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property, the ownership in which is in the man whose labor, capital and skill has discovered and developed the mine and extracted the ore. It is then free from any lien, claim or title of the United States, and is rightfully subject to taxation by the State as any other personal property is. Forbes v. Gracey, 94 U. S. 762; 14 Mor. Min. Rep. 183. 4. The Nevada statutes, which make a tax upon ore taken from mining claims a lien on the mine or mining claims from which the ore is extracted, are not an interference with the right of property of the government in the lands from which the ore is extracted. Forbes v. Gracey, 94 U. S. 762; 14 Mor. Min. Rep. 183.

5. Payment of taxes by the adverse possessor is essential to the obtaining of title by adverse possession. Tuffree v. Polhemus, 108 Cal. 670.

TIMBER.

TIMBER AND STONE ENTRIES.

AN ACT for the sale of timber lands in the States of California, Oregon, Nevada, and in Washington Territory.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That surveyed public lands of the United States within the States of California, Oregon, and Nevada, and in Washington Territory, not included within military, Indian, or other reservations of the United States, valuable chiefly for timber, but unfit for cultivation, and which have not been offered at public sale, according to law, may be sold to citizens of the United States, or persons who have declared their intention to become such, in quantities not exceeding one hundred and sixty acres to any one person or association of persons, at the minimum price of two dollars and fifty cents per acre: and lands valuable chiefly for stone may be sold on the same terms as timber lands: Provided, That nothing herein contained shall defeat or impair any bona fide claim under any law of the United States, or authorize the sale of any mining claim, or the improvements of any bona fide settler, or lands containing gold, silver, cinnabar, copper, or coal, or lands selected by the said States under any law of the United States donating lands for internal improvements, education, or other purposes: And provided further, That none of the rights conferred by the act approved July twenty-sixth, eighteen hundred and sixty-six, entitled "An act granting the right of way to ditch and canal owners over the public lands, and for other purposes," shall be abrogated by this act; and all patents granted shall be subject to any vested and accrued water rights, or rights to ditches and

| reservoirs used in connection with such water rights, as may have been acquired under and by the provisions of said act; and such rights shall be expressly reserved in any patent issued under this act.

SEC. 2. That any person desiring to avail himself of the provisions of this act shall file with the register of the proper district a written statement in duplicate, one of which is to be transmitted to the General Land Office, designating by legal subdivisions the particular tract of land he desires to purchase, setting forth that the same is unfit for cultivation, and valuable chiefly for its timber or stone; that it is uninhabited; contains no mining or other improvements, except for exist, save such as were made by or belonged ditch or canal purposes, where any such do to the applicant, nor, as deponent verily believes, any valuable deposit of gold, silver, made no other application under this act; cinnabar, copper, or coal; that deponent has that he does not apply to purchase the same on speculation, but in good faith to appropriate it to his own exclusive use and benefit; and that he has not, directly or indirectly, made any agreement or contract, in any way or manner, with any person or persons whatsoever, by which the title which he might acquire from the Government of the United States should inure, in whole or in part, to the benefit of any person except himself; which statement must be verified by the oath of the applicant before the register or the receiver of the land office within the district where the land is situated; and if any person taking such oath shall swear falsely in the premises, he shall be subject to all the pains and penalties of perjury, and shall forfeit the money which he may have paid for said lands, and all right and title to the same; and any grant or conveyance which he may have made, except in the hands of bona fide purchasers, shall be null and void.

SEC. 3. That upon the filing of said statement, as provided in the second section of this act, the register of the land office shall post a notice of such application, embracing a description of the land by legal subdivisions, in his office, for a period of sixty days, and shall furnish the applicant a copy of the same for publication, at the expense of such applicant, in a newspaper published nearest the location of the premises, for a like period of time; and after the expiration of said sixty days, if no adverse claim shall have been filed, the person desiring to purchase shall furnish to the register of the land office satisfactory evidence, first, that said notice of the application prepared by the register as aforesaid was duly published in a newspaper as herein required; secondly, that the land is of the character contemplated in this act, unoccupied and without improvements, other than those excepted, either mining or agricultural, and that it apparently contains no valuable deposits of gold, silver, cinnabar, copper, or coal; and upon payment to the proper officer of the purchase-money of said land, together with the fees of the register and the receiver,

as provided for in case of mining claims in the twelfth section of the act approved May tenth, eighteen hundred and seventy-two, the applicant may be permitted to enter said tract, and, on the transmission to the General Land Office of the papers and testimony in the case, a patent shall issue thereon: Provided, That any person having a valid claim to any portion of the land may object, in writing, to the issuance of a patent to lands so held by him, stating the nature of his claim thereto; and evidence shall be taken, and the merits of said objection shall be determined by the officers of the land office, subject to appeal, as in other land cases. Effect shall be given to the foregoing provisions of this act by regulations to be prescribed by the Commissioner of the General Land Office.

