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was so clearly mineral in character, that before that time it had been all reserved for mineral purposes, and the tract that should appear to be clearly agricultural and set apart for disposition under the laws relating to such lands, while the mineral lands should be still reserved for disposition under the laws relating to lands of that class, this Department having no more right to dispose of mineral lands in large tracts than it had before the enactment of this law.

clearly agricultural” Owing to the fact that the two classes of land in the mineral belt, are so interlaced as to prevent, in most cases, their segregation by the rectangular system of surveys, the proper execution of this requirement of setting apart the " portions is one of the greatest difficulty, and in many cases it is almost impossible. During the lapse of ages the melting of snows and washing of rains have had the effect of disintegrating the quartz lodes or other auriferous deposits in the mountains, which are washed down into the valleys, flats, and ravines, the gold, from its greater specific gravity, settling to the bottom or bed-rock, these deposits forming the "placers" or " diggings," some of which are quite shallow and soon exhausted; others again being very deep and overlaid with good soil, the surface in the latter case being "clearly agricultural," while the deposit underlying the same is of such a character as to render the land of great value for mineral.

Again, there exists in the State of California what are called "blue leads," "cement," or "gravel" claims, supposed to be the beds of ancient river channels, very deep, rich in gold, and practically inexhaustible. These immense deposits are frequently covered to a depth of from fifty to one hundred feet, the surface of the overlying mass being, perhaps, tillable land, and presenting no indication whatever of the valuable underfying deposit.

Arable land is also sometimes found to overlie quartz lodes, the existence of which may not have been known at the time the settler began his improvements, but were afterward discovered, by prospecting shafts or otherwise, by miners, who thereupon claimed such lodes under local rules and customs, together with a sufficient area of surface ground for the convenient working of such mines.

But, aside from the obstacles growing out of the peculiar character of the lands, which render it very difficult, even with the utmost circumspection and care, to carry out the intention of Congress and prevent the disposition of mineral lands as agricultural, I have found that, owing to the grossly careless, not to say fraudulent, manner in which deputy surveyors execute their work in the field and make their returns, the distinction which Congress had drawn between agricultural and mineral lands was not observed, and whole townships of the richest mineral land in the world, including well known mines which had been worked successfully for years, and which were still being worked successfully and profitably, were returned to this office and to the local land offices as agricultural land, and so posted on the tract books, and became, from the date of such return, subject to sale and to selection by railroads, &c., as agricultural lands, in, direct violation of the plan intent of Congress as expressed, not only in previous legislation, but in the very act under which these lands were surveyed and brought into market.

Therefore, the action taken by this office, in requiring agricultural claimants to submit satisfactory proof as to the non-mineral character of the lands sought to be entered by them, was not only imperatively necessary to carry out the will of Congress, clearly and repeatedly expressed in regard to the reservation of mineral lands for mineral purposes, and their disposition in a special manner, but had this office, after the discovery of the fact that the plats and returns made by surveyors were incorrect and false, coutinued to act on and follow them in the disposition of these lands, it would not only have been guilty of the grossest and most inexcusable neglect of duty, but it would have knowingly violated the law and become a party to the frauds perpetrated by its subordinates.

To illustrate the unreliability of the surveyors' returns as to the character of these lands, and the absolute necessity for the rule which, with your advice and consent, I have adopted, it may be proper to refer, in this connection, to some of the applications for patents for mines in California, the lands embracing which were returned on the official township plats as agricultural in character, the existence of mines therein not becoming known to this office until after the receipt of such applications for mining titles, viz: Schofield gold quartz claim, Eureka gold quartz claim, Idaho gold quartz elaim, Pittsburgh gold quartz claim, Empire gold quartz claim, Sebastopol gold quartz claim, Auroral Star gold quartz claim, Galena gold quartz claim, Spring Hill gold quartz claim, New York Hill gold quartz claim, Hanson gold quartz claim, Slate Ledge gold quartz claim, Norambauga gold quartz claim, Rising Sun gold quartz claim, Medean gold quartz claim, Providence gold quartz claim, Davidson quartz claim, Union Company's quartz claim, Dry Creek quartz claim, Sutherland quartz claim, Simpson & Aden quartz claim, Fort John quartz claim, Henry Dyer et al.'s placer claim, William Odgers et al.'s placer claim, F. C. Lentje et al.'s placer claim, Henry Layton's pla cer claim, George Grant et al.'s placer claim, Bradwell & Hoag's placer claim, Daniel R. Catson's placer claim, Albert L. Lamb's placer claim, Sargent & Jacob's placer

