Sec. 2337. [Patents for non-mineral lands, etc.] Where non-mineral land not contiguous to the vein or lode is used or occupied by the proprietor of such vein or lode for mining or milling purposes, such non-adjacent surface-ground may be embraced and included in an application for a patent for such vein or lode, and the same may be patented therewith, subject to the same preliminary requirements as to survey and notice as are applicable to veins or lodes; but no location hereafter made of such non-adjacent land shall exceed five acres, and payment for the same must be made at the same rate as fixed by this chapter for the superficies of the lode. The owner of a quartz-mill or reduction-works, not owning a mine in connection therewith, may also receive a patent for his mill-site, as provided in this section. [R. S.] Act of May 10, 1872, ch. 152, 17 Stat. L. 96. This section specifies two cases in which a patent to a mill site may be obtained, viz.: 1. Where nonmineral land not contiguous to the vein or lode is used or occupied by the proprietor of such vein or lode for mining or milling purposes. 2. The owner of a quartz mill or reduction works not owning a mine in connection therewith may also receive a patent for his mill site. Hartman v. Smith, (1887) 7 Mont. 27. District rules and acts of a territorial legislature which provide for the location of mill sites without respect to the character of the land upon which they might be located must yield to the Act of Congress in so far as they relate to the location of such sites upon mineral land. Cleary v. Skiffich, (1901) 28 Colo. 371. An entry for the purpose of establishing a mill site is permissible only on nonmineral land. Burns v. Clark, (1901) 133 Cal. 637. See also Cleary v. Skiffich, (1901) 28 Colo. 367. The application for a mill site which does not embrace an application for any mine noncontiguous thereto, nor claim that the applicant is "the owner of a quartz mill or reduction works, not owning a mine in connection therewith," is without merit. Hamburg Min. Co. v. Stephenson, (1883) 17 Nev. 460. "For mining or milling purposes." —The statute does not mention any particular kind of mining purpose for which it shall be used; and therefore if used in good faith for any mining purpose at all in connection with the quartz-lode mining claim such use would be within the meaning of the statute. It is certainly not intended that it shall be used for such work as is done upon the mine itself; for the land must be non-mineral and not adjacent to the mining claim. We cannot say under this statute what shall be the extent of the use, whether much or little, or the particular character of the use. The phrase 'mining purposes' is very comprehensive, and may include any reasonable use for mining purposes which the quartz-lode mining claim may require for its proper working and de velopment. This may be very little or it may be a great deal. The locator of a quartz-lode mining claim is required to do only a hundred dollars' worth of work each year until he obtains a patent therefor. But if he does only this amount, and uses the mill site in connection therewith, is not this the use of the mill site for a mining purpose in connection with the mine? Who shall prescribe what shall be the kind and extent of the use under this statute, so long as it is used in good faith, in connection with the mining claim, for a mining purpose?" Hartman v Smith, (1887) 7 Mont. 28. What constitutes the use of land as a mill site for "mining and milling purposes" so as to entitle a party to a patent is a mixed question of law and fact. Silver Peak Mines r. Valcalda, (1897) 79 Fed. Rep. 890. All that the law requires is a reasonable use and occupation of the nonadjacent tract for mining purposes in connection with the mining claim. Hartman v. Smith, (1887) 7 Mont. 29. Mill site is reserved from sale under section 2392, R. S. By requiring the mill site to be included in the application for the patent for the vein or lode, and that the same preliminary steps as to the survey and notice shall be had as are applicable to veins or lodes, and that it shall be paid for at the same rate per acre as the mining claim, and may be patented with the vein or lode to which it is appurtenant, the statute recognizes the mill site as a mining possession and it is therefore comprehended within section 2392, R. S., and is reserved from sale. Hartman v. Smith, (1887) 7 Mont. 29. Sec. 2338. [What conditions of sale may be made by local legislature.] As a condition of sale, in the absence of necessary legislation by Congress, the local legislature of any State or Territory may provide rules for working mines, involving easements, drainage, and other necessary means to their complete development; and those conditions shall be fully expressed in the patent. [R. S.] Act of July 26, 1866, ch. 262, 14 Stat. L. 252. Conflicting with state constitution. - Un less a state statute imposing an easement upon mining claims is in accord with the state constitution it cannot be enforced in the state court. Congress cannot ignore state constitutions and authorize local legislatures, regardless of state constitutions, to pass