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Court, Montana, to determine the right of
possession of the Monarch of the North
Lode.
The question thus presented goes to the
validity of the Pine Tree Location, but as
all questions touching the right of posses-
sion have been relegated to the court,
which is invested by the statute with exclu-
sive jurisdiction of the whole matter, fur-
ther action by the Land Department must
therefore be suspended pending the ad-
judication of the questions at issue.
Your decision dismissing the protest is
accordingly affirmed.

ST. LAWRENCE MINING Co. ET AL. VS.
ALBION MG. Co.

Adverse Claim― Waiver.-Where suit has been thereof to be effective must be submitted the

commenced on an adverse claim, a waiver

trustees in this case.

Court, and the suit dismissed. De Facto Board of Trustees.-Consideration of the powers and acts of a de facto board of Hearing-Conflict with Patented Claim.-A hearing is ordered to determine the question of conflict with a mining claim already patented, involving a question of legality in the proceedings to obtain patent. Where a protestant alleges that part of the applied for premises is not subject to such application, the Land Department has jurisdic

tion.

COMMISSIONER MCFARLAND to Reg. and Rec.,
Eureka, Nev., April 7, 1883. (A. Y.)

I have this day considered the case of the St. Lawrence and the Richmond Mining Companies vs. The Albion Mining Company, applicant for patent for the Albion

ward Probert and certain other parties up with your letter dated August 11, 1881. claiming to act as the Board of Trustees My attention having been called to the of the St. Lawrence Mining Company, fact that you had never rendered a decision adopted March 5, 1880, Resolutions, de- in the premises further than to suspend claring the action of L. L. Robinson et al. proceedings on the filing of the adverse in assuming the office of directors or trus- claim, the papers were returned to your tees of the company, and in passing the office October 21, 1882, and you were inresolution authorizing the withdrawal of structed that if a proper application to the adverse claim, fraudulent and void. enter the claim should be made to act Said resolutions purport to set aside the upon it and allow the right of appeal. action of the Robinson directors, and to The Albion Company filed in your office authorize the President to institute suit November 3, 1882, a formal application to against said parties. A copy of these Re-enter the Albion No. 1 Lode Claim, and solutions was transmitted to this office tendered the purchase money. You reMarch 11, 1880. April 3, 1880, the ad- jected the same, and the applicant appealed verse claimant filed in your office certified to this office. The attorneys for the apcopies 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. McGrath et al. against L. L. Robinson et Lawrence Mining Co. was in proper form al. in the Superior Court of the city and and prima facie sufficient to destroy the county of San Francisco, California, the adverse claim. That L. L. Robinson and St. Lawrence Mining Company being his associates were, at least, de facto trusa corporation organized and existing tees of the corporation, and that whatever under and by virtue of the laws of that could have been done by a board of trusState. An amended complaint was after- tees de jure, could have been done by a wards filed by the Attorney-General in the board de facto, and hence the acts of the name of the people of California on rela- de facto trustees, Robinson et al., were tion of the same plaintiffs against the same binding on the St. Lawrence Mining Comdefendants. This suit was in the nature pany. Upon this proposition of law they of quo warranto, and it is alleged in the cite numerous authorities. They urge complaint among other things, that the further, that if the waiver and conveyance pretended election of directors of the cor- were invalid at the date they were made, poration on or about June 8, 1880, under they became valid by a subsequent ratifiwhich election L. L. Robinson et al. claim cation by the stockholders at a meeting to have acted, was invalid and void, and held in January, 1881. As to the protest without authority of law, for the reason of the Richmond Company, they contend that there was not a majority of the share-that it has no merit in it, that it is made 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 an 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 O. 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 determined 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 vs. 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 s. 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 ing Company for the Albion No. 1 Lode. | Mineral Surveyor N. Westcourt. L. L. Robinson as such President, also In compliance with the instructions of conveyed said claim to the applicant. Ed- this office, the papers in the case were sent

No. 1 Lode.

to have been filed in or passed upon by the Court having jurisdiction of the matter in controversy, and for this reason I am of the opinion that the adverse claim has

not been waived in the manner contemplated by law.

The waiver is also defective, in that it was not executed by an authorized officer or agent of the company.

