days, the register of the land office shall transmit to the General Land Office said plat, survey, and description; and a patent shall issue for the same thereupon. But said plat, survey, or description shall in no case cover more than one vein or lode, and no patent shall issue for more than one vein or lode, which shall be expressed in the patent issued. See sec. 2325, R. S., p. 289. SEC. 4. That when such location and entry of a mine shall be upon unsurveyed lands, it shall and may be lawful, after the extension thereto of the public surveys, to adjust the surveys to the limits of the premises according to the location and possession and plat aforesaid; and the surveyor general may, in extending the surveys, vary the same from a rectangular form, to suit the circumstances of the country and the local rules, laws, and customs of miners: Provided, That no location hereafter made shall exceed 200 feet in length along the vein for each locator, with an additional claim for discovery to the discoverer of the lode, with the right to follow such vein to any depth, with all its dips, variations, and angles, together with a reasonable quantity of surface for the convenient working of the same as fixed by local rules: And provided further, That no person may make more than one location on the same lode, and not more than 3,000 feet shall be taken in any one claim by any association of persons. See sections 2320 and 2322 R. S., pp. 35, 99. SEC. 5. That as a further condition of sale, in the absence of necessary legislation by Congress, the local legislature of any State or Territory may provide rules for working mines involving easements, drainage, and other necessary means to their complete development; and those conditions shall be fully expressed in the patent. Section 5 is the same as section 2338 R. S. For further annotations see 2338 R. S., p. 608. SEC. 6. 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 courts of competent jurisdiction, of the rights of possession to such claim, when a patent may issue as in other cases. See sections 2325 and 2326 R. S., pp. 289, 429. SEC. 7. That the President of the United States be, and is hereby, authorized to establish additional land districts, and to appoint the necessary officers under existing laws, wherever he may deem the same necessary for the public convenience in executing the provisions of this act. Section 7 is the same as section 2343 R. S. For further annotations see section 2343 R. S., p. 628. SEC. 8. That the right of way for the construction of highways over public lands, not reserved for public uses, is hereby granted. Section 8 is the same as section 2339 R. S. For further annotations see section 2339 R. S., p. 609. SEC. 9. That whenever, by priority of possession, rights to the use of water for mining, agricultural, manufacturing, or other purposes, have vested and accrued, and the same are recognized and acknowledged by the local customs, laws, and the decisions of courts, the possessors and owners of such vested rights shall be maintained and protected in the same; and the right of way for the construction 56974°-Bull. 94-15-43 of ditches and canals for the purposes aforesaid is hereby acknowledged and confirmed: Provided, however, That whenever after the passage of this act, any person or persons shall, in the construction of any ditch or canal, injure or damage the possession of any settler on the public domain, the party committing such injury or damage shall be liable to the party injured for such injury or damage. See section 2339 R. S., p. 609. SEC. 10. That wherever, prior to the passage of this act, upon the lands heretofore designated as mineral lands, which have been excluded from survey and sale, there have been homesteads made by citizens of the United States, or persons who have declared their intention to become citizens, which homesteads have been made, improved, and used for agricultural purposes, and upon which there have been no valuable mines of gold, silver, cinnabar, or copper discovered, and which are properly agricultural lands, the said settlers or owners of such homesteads shall have a right of preemption thereto, and shall be entitled to purchase the same at the price of $1.25 per acre, and in quantity not to exceed 160 acres; or said parties may avail themselves of the provisions of the act of Congress approved May 20, 1862, entitled "An act to secure homesteads to actual settlers on the public domain," and acts amendatory thereof. Section 10 is the same as section 2341 R. S. For further annotations see section 2341 R. S., p. 624. SEC. 11. That upon the survey of the lands aforesaid, the Secretary of the Interior may designate and set apart such portions of the said lands as are clearly agricultural lands, which lands shall thereafter be subject to preemption and sale as other public lands of the United States, and subject to all the laws and regulations applicable to the same. Section 11 is the same as section 2342 R. S., p. 627. For further annotations see section 2342 R. S., p. 627. Amended by additions of sections 12, 13, 14, 15, 16, and 17, of act of July 9, 1867, 16 Stat., 217 p. 670. Sections 1, 3, 3, 4 and 6 of this act are repealed by section 9 of the act of May 10, 1872 (17 Stat. 91, p. 94), p. 680. A. MINING STATUTES. B. LODE CLAIMS, p. 641. C. PLACER LOCATIONS, p. 655. D. COAL LANDS ENTRY AND SALE, p. 655. E. STATE AND SCHOOL GRANTS, p. 656. F. WATER RIGHTS, p. 656. G. PATENT PROCEEDINGS, p. 661. H. ADVERSE CLAIMS, p. 668. A. MINING STATUTES. 