Lapas attēli
PDF
ePub

The cost of said investigation shall be paid from the contingent fund of the Senate on vouchers of the committee or subcommittee, signed by the chairman and approved by the Committee to Audit and Control the Contingent Expenses of the Senate.

Senator WALSH of Montana. I dare say Mr. Finney is more familiar with these matters than the secretary, and I suggest that we begin with him. It will be borne in mind that the resolution was simply referred to this committee for a recommendation as to whether or not the Senate ought to adopt it, and I think we ought to try to get a general idea of what the charges are, and the foundation for them, as a basis for our further action.

Senator PITTMAN. I was going to suggest, Senator, that you have paid more attention to this than the other members of the committee, and I suggest that we proceed in any manner that you consider advisable.

Senator WALSH of Montana. Let me say to the committee that I have gone over the Kelley letters; the opinion of Mr. Richardson with reference to the charge therein made; the letters of Mr. Finney and of the Secretary in relation to them, and the proceedings before Secretary Work in connection with the reopening of the socalled Freeman-Summers case, made the subject of some considerable comment by Mr. Kelley in his letters.

For the information of the members of the committee, I feel that this preliminary statement ought to be made.

The charges center very largely about this so-called FreemanSummers case.

STATEMENT OF HON. EDWARD C. FINNEY, SOLICITOR, DEPARTMENT OF THE INTERIOR

Senator WALSH of Montana. Which of these, Mr. Finney, was the homestead claimant ?

Mr. FINNEY. Freeman-Summers was the homestead case. That is, Summers was the homestead entryman who brought a contest against Freeman, the mineral locator.

Senator WALSH of Montana. Exactly. Summers had made an application for a patent, Mr. Finney.

Mr. FINNEY. Summers had an entry under the stock raising homestead act for 640 acres of land.

Senator WALSH of Montana. I mean Freeman.

Mr. FINNEY. Freeman had locations made prior to the homestead entry and filed a contest against the homestead entry. I guess I stated it wrong before.

Senator WALSH of Montana. It seems that a hearing was had to determine the rights of these two conflicting claimants, the one claiming under the homestead act and the other claiming under the placer mining act, claiming a location made prior to the leasing act of 1920, and the requisite assessment work done as required by the act of 1920 in order to preserve that right.

The question was presented as to whether Freeman had ever made a discovery, and that precipitated the question as to what would constitute a discovery of oil shale under the old placer mining act.

It was determined, as I understand the matter, by the department, when it eventually came to them, that Freeman had not made a

discovery, and accordingly his protest of the homestead filing of Summers was dismissed. Thereafter, a hearing was had before the Secretary, the matter being reopened, as I understand the matter, under the supervisory power of the Secretary, and thereafter the former holding of the Secretary against Freeman was reversed and it was held that he had made sufficient discovery, as I understand the matter, and his entry was approved.

I think we might very properly commence with the opinion, the original opinion, of the department in the Freeman-Summers case. Can you provide us with that, Mr. Finney?

Mr. FINNEY. I have with me copies of the principal documents in that case. Not all, of course, and I have arranged them in chronological order and, if desired by the committee, I could put them in in that way, Senator, beginning with the decision of the register and receiver of the local land office, which was the first decision rendered in the case.

Senator WALSH of Montana. That will be all right, but probably what they say about it would not particularly interest us. What was the ruling of the local office?

Mr. KINNEY. After a hearing on the protest of Freeman against the Summers, homestead entry, the register, considering the record, found that the land in question was oil shale in character but that Freeman had not made discoveries sufficient to sustain the protest. Senator WALSH of Montana. Let me inquire who were the land officers making that ruling.

Mr. FINNEY. Walter Spencer, register, and Charles S. Merrill, receiver.

Senator WALSH of Montana. Where?

Mr. FINNEY. At Glenwood Springs, Colo.

Senator WALSH of Montana. Now, the area in question as I understand it, Mr. Finney, is in the neighborhood of Glenwood, in the western part of the State of Colorado.