PAPINA US. ALDERSON et al.

Torn Site vs. Minerals. Review of the town

The present application was filed October 7, 1878, and publication was made October 17th, following. It calls for "Fifteen hundred linear feet of the Enterprise or Pacific lode *** together with surface ground as herein applied for," referring to the accompanying plat and field notes (survey No. 56, executed in August, 1878), for particular description, and setting up an alleged location of the claim on the 19th of March, 1878. The survey shows the vein and surface ground about 1409 feet in length, and 200 feet in width at one end, diminished after running a few chains by offsets exhibiting other claims on either side so as to extend but about 150 feet in width at the other end: the whole embracing 4.33 acres.

and the only question to be considered is with regularly defined surface ground, whether such a hearing should be ordered shown by accompanying evidence to have while action on the application for patent been necessary to the use and actually used is suspended on account of the suit, pend- for the working and operating of the mines. 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 was no consideration vestigated and determined without regard whatever in this case, and the President to the pending suit. The proceedings, of the Albion Mining Company, L. L. which are required by law to be suspended, Robinson, was one of the directors elected are those relating to the patenting of the at the meeting January, 1880, and was the claim, and this office is not barred by the officers selected to file the waiver in ques- filing of an adverse claim, from investition. He was evidently cognizant of all gating the collateral fact, as to whether the facts connected with this illegal pro- the application embraces land not subject ceeding and must have been fully advised to the same. Such action has no tendency of the invalidity of the election of him- to advance the application for patent, nor self and others as directors. Notice of to interfere in any way with the matters these facts to Mr. Robinson, was notice properly referred to the court. You will to the Albion Mining Company, of which accordingly order a hearing to determine he was President. Said company is there- the truth or falsity of the allegations in the fore not in a position to take advantage of Richmond Mining Company's Protest. the acts of these de facto officers and to insist upon such acts being treated as legal or valid by this office. I am unable to find that the waiver and conveyance, above mentioned were ever ratified by the legal Board of Trustees of the St. Lawrence Mining Company. The proceedings in attempting to ratify the acts. of the Robinson directors appear to be but little more than a repetition by the same parties of the proceedings directing the withdrawal of the adverse claim. The parties who passed resolutions ratifying the action of Robinson et al. were evidently not elected by the holders of a majority of the shares comprising the legitimate capital stock of the St. Lawrence Mining Company. The attorneys for the appellant suggest that if the finding of the Superior Court of San Francisco, that McGrath was the sole and rightful occupant of the office of trustee, be adopted, then the same state of facts existed when the adverse claim was filed and hence there was no quorum of the trustees and the adverse claim was unauthorized by the company and void. It having been decided at the time the adverse claim was filed, that it was valid, this office will not now review that question. It was filed in the name and on behalf of the Company and was sufficient upon which to base a suit, and its validity or invalidity will be left to the court to determine.

For the reasons above stated I affirm your decision holding that the adverse claim of the St. Lawrence Mining Company has not been waived, subject to appeal within 60 days.

The protest of the Richmond Mining Company is deemed sufficient to authorize a hearing to ascertain whether or not the survey of the Albion No. 1, corresponds with the location of the claim,

site laws affecting mining claims.
Adverse Claim.-A town lot may be the subject
of an adverse claim to land embraced within
an application for patent for a lode claim.
Vein-Surface Ground. Patented Townsite.-
To what extent within a patented townsite a
lode claimant may be permitted by the Land
Department to take surface ground.
SECRETARY TELLER to Commissioner Mc Fur-
land, April 18, 1883.

The record of location describes the same as, "The Second Northerly Extension of the Pacific Lode or Ledge **** commencing at a stake and pile of stones standing 600 feet north of Spring Street on line of Pacific Lode, running thence North Fifteen Hundred (1500) feet on line of said lode or ledge to a stake and pile of stones standing on Quartz Hill, together I have considered the case of Batista with three Hundred feet, on each side of Papina vs. Thomas Alderson, Stephen the centre of said lode or ledge. Cocking and Charles Weiner, applicants No out-boundaries are alleged to have for patent to the Enterprise Mining Claim been staked or marked by which to trace situated in section 7, 10 N., 11 E.; Sacra- the lines of the claim. mento District, California, within the limits of the Placerville town-site, entered July 7, 1871, patented September 10, 1872. The patent to the city authorities contained this reservation :

"No title shall be hereby acquired to any mine of gold, silver, cinnabar or copper, or to any valid mining claim or possession held under existing laws of Congress;" following the language of the act of March 2, 1867 (14 Stat., 541), and the cumulative provision of the amendatory act of June 8, 1868 (15 Stat., 57).

