be If this principle applies in case of a statute was decided by this Department and the same are hereby reserved for the grant, it would certainly apply with at upon reasons stated in the case of Becker purpose of being applied to schools in the least equal force to a reservation where vs. Citizens of Central City, August 7, state hereafter to be erected out of the the title never passed out of the Govern1871.

same."

This office held follows: ment. I conclude therefore that mineral Should the mining claimant, in addi-" This was a reservation not a grant. land in these sections was reserved from tion to the mine, claim surface ground, Said section remained the property of the reservation for the territory of Washbased upon possession and location prior the United States, and while the pur- ington, and was designed for disposition to the entry of the town-site, he must show pose of the reservation was indicated, under the Mining Statutes of the United afiirmatively the facts relating to such lo- the power remained in the government to States. cation and possession, and his own privity make any other disposition of said section The only remaining question to be conwith the possessory title, and upon such it might subsequently deem advisable.” sidered is: Is coal a mineral within the showing he may proceed. His plat must These sections then being simply re- mineral laws? In view of the many decisshow, as in the preceding case, every thing served for school purposes and not granted, ions of the Department, it is not a diffinecessary to exhibit the true character and and the Government having parted with cult one to answer. location of all improvements, and he must no control over them, it was undoubtedly By decision of Secretary in the case of be restricted to the limit as to width es- competent for Congress in its discretion James McKean vs. David Buell and the tablished by the local laws at date of the to make any other disposition of them it Union Pacific Railroad Company, the foltown-site entry.

might deem advisable under whatever con- lowing language was used : “Your rulThe application of Alderson et al., for ditions it might deem proper.

ing that coal lands are mineral is afthe Enterprise mine being notoriously Therefore when Congress in 1866, 1872 firmed.” In case of James Hodgen and C. lacking in the preliminary requirements, and 1873 established a system for the dis- T. Wheeler vs. State of California, the must be dismissed, without prejudice to posal of its mineral lands, a system Secretary held: “You held that mineral his right to proceed de novo on compliance differing widely from all other methods of land did not pass to the state under said with those conditions—and your decision disposal of public land, in system which act, and that coal lands were mineral dismissing the protest of Papina is ac- provides in terms that minerallands lands. I affirm your decision and herecordingly reversed.

should be disposed of under its pro-with return papers.

visions and in no other way, the con- In the letter from the present Hon. SecCHARLES NORAGER, et al.

clusion is natural that whatever may have retary to the Commissioner of this office

been the Congressional intent at the time of August 2, 1879, in regard to the coal Coul Lands-- School Sections in Territories of the passage of the act of 1853 (at and iron lands in Alabama, the same ruleral territories containing coal and other which date the existence of minerals in ing was made. minerals are subject to disposal as other coal Washington territory was unknown), it

For these reasons I conclude that your and mineral lands.

underwent considerable modification be action was erroneous, and direct you ot COMMMISSIONER WILLIAMSON to Reg. & Rec. fore 1866 and finally in that year signified allow the entries.

Olympia, Washington March 2, 1881. J.H.Jr. its changed purpose by the act of 1866, I am in receipt of the application of followed by those of 1872 and 1873. In Charles Norager, David Hawley, and other words I am of the opinion that

ALABAMA MINERAL LANDS. William Brawley, to enter, as coal lands, Congress intended the mining acts to ap

CIRCULAR. certain portions of Sec. 36, Tp. 24, N. R. ply to all the public lands of the United

DEPARTMENT OF THE INTERIOR, 5 E. It appears that said applicants pre- States, shown to be mineral in character,

GENERAL LAND OFFICE, sented their applications on November 23, if said land was not granted or reserved

WASHINGTON, D. C., April 9, 1883. 1880, and tendered payment, but entry was specifically as mineral land for some other

To DISTRICT LAND OFFICERS, Montgomery and

Iluntsville, Ala. refused by you because, as endorsed on the purpose. back of the papers, “The land applied

