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canal owners on the public lands were protected thereby, the following was communicated:
The mining statute of Congress is the result of a policy which seeks to harmonize the rights of sovereignty of the soil inherent in the General Government with certain possessory rights growing out of the peculiar condition of things found in the mining States and Territories of the West, which had become engrafted upon the public lands through the operation of local customs and legislative enactments.
Its object is to furnish a method of dealing with these conflicting interests so as not to impair the validity of either. It recognizes and preserves such possessory claims as are valid and effective under local regulations, but it does not create them. It substantially embodies as a stipulation, that the General Government, in disposing of the public domain, will proceed in such a manner as to protect such rights of possession to the same as claimants may be entitled to under such local customs or laws at the time of the sale by the United States. But these rights derive all their vitality from local regulations. The act of Congress imparts none. It respects those existing at the date of the sale of the public lands, but superadds nothing to their efliciency under the local laws. Take away the regulations adopted by miners' meetings or local legislatures, and all rights acquired under them in respect to lands remaining unsold must fail.
If, therefore, the inquiry propounded is to ascertain to what extent the ninth section of the mining act protects property in water rights or in a mining ditch or canal, the answer is that in disposing of the public lands upon which such canal is located, the United States will, under the said ninth section, maintain and protect such rights in the same as have vested and accrued by priority of possession, and which at the time of such disposal are recognized by the local customs, laws, and the decisions of the courts of the State or Territory in which they exist.
PROOF OF COMPLIANCE WITH THE LOCAL CUSTOM OR LAWS ES
An application for patent was received at this office for an ancient copper mine in New Mexico, the applicants claiming to hold the possessory rights thereto by virtue of a relocation made according to the laws of the Territory.
Upon examining the papers received, together with the additional proofs called for, it was found necessary to reject the application, the reasons for which action, as communicated to the local officers, being in effect as follows:
The second section of the act of July 26, 1866, provides that when. over any person or association of persons claim a vein or lode of quartz or other rock in place, bearing gold, silver, cinnabar, or copper, having previously occupied and improved the same, according to the local custom or rules of miners in the district where the same is situated, and having expended in actual labor and improvements thereon an amount of not less than $1,000, and in regard to whose possession there is no controversy or opposing claim," a patent may be issued on such claim.
Here we discover that one of the requisite qualifications of an applicant for a mining patent is, that he has previously occupied and improved the claim for which he asks a patent, according to the mining regulations of the district in which it is situated. In New Mexico the territorial act of January 18, 1865, prescribes the mining regulations
for the whole Territory, and consequently an applicant for a patent for a mining claim in New Mexico, under the act of Congress approved July 26, 1866, is required to show that he has previously occupied and improved the claim according to the provisions of said territorial law of January 18, 1865.
Let us now examine said territorial act; and see what is necessary to be done by a party intending to occupy and improve a mining claim in New Mexico. We at once discover that a distinction is made in the act between mines and mineral grounds heretofore occupied in that Territory, and mines and mineral grounds not heretofore occupied; that the last mentioned, being newly discovered claims, may be located by erect. ing monuments or sinking pits at the beginning and termination of each claim, and, within thirty days after such location is made, file for record in the office of the clerk of the probate court of the county in which the claim is situated, a certificate of such location, in which shall be described, with reasonable certainty, the location, the bearing of the vein or deposit, and a full description of the landmarks, &c., which certificate shall be signed by the claimant, and acknowledged before a justice of the peace of tlie county and precinct where the claim is situated, who shall certify to the same, unless the claim belongs to some other person, and, within twelve months after the location, sink a shaft upon the claim not less than twenty feet in depth. Proof of this it is required shall be made to the satisfaction of the judge of probate of the county in which the claim lies, who shall certify to the same in writing, which certificate may be filed with the clerk of the probate court, who shall record the same, and such certificate, or a copy of the record of the same, duly authenticated by the clerk, shall be prima facie proof of compliance with the provisions of said act. If the claim under consideration is subject to location at all by these applicants for patènt, these certificates, or an authenticated copy of the record of the same, should be presented to the local officers as evidence that the applicants come within the provisions of the congressional enactment, that they have previously occupied and improved their claims according to the mining laws of New Mexico.