Mr. FINNEY. It is north and west of Glenwood Springs, a very mountainous, rough part of Colorado.

Senator WALSH of Montana. Well, the opinion may go in the record, but I imagine we will not take time to read that.

(The decision referred to by Senator Walsh reads as follows:)

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, January 6, 1931.

I hereby certify that the annexed copy of decision, dated January 9, 1924, filed under Denver 032576, formerly Glenwood Springs 018825, is a true and literal exemplification of the original on file in this office.

In testimony whereof I have hereunto subscribed my name and caused the seal of this office to be affixed, at the city of Washington, on the day and year above written.

[SEAL.]

THOS. C. HAVELL, Assistant Commissioner of the General Land Office.

UNITED STATES LAND OFFICE, Glenwood Springs, Colo., January 9, 1924.

J. D. Freeman, Contestant. v. George L. Summers, Contestee. Contest 1490, Serial Nos. 018825 and 018827, involving the S 2 NE 4 N 2 SE 4, S 1⁄2 NW 14, lots 3 and 4, sec. 2; lots 1, 2, 3 SE. 4 NE. 4 sec. 3, T. 5 S., R. 97 W. sixth principal meridian,

DECISION

History of the case: On May 10, 1920, George L. Summers, contestee in this case, filed his homestead application 018825 under the enlarged homestead act for S. 1⁄2 NW. 4 sec. 1; S. 1⁄2 NE. 14, sec. 2, T. 5 S., R. 97 W., sixth principal meridian, designated May 1, 1909, under the act of February 19, 1909. This application was allowed May 17, 1920, subject to the provisions and reservations of the act of July 1,, 1914, the land having been classified as valuable for petroleum and nitrogen on May 23, 1916.

On May 10, 1920, the contestee filed his additional application 018827 under the stock-raising homestead act for lots 3 and 4, S. 21⁄2 NW. 4, sec. 2; lots 1, 2, 3, SE. 4 NE. 4, sec. 3, same township and range. This application was allowed January 18, 1921.

Proof on both entries was filed in this office on May 22, 1923, but prior to this, on May 21, 1923, a contest was filed against both entries by J. D. Freeman claiming a prior right under the mineral laws of the United States to the S. 2 NE. 4, N. 1⁄2 SE. 4, NW. 4 (lots 3, 4, S. 1⁄2 NW. 4) sec. 2; N. 1⁄2 NE. 4 (lots 1 and 2) SE. 4 NE. 4, NE. 4 NW. 4 (lot e) sec. 3, T. 5 S., R. 97 W.. said land conflicting with the Summers's homestead entries and comprising in whole or in part the following oil shale mineral claims: J. D. Nos. 1, 2, 3, 5 and F. D. No. 7.

After due notice the case was brought to hearing before the register and receiver of this office or the 11th day of September, 1923.

Review: It is our intention to pass over all merely technical matters and conditions and confine this decision to such vital facts as are shown in the evidence.

It is evident to us that much of the testimony in the case is valueless. There is no question but that the land in controversy is oil shale in character; in so far as it is underlaid at some depth with great beds of that material. This land was classified by the Government as valuable for petroleum and nitrogen May 23, 1916, and the contestee, when applying for his homestead accepted such classification.

The evidence shows that the Summers homestead is, from its surface characteristics and its general location, an average homestead in comparison with the homesteads of to-day, on which one man might succeed but another might fail, as is true of any business. The evidence relating to how this success or failure might come about is not pertinent; whether it be eventually through the raising of cattle or other stock, or any other agricultural or combination of agricultural industries. If the homesteader finds that his cherished idea of how to make an income from his homestead fails, he is privileged to change his mind and try some other plan. The land being in the rough requires that considerable work must be done on it before it reaches a point where a profit or possibly even a living may be expected. Farmers deal largely in futures, and especially is this true of a homesteader.

