to file their declaratory statements with the Register of the proper local land office, and make proof and payment within twelve months from the filing of such notice. If a land office has not been opened, or if the plat has not been returned to the local office, the settler will be required to file his notice with the Surveyor-General within six months after the survey in the field, and, upon the land office being opened, and the plat filed therein, to make his proof and payment at such office within twelve months thereafter.

2d. That where settlers on unsurveyed lands have already filed their declaratory statements with the Register of the proper land office, they will be required to make proof and payment within twelve months from and after the publication of this notice, and a failure to file and make proof and payment as specified herein will forfeit the claim.

3d. These rules will become operative, and be enforced in the several land districts from and after their publication for thirty days by the Register and Receiver, and a copy of the published notice will be forwarded for the information of this office.

Acknowledge date of receipt hereof.

Very respectfully, your ob't servant,

Jos. S. WILSON, Commissioner.

To Registers and Receivers U. S. Land Offices, and Surveyors-General of the United States.

APPENDIX TO TITLE V.

MINERAL LANDS AND MINING CLAIMS.

No. 292 B.

Right to follow lode when same "dips" under surface-ground of adjacent owner -decision under mining act of July 26th, 1866-right of courts in 6th section of act.

The adjoining claimants on a certain vein dipping at an angle of about 45°, bounded their surface-ground by dividing lines, which, in the progress of development, were found to intersect the vein at angles varying from right angles; the one on the side towards which the vein dipped bearing N. 251° W.

The claimant on the west side of the last named line applied for a patent under the act of Congress, approved July 26th, 1866; the other protesting and asking for a stay of proceedings under the 6th section of the act that his adverse interests might be adjusted in the courts.

From the papers filed by the contestant it appeared that no controversy existed as to the respective portions of the vein claimed by the parties, nor any substantial controversy as to the parcels of surface-ground respectively claimed, but the applicant for patent occupying on the side of the division line upon which it subtended the smaller angle relatively to the course and dip of the vein was discovered in the progress of penetrating the vein in depth, to have passed beyond this line and extracting ore on the east side of it from a portion of the vein vertically under the surface-ground of the contestant, which act, in the opinion of the latter, constituted a conflict of interest between himself and the applicant for patent, and formed the basis of his proceedings as an adverse claimant. He asserted no opposing claim as defined upon the surface, but simply an "under-ground

conflict," as he styled it. Apparently predicating it upon the common law maxim, "cujus est solum usque ad coelum et ad inferos.'

22

The case coming before the Commissioner of the General Land Office on an application from the United States District Land Officers for instructions, the following decision was rendered.

A conflict not involving surface-lines, but pertaining wholly to matters arising beneath the surface touching the appropriation of the vein in depth, cannot be adjudicated in the courts under the 6th section of the miningAct, for the reason that the controversy there contemplated, is one in which judicial decision would control the General Land Office in its subsequent action on the application for patent, and would lead to a modification of the grant one way or the other, so as to conform it to the decision of the court. But no such result could follow from the action of the court upon the question raised by the adverse claimants, because whatever might be determined there, the patent issued from this office would still grant "the right to follow the vein or lode with its dips and angles and variations to any depth, although it may enter the land adjoining," the mining Act authorizing the grant to be made in this form, and no decision of a legal tribunal can nullify this statutory requirement.

Most assuredly a decision producing no change in the description of the premises or the parties, can in no way control the grant contained in a patent, for all its other formal parts are statutory and beyond the power of the court.

An applicant for a patent under the Mining Act may include surfaceground lying on either or both sides of the vein as part of his claim, or he may apply for a patent for the vein alone. His rights upon the vein, and in working into it, are precisely the same, whatever may be the form of his surface-ground or whether he has any or none. His end lives, and the distance between them will be the same at all depths, as upon the surface, no matter whether the position of the vein is vertical or whether it dips at a less or greater angle. This results directly from the right granted to the miner by all the local mining customs as well as by the national mining act of following the vein with all its dips, angles, and variations, and the applicants and adverse claimants alike possess this privilege by the mining resolutions of Nevada County, California.

The congressional enactment adopts in this respect the provisions of the mining customs subordinating the rights of a patentee in respect to the surface-ground to the more important rights in respect to the vein, granting the right to follow the latter with all its dips, angles, and variations to any depth, although it may enter the land adjoining and requiring the adjoining land to be sold subject to this condition.

