The General Land Office has always construed these limitations to mean that, after the twenty-sixth of July, 1866, no individual, in any district, could "locate" or "claim more than 200 feet on the course of any lode discovered thereafter, unless he was the discoverer, when he could take an extra claim of 200 feet, and that not more than 3,000 feet could thereafter be located or claimed upon any one vein by any association of persons, and that to locate 3,000 feet of such lode would require not less than fourteen bona fide locators to be associated together, each taking a claim of 200 feet, with 200 feet additional to the discoverer, or fifteen locators where they claim without regard to the discovery right.

In making these locations, the miners had the option of taking up and recording their claims either as segregated individual locations of 200 feet each, and working or disposing of them as such, or they could associate together and locate a number of these claims in common, provided the legal maximum of 3,000 feet was not exceeded after the twenty-sixth of July, 1866. The said statute of July 26, 1866, did not fix any amount of work or expenditure as necessary to hold a claim, but left that to be regulated by the miners themselves. Congress did, however, prescribe that an amount of not less than $1,000 should be expended on the claim, as one of the conditions precedent to obtaining a patent.

The mining statute of May 10, 1872, repeals said act of July 26, 1866, in part, and after its passage permits 1,500 linear feet to be located as one claim on a lode, which location may be made by an individual or by an association of persons jointly; but no lode claim located after the passage of said act of May 10, 1872, can exceed 1,500 feet, whether located by one or more persons.

The fifth section of said statute of 1872 provides, among other things, that—

"On each claim located after the passage of this act, and until a patent shall have been issued therefor, not less than one hundred dollars' worth of labor shall be performed, or improvements made during each year.”

And that

"On all claims located prior to the passage of this act, ten dollars worth of labor shall be performed or improvements made each year for each one hundred feet in length along the vein until a patent shall have been issued therefor; but where such claims are held in common, such expenditure may be made upon any one claim," etc.

The only interpretation this office has been able to give this language is, that a "claim" on a lode located subsequent to May 10, 1872, may be 1,500 feet and no more,

+

whether located by one or more persons, and that to hold such claim of 1,500 feet will require an annual expenditure of $100 thereon, and that on all lodes located prior to May 10, 1872, there must be an annual expenditure of not less than ten dollars in labor or improvements for each hundred feet so claimed along the lode, but that where a number of such claims of one hundred or two hundred feet each, as the case may be, upon the same lode are held in common by one or more persons, the aggregate amount necessary to hold all the claims so held in common on a lode, at the rate of ten dollars per hundred feet, may be expended upon any one claim thereon, or, in other words, at any one point on the lode so held in common; the words "where such claims are held in common, such expenditure may be made on any one claim," being construed to mean that where several of these individual locations made previous to May 10, 1872, upon the same lode, are held in common by one or more persons, the entire expenditure necessary to hold all the claims so held in common on such lode may be made upon any one claim thereon, but that expenditures made upon any one lode or claim, however great, can in no way be made to apply to other lodes claimed by the same parties.

In the case under consideration, the Helmick Silver Mining Company are the claimants of nine separate lodes, all of which it is their purpose to develop and improve by a mining tunnel now being run in order to intersect such lodes below the surface.

If this interpretation of the law is correct, work done and expenditures made in constructing a tunnel intended for the development and improvement of lodes will not satisfy the legal requirement as to expenditure as aforesaid; but such expenditure or labor must be made in good faith upon each lode claimed, otherwise the same will be subject to relocation by other parties, as provided by law.

As Mr. Douglas and those whom he represents entertain a different view of the law, I respectfully submit the question for the consideration and advice of the Head of the Department.

With great respect,

Your obedient servant,

WILLIS DRUMMOND, Commissioner.

DEPARTMENT OF THE INTERIOR,

WASHINGTON, D. C., 4th Sept., 1872.

'SIR: I return herewith the two letters addressed to your office by R. M. Douglas, Esq., of this city, in relation to the proper construction of the fifth section of the mining act of tenth May, 1872, and transmitted with your letter of the twenty-seventh ultimo.

The views set forth in your letter appear to me in entire consonance with the letter and spirit of the act, and are therefore approved.

I am, Sir, very respectfully,

Your obedient servant,

W. H. SMITH, Acting Secretary.

HON. WILLIS DRUMMOND, Com'r General Land Office.

Diamond-Producing Lands may be Entered and Patented under the Mining Acts.

DEPARTMENT OF THE INTERIOR,

Washington, D. C., Sept. 3, 1872. SIR: Your letter of the twentieth ultimo, submitting for instructions the question whether "diamond claims" can be entered and patented under the mining acts of Congress, was received and submitted to the Attorney-general for his opinion thereon. I transmit herewith a copy of his opinion on the subject, under date of the thirty-first ultimo. I concur in the views therein set forth, and they will guide your official action in cases of this character. The letter of Hoyt and Sears, accompanying yours, is herewith returned. Very respectfully,

W. H. SMITH, Acting Secretary. Hon. WILLIS DRUMMOND, Com'r General Land Office.

[INCLOSURE.]

