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123. Mineral lands cannot be entered with Sioux Half Breed Scrip. Com'r to Z. V. Bogg, Feb. 23, 1895.

and publish the same, and an entry may be referred to the Board of Equitable Adjudication, where such notice is defective in failing

124. Nor with Porterfield Scrip. Com'r to to connect the claim with the corner of the Secretary, Aug. 24, 1876.

125. Nor with Agricultural College Scrip. Com'r to Fairplay Office, Jan. 30, 1873.

126. Nor with a certificate of deposit. Secretary, Sept. 22, 1877.

127. Although under the law and regulations notice of application should be posted both upon a lode claim and a mill site embraced in one application for patent, where by oversight notice was not posted on the

mill site, the entry may be passed to patent. John W. Bailey and Grand View M. & Sm. Co., 3 L. D. 386. But see: An entry of a lode and mill site defective in that notice of application for patent was not posted upon the mill site may be referred to the Board of Equitable Adjudication. New York Lode and Mill Site, 5 L. D. 513.

128. Where by a typographical error the line connecting the claim with a public survey corner was published as 2552.2 feet in length, instead of 2252.2 feet, the mineral

entry may be referred to the Board of Equitable Adjudication. Newport Lode, 6 L. D. 546.

129. Where by error in the survey of a mining claim the line connecting the claim was so erroneous as to place the claim about half a mile from its true position, it was held that the mineral entry should be referred to the Board of Equitable Adjudication without requiring republication of notice of application. Buena Vista Lode, 6 L. D. 646; Veta Grande Lode, 6 L. D. 718.

public surveys or a United States mineral monument. Mimbres M. Co., 8 L. D. 457.

133. A notice of application for a mineral patent that fails to connect the claim with the public surveys or a United States minallowed on such notice may not be referred eral monument is insufficient, and an entry to the Board of Equitable Adjudication in the presence of a protest of persons alleging adverse claims, but republication of notice will

be required. Nil Desperandum Placer, 10 L. D.

198.

134. Where the notices of application for patent were sufficiently definite in the matter of description of the claim to cause an adverse claim to be filed, republication of notice will not be required because of an error in the survey of ten degrees in the course and three chains in the length of the line connecting the survey of the claim with a corner of the public surveys, but the entry may be referred to the Board of Equitable

Adjudication. Walter C. Childs, 10 L. D. 173.

135. A mineral entry may be referred for confirmation to the Board of Equitable Adjudication, where the locus of the claim was not shown in the published notice by a line connecting the claim with the public surveys. Silver King Quartz Mine, 11 L. D. 234.

136. Claimant who has published a notice of application for patent may not, by relinquishment, give to a claimant of a conflicting claim the right to enter the conflict. without publication. Com'r to Pueblo Office, Jan. 17, 1896, In re Providence Lode. Contra, Com'r to Glenwood Springs Office, July 23, 1896, Big Chief Lode (special case).

130. A mineral entry may be referred to the Board of Equitable Adjudication where posting of plat and notice of application for patent was not made on the claim owing to inaccessibility and danger of snow slides, but in a conspicuous place on an adjoining claim.line connecting the claim with a corner of Rowena Lode, 7 L. D. 477.

131. Where an entry is defective in that proper posting of notice of application and plat upon the claim is not shown, the claimant should be allowed to give new notice by publication and posting. Cornell Lode, 6 L. D. 717.

137. A mineral entry may be passed to patent notwithstanding the fact that the

the public survey is incorrectly given in the published notice of application for patent as 822.42 feet instead of 622.42 feet, where a line connecting the claim with a corner of the official survey of another claim was correctly stated in said notice. Departmental decision of May 20, 1896, in case of Alsa R. Lode; French Lode, 22 L. D. 675.

132. Any defect in the published notice of application for a mineral patent is chargeable 138. Where, in the published notice of apto the Register, whose duty it is to prepare | plication for patent, the applicant excludes,

"without waiver of rights," the ground in conflict with another claim, he cannot thereafter embrace said conflict in his entry without giving due notice of application for said conflict in the usual manner. Departmental decision of June 18, 1896, In re Cantick Lode.