The lands embraced in said town-site had been declared non-mineral, after regular hearing by the decision of your oflice rendered November 17, 1871, from which no appeal had been taken, but after said decision mineral affidavits were received, resulting in delay in issuing the patent, and in the filing of certain communications on behalf of the Mayor and corporate authorities conceding the fact of the existence of several known mines and claims, and consenting to the insertion of the reservation in the patent, as defined by law.

Since that date several of these old claims have been applied for and patented,

On the plat of survey filed for patent, no lines are placed showing the crossing of municipal lots, blocks or streets, nor are any buildings or other objects, except tunnels, shafts, ditches, and two or three fences noted.

On the 14th of December, 1878, within the period of publication, Batista Papina filed notice of conflicts of surface ground to the extent of 1.82 acres, with his improvements, situated on lot No. 19, block No. 37, City of Placerville, held by deed from the proper authorities under the town-site patent, and denied the right of Alderson et al. to obtain patent to such surface ground, or to any claim for mines therein; accompanying his notice with a plat exhibiting the alleged conflict, and copies of his deed dated April 11, 1874, and of the record of said patent. He further alleged residence and improvement upon the land for upwards of nine years, and that prior to the location in 1878, no mining had within that time been done thereon.

The Register did not stay the proceedings and refer him to the courts, but seems to have treated the notice as a protest, and on the 30th of December, 1878, forwarded

the application for entry to your office with-
out any opinion or recommendation.
April 26, 1880, your office decided that
Papina had no standing as an adverse
claimant, because the land was subject to
no claim except a mineral claim, if in fact
mineral; and to entitle him to such recog-
nition he must be actually claiming a vein,
lode or mining claim in opposition to an-
other.

You further held that "the town patent conveyed title only to such land as is nonmineral, and an express exception is made of mineral claims. Hence, the proper proceeding for Mr. Papina would be to show, if possible, that the land in question is not valuable for minerals."

You thereupon dismissed his protest, at the same time offering to permit him to file allegations of the distinctively agricultural character of the land, and to have a hearing upon that point.

From this decision he appeals, and the record is now before me. In the meantime, however, it appears that a paper described "as containing evidence in behalf of the mineral applicants," transmitted by the Register January 25, 1879, has been mislaid, and there is no record of what it may have purported to show, upon which to base a judgment, and after being called upon to supply it, the applicants have failed to do so, sending up merely argumentative statements in its stead.

There is also a material discrepancy in the locus of the ground as exhibited by the plat filed by the applicants and that filed by Papina to illustrate the conflict alleged, although the latter was made by the same deputy, one J. M. Anderson, who surveyed the claim and is certified by him as correctly showing the true relative position of the claim with respect to the town lot and adjoining claims.

The only questions sharply defined are: 1st. Had the owner of the town lot a right under the law to demand a stay for the purpose of a judicial determination of the right of possession?

2d. To what extent within a patented town-site a lode claimant may be permitted by this Department to take surface ground; it being conceded, as established by the decisions of this Department and of the courts, that town-sites may exist upon and embrace mineral lands, subject only to the particular exceptions of law, and to vested prior rights. (Rico case, July 6, 1882, 9 Copp, 90; Vizina case, July 11, 1882, Ibid, 92; Mining Co. vs. Consolidated Mining Co., 102 U. S., 168; Steel et al., vs. Smelting Co., October term, 1882.)

These two questions may be considered together.