claim, Robert Nelson's placer claim, Byrne & Walker's placer claim, N. Reinhold et al.'s placer claim, William Barney's placer claim.

The foregoing claims are all within the Sacramento district, and many more could be enumerated were it necessary to illustrate the want of reliability of the surveyors' returns as to the character of lands. The surveyors general were specially instructed to direct their deputies in the field to report the character of these lands, giving, in addition to other specified data, information respecting any and all coal beds, minerals, or ores, with particular descriptions of the same as to quality and extent, and all diggings therefor, &c., and to designate the agricultural portions upon the official plats, to the end that the section of law requiring the Department to discriminate between the two classes of land might be properly executed; but, with the kind of returns furnished, it is totally impossible to determine whether any given tract in the mineral district is properly agricultural land, within the meaning of the law, or not, or whether this office could, with a due regard for the execution of the law, proceed to patent such tract as agricultural land without further investigation.

Hon. T. A. Hendricks, in a recent personal call at this office, requested permission to examine the official plat of township 20 north, range 4 east, Mount Diablo meridian; he being, with others, largely interested in mines in section 29 of that township.

He stated, from personal knowledge of the land, that what is called Table Mountain runs northerly and southerly in said township; that it is very abrupt and precipitous, about half a mile in height, and perhaps two miles wide, being extensively mined for its underlying gold bearing cement deposits, which are of immense extent and value, but difficult to work for want of water; that he with others is engaged in constructing a ditch or flume at an expense of $150,000, for the purpose of bringing water to work their claims in said section 29; that Morris Ravine, in said section, had already yielded about $2,000,000, but would not be exhausted in one hundred years, &c.

Upon examination of the plat of this township, there was found nothing to show the existence of Table Mountain; none of the land stated by Mr. Hendricks to be so rich in mineral having been returned or posted upon our books as other than agricultural land.

Under my predecessor, the rule prevailed that upon the survey of these reserved lands, homesteads, pre-emptions, and railroad grant rights took effect upon all such lands as were returned by surveyors as "agricultural," except in cases where, before such lands were patented, affidavits were filed alleging their true character to be mineral, in which case a hearing would be had before the register and receiver, to determine whether the tract was of more value for mineral than for agricultural purposes, mineral lands being expressly excluded from land grants to railroads, and from the operation of the pre-emption or homestead laws. But I am fully convinced that this rule failed to afford adequate protection to the miners as a class, or prevent the disposition of mineral lands as agricultural. It is true that parties engaged in the real estate business or in land speculations, and who are therefore well informed as to the regulations governing the land offices, and also those miners who have acquired a knowledge of the reckless manner in which returns have been made by deputy surveyors, can protect themselves from the consequences of such erroneous and false returns, by making affidavits as to the mineral character of the lands in which they are directly interested, and filing the same with the register and receiver, thus necessitating a hearing before the land so filed on can be disposed of as agricultural; but, inasmuch as the law does not provide for or require such affidavits to be filed, but does authorize the Secretary of the Interior, when the surveys are made, to segregate the agricultural from the mineral lands before they can be classed or disposed of under the law relating to agricultural lands, the miners and owners of mining claims have a right to suppose, and the great mass of them did undoubtedly suppose, that they were protected by the law without action on their part; but if this were not so, I fail to perceive any good reason why, in a region confessedly mineral, and in which Congress has seen proper to hold all lands as mineral, except those specially designated as agricultural by the Secretary of the Interior, the burden of filing proof as to the character of the land should be imposed on the mineral instead of the agricultural claimant. If a mine should be discovered in a region where agricultural lands predominate, such a rule would be reasonable and proper, but in a mineral region the burden of proof should be on the agricultural claimant, and Congress has, in the matter under consideration, so provided in effect by considering and treating all the lands as mineral which have not been specially designated by the Secretary of the Interior as agricultural. It will be observed that the work of designating and setting apart agricultural lands in the mineral region is not left to the surveyor general, or even to the Commissioner of the General Land Office, but is by the statute thrown upon the Secretary of the Interior, and, therefore, according to the most liberal construction we can place upon the law, the disposition of these lands as agricultural, under the rule prescribed by my predecessor, was unauthorized and clearly illegal.