139. The legality of posting of notice of application for patent, upon which entry has been allowed, cannot be questioned in an action at law. Aurora Hill Cons. M. Co. v. 85 M. Co., 12 Sawy. 355; 34 Fed. Rep. 515; 15 Mor. Min. Rep. 581.

140. No application will be received or entry allowed which embraces more than one lode location. Circular, June 8, 1883. (Overruled by Good Return M. Co., 4 L. D. 221.)

141. An application for patent and entry may embrace any number of contiguous mining locations owned in common. St. Louis Sm. Co. v. Kemp, 104 U. S. 636; 11 Mor. Min. Rep. 673; Good Return M. Co., 4 L. D. 221; Champion M. Co., 4 L. D. 362.

142. Where separate applications and entries are made for the several locations surveyed as one claim, the claimant may file a new application for the consolidated claim and make a new entry therefor, nunc pro tunc. F. A. Williams, 15 L. D. 532.

shaft on the line between the two locations will be canceled. Poplar Creek Con. Qtz. Mine, 16 L. D. 1.

149. Suit may be brought to quiet title on ground of fraud after a mineral entry has been made. Lee v. Justice M. Co., 29 Pac. Rep. 1020.

150. An applicant for a placer patent who has given due notice thereof and made entry may maintain a suit to quiet title against one claiming under a conflicting lode location. Dahl v. Raunheim, 132 U. S. 260.

151. A mining location in Alabama made prior to March 3, 1883, and properly maintained, entitles the locator to make entry thereof on due compliance with law, notwithstanding the provision of the act of that date (22 Stat. 487) providing that lands in Alabama should be disposed of only as agricultural lands. Cordell Placer, 4 L. D. 476.

152. The validity of an entry depends upon facts existing when the entry was made, and not upon anything done or to be done afterward. Secretary, March 4, 1879.

153. Discovery and appropriation are recognized as the source of title to mining claims, and development by working as the condition of continued ownership, until issuance of patent there for. (Entry of the claim and payment for the land.) Erhardt v. Boaro, 113 U. S. 527; 2 McCrary, 141; 1 Mor. Min. Rep.

452.

143. An entry and patent for a placer mining claim may embrace inore than one hundred and sixty acres. St. Louis Sm. Co. v. Kemp, 104 U. S. 636; 11 Mor. Min. Rep. 673. 154. Failure to perform annual expendi144. There is no limitation as to the num-ture upon a claim up to date of entry will ber of locations nor as to the area which may be embraced in a mineral entry. Com'r to J. A. Cockrum, June 8, 1893.

145. A lode claim intersected by an excluded placer must be restricted, upon entry, to that one of its non-contiguous parts on which is situated the discovery. Andromeda Lode, 13 L. D. 146; Silver Queen Lode, 16 L. D.

186.

subject the claim to relocation even after application for patent and publication of notice thereof. Sweeney v. Wilson, 10 L. D. 157.

155. Where a claim has been abandoned after publication of notice of application therefor, and then relocated by a stranger, and subsequently entered by and patented to the applicant, the patentee will be de

senting opinion.) South End M. Co. v. Tinney, 35 Pac. Rep. 89.

146. If the presumed line of the lode is in-clared trustee for the relocator. (Strong disterrupted by a tract excluded as non-mineral, the lode claimant may not embrace the noncontiguous portion of his lode in one mineral entry. Bi-metallic M. Co., 15 L. D. 309.

147. Entry should not be allowed for a lode claim made non-contiguous by exclusion of a placer claim. Apple Blossom Placer v. Cora Lee Lode, 21 L. D. 438.

148. A mineral entry of two locations based on one discovery of mineral in a discovery

156. Before making a mineral entry the claimant must show performance of assessment work on his claim or resumption of work thereon. Circular, Dec. 14, 1885, 4 L. D. 374.

157. The failure of an applicant to perform annual labor on his claim between the dates of application for patent and of entry

will subject the claim to relocation. McNeil | head of 'known mines,' there should be upon v. Pace, 3 L. D. 267.

