Mr. GOLDY. All right; in connection with unpatented mining claims; can we agree on that?

Mr. CALLAHAN. The Government is the only one in the way there; let them get out of the way. They can condemn a possessory right; it isn't any good where the Government won't get out of the way.

Mr. GOLDY. By and large we're only talking about where the Government is interested in getting access to some property of its own. The only thing we want is a clear right-of-way so our timber purchasers, our grazing lessees, the State highway department building a highway through there, cannot be held up and not have to pay tribute, shall we say, or payment of a fee to a mining claimant on an unpatented claim.

Mr. ROGER OSCARSON. Is it your understanding that if that rightof-way is reserved and is exercised that seriously interferes with the mining operation, that the mining operator would be in some way protected?

Mr. GOLDY. Now, what I'd like to know is what kind of protection do you think he needs and what kind of protection he ought to have?

Mr. ROGER OSCARSON. Well, you just heard from Mr. Gray and what happened in his case; obviously you don't want a major highway right between your bunker and mine portal.

Mr. GOLDY. Mr. Sever?

Mr. SEVER. My own idea is that the Government or its licensee, and it will be the licensee that will have to pay it, should be required, when the right-of-way is actually selected on the ground, to pay a reasonable compensation for surface improvements that it destroys, and also for the interference with use. I think that's no more than equitable. Our problem, possibly we should correct it under a State statute, but a general reservation of this kind with a right of damages for destruction of improvements actually put in is no more than just and what would be paid to the individual as a rule.

Mr. GOLDY. Now, if some such provision were written in as Mr. Sever suggests, would that take care of the problem you mention? Mr. ROGER OSCARSON. Far as I can see it would. I speak for myself only in this case.

Mr. CALLAHAN. There's always complications, usually the one that wants the right-of-way is going to pay more money than he thinks he should pay.

Mr. DESOUZA. It seems to me that the question of rights-of-way and power to condemn are not fundamentally answers to the particular problem. Now, speaking only for the State highway commission in Oregon and the authority vested in the commission we feel that with respect to State highways there is ample legal authority for condemnation against mining claims. If it's a patented claim of course there's fee-simple title the same as any other privately owned land. If it is an unpatented claim all the State can acquire is such possessory rights as the claimant may have. There's no title to the land itself acquired, and that must be acquired through the regular Government procedure. Now, the commission has no dispute with claimants on valid mining claims that in good faith are located for mining purposes. The highway commission expects to feel and does feel that it should pay a just compensation for anything taken in

connection with that claim. The vicious part of the whole proceeding is where claims are filed and it's obvious that they are filed for nonmining purposes, that they're devoted to auto camps, taverns, whatever you may want to call it. Now, the $100 a year that's required to be done for assessment work on a claim of that nature is a very, very small rental. As a matter of fact, the claimant can derive more profit from the surface use of the land than he ever could derive from destroying the surface use of that land for mining purposes. In other words, his revenue from minerals that he could expect to take from the land is much less than the annual value of the surface use is to him. To that extent such claims stifle valid mining development. Now, when the State highway commission, and I speak from the standpoint of the commission, comes to a claim of that nature the commission is faced with the necessity of dealing with the owner, of paying for improvements that have been loaded on that claim and that are in no wise connected with mining or the extraction of minerals from the soil. Now, it is the unwarranted use of these claims that brings up the serious condition and situation which must be met. If a right-of-way simply were to be reserved across the particular claim the State or any public authority possibly would have the right to go through that claim and take the necessary rights-of-way for its improvements. However, the owner of the claim or possessor of the claim might again have constructed very valuable improvements for nonmining purposes, and the situation again is faced that compensation must be made for loading it with improvements for purposes and uses not connected with mining activities or mineral benefits at all. The same is true as to camps along the rivers. The State of Oregon has a State parks department which is spending many thousands and many hundreds of thousands of dollars in acquiring, developing, and furnishing scenic places and recreational places for the people of the State of Oregon.