The deed of Papina from the city contained in the same words as the town-site patent the reservation of mines and valid mining claims. He took, therefore, with express notice of the particular things carved out of the patent in the exact language of the law. This reservation, like the patent itself, had necessary relation to the inception of acquisition of title by the

town-site, and its extent must be measured
as of that date. All passed to him by his
deed, not expressly excepted. For Con-
gress, in enlarging the methods of acqui-
sition of title to public lands, provided for
towns on the public domain prior to the
recognition of mineral rights. See stat-
utes of July 1, 1864 (13 Stat., 343), and
March 3, 1865 (Ibid, 529), authorizing the
platting of such towns either by "parties"
or the Secretary of the Interior, and sale
of the lots under certain provisions. The
former of these acts making no exception
of "mines" or "mining claims," but the
act of 1865 while not excepting "mines,"
as such, did provide, "That where mineral
veins are possessed, which possession is
recognized by local authority and to the
extent so possessed and recognized, the
title to town lots to be acquired shall be
subject to such recognized possession and
the necessary use thereof."

several provisons, together with the subsequent amendments of the mining laws.

Having now found the order of the law, which has first granted the town right, and afterward abridged it only so far as to admit the new relations presented by the enactment of the mining statutes, the reason of the whole seems to result in this. That by the acquisition of title to a townsite no right remains to proceed for patent for mining ground under the reservations of law, except:

1st. For the mines, with only such incidents of surface ground, and the like as are actually necessary to the use and operating of the same; and,

2d. For such mine and possessory rights, including surface ground not in excess of that recognized by law at the date of location, as were acquired by the applicant or his grantors, privies in interest, before the legal inception of the patented town right. Here was no withholding of title, but But as with the grant of mines the powonly a subjection of the same to a recoger to dig them is impliedly given (Shep. nized possession and use; and there can Touchst. 89), so by the reservation of be no question that a town lot so conveyed mines the power necessary to their enjoywould have passed in fee, with absolute ment must be also reserved; and this reownership of the vein, upon the cessation servation to and by the government must or abandonment of the miner's recognized enure under the mining laws to citizens of possession. There is nothing incompati- the United States authorized to explore ble with the grant of the fee, burdened and possess them, and acquire the governonly by the use of an actual occupant by ment title thereto. (Maxwell or Interpreprior possession. And the statute was tation, 319.) especially guarded against the idea of anything beyond a possession and necessary use by further providing, "that nothing contained herein shall be so construed as to recognize any color of title in possessors for mining purposes as against the government of the United States."

If, then, an applicant, as in this case, seeks to acquire patent for a mine (lode or vein) within a patented town-site, based upon a location subsequent to such patent, he must be required to show affirmatively the existence of such mine and its true location, and prove his possessory right The great change which introduced an and value of work performed, as in other entirely new system of mining law, differ- applications. He will not, however, be ing from that of any existing government, permitted to proceed as for a claim with had not then been adopted by Congress. surface claim limited only by the usual But in the following year the act of July statutory restrictions as to width along 26, 1866 (14 Stat. 251), gave with certain the vein, but will only be allowed to claim restrictions, legislative sanction to the the necessary surface ground for the conlaws and customs of "local authority" af- venient working of his mine, in no case in fecting possessory rights and the added excess of the legal width at date of the privilege of acquiring title to the mine it-town-site appropriation. His plat must self, under the authority and forms of law. distinctly show the ground so claimed with

This change gave such rights, even relation to all other claims and the occupaagainst the government, as required some tion and improvement of others, whether modification of the town-site provisions, municipal or otherwise-and proof of such and resulted in the enactments of 1867 necessary possession and use must be furand 1868, previously cited, with the ex-nished sufficient to make a clear prima press reservations against the acquisition facie, showing of his right. (Steel vs. of mines or valid mining claims. And it is Smelting Co., supra.) to be observed that the exception of such If such showing be made he may proclaims by the act of June 8, 1868, was made ceed to publication, and if no adverse with direct reference to towns whose inhabi- claim is filed may obtain his patent, contants, having acquired rights under the taining the usual townsite reservations, act of 1865, should elect to proceed under for the protection of any interest prethe act of 1867 instead; although it also viously acquired. Should a lot owner enlarged the general exception already ex- elect, to come forward denying the applipressed in the amended act as to all titles cant's right to the possession, while it may acquired under the town-site entry and not be incumbent upon him to do so in patent. But it still left individual lot order to preserve his own previously acowners free to proceed and take title to quired rights of priority under his patent, their own lots, burdened only by the use I see no objection to permitting him to and possession described in the act of set up his own title and allegations of 1865. And it may be further remarked, possession as an adverse claim, and have that the Revised Statutes now contain these a stay of proceedings for the statutory