158. After application for patent and publication of notice thereof, and before entry, a claim may be relocated for abandonment, and upon a showing of such abandonment and relocation the application will be canceled if no adverse claim, or suit based on an adverse claim, is pending against said application. Continental G. & S. M. Co. v. Gage, 10 L. D. 534.

159. Annual expenditure must be made on a mining claim up to the date of entry to prevent the relocation thereof for forfeiture, and the fact that large expenditures have

been made will not prevent such relocation, even though the applicant thought he had made entry. Ferguson v. Belvoir M. & M. Co., 14 L. D. 43.

160. One desiring to apply for a mineral patent for land covered by an existing mineral application may secure its cancellation by proving abandonment of the claim applied for, at a hearing at which the applicant is a party. Moylan C. Fox, 2 L. D. 766.

161. Annual expenditures are not required upon a mining claim after the claim has been paid for and entered. Benson M. & Sm. Co. v. Alta M. & Sin. Co., 145 U. S. 428; Alta M. & Sm. Co. v. Benson M. & Sm. Co., 16 Pac. Rep. 565; Aurora Hill Cons. M. Co. v. 85 M. Co., 12 Sawy. 355; 34 Fed. Rep. 515; 15 Mor. Min. Rep. 581; Deno v. Griffin, 20 Nev. 249; 20 Pac. Rep. 308; F. P. Harrison, 2 L. D. 787; Smith v. Van Clief, 5 C. L. O. 114.

162. A corporation, applicant for mining patent, must show compliance with local requirements in the matter of filing its articles of incorporation with the proper officer; but if such evidence is on file in one entry, reference may be made thereto in subsequent entries in lieu of again furnishing the same. Alta Mill Site, 8 L. D. 195; Alta Mill Site (on review), 9 L. D. 48.

163. To be reserved from entry under the agricultural land laws and from patent issued under said laws, land must have been known at the time of sale (entry) to be valuable for its minerals. A discovery of its mineral character subsequent to that date cannot affect the title. Deffeback v. Hawke, 115 U. S. 392.

164. "To constitute the exemption contemplated by the pre-emption act under the

the land ascertained coal deposits of such an extent and value as to make the land more valuable to be worked as a coal mine, under the conditions existing at the time, than for merely agricultural purposes. . . . A change in the conditions occurring subsequently to the sale, whereby new discoveries are made, or by means whereof it may become profitable to work the veins as mines, cannot affect the title as it passed at the time of the sale. The question must be determined according to the facts in existence at the time of the sale. If upon the premises at that time there were not 'known mines,' capable of being profitably worked for their product, so as to make the land more valuable for min

ing than for agriculture, a title to them ac quired under the pre-emption act cannot be successfully assailed." Colorado Coal & Iron Co. v. United States, 123 U. S. 307.

165. To be excepted from an agricultural entry, lands must be known, at date of entry, "to be so valuable for their minerals as to justify expenditure for their extracting." Davis' Adm'r v. Weibbold, 139 U. S. 507; S. C., 7 Mont. 107.

166. To be excepted from agricultural patent, land must have been known to be more valuable for mineral at date of agricultural entry. Development of mineral after entry is immaterial. Hunt v. Steese, 75 Cal. 620; 17 Pac. Rep. 920. (See S. C., 3 Wall. 304.) Boggs v. Merced Mining Co., 14 Cal. 279; 10 Mor. Min. Rep. 334; United States v. Reed, 12 Sawy. 99; 28 Fed. Rep. 486.

167. Mineral land, to be excepted from an agricultural patent, must have been known to be such at date of agricultural claimaint's entry and payment for the land. Pacific Coast M. & M. Co. v. Spargo, 8 Sawy. 645; 16 Fed. Rep. 348.

168. To be excepted from a final homestead entry as mineral, land must have been known, at date of such entry, to be mineral in character and more valuable therefor than for agricultural purposes. Nicholas Abercrombie, 6 L. D. 393.

169. To defeat a final homestead entry a mineral contestant must show that, at date of such entry, the land was known to be more valuable for mining than for agricultural purposes. Creswell M. Co. v. Johnson, 8 L. D.

440.

ENTRY, III.