Now, as has been mentioned here, the Rogue River is plastered with mining claims from one end of the river to the other. If that were not the case those particular areas would be available to the people of the United States, all visitors, without any difficulty at all. The acquisition and development of substitute locations entails vast expenditures of public moneys. Now, I think our quarrel or our dispute is not with the legitimate miner or the legitimate taker of mining claims for mining purposes, but it is to devoting the claims to other uses under the guise of mining activities.

Mr. GOLDY. Mr. DeSouza, this is a question I want to address both to you and the representatives of the mining industry and Mr. Sever, who made his suggestion about compensation for any mining improvements that might be impaired by a road or right-of-way going through; do you think the problem you mention could be solved if the bill were worded in such a way as to provide that it would only be for mining improvements that an individual would receive compensation?

Mr. DESOUZA. I think possibly that would go a long way toward solving the problem, if a clear provision were written to the effect that if it was necessary to take any portion of that claim for public uses under the eminent-domain statute, the owner of the possessory right would not be entitled to compensation for improvements put on the land for uses foreign to mining development.

Congressman WHITE. What about where he put them on for mining development? I guess I must have been asleep on my rights, because I had an unpatented mining claim; I had a tunnel through very hard rock; I had buildings with blacksmith shop; I consulted with the Government highway engineer before I started the development, and put my building above the line of road, and when the road_came through it went right through my blacksmith shop and destroyed that, and left my tunnel unaccessible, about 30 feet overhead, and I couldn't do anything about it, and I always supposed that the unpatented mining claim was very, very inferior to a patented claim. I didn't think I had any rights at all, and said nothing; maybe I had a lot of rights, and should have collected a lot of damages; I don't know.

Mr. GOLDY. You should have consulted a lawyer.

Mr. DESOUZA. In answer to that question, if it is a question, I think all improvements validly and legitimately done to enhance the value of the claim as a mining claim, and not as some other or foreign commercial venture, are improvements that should be paid for and for which the owner of the claim should be entitled to compensation.

Congressman WHITE. I'm going to ask a question of the attorney. It develops that the Government-patented mining claims have the right of eminent domain. Is it the fact of the law that the holder of an unpatented mining claim has a right superior to a man holding a patented claim? It develops you can go in and cross a patented claim by condemnation, and it's proposed or suggested that if it's an unpatented claim you don't have that right. Now, is the right of an unpatented claim superior in that respect to the right or ownership of a patented claim?

Mr. NETZORG. I wouldn't want to say it was superior or inferior. I'd say it was different.

Congressman WHITE. I just want to pose that question, whether the right is superior to that of a patented claim.

Mr. NETZORG. I think it's different; since the unpatented claimant does not have the legal title, he has certain rights; I don't think he has rights as extensive.

Congressman WHITE. In other words, the owner of an unpatented claim can bar the Government from access, but the owner of a patented claim cannot; is that the situation?

Mr. NETZORG. I don't think anybody can bar the Government, whether he owns an office building or an unpatented mining claim.

Congressman WHITE. Then what's the issue; if you can go through the claim and use it? It's been suggested by some witnesses that when you come up to an unpatented claim the Government is barred; if you come to a patented claim you get a right-of-way and go across. According to that, the owner of the unpatented claim is superior to the patented claim. Would that be your interpretation of the law?

Mr. NETZORG. I wouldn't choose those words, Congressman. I'd say that the rights are different. When Mr. DeSouza takes his highway over an unpatented mining claim he has the equitable right of the mining owner to worry about, and he has the legal title of the United States to worry about.

DEVELOPMENTS OF THE SUNSHINE MINE

The record discloses that the mining claims that comprise the Sunshine mine were worked in a desultory manner for some years with small production by the original owners and lessees until a comprehensive development program was undertaken to explore and equip the property and mine the ore at depth.