Mining Claim-Continued.

Generally-Continued.

where the remaining part is cov-
ered by a surveyed mining claim
for which no application for pat-
ent has been filed, unless the agri-
cultural applicant submits a satis-
factory affidavit, corroborated by
two witnesses, showing that the
land within the mining location is
in fact mineral in character, or
following an adjudication that the
mining claim was valid from the
evidence adduced in a contest pro-
ceeding between the agricultural
and mineral claimant, as pre-
scribed in sections 101, 105-108,
of the General Mining Regulations_
15. Where. following contest
duly allowed, an entryman with
notice of such contest does not
meet and respond to its allega-
tions, but relinquishes to the
United States, such action must
be taken as a confession of the
truth of the charges, and the con-
testant is under no burden to
prove such facts as would entitle
his opponent to a segregation sur-
vey; but as between the Govern-
ment and the mineral claimant
there is no presumption that the
mining claim is valid.

16. While the existence of valu-
able timber on a mining claim,
though in a national forest, in no
way qualifies the locator's rights
under the mining law if he has a
valid claim, it is a proper element
for consideration in determining
the weight and credibility to be at-
tached to the testimony in deter-
mining the character of the land;
and the fact that the tract con-
tains some valuable timber and
timber that will grow into value,
supplies an additional reason for
clear and convincing evidence that
the land is valuable for mineral
before title should pass from the
United States----.

17. Failure to record a notice of
desire to hold an oil shale placer
mining claim in accordance with
the provisions of the act of May
18, 1933 (48 Stat. 72), does not,
Apso facto, work a forfeiture, but
it is necessary, in order to termi-
nate the claim, following failure
to comply with the legal require-
ments, that there be on behalf of
the United States at least some
form of challenge of the valid
existence of the claim_

Generally-Continued.

17. One who is granted per-
mission to drill a test well under
the provisions of section 13 of the
Oil and Gas Leasing Act, who does
not at the time disclose that he is
a claimant under the placer mining
laws, is estopped from afterwards
making such claim_.--
Annual Assessment Work.

18. Instructions of May 25,
1933, suspending annual assess-
ment work on mining claims.
(Circular No. 1300).

19. Instructions
of May 24,
1934, regarding suspending annual
assessment work on mining claims;
act of May 15, 1934. (Circular
No. 1325).
Coowners.

20. A coowner who relocated a
mining claim, whether with the
acquiescence of the other coowners
or not, does so in derogation and
not in affirmance of his own pre-
vious estate in the prior location,
and will not be permitted to in-
clude in his estimate of the value
of the improvements required as a
condition precedent to patent any
of the labor done or improvements
made by the original location----

21. The fiduciary relationship
between cotenants of a mining
claim is not terminated by the
relocation of the claim by one co-
owner unless there has been an
abandonment, or, by reason of
laches, the relocation has become
immune from attack by the ad-
verse possession law of the State
in which the claim is situated___

22. While a relocation of a min-
ing claim made for the purpose
of closing out coowners is ques-
tionable, the safer procedure be-
ing by forfeiture under the mining
statute, yet it is valid at law,
subject, however, to the equities
of the cotenants_.

Discovery.

23. The mere making within a
period of several years geophysical
examinations to determine the
structure of an area including an
oil placer to which claim is as-
serted, and endeavors to induce oil
companies to employ their finan-
cial resources in drilling further
test wells on the claims, do not
constitute diligent prosecution of
work within the meaning of the
mining laws

countered, but as to which no
tests of production were made and
the wells were abandoned and all
drilling discontinued until 1930,
when the mineral claimants, under
provisions of the leasing act of
February 25, 1920, obtained per-
mission to drill a test well to
deeper sands, in which oil and gas
in commercal quantities were en-
countered. Held, That the min-
eral claimants did not rely upon
the alleged discoveries in the
three wells first mentioned, but
realized the need of further tests
and accordingly drilled to deeper
sands, and that the placer loca-
tions were invalid for lack of dis-
covery.

24. In the proof required in
oil and gas claims, geologic infer-
ences cannot be allowed to prevail
over the results of actual tests
made of the sand penetrated_----
Location.

See 25-35, infra.
Lode or Placer.