170. To be excepted from a pre-emption entry as mineral, land must be known to be such at date of the agricultural entry. A discovery of mineral after pre-emption entry of the land would not defeat the pre-emption entry. Harnish v. Wallace, 13 L. D. 108.

171. The rights of an agricultural claimant will not be affected by discovery of mineral after final agricultural entry. Arthur v. Earle, 21 L. D. 92.

172. A discovery of the mineral character of land embraced in an original homestead entry will defeat the entry. Dickinson v. Capen, 14 L. D. 426.

173. The character of land (whether mineral or non-mineral) embraced in a homestead claim may be questioned up to the date of final entry. A discovery of its mineral character between submission of defective final proof and date of final entry will defeat the homestead. Spratt v. Edwards, 15 L. D. 290.

174. The fact that land contains some gold will not except it from entry under the agricultural land laws if it is more valuable for agricultural than for mining purposes. United States v. Reed, 12 Sawy. 99; 28 Fed. Rep. 486.

175. Lands in Florida claimed prior to April 1, 1890, under the homestead or preemption laws, and not known to be valuable for phosphate deposits at date of such claim, may be entered under such laws notwithstanding a subsequent discovery of such deposits. (Act of October 1, 1890, 26 Stat. 663.) Gary v. Todd, 18 L. D. 58.

176. An agricultural entry may embrace non-contiguous tracts where the original claim was for contiguous lands, subsequently separated by exclusion of mineral lands. McChrystal v. Eureka Town Site, 21 L. D. 478.

177. Upon a sufficient showing to the effect that a lode applied for, within a patented town site, was known to be valuable for its minerals at date of the town site entry, the Department may order an investigation with a view to the recommendation of suit to vacate the town site patent to the extent of the conflict with such lode. Thomas J. Laney, 9 L. D. 83; Plymouth Lode, 12 L D. 513; Protector Lode, 12 L. D. 662; Pacific Slope Lode, 12 L. D. 686.

178. As known mines and valid mining claims are excepted from acquisition under the town site laws, if it is shown that a lode

was known to be valuable for mineral at date
of a town site entry, the Land Department
will issue a patent for such lode. Com'r to
Denver Office, Nov. 16, 1895, Antediluvian
Lode. (Following the principle laid down in
the South Star Lode, 20 L. D. 204.)

179. If a lode was known to exist at date of town site patent (entry) it is excepted from the town site patent. Talbott v. King, 6 Mont. 76; 9 Pac. Rep. 434.

180. A town site entry and patent are "inoperative as to all lands known at the time to be valuable for their mineral, or discovered to be such before their occupation or improvement for residence or business under the town site title." Deffeback v. Hawke, 115 U. S. 392; W. A. Simmons, 7 L. D. 283.

181. A town site entry is inoperative as against land within its limits of known mineral value. Deffeback v. Hawke, 115 U. S 392; Pierce v. Sparks, 22 N. W. Rep. 491; Sparks v. Pierce, 115 U. S. 408.

182. A lode to be excepted from a town site patent need not have been located at date of town site entry. It is excepted if known. Richards v. Dower, 73 Cal. 477; 15 Pac. Rep. 105.

183. Where a mining claim is located upon land afterwards entered as a town site, the prior issuance of the town site patent does not affect the mining location, since the mining patent, when issued, takes effect from the date of the location of the claim by relation. Chambers v. Jones, 17 Mont. 156.

184. Land not known to be mineral at date of town site entry passes by town site patent. Tombstone Town Site Case, 15 Pac. Rep. 26,

185. Land covered by a town site patent may not be entered under the mineral land laws because discovered after the town site entry to be valuable for mineral. Thomas J. Laney, 9 L. D. 83.

186. The occupation of land for town site purposes cannot withdraw it from location and entry under the mineral land laws, if it is valuable for mineral contained. Deffeback v. Hawke, 115 U. S. 392; Sparks v. Pierce, 115 U. S. 408.

187. The occupancy of land for town site purposes is no bar to the entry of the same under the mineral land laws, if it is mineral and belongs to the United States. J. D. Rankin, 7 L. D. 411; Dotson v. Arnold, 8 L. D. 439.