period to enable him to go into court for the settlement of the matter before the issue of the mining patent. This is a question of the right of possession which may properly, in harmony with my decision in the Rico case, determine all the issue involved, and if the town lot owner sees fit to assume the burden of suit he should have that right. The applicant can not complain. He is only placed upon the same footing with other applicants on the public lands, and it may result that the finding of the court will conclude the matter in favor of the town-site title, in which case the confusion resulting from a wrongful issue of patent will be prevented. That town-site occupants may be adverse claimants within the meaning of the mining statute was decided by this Department upon reasons stated in the case of Becker vs. Citizens of Central City, August 7,

On March 22d, 1853, Congress passed lands in whatever sections the mineral may a law declaring that "sections 16 and 36 in be found. each township of Washington Territory That such is the policy of the Governshall be reserved for the purpose of being ment appears to me to be very definitely applied to common schools in that terri- settled by the case of the Ivanhoe vs. Keytory." Here was a reservation made, a stone, recently decided by the Supreme setting apart of certain lands from the Court of the United States and cited by rest of the public domain. No granting counsel for appellant. In this case no exwords were used. The title remained in ception on account of the mineral charthe United States, and the sections re-acter of sections 16 and 36 could be found mained subject to future disposal by the in the language of the act granting said Government. In the case of the townsite sections to the State of California, yet of Silver Cliff vs. State of Colorado, a nevertheless the court held that "Constate of facts very much similar to those gress did not intend to depart from its now before me existed. The legislation uniform policy, i. e., of reserving mineral on the subject provided (12 Stats., 172), lands, in this respect in the grant of those "That sections numbered 16 and 36 in sections to the State." each township in said territory shall be If this principle applies in case of a and the same are hereby reserved for the grant, it would certainly apply with at purpose of being applied to schools in the least equal force to a reservation where state hereafter to be erected out of the the title never passed out of the Governsame." This office held as 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 affirmatively the facts relating to such lo- the power remained in the government to cation and possession, and his own privity make any other disposition of said section with the possessory title, and upon such it might subsequently deem advisable.” showing he may proceed. His plat must show, as in the preceding case, every thing necessary to exhibit the true character and location of all improvements, and he must be restricted to the limit as to width established by the local laws at date of the town-site entry.

1871.

The application of Alderson et al., for the Enterprise mine being notoriously lacking in the preliminary requirements, must be dismissed, without prejudice to his right to proceed de novo on compliance with those conditions-and your decision dismissing the protest of Papina is accordingly reversed.

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These sections then being simply reserved for school purposes and not granted, and the Government having parted with no control over them, it was undoubtedly competent for Congress in its discretion to make any other disposition of them it might deem advisable under whatever conditions it might deem proper.

States.

The only remaining question to be considered is: Is coal a mineral within the mineral laws? In view of the many decis ions of the Department, it is not a difficult one to answer.

By decision of Secretary in the case of James McKean vs. David Buell and the Union Pacific Railroad Company, the following language was used: "Your ruling that coal lands are mineral is afTherefore when Congress in 1866, 1872 firmed." In case of James Hodgen and C. and 1873 established a system for the dis- T. Wheeler vs. State of California, the posal of its mineral lands, a system Secretary held: "You held that mineral differing widely from all other methods of land did not pass to the state under said disposal of public land, in system which act, and that coal lands were mineral provides in terms that mineral lands lands. I aflirm your decision and hereshould be disposed of under its pro- with return papers." visions and in no other way, the conclusion is natural that whatever may have been the Congressional intent at the time of the passage of the act of 1853 (at which date the existence of minerals in Washington territory was unknown), it For these reasons I conclude that your underwent considerable modification be-action was erroneous, and direct you ot fore 1866 and finally in that year signified allow the entries. its changed purpose by the act of 1866, followed by those of 1872 and 1873. In other words I am of the opinion that Congress intended the mining acts to apply to all the public lands of the United States, shown to be mineral in character, if said land was not granted or reserved specifically as mineral land for some other

purpose.