25. A deposit of high calcium
content, especially valuable for the
burning of lime and the manufac-
ture of Portland cement, that ex-
ists in lode form with well-defined
walls and in such quantity and
situation as to render it economi-
cally practical to mine and devote
to commercial uses, is subject to
location as a lode or vein under
the mining law---

26. The test to be applied to
determine how mineral deposits
should be secured under the min-
ing law is the form and character
of the deposits, that is, if they
are in veins or lodes in rock in
place they must be located as lode
claims, but if they are loose or
scattered throughout the ground
they are then subject to location
only under the placer mining laws.
Webb v. American Asphaltum Com-
pany (157 Fed. 203).

27. Where deposits of coleman-
ite and ulexite have been located
as placer upon reliance upon a
practice in the Land Department

Mining Claim-Continued.
Lode or Placer-Continued.
to permit the patenting of lands
containing such minerals solely as
placer locations, the placer claim-
ants should not have their rights
assailed because the deposits
might more appropriately be
deemed lode in form and charac-
ter---

28. Sand and gravel which can
be extracted, removed, and mar-
keted at a profit, obtained from
land that has been duly located as
a placer claim, may be disposed of
for use not only on Federal aid
highways but for other lawful pur
poses---

29. In an application for placer
mineral patent, the evidence in
support thereof, adduced at a
hearing called, consisted of little
more than the finding of a few
fine colors of gold and some black
sand in soil and disintegrated bed-
rock on slopes and high lands, and
the principal witness for the appli-
cant admitted that 89 pans from
15 holes on the land showed only
a fraction of a cent in gold per
cubic yard. Held, That this show-
ing does not justify the conclu-
sion that there are valuable depos-
its of miner. I upon the surface of
the claim, within the purview of
the statute__

30. It is well settled that a
placer discovery will not sustain
a lode location, nor a lode discov-
ery sustain a placer location, and
a fortiori, a mere possibility of a
lode discovery will not sustain a
placer claim__.

Mill Site.

31. A mill site appurtenant to a
lode is a "location" under the
mining laws of the United States_
32. The statute is silent as to
the manner of locating mill sites,
but it is not unreasonable to sup-
pose that a location thereof should
be made substantially as in the
case of a mineral claim; and this
is recognized as the usual prac-
tice in the Department and in the
courts.

33. Neither the execution nor
posting of a notice of location of
a mill site is necessary to the in-
ception of a right thereto under
laws
the mineral-land
of the
United States, it being sufficient
that the land embraced within the
mill site is used in good faith in

Mining Claim-Continued.

Mill Site Continued.
connection with bona fide mining
and milling purposes, coupled with
a bona fide attempt to survey it
and mark its boundaries.

34. Mill sites come within the
prohibitions of the act of May 27.
1908 (35 Stat. 317, 365), forbid-
ding further location of claims un-
der the mineral-land laws of the
United States in Mount Rainier
National Park, but excepting from
this inhibition rights theretofore
acquired in good faith under said
mineral-land laws..

35. Where a mining company, in
good faith, made use of land with-
in the Mount Rainier National
Park for a mill site in connection
with bona fide mining operations
and was prevented from surveying
and marking its boundaries by
agents of the United States, prior
to the passage of the act of May
27, 1908, it acquired a right, under
the proviso to said act and the
mineral-land laws of the United
States, to the land as a mill site
claim, the act of May 27, 1908,
while forbidding future location of
mining claims within the park

area, excepting from this inhibi-
tion rights theretofore acquired
in good faith under the mineral-
land laws of the United States---

Marketability.

36. In the solution of the ques-
tion whether lands containing a
given mineral substance are sub-
ject to location and purchase un-
der the mining laws, the test is
the marketability of the product,
which test has been consistently
applied by the courts--

Sand and Gravel.

See Highways, Federal Aid.
37. No logical reason appears
for discriminating between depos-
its of sand and gravel, if market-
able at a profit, and other low-
grade deposits of wide distribution,
used for practically the same or
similar purposes, which meet this
test

38. Sand and gravel which can
be extracted, removed, and mar-
keted at a profit, obtained from
land that has been duly located
as a placer claim, may be dis-
posed of for use not only on Fed-
eral aid highways but for other
lawful purposes--

Mount McKinley National Park.

no

1. The act of June 30, 1932 (47
Stat. 446), contains
express
provision under which transfer of
any of the funds appropriated for
the Alaska Road Commission may
be made to the appropriation for
national park roads within a na-
tional park----