188. Mere occupation of land for residence | at a hearing that the lode was known at date

or business purposes by those who have taken no steps to acquire government title will not reserve land from mineral entry. O'Keefe v. Cannon, 52 Fed. Rep. 898.

189. Mere occupation of mineral lands for residence purposes will not except it from entry under the mineral land laws. Ferrell v. Hoge, 18 L. D. 81.

190. Occupancy of land as a mining camp, not under any law, will not reserve land from homestead entry. Raymond v. Redifer's Heirs,

21 L. D. 228.

191. A town site entry may embrace mineral land, the rights of miners being protected by section 2386, United States Revised Statutes. Rico Town Site, 1 L. D. 556.

192. A miner has no right to run a tunnel through a non-mineral portion of a town lot to work a lode that was known to exist at

date of town site entry, though he may have the right to work the mine. Richards v. Dower, 73 Cal. 477; 15 Pac. Rep. 105.

193. Where land is returned as mineral in

character by the United States Surveyor General, and is entered by a homestead claimant who files his non-mineral affidavit, an

of placer application, with a view to the recommendation of suit to vacate patent for the placer claim. Rebel Lode, 12 L. D. 683. (Modified in South Star Lode, 20 L. D. 204.)

198. A lode to be excepted from a placer entry must have been known at date of the application for placer patent. War Dance Lode v. Church Placer, 1 L. D. 549.

199. A hearing to determine the mineral or non-mineral character of land should not

be ordered in the absence of an application to enter it. Central Pacific R. R. Co., 9 L. D. 613.

200. An employee of the Surveyor General's office may not make entry of public land. Herbert McMicken, 10 L. D. 97.

201. A United States Deputy Mineral Surveyor may make a mineral entry of land within the district for which he is appointed, but in such case he should not act in an official capacity, but simply as a claimant. Denison & Willits, 11 C. L O. 261; Lock Lode, 6 L. D. 105.

under contract to survey public land for the 202. A Deputy United States Surveyor, government, is prohibited by section 452,

affidavit of a mineral claimant, alleging its United States Revised Statutes, from making an entry of public land. Muller v. Coleman, 18 L. D. 394.

mineral character, will offset the agricultural claimant's affidavit, and place the burden of proving the non-mineral character upon him. Dickinson v. Capen, 14 L. D. 426.

194. One claiming the right to enter land under the act of June 3, 1878 (20 Stat. 89) [Timber and Stone Act], has the burden of proving the land to be properly subject to entry under said act. Smith v. Buckley, 15 L. D. 321.

203. An entry of public lands may not be made in the interest of the local land officers

Departmental decision of June 23, 1879.

204. A special agent of the land office may not make an entry of public lands. (Sec. 452, U. S. Rev. Stat.) Walker v. Prosser, 18 L. D.

425.

205. An entry of public lands by an alien 195. Where a mineral entry has been al- who has not declared his intention to become lowed upon a satisfactory showing of the a citizen is not void but voidable. Ole O. mineral character of the land, a hearing will Krogstad, 4 L. D. 564; Jacob H. Edens, 7 L D. not be ordered on the protest of an agricult-229; Paul O. Brewster, 7 L D. 471; Leary v. ural claimant unless it be alleged that the Manuel, 12 L. D. 345. land was agricultural in character at date of filing of mineral application for patent. Houghton v. McDermott, 15 L. D. 509.

196. Preference right of entry will be accorded an agricultural contestant who secures the cancellation of a mineral entry because of the non-mineral character of the land. Dornen v. Vaughn, 16 L. D. 8.

197. The entry of a lode claim. conflicting with a patented placer, may be suspended to allow the lode claimant opportunity to show

206. A mineral entry made by an alien is voidable but not void, and while of record segregates the land. Leary v. Manuel, 12 | L. D. 345.

207. A mineral entry made by a citizen as trustee for an alien corporation will be canceled. Capricorn Placer, 10 L. D. 641.

208. A mineral entry made by a citizen for the benefit of an alien corporation is illegal and will be canceled. Hook v. Latham, 11 L. D. 425.

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