COMMMISSIONER WILLIAMSON to Reg. & Rec.
Olympia, Washington March 2, 1881. J.H.JR.
I am in receipt of the application of
Charles Norager, David Hawley, and
William Brawley, to enter, as coal lands,
certain portions of Sec. 36, Tp. 24, N. R.
5 E. It appears that said applicants pre-
sented their applications on November 23,
1880, and tendered payment, but entry was
refused by you because, as endorsed on the
back of the papers, The land applied Whether the reservation attached to
for 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
ions of section 20, act March 2, 1853, to intended simply to guarantee to the future
establish the Territorial Government of state tracts of agricultural land equal in
Washington."
quantity to the specified sections, I do not
From this decision the applicants ap- consider as vital to the decision of this
pealed to this office. The papers are in case, for the reason that I understand it to
point of form regular and free from be the settled policy of Congress (as
objection. The only question present-above stated) to accept from all grants
ing itself is, "Is the land subject to entry and reservations to state, railroad or other
persons, natural or artificial, all mineral

under the coal act?"

In the letter from the present Hon. Secretary to the Commissioner of this office of August 2, 1879, in regard to the coal and iron lands in Alabama, the same ruling was made.

ALABAMA MINERAL LANDS.
CIRCULAR.

DEPARTMENT OF THE INTERIOR,
GENERAL LAND OFFICE,
WASHINGTON, D. C., April 9, 1883.
To DISTRICT LAND OFFICERS, Montgomery and

Huntsville, Ala.

The act of March 3, 1883,* enacts that

all public lands within the State of Alabama, whether mineral or otherwise, shall be subject to disposal only as agricultural lands; provided, that all lands which have heretofore been reported as containing coal and iron shall first be offered at public sale, and further that any bona fide entry under the provisions of the homestead law of lands within said State heretofore made, may be patented without reference to the

*See LAND OWNER for April 15, 1883, page 30.

act of May 10, 1872, in cases where the persons making application for such patents have in all other respects complied with the homestead law relating thereto.

In order to carry out the provisions of said act, it will be necessary to prepare a list of all public lands heretofore reported as mineral, that have not been entered, and have them offered by President's procla mation. In the meantime you will be careful not to allow an entry to be made for any lands, lists of which were transmitted to your office October 23, 1879, nor of other tracts that have been since investigated and reported as valuable for minerals, a list of which I inclose here

with.

less of the mineral character of the land, in accordance with rules and regulations governing the same.

Any contest, pending before you, where the only allegation is the mineral character of the land, must be dismissed.

ROBERT LALLEY ET AL.

all en

TIMBER CULTURE.
CUDNEY US. FLANNERY.

In reply I have to inform you that the Alabama Mineral Lands-Non-Mineral Affidavit. intent of the law is that the corroborative -The non-mineral affidavit is not now re- testimony should be made by witnesses quired in entries of public lands in Alabama. who actually reside in the immediate viEntries allowed on or since March 3, 1883, cinity of the claimant, and are fully accontaining mineral lands are void.-Settlement 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 culCOMMISSIONER MCFARLAND to Reg. and Rec., tivation of the same. The testimony of Montgomery, Ala., May 4, 1883. (C. T. Y.) those who only occasionally pass the land, As the act of March 3, 1883, excludes or only know by common repute that the the lands in Alabama from the operation claimant resides there, is not competent of the mineral laws and provides for their proof. Witnesses must be persons entirely disposal the same as agricultural lands, disinterested in the claim, and cognizant no non-mineral aflidavit will hereafter be of their own knowledge of all the facts set required. Said Act contemplates the of forth in the proof during the entire period fering at public sale, of all vacant lands of the alleged residence and cultivation. that have been reported to this office, as The fact that a homestead or pre-emption containing coal or iron; therefore, claimant cannot furnish the necessary 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 March 3, 1883, are void, and any applica- same, casts suspicion upon the transaction, tions to enter said lands, where the affida- and tends to show collusion in the making vit was made before the Clerk of the of such proof. Court, which failed to reach your office prior to said date, must also be rejected— notwithstanding the party may allege setThe law requires the offering to em-tlement some time prior to the passage of brace all lands heretofore reported as con- the act. That portion of the act applies taining coal or iron, which remain undis- to vacant lands, i. e., lands that at the date posed of by entry or sale. of the act were vacant upon the records. Parties who have settled on said lands with the intention of entering the same under the homestead laws, must have perfected their entry prior to the date of the act otherwise their application cannot be allowed. The act of May 14, 1880, confers 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 for the disposal of the class of lands, there- N. of S. E. of Sec. 4, Tp. 1 S., R. 5 E., that ordinarily would have inured to the from your decision of April 21, 1882, holdby cutting off or defecting any rights Bozeman, Montana, on appeal by Flannery settler who had failed to file his application ing his entry for cancellation. at the local office prior thereto. Applications that are pending, to enter said lands, which were filed in your office in due time, i. e. before the passage of the act, and were not allowed through no fault of the applicant, if they appear to be regular in other respects, they should be allowed.