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SEC. 6. That all acts and parts of acts inconsistent with the provisions of this act are hereby repealed.

Approved June 3, 1878. (20 Stat. 89.)

The provisions of the above act were extended to all public land States and Territories by the act approved August 4, 1892 (27 Stat. 348). For copy of the act and regulations thereunder, see MINERALS, subtitle Stone, p. 30.

AN ACT to amend section eight of an act approved March third, eighteen hundred and ninety-one, entitled "An act to repeal timber-culture laws and for other purposes."

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That section eight of an act entitled "An act to repeal timberculture laws, and for other purposes," ap. proved March third, eighteen hundred and ninety-one, be and the same is hereby amended so as to read as follows:

SEC. 8. That suits by the United States to vacate and annul any patent heretofore issued shall only be brought within five years from the passage of this act, and suits to vacate and annul patents hereafter issued shall only be brought within six years after the date of the issuance of such patents. And in the States of Colorado, Montana, Idaho, North Dakota and South Dakota, Wyoming, and the District of Alaska, and the gold and silver regions of Nevada and the Territory of Utah, in any criminal prosecution or civil action by the United States for a trespass on such public timber lands or to recover timber or lumber cut thereon, it shall be a defense if the defendant shall show that the said timber was so cut or removed from the timber lands for use in such State or Territory by a resident thereof for agricultural, mining, manufacturing, or domestic purposes under rules and regulations made and prescribed by the Secretary of the Interior, and has not been transported out of the same; but nothing herein contained shall operate to enlarge the rights of any rail

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way company to cut timber on the public domain: Provided, That the Secretary of the Interior may make suitable rules and regulations to carry out the provisions of this act, and he may designate the sections or tracts of land where timber may be cut, and it shall not be lawful to cut or remove any timber except as may be prescribed by such rules and regulations; but this act shall not operate to repeal the act of June third, eighteen hundred and seventy-eight, providing for cutting of timber on mineral lands. Approved March 3, 1891. (26 Stat. 1093.)

AN ACT authorizing the citizens of Colorado, Nevada, and the Territories to fell and remove timber on the public domain for mining and domestic purposes. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all citizens of the United States and other persons, bona fide residents of the State of Colorada or Nevada, or either of the Territories of New Mexico, Arizona, Utah, Wyoming, Dakota, Idaho, or Montana, and all other mineral districts of the United States, shall be and are hereby, authorized and permitted to fell and remove, for building, agricultural, mining, or other domestic purposes, any timber or other said lands being mineral, and not subject trees growing or being on the public lands, to entry under existing laws of the United States, except for mineral entry, in either of said States, Territories, or districts of which such citizens or persons may be at the time bona fide residents, subject to such rules and regulations as the Secretary of the Interior may prescribe for the protection of the timber and of the undergrowth growing upon such lands, and for other purposes: Provided, The provisions of this act shall not extend to railroad corporations.

SEC. 2. That it shall be the duty of the register and the receiver of any local land-office in whose district any mineral land may be situated to ascertain from time to time whether any timber is being cut or used upon any such lands, except for the purposes authorized by this act, within their respective land districts; and, if so, they shall immediately notify the Commissioner of the General Land Office of that fact: and all necessary expenses incurred in making such proper examinations shall be paid and allowed such register and receiver in making up their next quarterly accounts.

SEC. 3. Any person or persons who shall violate the provisions of this act, or any rules and regulations in pursuance thereof made by the Secretary of the Interior, shall be deemed guilty of a misdemeanor, and, upon conviction, shall be fined in any sum not exceeding five hundred dollars, and to which may be added imprisonment for any term not exceeding six months.

Approved June 3, 1878. (20 Stat. 88.)

