Mr. GRAY. And future damages for access and egress for working below the highways or above the highways.

Mr. GOLDY. That would be an improvement, and would certainly be contemplated by the statement I made.

Mr. STANFIELD. Do I understand that is reserved only so far as mining claims, other mines, that the right-of-way be reserved for only that purpose? What about other interests that might be affected?

Mr. GOLDY. My purpose was to reserve the right-of-way for the Federal Government or any of its licensees or permittees. If that wasn't clear I'm glad to clarify it. The problem applies primarily, I might say, to permittees of the Government: grazing, livestock, timber, and so forth. I think we've got some pretty tough drafting problems here; I think we've reached a consensus of what we're in favor of in principle.

Now, I'd like to turn to, you might say, the meat of the coconut. The question has just been raised with me as to whether it was the consensus here that a similar reservation be included in patented mining claims, that is, in a case where a claim is patented. As I indicated, in every instance where the Government has its lands patented such a reservation is included, and my own inclination would be that a similar reservation in the same circumstances go into patented mining claims. Is there any disagreement to that?

Mr. EBY. A patented mining claim, you can condemn a right-ofway across, so there's no need to include it; the moment it comes into individual ownership the State can do anything with it.

Mr. HARMON. I think if that was worded that prior to the time a mining claim goes to patent the agencies having jurisdiction over the land be given an opportunity to determine whether a right-of-way is needed across that land, and if so, that agency be required to make the survey so that the exact location can be recorded and reserved at the time it passes to patent.

Mr. GOLDY. I'd like to know from the lawyers, is there anything necessarily in the mining law now that precludes the Government from doing in the case of a mining patent what it does in the case of a patent for land exchange? Isn't it a matter of governmental practice?

Mr. NETZORG. The provisions in the law for reservations which can be included in a patent describe the extent to which the Secretary can go, and generally the type of patent to which those laws would operate.

Mr. GOLDY. Now, is there any objection to giving the Secretary that type of authority to indicate before a claim goes to patent where a right-of-way might be required by the Federal Government, and reserving it in that condition in the same way it does in the instance of all other patents which the Federal Government issues?

Mr. McCONNELL. It seems to me like if a right-of-way can be condemned across a patented claim, that's enough. I don't believe that any agency should have the privilege of saying in advance that they may want a certain section of the claim which incidentally the claim owner himself might want. It seems to me like it should be on a condemnation proceeding only.

Mr. GOLDY. Any other comments? Well, I'd say at least we don't have a consensus on this point. Mr. McConnell feels that there ought to be condemnation proceedings. I don't think this is as serious a

FIGURE 20.-Tungsten and antimony mine with antimony smelter and landing field, Bradley Mining Co., Stibnite, Idaho, 85 miles and over through mountain ranges from railroad shipping point at Cascade, Idaho.

problem as the first one we've already agreed on, because as indicated, there is an out in the form of condemnation.

Mr. HARMON. I'm not sure but what something of that description may be needed. In some cases we have existing roads. Well, now, if the law doesn't permit reservation of that road which already crosses the claim, the public equity there should be protected. It's an existing road, you see, and a claim is slapped down on top of it. The law doesn't permit that.

Mr. GOLDY. Let me ask you this, Mr. McConnell; do you think in a situation where the public has a road, let's say a forest road, built with public funds, and subsequent to the building of the road a claimant puts a mining claim down on it, that the Government should have to buy back its road through condemnation proceedings?

Mr. McCONNELL. No, frankly that part doesn't sound quite reasonable; I was thinking primarily in more or less untimbered territory that no one should have the right to say "I want to reserve this section of your claim for future use.

Mr. WOLFE. We have encountered a situation of that sort on the Wenatchee Forest, and the ruling there was that a mining claim could not include the right-of-way for an existing road. If the road is there first it takes precedence.

Mr. GOLDY. And whose ruling was that?

Mr. WOLFE. Solicitor, Department of Agriculture.