DEPARTMENT OF Justice,

WASHINGTON, D. C., August 31, 1872.

Hon. C. DELANO, Secretary of the Interior:

SIR: I have the honor to acknowledge the receipt of your communication of the twentieth instant, submitting for my official opinion the question whether or not title to public lands producing diamonds, can be acquired by individuals or associations under the act of Congress entitled, “An act to promote the development of the mining resources of the United States," approved May 10, 1872.

Section one of said act provides, "That all valuable mineral deposits in the lands belonging to the United States, both surveyed and unsurveyed, are hereby declared to be free and open to exploration and purchase, and the lands in which they are found to occupation and purchase, by citizens of the United States, and those who have declared their intention to become such, under regulations prescribed by law, and according to the local customs or rules of miners, in the several mining districts, so far as the same are applicable and not inconsistent with the laws of the

United States." Section six of said act also provides the mode in which a patent may be obtained for land claimed and located for valuable deposits." Bainbridge, in his work on the law of mines and minerals, page one, says: "A mineral has been defined to be a fossil, or what is dug out of the earth. The term may, however, in the most enlarged sense, be described as comprising all the substances which now form, or which once formed, part of the solid body of the earth, both external and internal, and which are now destitute of, and incapable of, supporting animal or vegetable life. In this view it will embrace as well the bare granite of the high mountain as the deepest hidden diamonds and metallic ores."

Webster gives the following as the definition of a diamond: "A mineral and a gem, remarkable for its hardness, as it scratches all other minerals." Diamonds are found under a variety of circumstances, and are generally obtained by mining. They are procured in India and South Africa by digging pits in the earth down to a peculiar stratum called the diamond bed.

In Brazil they are washed out of an agglomerate, composed of rounded white quartz pebbles and a light colored sand. Diamonds then, are clearly, "valuable mineral deposits," and the provisions of said act are as applicable to lands containing them, as to lands containing gold or other precious metals. Comprehensive words, no doubt, were used to include as well what might afterward be discovered, as what might be overlooked in an enumeration of minerals in the statute. Public lands, for the purposes of sale, are divided into agricultural and mineral lands. The minimum price of the former is $1.25, and of the latter $5.00 per acre; mineral lands, exclusive of their valuable deposits, are generally worth little or nothing. Prior to the act of July 26, 1866, (14 Stats., 257,) it was customary for persons to take those deposits without respect to the rights of the United States, Congress then provided a way in which persons locating lands for mining purposes might acquire title, and other acts have since been passed promotive of the same end. I think these acts ought to be most liberally construed, so as to facilitate the sale of such lands, for in that way and not otherwise, can they be made to contribute something to the revenues of the government, and controversy and litigation in mining localities, to a great extent, prevented.

Very respectfully,

Your obedient servant,

GEO. H. WILLIAMS, Attorney-general.

34

Definition of the term "Claim," as used in the Mining

Statutes.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., Sept. 9, 1872. THEO. C. POHLE, Esq., Georgetown, Colorado Territory:

SIR: In response to your inquiries in letter of thirtieth ultimo, I have to state that expenditures made in running a tunnel intended for the working or development of a lode or lodes, is not tantamount to work done upon a lode, as required by the laws of Congress.

To obtain a patent for a lode, the law makes it one of the conditions precedent that not less than five hundred dollars shall have been expended on improvements made upon the "claim." The term claim as used in said condition being held to mean that portion of the vein or lode, and adjoining surface to which the claimant has the right of possession, in virtue of a compliance with the laws of the United States, and the local customs or rules of miners not in conflict therewith.

Your inquiry is, therefore, answered in the negative.

Very respectfully,

WILLIS DRUMMOND, Commissioner.

The Year during which the Annual Expenditure must be Made on Locations after May 10, 1872, begins from date of location.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, D. C., Sept. 14, 1872. H. A. SCHULZ, Esq., Central City, Colorado Territory:

SIR In response to your letter of the twenty-eighth ultimo, I have to state that the fifth section of the mining act of May 10, 1872, provides that "on each claim located after the passage of this act, and until a patent shall have been issued therefor, not less than one hundred dollars worth of labor shall be performed, or improvements made during each year.

The construction given by this office to the foregoing is that upon all claims located after the tenth May, 1872, not less than one hundred dollars shall be expended in labor or improvements during each year, and that the year shall commence from the date of the location of the claim.

Very respectfully,

WILLIS DRUMMOND, Commissioner.