1. The object of the act of June 3, 1878 (20 Stat. 88), was to enable inhabitants of the States and Territories mentioned to cut tim

ber on mineral lands. If mineral districts | be cut for sale in the State in which it is cut. are found outside those named, they are also Frank P. Hardin, 1 L. D. 597. within the operation of the law. A miner may cut timber from his claim for use in his mine. Instructions of Aug. 7, 1882, 1 L. D. 600; Com'r to Susanville Office, 1 L. D. 616.

2. Section 4 of the act of June 3, 1878, authorizes residents of California, Nevada, Oregon and Washington to go upon non-mineral lands and take therefrom timber for use on their farms and in their mines. Timber may not be so cut, however, for purpose of sale. Com'r to J. L. Mills, 1 L. D. 602; Com'r to Susanville Office, 1 L. D. 616; Com'r to P. D. Hurlbut, 1 L. D. 618.

3. Mineral lands and those containing mining improvements are not subject to sale under the act of June 3, 1878. Circular of May 21, 1887, 6 L. D. 114; Circular under Act of March 3, 1891, 12 L. D. 456.

4. A mining claimant holding under possessory title has a license to work his claim for minerals, and has a right to cut timber thereon as rendered necessary for mining purposes, but not for sale. United States v. Nelson, 5 Sawy. 68; 14 Mor. Min. Rep. 381.

5. The owner of a valid location is entitled to its exclusive use and possession, and a stranger who enters thereon for the purpose of mining, cutting timber, or otherwise interfering with the owner's use or possession, is a trespasser. Seymour v. Fisher, 16 Colo. 188; 27 Pac. Rep. 240. See, also, Gwillim v. Donellan, 115 U. S. 45; 15 Mor. Min. Rep. 482.

6. A mine owner, holding under possessory right in compliance with law, may maintain an action of trespass against one who removes timber from the claim. McFetters v. Pierson, 15 Colo. 201; 24 Pac. Rep. 1076.

7. Timber may be cut on land returned by the United States Surveyor General as mineral, under the act of June 3, 1878. United States v. Edwards, 38 Fed. Rep. 812.

8. Locators of mining claims have the exclusive right of possession to the surface ground embraced in their claims, and to the timber growing thereon. E. T. George, 2 C. L. 0. 114.

9. The timber on a tunnel site belongs to the tunnel owner. Tunnel Rights, 5 C. L. O.

24.

10. Under the act of June 3, 1878 (20 Stat. 88), timber on the public mineral lands may

11. Coal lands are not "mineral lands,” within the meaning of the act of June 3, 1878, authorizing the cutting of timber on mineral lands in certain States. Instructions, 2 L. D. 827.

12. If the land contains gold or other valuable deposits in loose earth, sand or gravel, which can be secured at a profit, it is enterable under the placer mining laws, regardless of other valuable qualities it may possess, such as timber, or the uses besides mining to which it may be put. United States v. Iron Silver M. Co., 128 U. S. 673. (Affirming S. C., 24 Fed. Rep. 568.)

13. If a patent is secured under the placer mining laws for land not containing any placer deposits for the purpose of securing title to the timber thereon, the United States may maintain a suit to vacate such patent for fraud in its procurement. United States v. Iron Silver M. Co., 128 U. S. 673. (Affirming S. C., 24 Fed. Rep. 568.)

14. The use of wood in quartz mills or reduction works is a use for mining purposes within the meaning of the act of June 3, 1878 (20 Stat. 88), allowing timber cutting. Frank P. Hardin, 1 L. D. 597.

15. If a mill site legally held is timbered, the locator may cut the timber for the purpose of constructing a mill, reduction works, tramways or other accessory required in the

development of his mineral interest, but not

for sale or for the use of other persons. A. B. Page, 1 L. D. 614.

16. The use, in a mine, of timber growing upon land is not such a use of the land as will warrant entry thereof as a mill site appurtenant to the mine under the first clause of section 2337, United States Revised Statutes. Twin Sisters Lode and Mill Site, 7 L. D. 557.

17. Entry under the timber land laws is not allowed if the land contains mining improvements made and maintained by another in good faith. Kneeland v. Norton, 10 L. D. 271.

18. On a contest between a mineral claimant and one claiming under the act of June 3, 1878, if the land is shown to be mineral in character it will be awarded to the mineral claimant. Departmental decision of Feb. 17, 1892, In re Gissendoffer v. Towle.

19. Milling parties cannot sell timber cut from mineral lands to lumber dealers. Such timber must be sold to individuals for personal use. Arthur Grabowskie, 14 C. L. O. 252.