Mr. EBY. That's a case of adverse possession, is it not, that hasn't been disputed, you've got the right.

Mr. GOLDY. We've had quite a few instances of claims filed on roads, but we have been able to get all those claims adversed.

Mr. DESOUZA. In answer to this question, I would state the Supreme Court of the United States has held that where a right-of-way is acquired across unappropriated public land, under the statute of, I think it's 1866, the road relates back to that date, and it cannot be diverted by any subsequent homestead or any subsequent filing. Mr. NETZORG. That's in the case of public roads, is it not?

Mr. DESOUZA. That's what I am speaking of, public roads, yes, sir. Congressman WHITE. Mr. Chairman, I think you should include in the law the provision already now in the homestead law and these reclamation projects, and I find it running all through the law or the authorization for patents, the right of the Government to reserve the right-of-way for canals and roads.,

Mr. GOLDY. That was precisely what we were suggesting, Congressman, that a similar provision be put in these patents. Mr. McConnell objected and said he thought that shouldn't be included in a mining patent, that a mining patent is different.

Congressman WHITE. I don't say that I advocate that, but that's the solution.

Mr. McCONNELL. Would someone explain to us about this homestead rule, just exactly what that does?

Congressman WHITE. The language in a patent under these reclamation projects, a man goes in and acquires a piece of land from the Government, the language in the patent gives him by grant all the land that's embraced in his tract, reserving the right to the Government for rights-of-way for roads, canals, and things of that kind. I don't know the complete language, but I could lay my hands

on one of the patent forms immediately if I was in Washington. I've had it brought up in the committee time after time, particularly the reclamation committee, where they went in after the man had improved his place, the Government has come in and taken advantage of the provision or reservation in his deed, that run with the deed, so they can enter and put a road across his land, or a canal. The trouble in the reclamation, it's mostly ditches or canals.

Mr. GOLDY. Let me ask this: Is there any serious objection to having a similar type of provision with respect to mining patents, that you can see?

Mr. EBY. Make it general, and not too specific, something that covers everything, at the same time it don't get down to specify this, that or the other kind of a thing; make it broad.

Mr. GOLDY. My feeling is that the Congressman is 100 percent right. We've had long years of experience with the other laws, and to my knowledge they've never created any serious problem. I don't see why we couldn't apply it to this situation, which is very similar. Is that generally agreed upon, then?

Well, if so, let us go on to what I think is the $64 problem, or the tough one for the conference. In this connection let me outline what I think are the two major items for us to devote the rest of today's discussion to; I suspect to really solve these problems might take a lot more than the rest of today. The two big questions we have up before us that we haven't tackled yet today-and I think most of you noticed I deliberately picked out the problems first I thought we'd be most likely to reach a solution or agreement on-the two problems yet to be discussed are these: One is the problem spelled out yesterday by the nonmining representatives here of what they regard as the abuses or loopholes in the mining laws wherein individuals are able to get control of portions of the public lands for nonmining purposes, and their desire for some protection against that type of abuse, and one type of suggestion, the one that the Bureau of Land Management has put out-I might say it's only a part of a total program on which we have agreed on part, but part of the problem also, in the eyes of the Bureau of Land Management and other Government agencies-would require some additional legislative measures for the correction of abuses.

The other problem, and somewhat related, is the problem which the mining industry is primarily concerned about, and that is the need for some additional protection for investments in subsurface exploration.

You might say "How are the two things related?" Well, they're related in this way: We think that the mining industry needs protection to go ahead and invest in subsurface exploration. We think that the requirements for going to patent in those instances ought to be relaxed, but we think that it would be impossible to reach an agreement on that type of provision which the mining industry needs if it meant making it easier to patent mining claims, without solving at the same time the problem of claims filed for nonmining purposes. In other words, you have trouble today with the existing requirements of a valid discovery for patenting mining claims; if you relaxed the existing provisions and made it easier to patent areas and do it, let's say, on geological inference or geophysical exploration-you can't