The same construction may be placed on the oil-shale industry which is not in fact an industry in this locality, but holds great possibilities of valuable production in the future. Hence the oil-shale owner is in the same condition as the homestead farmer, since neither can make a profit from the land until it is developed, but both have high hopes for the future.

Any decision as to an excess of value of one over the other at this time would be entirely problematical and might quickly be reversed by future conditions or future developments. At this time we do not consider that it is in our province to say that one industry shall succeed and the other fail. Nor is there sufficient evidence to show as between the mineral and the agricultural claimants that one is acting more in good faith than the other.

It remains, then, that the validity of the mineral claims as against the homestead claimant appears to be the chief consideraion in this issue. If the evidence shows that through failure to comply with the mineral laws of the United States and the State of Colorado these claims, or any one of them in conflict with the homestead entries, is invalid, then the homestead entry is relieved of such conflict. If through complete compliance with the law the mineral claims appear to be valid, then the homestead entryman must forfeit his claim to such land as may conflict with the prior valid mineral rights.

We shall consider the validity of the mineral claims under the three heads: Location, discovery, and assessments, since a failure in any one of these would make the claims invalid.

Location: We conclude from the evidence of various witnesses that an effort was made to stake the mineral claims mentioned in this contest prior to or at about the time of the filing of the location certificates. Probably because of the season of the year and the ground conditions such staking was not done in a careful and permanent manner. However, there is not sufficient counterevidence to warrant other decision by this office than that the claims were staked.

Discovery: The land in this controversy was classified as valuable for petroleum and nitrogen on May 23, 1916, and the contestee, when applying for his homestead, accepted such classification. The classification of land, however, does not excuse a mineral claimant from an actual discovery in order to properly initiate his claim. In the case of Remis v. Murray (22 L. D. 411) it is stated: "The fact that land is returned (classified) as mineral does not in any event avoid the necessity of a discovery of mineral and any location made without a discovery as required by statute is void."

The evidence in this case discloses a grave question, whether any shale of sufficient value to ever be marketable is or ever has been exposed on that part of the Summers place in controversy.

It is the contention of the contestant in this case that oil shale values do not materially change throughout a certain stratum. It is evident from the estimony that the strata of oil shale or rock exposed on the Summers homestead by nature, or the efforts of the contestee or those in his service, or his precedecessors in title, are not and probably never will be valuable as oil shale deposits because of the thinness of the strata or the leanness as to oil content.

If there were a probability of these strata incrasing materially in thickness or oil content with distance from the surface, as in the case of certain precious metals, then a valid discovery might be claimed under the rule laid down that an actual disclosure of commercial ore is not essential to effect an adequate discovery (48 L. D. 598; U. S. r. Bunker Hill and Sullivan Mining & Concentrating Co.).

The contestant's own contention and one that is well supported in fact shows that all beds of oil shale are in place, each of a thickness which does not vary materially and of a certain oil content which varies but slightly. While there appears to be no question but that immense shale beds underlie this land at a considerable depth, it is just as clear that the higher strata exposed on the Summers place, and on which discovery is claimed, do not now constitute valuable deposits and by development in the future could not be expected to show such value as to make them merchantable. Hence it is our opinion that on such deposits a discovery can not be predicated on which to base a valid mineral claim to the land.

Assessment work: From this and other contests of a similar nature that have come before this office it appears that a "slacker" habit has developed throughout large sections of the oil shale region in reference to assessment work. There is a pretense of doing $100 worth of work per claim as annual assessment when in reality but a few hours' labor accomplished the work done at but a small fraction of the value of labor and improvements required. To use an extreme illustration, the excavation of what miners usually term a "10-foot hole," may be accomplished in a shale cliff by a single blast that would cost but a few dollars at most.