TOWN SITE.

1. "Where mineral veins are possessed, which possession is recognized by local authority, and to the extent so possessed and recognized, the title to town lots to be acquired shall be subject to such recognized possession and necessary use thereof; but nothing contained in this section shall be so construed as to recognize any color of title in possessors for mining purposes as against the

United States." Sec. 2386, U. S. Rev. Stat.

2. "No title shall be acquired, under the foregoing provisions of this chapter, to any mine of gold, silver, cinnabar, or copper, or to any valid mining-claim or possession held under existing laws." Sec. 2392, U.S. Rev. Stat. 3. "Thus read they must be held, we think, merely to prohibit the passage of title under the provisions of the Town-Site Laws, to mines of gold, silver, cinnabar or copper, which are known to exist, on the issue of the town site patent, and to mining claims and mining possessions, in respect to which such proceedings have been taken under the law or the customs of miners, as to render them

Sawy. 645; 16 Fed. Rep. 348; United States v. Reed, 12 Sawy. 99; 28 Fed. Rep. 486; Cowell v. Lammers, 10 Sawy. 246; Alford v. Barnum, 45 Cal. 482; 10 Mor. Min. Rep. 422; Merrill v. Dixon, 15 Nev. 401; Dughi v. Harkins, 2 L. D. 721; Cleghorn v. Bird, 4 L. D. 478: Samuel W. Spong, 5 L. D. 193; Com'rs of Kings County v. Alexander, 5 L. D. 126; Magalia G. M. Co. v. Ferguson, 6 L. D. 218; Nicholas Abercrombie, 6 L. D. 393; John Downs, 7 L. D. 71; Cutting v. Reininghaus, 7 L. D. 265; Creswell M. Co. v. Johnson, 8 L. D. 440; Thomas J. Laney, 9 L. D. 83.)

4. "It is established by former decisions of this court, that under the acts of Congress

which govern this case, in order to except mines or mineral lands from the operations of a town site patent, it is not sufficient that the lands do, in fact, contain minerals. or even valuable minerals, when the town site patent takes effect; but they must, at that time, be known to contain minerals, of such extent and value as to justify expenditures for the purpose of extracting them; and if the lands are not known at that time to be so valuable for mining purposes, the fact that they have once been valuable or are afterwards discovered to be still valuable for such purposes, does not defeat or impair the title of persons claiming under the town site patent." Dower v. Richards, 151 U. S. 658.

5. Placer lands are not subject to town site

entry. Town Site of Deadwood, 8 C. L. O.

155.

valid, creating a property right in the holder, and not to prohibit the acquisition for all time of mines which then lay buried unknown in the depths of the earth. The excepto all lands known at the time (of entry) to be 6. A patent for a town site is inoperative as tions of mineral lands from pre-emption and settlement and from grants to States for universities and schools, for the construction of public buildings and in aid of railroads and other works of internal improvement, are not held to exclude all lands in which minerals may be found, but only those where the mineral is in sufficient quantity to add to their richness and to justify expenditure

for its extraction, and known to be so at the date of the grant. There are vast tracts of country in the mining States which contain precious metals in small quantities, but not to a sufficient extent to justify the expense of their exploitation. It is not to such lands that the term 'mineral,' in the sense of this Statute is applicable." Davis' Adm'r v. Weibbold, 139 U. S. 507. (Citing and approving Pacific Coast M. & M. Co. v. Spargo, 8

valuable for their minerals, or discovered to be such before their occupation or improvement. Deffeback v. Hawke, 115 U. S. 392; Richards v. Dower, 151 U. S. 658; 81 Cal. 44; 22 Pac. Rep. 304; Pierce v. Sparks, 115 U. S. 408; 22 N. W. Rep. 491: Talbott v. King, 6 Mont. 76; 9 Pac. Rep. 434; Silver Bow M. & M. Co. v. Clark, 5 Mont. 378; 5 Pac. Rep. 574;

Butte City Smoke House Lode Cases, 6 Mont. 397; 12 Pac. Rep. 858; King v. Thomas, 12 Pac. Rep. 865; W. A. Simmons, 7 L. D. 283.

7. To be excepted from a town site patent, land must have been known to be mineral at date of town site patent (entry), and the fact that it is thereafter discovered to be valuable for mineral prior to its use or occupancy for town site purposes is immaterial. McCormick v. Sutton, 97 Cal. 373.

