2. NOT ORDERED. A repayment will not be ordered where the entryman knew that the entry for a mineral claim was made for the benefit of a foreign corporation, as such an entry is illegal. Dargin v. Koch, 20 L. D. 384, p. 387. Where an entry of coal lands has been procured upon false testimony repayment of the purchase money can not be claimed on the cancellation of the entry, and an entry is not erroneously allowed within the contemplation of the repayment statute where the alleged defect does not necessarily defeat the confirmation of the entry. Anthracite Mesa Coal Min. Co., In re, 28 L. D. 551, p. 552. Where a mineral entry is canceled for failure to supply the supplemental proof required, the repayment of the purchase money will not be allowed. Reed, In re, 29 L. D. 188, p. 189. The assignee of a coal-land claim made prior to the completion of the assignor's entry does not occupy the position of an assignee within the meaning of the repayment statute. Davis, In re, 33 L. D. 313, p. 315. The repayment of a mining survey deposit is not within the purview of this section. Golden Empire Min. Co., In re, 36 L. D. 561, p. 563. SECTION 2369, REVISED STATUTES. In every case of the purchaser of public lands, at private sales, having entered at the land office, a tract different from that he intended to purchase, and being desirous of having the error in his entry corrected, he shall make his application for that purpose to the register of the land office; and if it appears from testimony satisfactory to the register and receiver, that an error in the entry has been made, and that the same was occasioned by oringinal incorrect marks made by the surveyor, or by the obliteration or change of the original marks and numbers at corners of the tract of land; or that it has in any otherwise arisen from mistake or error of the surveyor, or officers of the land office, the register and receiver shall report the case, with the testimony, and their opinion thereon, to the Secretary of the Interior, who is authorized to direct that the purchaser is at liberty to withdraw the entry so erroneously made, and that the moneys which have been paid shall be applied in the purchase of other lands in the same district, or credited in the payment for other lands which have been purchased at the same office. A. PATENT CORRECTING MISTAKE. The provisions of this section are extended to all cases where patent has issued and a mistake has subsequently been discovered in the description of the land intended to have been entered, where the mistake was occasioned by any causes mentioned in this section. Gill, In re, 8 L. D. 303, p. 305. SECTION 2370, REVISED STATUTES. The provisions of the preceding section are declared to extend to all cases where patents have issued or may hereafter issue; upon condition, however, that the party concerned surrenders his patent to the Commissioner of the General Land Office, with a relinquishment of title thereon executed in a form to be prescribed by the Secretary of the Interior. A. CORRECTING MISTAKE IN PATENT-CONDITIONS. A correction of a mistake in a coal-land entry, as contemplated in the preceding section, can not be made unless the entryman or the patentee reconveys to the Government the land patented by mistake, and unless such reconveyance is accompanied by satisfactory proof of nonalienation by him. Seventh. Every surveyor shall note in his field book the true situations of all mines, salt licks, salt springs, and mill sites which come to his knowledge; all watercourses over which line he runs may pass; and also the quality of the lands. 1. NOTATION AS TO MINERAL LANDS, SALINES, ETC.-EFFECT. 2. SPANISH AND MEXICAN SURVEYS-FORMS. 3. MINERAL CLAIM CONNECTED WITH SURVEY OR MONUMENT. 1. NOTATION AS TO MINERAL LANDS, SALINES, ETC.-EFFECT. Mineral lands are reserved by the same laws and in the same terms as saline lands, and in the same language it is provided that the field notes and plats shall record their situations, but these notations do not of themselves create reservations of the lands so marked, and the return of a deputy surveyor, while entitled to respect as coming from a sworn officer, is not conclusive when disputed, and the matter must be investigated as a question of fact. Cole v. Markley, 2 L. D. 847, p. 850. Linden v. Gray, 3 C. L. O. 181. 