The act of March 3, 1883,* enacts that

Whether the reservation attached to all public lands within the State of Alafor is reserved for the purpose of being sections 16 and 36 specifically, or whether applied to common schools under provis- as urged by counsel for appellant, it was be subject to disposal only as agricultural

bama, whether mineral or otherwise, shall ions of section 20, act March 2, 1853, to intended simply to guarantee to the future lands; provided, that all lands which have establish the Territorial Government of state tracts of agricultural land equal in heretofore been reported as containing Washington."

quantity to the specified sections, I do not coal and iron shall first be offered at public From this decision the applicants ap- consider as vital to the decision of this sale, and further that any bona fide entry pealed to this office. The papers are in case, for the reason that I understand it to under the provisions of the homestead law point of form regular and free from be the settled policy of Congress (as of lands within said State heretofore made, objection. The only question present- above stated) to accept from all grants may be patented without reference to the ing itself is," Is the land subject to entry and reservations to state, railroad or other under the coal act?

persons, natural or artificial, all mineral *See LAND OWNER for April 15, 1883, page 30.

all en

act of May 10, 1872, in cases where the

ROBERT LALLEY ET AL.

In reply I have to inform you that the persons making application for such Alabama Mineral Lands-Non-Mineral Affidavit.

intent of the law is that the corroborative patents have in all other respects com- - The non-mineral affidavit is not now re- testimony should be made by witnesses plied with the homestead law relating quired in entries of public lands in Alabama. who actually reside in the immediate vithereto.

– Entries allowed on or since March 3, 1883, cinity of the claimant, and are fuily acIn order to carry out the provisions of

containing mineral lands are void.-Settlesaid act, it will be necessary to prepare a

ment on such land with purpose of home quainted with the land and all the facts as steading the same cannot avail.

to the claimant's residence upon and cullist of all public lands heretofore reported COMMISSIONER MCFARLAND to Reg. and Rec.,

tivation of the same. The testimony of as mineral, that have not been entered, and

Montgomery, Ala., May 4, 1883. (C. T. Y.) those who only occasionally pass the land, have them offered by President's procla

As the act of March 3, 1883, excludes or only know by common repute that the mation. In the meantime you will be the lands in Alabama from the operation claimant resides there, is not competent careful not to allow an entry to be made of the mineral laws and provides for their proof. Witnesses must be persons entirely for any lands, lists of which were trans- disposal the same as agricultural lands, disinterested in the claim, and cognizant mitted to your office October 23, 1879, no non-mineral affidavit will hereafter be of their own knowledge of all the facts set nor of other tracts that have been since required. Said Act contemplates the of forth in the proof during the entire period investigated and reported as valuable for fering at public sale, of all vacant lands of the alleged residence and cultivation. minerals, a list of which I inclose here that have been reported to this office, as

The fact that a homestead or pre-emption with.

claimant cannot furnish the necessary containing coal or iron; therefore, All existing bona fide entries, under the tries, embracing such lands, that were al- proof by his neighbors, but has to depend homestead laws, may be perfected regard. lowed by your office on or subsequent to upon his attorney and broker to make the less of the mineral character of the land, March 3, 1883, are void, and any applica- same, casts suspicion upon the transaction, in accordance with rules and regulations tions to enter said lands, where the affida- and tends to show collusion in the making governing the same. Any contest, pending before you, where Court, which failed to reach your office

vit was made before the Clerk of the of such proof. the only allegation is the mineral character prior to said date, must also be rejected

TIMBER CULTURE. of the land, must be dismissed. notwithstanding the party may allege set

CUDNEY US. FLANNERY. The law requires the offering to em- tlement some time prior to the passage of Cottonwood Tree Devoid of Timber Vested brace all lands heretofore reported as con- the act. That portion of the act applies

Rights--Retroactive Rulings.—Timber culture taining coal or iron, which remain undis- to vacant lands, i. e., lands that at the date

entry otherwise legal made on land containposed of by entry or sale.

ing a growth of cottonwood trees at the time Entries, whether by cash or location, Parties who have settled on said lands of the act were vacant upon the records.