If the vein occupied by these claimants descended vertically into the earth, no controversy would arise between them, it is presumed, in respect to the descending boundary between their claims.

The line would be a perpendicular, and at the depth of a thousand feet the claimants would still measure from such perpendicular one thousand feet in one direction and two thousand in the other, as the extent of their respective claims at the bottom of the cavity made by extracting the ore. If then we suppose such cavity to have been already made, and that by a convulsion of nature the vein should be wrung from a vertical position to that of an angle, at which it now dips, the cavity would then in this last position represent such a one as these contestants are now authorized to make by extracting the ore from their respective portions to that depth, and the lines of such cavity would represent the lines they are now entitled to follow, either under the mining customs or the act of Congress.

If either party is guilty of trespass on the rights of the other, the courts are open to them for redress, either before or after the issuing of a patent, and such rights are neither abridged or enlarged by the patent. Letter of Commissioner WILSON to Register and Receiver at Sacramento, California, dated January 7th, 1870.

No. 293 B.

District mining regulations-validity and efficacy of State and Territorial mining laws-regulations passed at miners' meetings-force of construction of secs. 3 and 9 of mining act, July 26, 1866.

Referring to a letter enclosing the papers in the applications of the South Park G. & S. Mining Company, for patents on the "Orphan Boy," "Dr. Mary," and "Honey Comb" Lodes in Park County, Colorado, the following instructions are communicated:

The Orphan Boy Lode calls for 200 feet on the lode, with surface ground amounting in the aggregate to 184 acres of land.

The Dr. Mary calls for 2815.56 feet, with surface ground, and includes 145.34 acres.

The Honey Comb, 2999.70 feet on the lode, with surface ground aggregate to 155.82 acres.

It appears that the Company were informed that applicants in Colorado could not obtain title to more than 1400 feet on the vein, but they insisted that they were entitled to 3000 feet on the lode in each application, by the local regulations of Mosquito district, under which they claimed and that they held their claims without reference to territorial law, that they had never recognized the latter in holding and acquiring their mining claims, but had been in all things governed by the local customs. * * * *

In the first place it should be observed, however, that this office has never decided that an applicant in Colorado could, under any circumstances, obtain title to more than 1400 feet on the vein. The territorial act, fixing this limit, approved February 9, 1866, expressly restricts its operation to discoveries made after the passage of the act, and the General Land Office has never attempted to extend its provisions to a period prior to its enactment. On the contrary, a number of patents have been issued from claims in Colorado, for 1600 feet, under the act of March 10, 1864, which latter statute also affects only discoveries made after its enactment, and certainly if claims are presented here for patent based upon locations of a still earlier date, they will be tested, not by the enactment approved February 9, 1866, nor by the act of March 11, 1864, but by the regulations in force at the time the locations were made. * * * *

The proper subject of attention in this behalf, was the necessity of furnishing a duly certified record of the respective locations, with their proper dates, and a certified copy of regulations then in force in the district, authorizing such locations to be made. * * * *

It is true the act of Congress recognizes rights acquired under district mining regulations, as well as those acquired under territorial enactments, but it is also true that it does not take from territorial legislatures the power to provide these regulations, and make them uniform throughout the territory.

There were no local district customs in force in Montana when the

mining act was passed, the Legislature having adopted uniform regulations as early as 1864.

The State of Nevada had, in February, 1866, adopted a general law applicable to all counties except Storey, superseding all district mining customs, which, after the first Saturday of August, of that year, were to be considered as repealed and all mining regulations were to be in pursuance of the general act.

Colorado had legislated on the subject as early as 1861, and it is well known that other Territorial Legislatures had taken similar action before July 26, 1866.

Consequently, at the time the Congressional enactment was passed, most of the mining States and Territories had general regulations upon their statute books, applicable to all districts within their respectivel limits, California being, probably, the only one in which the local customs adopted at district meetings were still in full force.

It would be strange, therefore, to presume that the mining act ignored such statutory regulations, and recognized only the local district mining

customs.