laws providing rules for the working of mines and involving easements upon mineral lands. People v. District Ct., (1887) 11 Colo. 153. Use of navigable waters. This section is limited to the surrender of the right to provide rules for working mines, etc., to the state so far, and so far only, as the public lands are concerned; it has no relation to regulating commerce on the navigable waters of the state, and cannot authorize the use of navigable waters for the flow and deposit of mining débris. Woodruff v. North Bloomfield Gravel Min. Co., (1884) 18 Fed. Rep. 753. In North Bloomfield Gravel Min. Co. v. U. S., (C. C. A. 1898) 88 Fed. Rep. 664, it is suggested that the above case was the cause of the enactment of the Act of March 1, 1893, creating the California Débris Commission. It is an easement for the accidental requirement of drainage of quartz and drift mines that is contemplated by this section, and not a use of water for purposes of legitimate mining, such as the use of water for the purpose of carrying off the tailings, and the construction of the ditch to aid therein. Jacob v. Day, (1896) 111 Cal. 577. Easements for development, not discovery. - This section only provides for easements for the development of mines, and has no reference to tunnels located for the purpose of discovery. Calhoun Gold Min. Co. v. Ajax Gold Min. Co., (1901) 182 U. S. 509, affirming (1899) 27 Colo. 26. No reservation of right of way. By this section there is not reserved by the United States a right of way through a patented mining claim which may be taken and used by any other miner, whenever it becomes necessary to use it in working his mine, upon such terms and conditions as the state legislature may have prescribed. Amador Queen Min. Co. v. Dewitt, (1887) 73 Cal. 484. Sec. 2339. [Vested rights to use of water for mining, etc.- right of way for canals. See WATERS.] Sec. 2340. [Patents, pre-emptions, and homesteads subject to vested and accrued water-rights. See WATERS.] Sec. 2341. [Mineral lands in which no valuable mines are discovered open to homesteads.] Wherever, upon the lands heretofore designated as mineral lands, which have been excluded from survey and sale, there have been homesteads made by citizens of the United States, or persons who have declared their intention to become citizens, which homesteads have been made, improved, and used for agricultural purposes, and upon which there have been no valuable mines of gold, silver, cinnabar, or copper discovered, and which are properly. agricultural lands, the settlers or owners of such homesteads shall have a right of pre-emption thereto, and shall be entitled to purchase the same at the price of one dollar and twenty-five cents per acre, and in quantity not to exceed one hundred and sixty acres; or they may avail themselves of the provisions of chapter five of this Title, relating to "HOMESTEADS." [R. S.] Act of July 26, 1866, ch. 262, 14 Stat. L. 253. Sec. 2342. [Mineral lands how set apart as agricultural lands.] Upon the survey of the lands described in the preceding section, the Secretary of the Interior may designate and set apart such portions of the same as are clearly agricultural lands, which lands shall thereafter be subject to pre-emption and sale as other public lands, and be subject to all the laws and regulations applicable to the same. [R. S.] Act of July 26, 1866, ch. 262, 14 Stat. L. 253. Sec. 2343. [Additional land districts and officers, powers of the President to provide. See PUBLIC LANDS.] Sec. 2344. [Provisions of this chapter not to affect certain rights.] Nothing contained in this chapter shall be construed to impair, in any way, rights or interests in mining property acquired under existing laws; nor to affect the provisions of the act entitled "An act granting to A. Sutro the right of way and other privileges to aid in the construction of a draining and exploring tunnel to the Comstock lode, in the State of Nevada," approved July twentyfive, eighteen hundred and sixty-six. Act of July 9, 1870, ch. 235, 16 Stat. L. 218; Act of May 10, 1872, ch. 152, 17 Stat. L. 96. "This chapter," above referred to, is ch. 6 ("Mineral Lands and Mining Resources ") of title XXXII. ("Public Lands "), of the Revised Statutes. Parties who were not citizens and had not declared their intention to become such could not acquire any vested right to possession under the Act of 1866, and as a consequence had no rights to be preserved by the Act of 1872. Lee Doon v. Tesh, (1885) 68 Cal. 49. A certificate of purchase of a placer claim, issued before the Act of 1872 was passed, gave to the purchaser all the rights under the [R. S.] prior statute, including known veins or lodes, and a reservation in the patent issued after the Act of 1872 was passed, as to known lodes or claims, was unauthorized. Cranes Gulch Min. Co. v. Scherrer, (1901) 134 Cal. 350. Rights lost by failure to adverse. This section does not operate ex proprio vigore to reserve out of the grant of a patent other rights acquired prior to the passage of the Act of 1872, but secures the protection of such rights at the time of the issuance of the patent to those who avail themselves of the adverse procedure