In the case presented the applicants are not endeavoring to obtain a patent for a newly discovered mine, but for an old one that had been worked, perhaps, for a century, and which has been referred to by several writers on New Mexico, on account of the richness of its ores. is, therefore, the kind of property which, in the seventh section of the territorial mining act aforesaid, is classed as “mines and mineral grounds heretofore occupied in this Territory," and is subject to relocation only after mining has ceased to be prosecuted regularly for a period of ten years or more; and not even in that case, if the fee-simple title to the land has ever been granted by competent authority to those claiming the same, or if the claimant has remained in actual and unquestionable possession and occupation. Ilence, when an application is made for a patent for a relocated mine in New Mexico, the applicants, in addition to what is required in the case of new mines, must show by prima facie evidence that it is subject to such relocation; or, in other words, that it is one upon which mining has not been prosecuted regularly for ten years or more; that no record evidence of a title by competent authority is found in the locality where such record should be kept, and that no bona fide claimant has been in actual and unquestionable possession within ten years preceding the application. In this case the applicants for patent have entirely failed to prove that the claim has been abandoned, either voluntarily or involuntarily, for a period of ten years or more.
The evidence before this office does show, however, that the mine was worked by certain parties up to the year 1862, about which time they were forced to leave the claim and their improvements, by reason of the hostility of the Indians. As this claim is, therefore, not subject to relocation under the laws of New Mexico, the applicants cannot occupy and improve it according to the territorial enactment aforesaid; and if they are unable to place themselves in that position, the General Land Office has no authority of law for issuing a patent on their application.
RIGHT OF THE STATE OF NEVADA TO SCHOOL SECTIONS 16 AND 36,
WHEN VALUABLE AS MINERAL LANDS.
The authorities of the State of Nevada having proposed to dispose of a certain section as school land, which was known to be valuable for minerals, the local administration presented the case for the action of this office. The question was subsequently submitted to the Secretary of the Interior, who decided in the premises to the following effect:
The seventh section of the enabling act of 21st March 1864, passed at the first session of the thirty-eighth Congress, grants to said State said sections, unless sold or otherwise disposed of by any act of Congress. Joint resolution of 30th January 1865, (13 U. S. Stat., p. 567,) declares " that 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 heretofore made, shall be so construed as to embrace mineral lands, which in all cases shall be, and are, reserved exclusively to the United States, unless otherwise specially provided in the act or acts making the grant." This joint resolution prescribes a rule of construction which, applied to the act, would exclude from its operation mineral lands, such lands being reserved exclusively to the United States, unless otherwise specially provided for in the act making the grant.
In view of this legislation it seems to be clear that an executive officer must regard a section of land, No. 16 or 36, situate in Nevada, and “rich in minerals," as the property of the United States, and not as passing to the State under the act, and should deal with it accordingly.
Agreeably to this ruling the Commissioner instructed the register and receiver to inforın the proper State authorities of Nevada that they would be allowed to select other lands as indemnity, when school sections 16 and 36 are found to be of mineral character.
CONFLICT OF TOWN LOTS WITH MINING CLAIMS.
In a case where the district land officers sent up the application of a mining claimant for patent, accompanied by protest from the owner of certain town lots having buildings and improvements thereon, against the issuing of such patent, for the reason that the same would include such town property, which the protesting party had occupied with his family in quiet and peaceable possession in pursuance of local customs continuously since 1865, the Commissioner instructed the local officers that, although a claim to town lots does not constitute such an adverse interest as contemplated in the sixth section of the mining act, and is not the subject of adjustment in the local courts, still, if the Commis. sioner has reason to believe that such town property owner has rights under local customs and laws equitably entitled to protection, and that hardsbip and injustice would result from including such improvements in the grant of the mine, he will, in issuing the patent for the lode claim, except and exclude from the grant such town-property rights on the surface; that the equities of the mining claimant consist in the circumstance of having invested his capital in improvements upon the public lands with the tacit consent of the Government, and that the occupant of town property stands in precisely the same position; that the act of July 26, 1866, grants to the mining claimant the right to apply for pat. ent on his claim to the extent that he has acquired a possessory title under the local laws and customs; but where such laws and customs at the same time grant the right to locate town property, the possessory title of the mining claimant would be subject to the surface rights of the town claimant, unless the claim of the former was prior to that of the latter in point of time, and the town improvements were not subsequently made with the consent or acquiescence of the claimant of the inine; that where the town claim was located first in a district, State, or Territory by its local customs or statutes authorizing such location, a lode claim would be subject to it, and the claimant of the lode could not acquire by the local law such possessory title as would include such town property; and not having such possessory title to it under the local laws, he has no right to a patent including the same. The like result would follow where the mining claim was located first, and the town improvements were subsequently made with the consent of the mining claimant. In such case the latter would surrender his claim under the local laws to the extent of the surface rights acquired by the town claimant; and having once voluntarily surrendered so much of his claim, he would have no right to include it in his application for patent. But if the possessory title to the mine or lode was first acquired, and the town improvements were subsequently erected without the knowledge or against the remonstrance of the mining claimant, it is but just that his previously acquired rights should suffer no prejudice from such acts, and that he should receive a patent without restrictions as to surface interests, which would be the case, unless the local laws are of such character as necessarily to render his possessory title to the mine subject to the possessory title of the town claimant. Full instructions in relation to the survey and entry of lode and placer claims will be found in the accompanying appendix.