But if we admit the propriety and legality of the proceedings under these mineral affidavits, they do not prevent the mineral lands from being disposed of as agricul



ural, except in special cases where contests arise between parties claiming adversely. Where the mineral and agricultural interests are both vested in the same person or persons, the lands will be taken as agricultural, unless the parties in interest are required to give notice and submit proof under oath as to the non-mineral character of the land. Again, in many localities the mineral bearing lands have not heretofore been occupied or worked, because of the lack of water or other necessary facilities, but it does not follow, because they are not at present occupied or worked by some one who is ready to contest the right of the agricultural claimant, that they are not mineral lands or that they may not, under a changed condition of things, become as productive as any mines in the country. A ditch, of a few miles in length, frequently renders mines very profitable, that could not be worked successfully without water.

But I have shown that there is no law which authorizes or requires these minera! affidavits, and there is nothing to prevent them from being withheld or withdrawn for fraudulent purposes.

In some cases, when the matter came on for hearing before the register and receiver. the mineral affiants failed to appear, and instances have come to the knowledge of this office of private arrangements being entered into between the respective mineral and agricultural claimants, by which the latter were not to be opposed in obtaining titles to the land, which, upon being patented as agricultural, was to be held by the several parties in pursuance of such previous agreement, and thus the only obstacle to the disposition of mineral lands as agricultural-the mineral affidavit-was withheld or removed. In view of the facts and circumstances set forth herein, and in my letter of the 24th of November last, I am unable to agree with Mr. Sargent that the order requiring proof of the non-mineral character of lands which are sought to be entered as agricultural should be rescinded.

On the contrary, the more I examine the question the more thoroughly I become convinced not only of the propriety but of the absolute necessity for the order, and I therefore recommend that it be adhered to and strictly enforced in the future.

In order, however, to relieve contestants of the expense and trouble of traveling long distances to establish the character of lands, I will, if it meets your concurrence and approval, issue instructions to the local officers to allow the proof on that particu lar point to be taken before a clerk of a court of record for the county within which the lands are situated, after due notice has been given of the time and place for taking such proof.

I am, sir, with great respect, your obedient servant,




Secretary of the Interior.

March 20, 1872.

GENTLI MEN: In order to save as much as possible the expense, trouble, and delay incident to the present manner of taking proofs as to the mineral or agricultural character of lands, it is hereby directed that testimony upon this point may be taken before a clerk of a court of recoid in and for the county in which the land in question is situate, after due notice in the following manner, to wit:

Hereafter, when an application is filed to enter land as agricultural which is alleged under oath to be mineral in character, or which is returned upon the official township plat as mineral, or land which is now or may hereafter be suspended by order of this office for proof as to the non-mineral character thereof, you will, upon such application. being made, require such applicant to publish, at his own expense, a notice therea once each week for four consecutive weeks in a newspaper of largest circulation published nearest to the land in question; such notice to give the name and address of th. claimant, the designation of the subdivision embraced by his filing, the names of any miners or mining companies whose claims or improvements are upon the land or in the immediate vicinity thereof, the names of the parties who filed the affidavits that the land is mineral, and finally the notice should name a day, which shall not be less than thirty days from the date of the first insertion of said notice in such newspaper, upoz which testimony will be taken before the county clerk, to determine the facts as to the mineral or non-mineral character of the land, when such persons as may be brought by the parties in interest will be examined and their testimony reduced to writing: the whole to be duly attested by the seal of the court and transmitted to the register and the receiver, who will thereupon examine and forward the same to this oflice, with their joint opinion as to the character of the land as shown by the testimony. A copy of this notice must be posted in a conspicuous place, upon each forty-acre subdivision

claimed, for four consecutive weeks, proof of which must be made under oath by at least two persons, who will state when the notice was posted and where posted.

At the hearing, there must be filed the affidavit of the publisher of the paper that the said notice was published for the required time, stating when and for how long such publication was made, a printed copy thereof to be attached and made a part of the affidavit. In every case where practicable, in addition to the foregoing, personal notice must be served upon the mineral affiants, and upon any parties who may be mining upon or claiming the land.

At the hearing, the claimants and witnesses will be thoroughly examined with regard to the character of the land; whether the same has been thoroughly prospected; whether or not there exists within the tract or tracts claimed any lode or vein of quartz or other rock in place, bearing gold, silver, cinnabar, or copper, which has ever been claimed, located, recorded, or worked; whether such work is entirely abandoned, or whether occasionally resumed; if such lode does exist, by whom claimed, under what designation, and in which subdivision of the land it lies; whether any placer mine or mines exist upon the land; if so, what is the character thereof-whether of the shallow surface description, or of the deep cement, blue lead, or gravel deposits; to what extent mining is carried on when water can be obtained, and what the facilities are for obtaining water for mining purposes; upon what particular forty-acre subdivisions mining has been done, and at what time the land was abandoned for mining purposes, if abandoned at all.

The testimony should also show the agricultural capacities of the land, what kind of crops are raised thereon, and the value thereof; the number of acres actually cultivated for crops of cereals or vegetables, and within which particular forty-acre subdivisions such crops are raised; also which of these subdivisions embraces his improvements, giving in detail the extent and value of his improvements, such as house, barn, vineyard, orchard, fencing, &c.

It is thought that bona fide settlers upon lands really agricultural will be able to show, by a clear, logical, and succinct chain of evidence, that their claims are founded upon law and justice; while parties who have made little or no permanent agricultural improvements, and who only seek title for speculative purposes, on account of the mineral deposits known to themselves to be contained in the land, will be defeated in their intentions.

The testimony should be as full and complete as possible; and in addition to the leading points indicated above, everything of importance bearing upon the question of the character of the land should be elicited at the hearing.

If, upon a review of the testimony at this office, a forty-acre tract should be found to be properly mineral in character, that fact will be no bar to the execution of the settler's legal right to the remaining non-mineral portion of his claim, if contiguons.

The fees for taking testimony and reducing the same to writing, in these cases, when taken by a clerk of a court of record, as aforesaid; will have to be defrayed by the parties in interest.

When, by reason of proximity to the local land office, an applicant to enter lands of this class prefers to have the testimony taken before the register and the receiver, instead of the clerk of a court of record, as aforesaid, he has that option. In such case the mode of proceeding is fully set forth in the inclosed circular of the 6th May, 1871, which circular is hereby modified, as to the manner of giving notice, so as to conform with these instructions relative to that point.

It must be steadily kept in mind that the testimony hereby authorized to be taken before the clerk of a court is not for the purpose of determining questions of conflict between either pre-emption or mineral claimants, but simply to determine the character of the land, whether mineral or agricultural.