prescribed by the Act itself. See sections 2325 and 2326, R. S. Lee v. Stahl, (1889) 13 Colo. 178. See also Lee v. Stahl, (1886) 9 Colo. 211. Sec. 2345. [Mineral lands in certain States excepted.] The provisions of the preceding sections of this chapter shall not apply to the mineral lands situated in the States of Michigan, Wisconsin, and Minnesota, which are declared free and open to exploration and purchase, according to legal subdivisions, in like manner as before the tenth day of May, eighteen hundred and seventy-two. And And any bona-fide entries of such lands within the States named since the tenth day of May, eighteen hundred and seventy-two, may be patented without reference to any of the foregoing provisions of this chapter. Such lands shall be offered for public sale in the same manner, at the same minimum price, and under the same rights of pre-emption as other public lands. [R. S.] Act of Feb. 18, 1873, ch. 159, 17 Stat. L. 465. An act to exclude the States of Missouri and Kansas from the provisions of the act of Congress entitled "An act to promote the development of the mining resources of the United States" approved May tenth eighteen hundred and seventy-two. [Act of May 5, 1876, ch. 91, 19 Stat. L. 52.] [Mineral lands in Missouri and Kansas, disposed of as agricultural lands.] That within the States of Missouri and Kansas deposits of coal, iron, lead, or other mineral be, and they are hereby, excluded from the operation of the act entitled "An act to promote the development of mining resources of the United States" approved May tenth, eighteen hundred and seventy-two and all lands in said States shall be subject to disposal as agricultural lands. [19 Stat. L. 52.] The Act of May 10, 1872, ch. 152, referred to in the text, is incorporated into the Revised Statutes as sections 2319-2337. An act to exclude the public lands in Alabama from the operation of the laws relating to mineral lands. [Act of March 3, 1883, ch. 118, 22 Stat. L. 487.] [Mineral lands in Alabama disposed of as agricultural lands.] That within the State of Alabama all public lands, whether mineral or otherwise, shall be subject to disposal only as agricultural lands: Provided however, That all lands which have heretofore been reported to the General Land Office as con taining coal and iron shall first be offered at public sale. [Remainder of act relates to pending homestead entries.] This statute provides for the future disposition of public lands in Alabama; it ratifies no previous titles, however obtained. The [22 Stat. L. 487.] United States may recover lands fraudulently obtained and cancel patent. U. S. v. Pratt Coal, etc., Co., (1883) 18 Fed. Rep. 709. Sec. 2346. [Grants of lands to States or corporations not to include mineral lands.] No act passed at the first session of the Thirty-eighth Congress, granting lands to States or corporations to aid in the construction of roads or for other purposes, or to extend the time of grants made prior to the thirtieth day of January, eighteen hundred and sixty-five, shall be so construed as to embrace mineral lands, which in all cases are reserved exclusively to the United States, unless otherwise specially provided in the act or acts making the grant. [R. S.] Res. No. 10 of Jan. 30, 1865, 13 Stat. L. 567. See note under Act of Jan. 12, 1877, ch. 18, ante, p. 48. Reservation of minerals to the government. - In Barden v. Northern Pac. R. Co., (1894) 154 U. S. 312, an action for the possession of certain parcels of land containing veins or lodes of precious metals, claimed by the Northern Pac. R. Co. as parts of the land granted to it by an Act of Congress, the court said that the provisions of this section should be borne in mind when the statement is made, that there has been no reservation of mines or minerals to the government. See also Chicago Quartz Min. Co. v. Oliver, (1888) 75 Cal. 194, as to a patent issued to the Central Pacific Railroad Company. Sec. 2347. [Entry of coal-lands.] Every person above the age of twentyone years, who is a citizen of the United States, or who has declared his intention to become such, or any association of persons severally qualified as above, shall, upon application to the register of the proper land-office, have the right to enter, by legal subdivisions, any quantity of vacant coal-lands of the United States not otherwise appropriated or reserved by competent authority, not exceeding one hundred and sixty acres to such individual person, or three hundred and twenty acres to such association, upon payment to the receiver of not less than ten dollars per acre for such lands, where the same shall be situated more than fifteen miles from any completed railroad, and not less than twenty dollars per acre for such lands as shall be within fifteen miles of such road. [R. S.] Act of March 3, 1873, ch. 279, 17 Stat. L. 607. Extended to Alaska. The provisions of this section were extended to Alaska by Act of June 6, 1900, ch. 796, infra, p. 57. The provisions of this section and section 2258, R. S., relate to the classification and terms and mode of entry and sale of the coal lands excluded from pre-emption by the laws on that subject. Colorado