Entries, whether by cash or location, already allowed and reported to this office will be examined and disposed of upon their merits without reference to the ques

tion of mineral.

N. C. MCFARLAND, Commissioner.

DEPARTMENT OF THE INTERIOR, April 9, 1883.
Approved: H. M. TELLER, Secretary.

ALABAMA MINERAL LANDS.

Offering-Coal and iron lands in Alabama must thereof had been made at or before March 3,

be offered, except in cases where actual entry

1883.

Settlement Act of May 14, 1880.-Settlement on mineral lands in Alabama, not being authorized, is not protected by the act of May 14, SECRETARY TELLER to Commissioner McFar

1880.

land, April 28, 1883.

The act of March 3, 1883, relating to mineral lands in Alabama, requires the of fering of all lands theretofore reported as containing coal or iron, where actual entry had not been made at the date of its approval.

The act of May 14, 1880, prescribing a time within which homestead settlers may make entry, has no application to a settlement on lands not subject to homestead entry which was the condition of all mineral lands in Alabama as well as in other States where the mineral laws were in force.

HOMESTEADS.

W. W. BURKE.

Witness. Only disinterested persons living in
the vicinity and cognizant of the facts sworn
to are competent witnesses in making final
homestead and pre-emption proof.

COMMISSIONER MCFARLAND to W. W. Burke,
Special Agent, Huron, Dakota, April 17, 1883.
(R. S. G.)

I am in receipt of your letter of the 7th inst., calling attention to the fact that in many instances parties in making proof upon pre-emption and homestead entries Consequently no previous right of entry have for witnesses their attorney or parties existed to work a constructive intent to from whom they are borrowing money include a mere settlement, or unperfected with which to perfect their claims-people homestead claim upon mineral lands, in who do not reside near the land covered the law confirming entries, "heretofore by the entry, but generally reside in the made," such confirmation being mani- towns. festly intended to quiet title, and legalize You ask whether such persons are comthe official act already done, while provid- petent witnesses, being in a measure ining a new rule for future disposal. terested parties.

Cottonwood Tree- Devoid of Timber - Vested Rights-Retroactive Rulings.-Timber culture entry otherwise legal made on land containing a growth of cottonwood trees at the time when such trees were not regarded as timber trees by the Land Department is a legal entry on land "devoid of timber." Later rulings holding such trees as timber trees cannot affect such entry or rights acquired thereunder. SECRETARY TELLER to Commissioner McFarland, April 20, 1883.

I have considered the case of P. W. Cud

This contest was commenced April 21, 1880, upon allegation that the tracts are not subject to entry under the timber culture law. It is not claimed that Flannery has failed to comply with the requirements of the law in respect to planting of trees and cultivation of the tracts, nor is it necessary to consider in the present case the force of testimony which shows a scattering growth of "scrubby" cottonwood trees along the banks of a creek running through the section, the area of which is estimated at from ten to seventeen acres, and the number of trees large enough for fence poles at from four hundred to one thousand, nearly all of which are less than six inches in diameter, and about one hundred and fifty of larger size. Without reference to this, the case must be decided on other grounds. •

This entry was made under the act of March 13, 1874, which contained no provisions relative to the character of the land allowed to be entered, but authorized the Commissioner of the General Land Office to prepare and issue such rules and regulations, consistent therewith, as should be proper and necessary to carry its provisions into effect. Under this authority, a

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