When the testimony is taken before the clerk of a court, as aforesaid, the register and the receiver will be entitled to no fees; those paid by the parties to the county clerk being all they are required to pay with reference to the proof as to the character of the land.

No fear need be entertained that miners will be permitted to make entries of tracts ostensibly as mining claims, which are not mineral, simply for the purpose of obtaining possession and defrauding settlers out of their valuable.agricultural improvements; it being almost an impossibility for such a fraud to be consummated under the laws and regulations applicable to obtaining patents for mining claims.

The fact that a certain tract of land is decided upon testimony to be mineral in character, is by no means equivalent to an award of the land to a miner. A miner is compelled by law to give three months' publication of notice, and three months' posting of diagrams and notices, as a preliminary step; and then, before he can enter the land, he must show that the land yields mineral; that he is entitled to the possessory right thereto in virtue of compliance with local customs or rules of miners, or by virtue of the statute of limitations; that he or his grantors have expended, in actual labor and improvements, an amount of not less than one thousand dollars thereon, and that the claim is one in regard to which there is no controversy or opposing claim. After all

these proofs are met, he is entitled to have a survey made at his own cost, where a survey is required, after which he can enter and pay for the land embraced by his claim.

It is quite unlikely that a miner will undertake these long and expensive proceedings, simply for the purpose of attempting to defraud an agriculturist out of a tract of land which was not mineral, but improved agricultural land, when there is an absolute certainty, not only of his scheme being frustrated, but also of his being unable to furnish the proof always required as a basis of patent for a mineral claim.

You are requested to give the foregoing careful attention, and to furnish copies hereof to parties upon application, in order that they may be fully informed in the premises.

Very respectfully, your obedient servant,


United States Land Office at



Washington, D. C., April 20, 1-72.

GENTLEMEN: Referring to my letter to you of December 2, 1871, directing you to suspend from disposal as agricultural lands certain townships therein designated, until the non-mineral character thereof shall have first been established by competent proof taken at a hearing to be had after due notice, I have to state that said order is modified with respect to entries which had already been made and reported to this other before said instructions were issued, but will be strictly enforced with regard to ali applications to enter such lands as agricultural made subsequent to said order.

The cases which had been reported prior to the date of said instructions, as aforesaid, will each be carefully examined in its turn, and if, from the facts in any case, a forther hearing or additional proof is necessary, the proper ruling will be made in the premises. You will make this known to all parties in interest and acknowledge its receipt.

Very respectfully, your obedient servant,


United States Land Office at


Non-mineral affidavit required.


For the more complete protection of the reserved mineral lands from fraudulent entry, the following non-mineral affidavit is now required to be taken by all applicants for agricultural land in the States of Califormia, Nevada, and Oregon, and the Territories of Montana, Wyoming, Colorado, New Mexico, Arizona, Utah, Idaho, and Washington, viz:

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being duly sworn according to law, deposes aud says that he is the identical who is an applicant for Government title to the -; that he is well acquainted with the character of said described land, and with each and every legal subdivision thereof, having frequently passed over the same; that his knowledge of said land is such as to enable him to testify understandingly with regard thereto; that there is not, to his knowledge, within the limits thereof, any vein or lode of quartz or other rock in place, bearing gold, silver, cinnabar, lead, tin, or copper, or any deposit of coal; that there is not, within the limits of said land, to his knowledge, any placer, cement, gravel, or other valuable mineral deposit; that no portion of said land is claimed for mining purposes under the local customs or rules of miners or otherwise; that no portion of said land is worked for mineral during any part of the year by any person or persons; that said land is essentially non-mineral land, and that his application therefor is not made for the purpose of fraudulently obtaining title to mineral land, but with the object of securing said land for agricultural purposes,

A. D. 1-7, and I


Subscribed and sworn to before me this —— day of hereby certify that the foregoing affidavit was read to the said to his name being subscribed thereto; and that deponent is a respectable person, to whose affidavit full faith and credit should be given.

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