452

8. No title can be obtained under the pre- | laws because discovered after the town site emption, homestead or town site laws to land entry to be valuable for mineral. Thomas J. known at the time of sale to be valuable for Laney, 9 L. D. 83; G. R. Williams, 9 C. L. O. its minerals, except in the States of Michigan, 147. Wisconsin, Minnesota, Missouri and Kansas. Deffeback v. Hawke, 115 U. S. 392; Sparks v. Pierce, 115 U. S. 408.

9. To be reserved from entry under the town site laws, land must, at date of such entry, (1) be covered by a valid mining claim, or (2) be known to be valuable for mineral. Duffy Quartz Mine, 18 L. D. 259.

10. A lode, to be excepted from a town site patent, need not have been located at the date of town site entry. It is excepted if known. Dower v. Richards, 73 Cal. 477; 15 Pac. Rep. 105.

11. Mere occupation of public land as a town lot will not prevent mining of the land. Martin v. Browner, 11 Colo. 12; 1 Mor. Min. Rep. 613.

18. After patent has issued for a town site, a miner may not locate a claim inside the patented limits, and then attack the validity of the town site patent on the ground that the land located was known to be mineral at date of town site entry. The patent must be attacked directly, if at all. Carter v. Thompson, 65 Fed. Rep. 329.

19. A claim was worked until 1869 and then abandoned. Town site patent issued in 1869. A claim was located covering the same ground in 1884. Held, that this was not a mine such as would be excepted from the town site patent. Richards v. Dower, 81 Cal. 44; 22 Pac. Rep. 304; 151 U. S. 658.

20. Land not known to be mineral at date of town site entry passes by the town site patent. Tombstone Town Site Case, 15 Pac. Rep.

12. A prior mining location is not affected by town site occupation. Talbott v. King, 626. Mont. 76; 9 Pac. Rep. 434.

13. Mere occupation of land for residence or business purposes by those who have taken no steps to acquire government title will not reserve land from mineral entry. O'Keefe v. Cannon, 52 Fed. Rep. 898.

14. The occupation of land for town site purposes cannot withdraw it from location and entry under the mineral land laws, if it is valuable for minerals contained. Deffeback v. Hawke, 115 U. S. 392; Sparks v. Pierce, 115 U. S. 408; Poire v. Wells, 6 Colo. 406; J. D. Rankin, 7 L. D. 411; Dotson v. Arnold, 8 L. D. 439; Ferrell v. Hoge, 18 L. D. 81; Deadwood Town Site, 8 C. L. O. 18.

15. Land embraced within a town site on the public domain, when unoccupied, is not exempt from location and sale for mining purposes; its exemption is only from settlement and sale under the pre-emption laws. Steel v. St. Louis Sm. Co., 106 U. S. 447; J. D. Rankin, 7 L. D. 411.

16. The present or prospective value of mineral lands for town site purposes will not prevent acquisition of title thereto under the mineral land laws. State of Washington v. McBride, 18 L. D. 199; Kemp v. Starr, 6 C. L.

O. 3.

17. Land covered by a town site patent may not be entered under the mineral land

21. Mines within the limits of incorporated towns discussed. Steel v. St. Louis Sm. Co., 106 U. S. 447.

22. A claimant under a town site patent which contained the usual exception of mining claims acquired no interest in a valid mining claim or in the surface thereof. The mineral claimant need not adverse the town site application. Silver Bow M. & M. Co. v. Clark, 5 Mont. 378; 5 Pac. Rep. 574; Talbott v. King, 6 Mont. 76; 9 Pac. Rep. 434; Butte City Smoke House Lode Cases, 6 Mont. 397; 12 Pac. Rep. 858; Esler v. Town Site of Cooke, 4 L. D. 212.

23. Coal lands cannot be included in a town site entry. Town Site of Coalville, 4 C. L. O. 46.

24. The question of the relative legal rights of town site and mineral claimants to possessory title to surface ground must be left to the courts. Rico Town Site, 1 L. D. 556.

25. A town site entry may embrace mineral land, the rights of miners being protected by section 2386, United States Revised Statutes. Rico Town Site, 1 L. D. 556.

26. Town sites may be located on mineral lands, the rights of mining claimants being protected by statutory reservations thereof inserted in a town site patent. (Secs. 2386 and 2392, U. S. Rev. Stat.) Relative rights of

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