It was for the purpose of embracing all these different regulations, whether enacted by legislatures or adopted at miners' meetings, that the act of Congress, in the 2d section, uses terms applicable to each, and including all, by providing that the diagram filed by the applicant, shall be so extended, laterally or otherwise, as to conform to the local " laws," customs," and "rules" of miners; the local laws referred to, being evidently the enactments of the State and Territorial Legislatures.

The 9th section is still more explicit as to the intention of Congress respecting local regulations, where it provides for maintaining and protecting vested rights to the use of water for mining, agricultural, manufacturing, or other purposes, whenever the same are recognized and acknowledged by the "local customs," "laws," and the "decisions of the Courts."

The truth is, the district customs adopted at miners' meetings, would be of no legal force except for the recognition given them by the Courts. and Legislatures of the different States and Territories. They were adopted as a matter of necessity to meet a condition of things for which no provision was found upon the statute books. But as the act of making rules which other persons are bound to obey, is an exercise of legislative power, which, in all law-abiding communities, can be derived only from the fundamental law-the constitutions of the States or organic acts of the Territories—and as these grant no such powers to a mere district meeting, it follows that the rules adopted by them would be wanting in legal effect, unless recognized and confirmed by the judicial and legislative powers; and that is just what has been done in mining States and Territories of the West, and in this way was derived the legal efficacy possessed by these district customs. It is folly, therefore, to assume that the intention of the mining act of Congress is to impart to such customs greater force than is given to them by the courts and Legislatures of the respective States and Territories. On the contrary, the framers of the act intended to recognize only such regulations in reference to possessory rights as had acquired the force of law through the action of the Courts. and legislative assemblies, and any other construction would introduce. into nearly every State and Territory two systems of mining regulations, and produce a conflict between the land department and the local courts and legislative bodies.

Park Mining Company introduced the proceedings of a miners' meet

ing held in the Mosquito district November 27, 1868, for the purpose of adopting rules "regulating claims in conformity to the mining laws of the United States."

The act of Congress was purposely made to conform to the local regulations existing at the time of its passage, and the Legislature of Colorado had, prior to the date of said meeting, at several successive sessions, provided regulations for Mosquito, and all other mining districts in the Territory, and that, consequently, the attempt of said meeting to provide mining regulations was contrary to the general law of Colorado, and that no rights could be acquired under its proceedings.

Unless district proceedings of a date earlier than March 11, 1864, can be produced, authorizing locations of such size as the Dr. Mary and Honey Comb, I cannot see how they can be sustained. Those sent up with the papers, purporting to have been adopted in June, 1861, limit claims to 100 feet on the lode, 25 feet on each side for surface ground, and prohibit locations of more than ten claims each way from discovery -in other words, 2100 feet. In July, 1862, these regulations were readopted, and all locations recorded for more than ten claims each way from discovery, were declared upon to pre-emption, and the person opening the same was to be entitled to all privileges of a new discoverer.

In none of these early proceedings is any authority found for locating claims of 3000 feet on the lode, nor of locating them 100 feet in width, nor for appropriating 150 acres of adjoining lands in addition thereto; and so far as appears from the papers in these cases, the only authority for all this, is to be found in the proceedings of the meeting above referred to, which was based upon a misconception, and had no power to act in the premises.

*

*

No rules adopted by miners' meetings after the Legislative Assembly had passed a general law upon the subject, will be recognized as valid by this office. * * * *

In order to obviate all grounds of complaint, it is deemed necessary to adhere to the rule of granting patents only on such claims in the several States and Territories as are authorized by regulations recognized as valid by their courts and legislative authorities. Letter of Commissioner WILSON to Register and Receiver at Foul Play, Colorado Territory, dated January 15, 1870.

No. 294 B.

Mill-sites on placer-mining ground aud lodes.-Grant of patents for. A communication has been received at this office requesting information on the following points:

1. Can a mill-site be obtained upon placer-mining ground where the same has not been worked out and abandoned?

2. Can a mill-site in connection with a lode which has been previously patented?

In explanation of the first inquiry the writer states that quartz mills are usually located in gulches in order to secure necessary water privileges, &c.; that these gulches are frequently not worked out, and, under the local usages of miners, other parties have the right to enter upon them for the purpose of mining, and it is in reference to a mill-site thus located that the first interrogatory applies; the mill owner, under the local cus