EXTENSION OF CANALS, RAILWAYS, AND WAGON ROADS.
A remarkable feature of American society is found in the reduction to a minimum of the powers of government. Great interests, which in Europe can be prosecuted only by general authority, are here prosecuted by voluntary associations, incorporated and authorized by law. In Europe the paternal or patriarchal theory of society is still, to a great extent, maintained. This idea regards the mass of mankind as still in leading-strings, and deprives the human mind of that development which it acquires by acting under a personal sense of responsibility.
One of the first duties devolving upon society is to increase the power of association and of combination between individuals, by multiplying the practical relations between them. One great means of accomplishing this result is the opening of new methods of intercommunication between different parts of the country. In a former period of our his- . tory a grave controversy existed as to the power of the General Government to engage in internal improvements. It is at best but an implied power, and its exercise provoked opposition fatal to such enterprises. Even State authority, though not liable to the same constitutional ol). jections, was found to work imperfectly in accomplishing such works. Several of the States entered upon extensive systems of public improvements, only to be embarrassed with enormous debts, without obtaining corresponding benefit. The lack of practical intelligence in managing these enterprises, and the gross waste of resources under the plan of constructing them by direct State authority, had become serious, and threatened to paralyze the entire system of internal improvements. In this crisis a remedy was devised by confiding the execution of nese enterprises to corporations of private capitalists. Thus were created agencies of a limited range of activity, but with capacity to fill a minor sphere to better advantage than could be expected from a cumbrous governmental organism suited only to general purposes. By bringing to bear motives of private economy, the enormous waste of public enterprises was absorbed. Furthermore, the microscopic eye of a small corporation is far better fitted to observe details than is that of the Gov. ernment. Appreciating such considerations, the General Government of the United States, in constructing public improvements, so far from seeking to invade the miior details of local jurisdiction, has ever devolved functions of this character upon the States, or upon corporations created by the States. In the case of the construction of the Pacific railways, however, across the unorganized Territories of the Rocky Mountain region, it was found necessary, in the absence of all local legislative authority, to create corporations, and to endow them with powers sufficient to enable them to carry out these enterprises. We have thus adapted the agencies to the work to be performed, and it is evident that its requirements have been met with far greater accuracy and success.
In the American railway system we find an illustration of the spontaneous self-organizing power of our people. The enormous extent to which these corporations have expanded has already awakened apprehension as to the power of their ultimate control. In fact, the authority and franchises conferred upon this class of capital have become a formidable element of our social system. This evil, however, if it be such, will probably work its own cure. Though imposing in its aggregate influence, it still bears a small proportion, probably one-fifteenth, to the aggregate capital of the nation. In our free civilization, at the proper time, the means will doubtless be found of controlling this enormous interest, and of restraining any aggressions should such ever be attempted upon other interests of the people.
English railroad incorporation, which served as the model of our own, allows the same freedom of corporate action, restrained, however, by great social interests to narrower practical limits than in this country. Continental Europe seems to have regarded these corporations with suspicion, confining the range and extent of their franchises within much narrower limits than either in England or America. France, in the organization of her railway system, has preserved the vicious centralization of her political organism. Coöperation of private interests is admitted to only a limited extent. Franchises to railway corporations are restricted to ninety-nine years, during which time the law presumes that private capital has had ample opportunity to remunerate itself with principal and interest for all its outlay. The roads then become the property of the government. The other continental nations generally have incorporated similar restrictions into their railroad systems.
The history of our railroad corporations already presents a worthy field for authorship, and has elicited some partial attempts in this direction. Questions in social science and in jurisprudence have been opened up in great numbers and of profound interest. Grave modifications of our social order have been introduced, from which ultra conser