Coal, etc., Co. v. U. S., (1887) 123 U. S. 325. Corporations are "associations of persons" within the meaning of the statute. U. S. v. Trinidad Coal, etc., Co., (1890) 137 U. S. 169. An attempt to acquire land pursuant to a scheme whereby the several tracts would be entered for the benefit of a corporation in the name of certain persons, its officers, stockholders, and employees, the title, when thus obtained, to be conveyed to the company, which should bear all the expenses attending the entries and purchases from the government, is within the prohibition of this and the following section. U. S. v. Trinidad Coal, etc., Co., (1890) 137 U. S. 166. Sec. 2348. [Pre-emption of coal-lands.] Any person or association of persons severally qualified, as above provided, who have opened and improved, or shall hereafter open and improve, any coal mine or mines upon the public lands, and shall be in actual possession of the same, shall be entitled to a preference-right of entry, under the preceding section, of the mines so opened and improved: Provided, That when any association of not less than four persons, severally qualified as above provided, shall have expended not less than five thousand dollars in working and improving any such mine or mines, such association may enter not exceeding six hundred and forty acres, including such mining improvements. [R. S.] Act of March 3, 1873, ch. 279, 17 Stat. L. 607. Extended to Alaska. See Act of June 6, 1900, ch. 796, infra, p. 57. Sec. 2349. [Pre-emption claims of coal-land to be presented within sixty days, etc.] All claims under the preceding section must be presented to the register of the proper land-district within sixty days after the date of actual possession and the commencement of improvements on the land, by the filing of a declaratory statement therefor; but when the township plat is not on file at the date of such improvement, filing must be made within sixty days from the receipt of such plat at the district office; and where the improvements shall have been made prior to the expiration of three months from the third day of March, eighteen hundred and seventy-three, sixty days from the expiration of such three months shall be allowed for the filing of a declaratory statement, and no sale under the provisions of this section shall be allowed until the expiration of six months from the third day of March, eighteen hundred and seventy-three. [R. S.] Act of March 3, 1873, ch. 279, 17 Stat. L. 607. See note to section 2347, supra. Extended to Alaska. See Act of June 6, 1900, ch. 796, infra, p. 57. The presumptions that all the preceding steps required by the law to the obtaining of a patent had been observed before its issue can be overthrown only by full proof to the contrary, clear, convincing, and unambiguous. The burden of producing these proofs and establishing a conclusion to which they are directed rests upon the government. Colorado Coal, etc., Co. v. U. S., (1887) 123 U. S. 317. False averments set out in an affidavit in support of pre-emption claims, and in the certificates issued thereon, as to settlements and improvements, when in fact there were no actual settlements and improvements, undoubtedly constitute a fraud upon the United States sufficient in equity as against the parties perpetrating it, or those who claim under them with notice of it, to justify the cancellation of the patents issued to them; but it is not such a fraud as prevents the passing of the legal title to the patents. It follows that to a bill in equity to cancel the patent upon these grounds alone the defense of a bona fide purchaser for value is perfect. Colorado Coal, etc., Co. v. U. S., (1887) 123 U. S. 313. Sec. 2350. [Only one entry allowed.] The three preceding sections shall be held to authorize only one entry by the same person or association of persons; and no association of persons any member of which shall have taken the benefit of such sections, either as an individual or as a member of any other association, shall enter or hold any other lands under the provisions thereof; and no member of any association which shall have taken the benefit of such sections shall enter or hold any other lands under their provisions; and all persons claiming under section twenty-three hundred and forty-eight shall be required to prove their respective rights and pay for the lands filed upon within one year from the time prescribed for filing their respective claims; and upon failure to file the proper notice, or to pay for the land within the required period, the same shall be subject to entry by any other qualified applicant. [R. S.] Act of March 3, 1873, ch. 279, 17 Stat. L. 607. Extended to Alaska.. - See Act of June 6, 1900, ch. 796, infra, p. 57. Sec. 2351. [Conflicting claim.] In case of conflicting claims upon coallands where the improvements shall be commenced, after the third day of March, eighteen hundred and seventy-three, priority of possession and improvement, followed by proper filing and continued good faith, shall determine the preference-right to purchase. And also where improvements have already been made prior to the third day of March, eighteen hundred and seventy-three, |