It may be, and we believe usually is the case, that the owner of the claim pays the required amount of $100 per claim to a second person who expends but a modicum of that amount in the work. In such cases the owner may be considered an innocent victim in so far as he has allowed his interests to lapse through failure to give the matter supervision in person or by a trusty employee. He takes the chance and must abide by the result. Citing the case of Samuel B. Beatty et al (40 L. D. P. 486) in reference to the expenditure of $500 for labor or improvements on a mineral claim for which patent is asked it is stated: "The proper test is whether the reasonable value of the work performed or improvements relied upon amounts to that sum. Proof of the actual amount paid or of the actual number of days spent in prosecution of such work is not conclusive."

And, more applicable to this case, in the same decision reference is made to a decision of the Circuit Court of Nevada in which it was held that the evidence of the amount of money paid for assessment work upon a mining claim, though not conclusive, is admissable as bearing upon the claimant's good faith, but the court adopted the rule that the work or improvements must reasonably be worth the amount required by statute.

It is clear from the evidence that the assessment work on these claims purported to have been done for the year 1919 on the Wilda trail by Chris Dore and others was not done in sufficient amount to hold these claims valid to the owners. Also, the lieu affidavit required in case work was not done was not filed.

According to circular 430, paragraph 13, and the law of this State, if assessment work is not accomplished for a period of time sufficient to invalidate the claim, but the owner resumes such work prior to the intervention of other claimants, the mineral claim would again be validated to the former owner. The assessment work for 1919 not being done on these conflicting claims, and no affidavit of intention in accordance with the act of November 13, 1919, being filed, these claims became invalid although still retaining to the owners the rights mentioned.

However, on February 25, 1920, before work was resumed on these claims, an act was passed by Congress, commonly called "The leasing act," through and because of which all oil shale mineral claims invalid on that date reverted to the United States and became subject to the leasing act only. This removed any responsibility on the part of delinquent mineral owners to resume work and validate their former claims.

Further, the evidence shows conclusively that the assessment work done on these claims following the year 1919 and up to the present time has not been such that we can reasonably declare it to be worth, in labor and improvements, the sum of $100 per year for each claim.

Further, the valuable shale beds lie at some considerable depth beneath the lowest part of that portion of the Summers homestead in this controversy and no assessment work has been done that would tend toward the development of these beds with the possible exception of such inadequate work as was done on the Wilda trail.

Summary: Briefly, it appears that no actual discovery of oil shale has been made on the land in controversy, a requirement of the law (Remis v. Murray, 22 L. D. 409), although it must be admitted that it is apparently an unnecessary requirement where oil-shale claims are in consideration: That these claims had been allowed to lapse and were so lapsed at the time of the passage of the leasing act, February 25, 1920; that sufficient assessment work has at no time been done to hold these claims valid.

Decision: We therefore find that the contest of J. D. Freeman v. George L. Summers has failed and we render our decision in favor of the contestee, upholding his rights as a homesteader and the validity of his homestead entries 018825 and 018827 in so far as they apply to this contest, allowing to the contestant the usual right of appeal from this decision within 30 days from and after the receipt by him or his attorney of a copy of this decision.

WALTER SPENCER, Register.
CHARLES S. MERRILL, Receiver.

Mr. FINNEY. Freeman appealed from the decision of the register and receiver, and on April 26, 1924, Commissioner Spry, of the General Land Office, rendered a decision reversing the register and receiver and finding that the mineral locations of Freeman were based upon sufficient discoveries, and he therefore held for cancellation the homestead entry of Summers.

Senator WALSH of Montana. Will you read the opinion of Commissioner Spry on the matter?

Mr. FINNEY. Read the opinion?
Senator WALSH of Montana. Yes.

Mr. FINNEY. (Reading):

DEPARTMENT OF THE INTERIOR,

GENERAL LAND OFFICE, Washington, January 16, 1931.

I hereby certify that the annexed copy of letter dated April 26, 1924, filed under Denver 032576, formerly Glenwood Springs 018825, is a true and literal exemplification of the record on file in this office.

In testimony whereof I have hereunto subscribed my name and caused the seal of this office to be affixed, at the city of Washington, on the day and year above written.

THOS. C. HAVELL, Assistant Commissioner of the General Land Office.

« iepriekšējāTurpināt »