1. CONSTRUCTION AND CODIFICATION. 2. MINERALS APPROPRIATED PRIOR TO STATUTE. 5. SYSTEM FOR DISPOSAL OF MINERAL LANDS. 6. PROVISIONS FOR ACQUIRING TITLES. 7. NATURE AND EFFECT AS TO MINERAL LANDS. 8. RESERVATION OF MINERAL LANDS FROM SALE. 9. CHANGE OF POLICY-MINERAL LANDS OPENED TO EXPLORATION. 10. APPLICATION TO MINERAL LANDS. 11. AGRICULTURAL SETTLEMENTS PROTECTED. 12. EXPLORATION FOR MINERALS. a. RIGHT TO EXPLORE RECOGNIZED. b. SUBJECT TO LAWS, REGULATIONS AND CUSTOMS OF MINERS. 1. CONSTRUCTION AND CODIFICATION. The provisions of this statute and of all other mining statutes as originally enacted are at present codified and embodied in sections 2318 to 2352 of the Revised Statutes. Pacific Coast Marble Co. v. Northern Pac. R. Co., 25 L. D. 233, p. 235. This and the act of May 10, 1872 (17 Stat. 91), are considered in connection with the construction placed upon the act making a railroad grant. Northern Pac. R. Co. v. Soderberg, 104 Fed. 425, p. 430. It can not be supposed or inferred that Congress by this act intended to authorize, by inference merely, the commission of a great and intolerable nuisance and the perpetration of aggravated injuries to large communities by any method or means that might be adopted for the mining of lands purchased from the Government as mineral lands. Woodruff v. North Bloomfield, etc., Min. Co. 18 Fed. 753, p. 774. 2. MINERALS APPROPRIATED PRIOR TO STATUTE. Prior to the passage of this act certain important rights of miners had been recognized. Northern Pac. R. Co. v. Sanders, 166 U. S. 620, p. 634. This was the first mining statute of general application ever passed by Congress, and prior to that date miners held possessory rights by locating under local laws, and these rights were locally respected by the usages and courts, and this act was intended to establish a general rule by which these local rights should be recognized by the Government, and the act recognizes local laws, customs, and usages with reference to the quantity of any lode to be entered except a general limitation to 3,000 feet, and except the locations made thereafter a limitation to 200 feet and an additional claim for discovery. Hamill, In re, 1 C. L. O. 83. Prior to this act it was customary for persons to take all mineral deposits without respect to the right of the United States, and under this act lands which prior thereto could only be sold at a regular offering can now be disposed of by the Government and a valid title conferred. Jacob, In re, 7 C. L. O. 83, p. 84. This act was the first general legislation by Congress looking toward the disposal of the reserve mineral lands and Congress followed the policy of disturbing as little as possible the existing order of things in the mining regions, and the act provides the means by which possessory rights, having their inception under mining district regulations, could be converted into complete titles by patent from the United States. Douglas, In re, Copp's Min. Dec. 136, p. 137. Prior to the passage of this act a locator of a mining claim upon the public domain was technically a trespasser against the United States; but the courts held that as between him and a third person he should be considered as being in possession with the assumed assent of the owner, and this act gave the assent of the United States to the exploration and occupation and purchase of mineral lands on the public domain, and the locator is to be treated as an expressed licensee of the United States, and upon compliance with the terms of the act he has a right to appropriate the mineral therein. Wolfley v. Lebanon Min. Co., 4 Colo. 112, p. 118. The courts have recognized that prior to the adoption of this statute there were equitable circumstances connected with claims of miners located and worked upon the public domain that were binding upon the conscience of the governmental appropriator and should not be disregarded, and rights that had become vested by virtue of an implied license that could not be divested without a violation of all the principles of justice and reason." Gold Hill Quartz Min. Co. v. Ish, 5 Oreg. 104, p. 106. The decisions of the courts prior to the adoption of this statute were to the effect that the nonaction of the General Government raised such a presumption of license to those engaged in mining the precious metals as to give them a standing in the courts to assert their rights and redress their wrongs against all persons except the General Government, and the right of mining for the precious metals was recognized as a franchise, and the attending circumstances might be sufficient to raise the presumption of a general grant from the sovereign of the privilege of so mining. Gold Hill Quartz Min. Co., v. Ish, 5 Oreg. 104, p. 106. See Conger v. Weaver, 6 Cal. 548. Merced Min. Co. v. Fremont, 7 Cal. 317. Hill v. King, 8 Cal. 336. McKeon v. Bisbee, 9 Cal. 137. Partridge v. McKinney, 10 Cal. 181. State v. Moore, 12 Cal. 56. Curtis v. Sutter, 15 Cal. 263. Hughes v. Devlin, 23 Cal. 501. Horn v. Jones, 28 Cal. 202. Pralus v. Jefferson Gold, etc., Min. Co., 34 Cal. 558. Correa v. Frietus, 42 Cal. 339. 