No. 5. Tunnel locations not patented. DEPARTMENT OF THE INTERIOR, GENERAL LAND OFFICE. WASHINGTON, D. C., April 15, 1873. Gen. GEORGE P. IDRIE, P. O. Box 2050, San Francisco, California. SIR: In reply to your letter of the first ultimo, I have to state that there is no provision of law for patenting tunnel locations.. Such lodes, however, as are discovered in running a tunnel, may be patented, upon full compliance with the law. No. 1. No. 2. No. 4. No. 5. No. 7. No. 8. CHAPTER IX. ANNUAL LABOR. a. The statute contemplates no cessation in making annual improvement. b. Person out of possession can not apply for patent. Large expenditures formerly made will not excuse annual labor. b. Entry in interest of land officers improper. a. Possessory right, provided by section 2324, may continue for indefinite period. b. Annual expenditures not required after entry made. Secretary's decision in "American Hill" case. Commissioner's decision in "American Hill" case. Construction of second section of act of January 22, 1880. Proceedings against co-owner. Locators must make the expenditures No. 1. 1. The statute contemplates no cessation of annual improvements until entry is made. 2. No person out of possession can apply for patent. DEPARTMENT OF THE INTERIOR, GENERAL LAND OFFICE, WASHINGTON, D. C., August 20, 1879. Register and Receiver, Central City, Colorado. GENTLEMEN: The papers in mineral entry No. 1074, lots 298 A and B, made in your office September 18, 1878, by the American Flag Gold Mining Company, upon the American Flag or Bennett lode, Nevada Mining District, Gilpin county, have been examined. The said claim consists of two locations, made August 12, 1861, and October 28, 1861, by Joshua Smith and T. D. Randall, and by R. J. Kilpatrick and T. D. Randall, respectively. Application for patent was made July 20, 1874, by the American Flag Gold Mining Company, claimants by purchase. Publication was made for ten consecutive weeks, from July 22 to September 23, 1874. Notice and plat were posted on the claim during the full period of publication, and the register certifies to the posting in his office during the same period. In fact, all proof necessary to complete the right to make entry in the absence of adverse claims was filed before the twentieth of September, 1874. On the nineteenth of September, 1874, two adverse claims were filed, one by the Colorado Central Gold Mining Company, and the other by James and H. C. Clark. Application for patent was suspended, and suits were commenced within thirty days by these adverse claimants, which were determined at the September, 1878, term of court, four years after their commencement, in favor of the American Flag Gold Mining Company. Certified copies of the judgment rolls were filed in your office September 18, 1878, and thereupon entry of the claim and payment was allowed. Subsequently, but on the same day, William M. Finlay filed an affidavit protesting against the issuance of patent to the American Flag Gold Mining Company, settting forth that the said company, for more than one year next preceding the twenty-seventh day of May, 1876, had "failed and entirely neglected to make any improvement, or do any work on said property as required by law, and left said property open to relocation and occupation;" that on the twenty-seventh day of May, 1876, finding the property thus abandoned, he entered upon and took possession of said claim, relocated it, sunk a shaft more than ten feet deep, and on the thirtieth of May filed a copy of his relocation notice in the office of the county clerk of Gilpin county, a certified copy of which notice is made a part of his affidavit; that since the twenty-seventh day of May, 1876, he had continued in quiet possession of the claim, and had expended more than eight hundred dollars thereon for improvements and labor. He asks that the entry of the American Flag Gold Mining Company be canceled, and a hearing ordered relative to the failure of said company to make the expenditures on the claim required by law, and to his relocation. On the twenty-first of September, 1878, the company filed affidavits to show that sufficient expenditures had been made by it during the time in which abandonment is alleged to hold its possession of the premises, and that it had held continuous possession of the same. One of the affiants further testified that the alleged relocation by Finlay was made by working under the American Flag claim from a shaft sunk without its surface boundaries; and that the affiant had held a conversation with the attorney of Finlay, who had told him that Finlay's relocation was made at the instance of the Clarks, parties to one of the suits then pending in the courts against this claim. There is no question that up to the date of publication of notice the American Flag Gold Mining Company was the rightful holder of this claim. It has maintained this successfully in the courts, but the judgment of the court necessarily related to matters precedent to the application for patent, and extended to nothing subsequent, and such prior right was the only thing in issue. Out of possession. manner. The statute contemplates no interruption of the annual improvements until entry and payment of purchase money. No person who is out of possession can apply for patent, and no one in possession can maintain it, only in the prescribed While the statute prescribes one way in which this possession must be maintained, it excludes every other. By the statutory requirement, the first annual expenditure on this claim should have been made by January 1, 1875, and prior to that date was not subject to relocation; hence, if said company made its annual expenditure by said date, the claim was not subject to relocation prior to January 1, 1876, as the company had the entire year of 1875 in which to make the next annual expenditure; and if such expenditures were made for the year ending December 31, 1875, or, if not so made, but prior to May 27, 1876, the company by its agents resumed work, the claim was not subject to the relocation of Finlay. A hearing is hereby ordered to determine the facts. Notify parties accordingly, etc. J. M. ARMSTRONG, Acting Commissioner. No. 2. The fact that large expenditures have been made upon a mining claim, does not excuse the claimant from the necessity of performing the equired annual labor. DEPARTMENT OF THE INTERIOR, GENERAL LAND OFFICE, WASHINGTON, D. C., December 13, 1877. WM. S. MERRELL, Esq., Cincinnati, Ohio. SIR: Referring to your letter of the third instant I have to state that the Revised Statutes of the United States section 2324-requires an annual expenditure to be made upon each mining claim to entitle the claimants to hold the same. The act of Congress approved February 11, 1875, provides that money expended in running a tunnel to develop one or more lodes, shall be considered as work done upon those lodes. The fact that a large expenditure has been made upon a claim in the past will not relieve a claimant from the necessity of performing the required annual labor.* Very respectfully, your obd't servant, J. A. WILLIAMSON, Commissioner. No. 3. DEL NORTE LODE. 1. Entry of mine in the interest of receiver of district land office improper. 2. In estimating the five hundred dollars expenditures, essential to authorize entry, improvements made by former locators who had abandoned can not be included. DEPARTMENT OF THE INTERIOR, WASHINGTON, D. C., June 23, 1879. SIR: On April 24, 1875, Andrew M. Embry made application for patent for one thousand five hundred feet on the Del Norte lode, Central City land district, Colorado, and made entry of the same on August 22, 1876, per mineral entry No. 782. On March 27, 1878, William H. Morgan filed affidavits in your office alleging that neither the applicant for patent nor his grantors had made the expenditures on said lode required by law to entitle him to a patent, and that the expenditures made by said applicant and his grantors did not exceed in value the sum of twenty dollars. On April 9, 1878, you ordered a hearing to determine the value of improvements made on said lode, by whom and when made, and the testimony was taken before the clerk of the district court of Gilpin county, Colorado, in June, 1878. On December 20, 1878, you decided that neither the applicant nor his grantors had made the necessary expenditures on the mine to entitle him to a patent, and you accordingly held his entry for cancellation, and he has appealed from your decision. *District Rules-Conditions subsequent.-The rules and customs of miners that require locators to do a certain amount of work upon their claims are conditions subsequent, and the law presumes that such locators forfeit their rights to possess and mine the same by a failure to comply therewith, although no penalty is specified in such rules and customs: King v. Edwards, 1 Mont. 235. |