when such trees were not regarded as timber

trees by the Land Department is a legal entry already allowed and reported to this office with the intention of entering the same on land “devoid of timber.” Later rulings will be examined and disposed of upon under the homestead laws, must have per

holding such trees as timber trees cannot af. their merits without reference to the ques- fected their entry prior to the date of the

fect such entry or rights acquired thereunder. tion of mineral. N. C. McFARLAND, Commissioner. act otherwise their application cannot be SECRETARY TELLER to Commissioner McFar

land, April 20, 1883. DEPARTMENT OF THE INTERIOR, April 9, 1883. allowed. The act of May 14, 1880, confers

I have considered the case of P. W. Cud. Approved : H. M. TELLER, Secretary.

no rights until after entry is made, and ney vs. Wm. Flannery, involving the latthenonly as against adverse or intervening ter's timber culture entry made December

claimants. Congress has specially legislated 15, 1876, upon the W. of N. E. ^ and the ALABAMA MINERAL LANDS.

for the disposal of the class of lands, there. N. 1 of $. E. of Sec. 4, Tp. 1 S., R.5 E., Ofering—Coal and iron lands in Alabama must that ordinarily would have inured to the from your decision of April 21, 1882, hold

by cutting off or defecting any rights Bozeman, Montana, on appeal by Flannery thereof had been made at or before March 3, settler who had failed to file his application ing his entry for cancellation. 1883. at the local office prior thereto. Applica

This contest was commenced April 21, Settlement-Act of May 14, 1880.-Settlement on tions that are pending, to enter said lands, 1880, upon allegation that the tracts are mineral lands in Alabama, not being author- which were filed in your office in due time, not subject to entry under the timber culized, is not protected by the act of May 14, i.e. before the passage of the act, and were ture law. It is not claimed that Flannery

1880. SECRETARY Teller to Commissioner McFar- not allowed through no fault of the appli- has failed to comply with the requirements land, April 28, 1883.

cant, if they appear to be regular in other of the law in respect to planting of trees The act of March 3, 1883, relating to respects, they should be allowed.

and cultivation of the tracts, nor is it mineral lands in Alabama, requires the of

necessary to consider in the present case fering of all lands theretofore reported as

HOMESTEADS.

the force of testimony which shows a scatcontaining coal or iron, where actual en

W. W. BURKE.

tering growth of “scrubby ” cottonwood try had not been made at the date of its Witness: ---Only disinterested persons living in trees along the banks of a creek running approval.

the vicinity and cognizant of the facts sworn through the section, the area of which is The act of May 14, 1880, prescribing a

to are competent witnesses in making final estimated at from ten to seventeen acres,

homestead and pre-emption proof. time within which homestead settlers may COMMISSIONER MCFARLAND to W. w. Burke, and the number of trees large enough for make entry, has no application to a settle

Special Agent, Iluron, Dakota, April 17, 1883? fence poles at from four hundred to one ment on lands not subject to homestead (R. S. G.)

thousand, nearly all of which are less than entry--which was the condition of all I am in receipt of your letter of the 7th six inches in diameter, and about one hunmineral lands in Alabama as well as in inst., calling attention to the fact that in dred and fifty of larger size. Without other States where the mineral laws were many instances parties in making proof reference to this, the case must be decided in force.

upon pre-emption and homestead entries on other grounds. · Consequently no previous right of entry have for witnesses their attorney or parties This entry was made under the act of existed to work a constructive intent to from whom they are borrowing money March 13, 1874, which contained no proinclude a mere settlement, or unperfected with which to perfect their claims-people visions relative to the character of the land homestead claim upon mineral lands, in who do not reside near the land covered allowed to be entered, but authorized the the law confirming entries," heretofore by the entry, but generally reside in the Commissioner of the General Land Office made,"—such confirmation being mani- towns.

to prepare and issue such rules and regufestly intended to quiet title, and legalize You ask whether such persons are com- lations, consistent therewith, as should be the official act already done, while provid- petent witnesses, being in a measure in- proper and necessary to carry its proviing a new rule for future disposal. terested parties.

sions into effect. Under this authority, a

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