3. RIGHTS OF MINERS RECOGNIZED AND PROTECTED. Section 9 is the acknowledgment of a previous right instead of the creation of a new one. Atchison v. Peterson, 87 U. S. 507, p. 513. Basey v. Gallagher, 87 U. S. 670, p. 674. Forbes v. Gracey, 94 U. S. 762. Jennison v. Kirk, 98 U. S. 453, p. 456. Broder v. Water Co., 101 U. S. 274, p. 275. Parkersville District v. Wattier, 48 Öreg. 332, p. 339. It was the established doctrine of the Supreme Court that the rights of miners, who had taken possession of mines and worked and developed them before the passage of this act, were rights which the Government had by its conduct recognized and encouraged, and was therefore bound to protect them. Broder v. Water Co., 101 U. S. 274, p. 276. Northern Pac. R. Co. v. Sanders, 166 U. S. 620, p. 634. There is no provision in the act itself for the protection of the rights therein recognized, and if such rights existed before as well as after the passage of the act, they were excepted from grants made after their inception and before the passage of the act to the same extent as after its passage. Isaacs v. Barber, 10 Wash. 124, p. 132. See Jones v. Adams, 19 Nev. 78. Prior to the passage of this act the General Government, in carrying out a policy redounding to the public good, tacitly consented to the search for and development of mines, and the courts, applying what has been termed “the common law of mines," uniformly protected the rights of those engaged in mining for precious metals and recognized the binding force of local laws, customs, and usages of miners where such laws and customs did not conflict with constitutions or legislative enactments, and held that persons engaged in mining enjoyed a species of franchise in the mine, and held the same free from the interference of all parties except the General Government. Gold Hill Quartz Min. Co., v. Ish. 5 Oreg. 104, p. 105. Prior to this act Government title to mineral lands could not be acquired, but the Government recognized the possessory rights of miners and other rules and regulations relating to the holding and working of mining claims, and such claims were reserved from survey, preemption, and from all grants; but section 2319, R. S. made all valuable mineral deposits in the public lands open to exploration and purchase. South End Min. Co. v. Tinney, 22 Nev. 19, p. 62 (dissenting opinion). Mining Co. v. Consolidated Min. Co., 102 U. S. 167. 4. OWNERSHIP OF MINERALS-RELINQUISHMENT. Until the enactment of this statute the United States had not authorized and, except by its silence, had not in any way assented to the occupancy of its mineral lands in California, and all persons in possession of mining claims upon public lands were, as against the United States, trespassers and subject to be treated as such. Lee Doon v. Tesh, 68 Cal. 43, p. 47. It has always been conceded, at the time of and prior to the passage of this act, that mines of precious metals belonged to the eminent domain of the political sovereign as well under the laws of Spain as by the common law of England and the public law of the United States. Gold Hill Quartz Min. Co. v. Ish, 5 Oreg. 104, p. 106. By this statute Congress provided a method by which title to mineral land might be acquired from the Government at nominal prices and by which the idea of a royalty on the product of the mine was forever relinquished. Mining Co. v. Consolidated Min. Co., 102 U. S. 167, p. 173. 5. SYSTEM FOR DISPOSAL OF MINERAL LANDS. This was the first general statute providing for the conveyance of mines and minerals. Del Monte Min., etc., Co. v. Last Chance Min., etc., Co., 171 U. S. 55, p. 61. McFarland v. Alaska Perseverance Min. Co., 3 Alaska 308, p. 323. Congress by this act enacted a complete system for the sale and other regulation of its mineral lands so totally different from that which governs other public lands as to show that it could never have intended to submit them to the ordinary laws for disposing of the territory of the United States. Mining Co. v. Consolidated Min. Co., 102 U. S. 167, p. 174. Hawke v. Deffeback, 4 Dak. 20, p. 26. This act adopted a system for the disposition of mineral lands, and such a system as would give every citizen an equal opportunity to develop such lands and was intended to be the only method by which mineral lands could be appropriated, and it made no exceptions in favor of school or other grants. Keystone Consol. Min. Co. v. California, Copp's Min. Lands 101, p. 113. This and a later mineral statute established a system for the disposal of the public mineral lands differing widely from all other methods of disposal of public land, and provides that mineral lands shall be disposed of under the provisions of the act and in no other way, because Congress intended this act to apply to all the public lands of the United States shown to be mineral in character and not otherwise granted or reserved. Norager, In re, 10 C. L. O. 54. |