2. SPANISH AND MEXICAN SURVEYS-FORMS. Under the laws of Spain and Mexico the surveys of the public lands were made in squares, noting streams of water and lakes, pools, mountains, mineral regions, salt regions, climate of the locality, the character of the soil, and everything else which might give an idea of the improvement of which they might be susceptible, and the statutes of the United States contain substantially the same provisions. United States v. San Pedro & Canon del Agua Co., 4 N. Mex. 225, p. 304. 3. MINERAL CLAIM CONNECTED WITH SURVEY OR MONUMENT. The lines of a mineral claim should be run connecting the claim either with the corner of a surveyed township or a United States mineral monument within two miles Hauck, In re, 10 L. D. 391. In the survey of township lines each distance of a mile within the township corners must be distinctly marked, and this establishes all section corners falling upon the township line; and a connecting line from a minersl claim therein to such marks on a township line is sufficient, though the township is not certified. Hauck, In re, 10 L. D. 391. B. SURVEYOR GENERAL'S DUTY. 1. OBJECT OF STATUTE. 2. DESCRIPTIVE NOTES-PLATS-SITUATION OF MINES, ETC. 3. FAILURE TO DESIGNATE LANDS AS MINERAL. 4. LANDS RETURNED AS AGRICULTURAL-EFFECT. 5. TITLE ACQUIRED AFTER RECORD OF FIELD NOTES. 6. REPORT AS EVIDENCE. 1. OBJECT OF STATUTE. The purpose of this section and of the act of 1796 was to obtain public and official information of the saline lands with a view to preventing entry until the facts are finally determined, and the entries required are only prima facie evidence, subject to be rebutted by satisfactory proof of the real character of the land. Cole v. Markley, 2 L. D. 847, p. 849. The object of this statute was to enable the officers in each instance to determine whether or not the lands were patentable and to show that the mineral lands at the date of the survey were not authorized to be surveyed by running the section lines, and the Government has thus provided means to enable the Land Office to determine the character of the lands, and, as mineral lands are excepted, this necessarily involves the duty to determine whether lands for which patents are sought are mineral or not. Cowell v. Lammers, 21 Fed. 200, p. 205. 2. DESCRIPTIVE NOTES-PLATS—SITUATION OF MINES, ETO. The descriptive notes required by this section must be incorporated in the plat by the surveyor general, showing the true situation of all mines, salt licks, salt springs, and mill sites known to the surveyor. Circular, In re, 1 L. D. 685, p. 686. 3. FAILURE TO DESIGNATE LANDS AS MINERAL. The failure of the surveyor to designate lands upon the field notes and plats as mineral is equivalent to classifying them as nonmineral, and it is not customary to specifically designate on such notes and plats the agricultural lands. Savage v. Boynton, 12 L. D. 612. Bedal v. St. Paul, etc., R. Co., 29 L. D. 254. 4. LANDS RETURNED AS AGRICULTURAL-EFFECT. Where lands are returned by the surveyor general as agricultural in character they so continue until their mineral character is shown, and the burden of proof is on the mineral claimant to show their mineral character as a present fact, and that the mineral value thereof is greater than its agricultural value. United States v. Central Pac. R. Co., 93 Fed. 871, p. 874. 5. TITLE ACQUIRED AFTER RECORD OF FIELD NOTES. The failure of a surveyor to record his field notes of the survey of saline lands can not affect the validity of the title of a claimant, as against one who acquired title after such field notes were recorded. Garrard v. Silver Peak Mines, 82 Fed. 578, p. 590. 6. REPORT AS EVIDENCE. Too much attention and too great effect has been given to the reports of surveyors when otherwise admissible as evidence as to the matters required by this section. Aspen Consol. Min. Co. v. Williams, 27 L. D. 1, p. 21. C. DEPUTY SURVEYOR. 1. DUTY TO NOTE MINES, SALINES, ETC. 2. CERTIFICATE AS TO MINERAL CHARACTER OF LAND- -EFFECT. 1. DUTY TO NOTE MINES, SALINES, ETC. The deputy surveyor is required to note in his field books the true situation of all mines, salt rocks, salt streams, as well as other facts coming within his knowledge. Johnston v. Morris, 72 Fed. 890, p. 897. The United States deputy surveyor must note the true situation of all mines, salt licks, salt springs, and mill sites, as well as the quality of the lands, and he must incorporate in the plat such descriptive notes. Gerhauser, In re, 7 L. D. 390. 2. CERTIFICATE AS TO MINERAL CHARACTER OF LAND EFFECT. Where lands surveyed by a deputy surveyor are certified by him to be mineral, and his survey is approved by the surveyor general of the General Land Office, this record is presumptively correct and determines the character of such land as mineral. Johnston v. Morris, 72 Fed. 890, p. 897. United States surveyors, in making surveys, are required by this section to note the location of all mines, and the surveyor general must make proper return thereof. Townsite of Deadwood, In re, 8 C. L. O. 153, p. 154. Deputy United States surveyors are required, among other things, to know the true situation of all mines, as well as the quality of the lands, and such descriptive notes must be incorporated in the plat by the surveyor general. Gerhauser, In re, 7 L. D. 390. SECTION 2401, REVISED STATUTES (AS AMENDED). 28 Stat. 423, August 20, 1894. AN ACT To amend section 2401. Be it enacted, etc., That section 2401 R. S. is hereby amended so as to read as follows: "SEC. 2401. When the settlers in any township not mineral or reserved by the Government, or persons and associations lawfully possessed of coal lands and otherwise qualified to make entry thereof, or when the owners or grantees of public lands of the United States, under any law thereof, desire a survey made of the same under the authority of the surveyor general and shall file an application therefor in writing, and shall deposit in a proper United States depository to the credit of the United States a sum sufficient to pay for such survey, together with all expenditures incident thereto, without cost or claim for indemnity on the United States, it shall be lawful for the surveyor general, under such instructions as may be given him by the Commissioner of the General Land Office, and in accordance with law, to survey such township or such public lands owned by said grantees of the Government, and make return therefor to the general and proper local land office: Provided, That no application shall be granted unless the township so proposed to be surveyed is within the range of the regular progress of the public surveys embraced by existing standard lines or bases for township and subdivisional surveys." A. EFFECT OF AMENDATORY ACT. B. SURVEY OF PUBLIC LANDS. A. EFFECT OF AMENDATORY ACT. It appears from this amendatory act that Congress has acknowledged the existence of a claim or right to and the lawful possession of coal lands the equivalent possibly of a preference right of entry in essence, but which is not in fact a present existent right to make immediate entry. Carthage Fuel Co., In re, 41 L. D. 21, p. 27. B. SURVEY OF PUBLIC LANDS. 1. SURVEY OF COAL LANDS. This amendatory section permits qualified persons and associations lawfully possessed of coal land to make entry thereof and to apply for the survey of unsurveyed public lands under the deposit system. Carthage Fuel Co., In re, 41 L. D. 21, p. 27. This section in express terms provides that mineral land shall not be surveyed, and this applies to coal lands, and therefore a certificate of deposit can not be received in payment of the survey of such lands. Sprowl, In re, Copp's Min. Lands 342. The prohibition of this section against surveying townships of mineral lands, under the deposit system, applies to those only which are known to be mineral to the officers charged with the public survey at the time the contract for surveying is made and not to those discovered to be mineral in making the survey or at some subsequent date. California v. Bodie & Mono Min. Co., 6 C. L. O. 175. SECTION 2402, REVISED STATUTES. The deposit of money in a proper United States depository, under the provisions of the preceding section, shall be deemed an appropriation of the sums so deposited for the objects contemplated by that section, and the Secretary of the Treasury is authorized to cause the sums so deposited to be placed to the credit of the proper appropriations for the surveying service; but any excesses in such sums over and above the actual cost of the surveys, comprising all expenses incident thereto, for which they were severally deposited, shall be repaid to the depositors, respectively. |