2. From the terms of the act of
February 17, 1933 (47 Stat. 820),
making appropriation for the
Alaska Road Commission for the
fiscal year 1934, it is clear that
no portion of the funds thereby
made available may be used for
maintenance work on a road
within a national park in Alaska,
since such funds are required to
be expended under the provisions
of the act of June 30, 1932 (47
Stat. 446), the terms of which are
not intended to apply to roads
within national parks, nor to re-
late to the use of appropriations
specifically made for the construc-
tion and maintenance of roads
within national parks----

3. The projects of the Alaska
Road Commission and the roads
and trails in national parks are
included in the general classes
enumerated as "public works" in
the act of March 20, 1933 (48
Stat. 8), continuing in force sec-
tion 317 of the Economy Act, ap-
proved June 30, 1932 (47 Stat.,
382, 411), which section provided,
with certain qualifications, that
"not to exceed 12 per centum of
any appropriation for an execu-
tive department *** may be
transferred, with the approval
of the Director of the Budget, to
any other appropriation
under the same department, to be
used for public works." Such leg-
islation would seem to supply
authorization for transfer to the
appropriation for roads and trails
in national parks some portion of
the sum appropriated for the De-
partment of the Interior for the
fiscal year 1934----.

Mount Rainier National Park.
See Mining Claim, 34.

National Forests.

See National Monuments, 1.
1. Instructions of May 4, 1933,
mining locations in Prescott Na-
tional Forest (Circular No. 1298) –

National Forests-Continued.

2. In an exchange of lands in
national forests under the terms
of the act of March 20, 1922 (42
Stat. 465), as amended by the act
of February 28, 1925 (43 Stat.
1090), a relinquishment to the
United States under the provisions
of the act of June 4, 1897 (30
Stat. 36), with no application for
other lands in lieu thereof, leaves
the transaction incomplete and
does not pass clear and complete
title to the base lands to
United States, equitable rights
therein remaining in the profferer_
3. Before the United States will
consummate an exchange of lands
in national forests, it must be
fully satisfied as to the title to
the land relinquished, and accord-
ingly will require that the ab-
stract of title submitted be ex-
tended, where necessary, to show
good title at date of acceptance--

the

National Parks, Buildings, and

Reservations.

See National Monuments, 1.

Generally.

1. The Secretary of the Interior,
as such, is without authority to
approve and make effective plans
submitted by the Director of the
Office of National Parks, Buildings,
and Reservations, for changing
the hours of labor from 30 to 40

per week, upon work in National
Parks, within the scope of the
Federal Emergency Administration
of Public Works, his authority in
this connection being that con-
ferred upon him as head of the
Federal Emergency Administra-
tion of Public Works__.

2. Nothing in the National In-
dustrial Recovery Act or the regu-
lations adopted to give it effect
forbids payment by Government
check for work performed with
funds granted by the Federal
Emergency Administration of Pub-
lic Works; but where, owing to
difficulties in the way of cashing
checks, such method of payment
would work a hardship, the pur-
pose of the regulations would
seem to require payment in cash-
Carlsbad Caverns.

3. By the terms of the act of
August 1, 1888 (25 Stat. 357), the
sanction of Congress is necessary
to a purchase of land or its con-
demnation on the part of the
United States, and that body has
not authorized the Secretary of
the Interior to thus acquire prop-
erty in connection with the water
system of the Carlsbad Caverns
National Park__

4. Under the provisions of Sec-
tion 203 of the National Indus-
trial Recovery Act, the Adminis-
trator of Public Works, or such
other agency as the President may
designate or create, is vested with
authority to acquire by purchase
or the exercise of eminent domain
real or personal property in con-
nection with the construction of
any project coming within the pur-
view of the Federal Emergency
Public Works Administration.
Held, that in the exercise of this
authority, the Administrator of
Public Works is authorized to ac-
quire private property and a right-
of-way in connection with the wa-
ter system of the Carlsbad Cav-
erns National Park, in the absence

National Parks, Buildings, and

Reservations-Continued.

Carlsbad Caverns-Continued.

of some other agency designated
by the President under the Nation-
al Industrial Recovery Act-----

Donations.

5. In view of the provisions of
the act of March 5, 1917 (39 Stat.
1106), forbidding, under penalty,
the receipt by any Federal officer
or employee of any salary in con-
nection with his services as such
officer or employee from any source
other than the United States Gov-
ernment, except as may be contrib-
uted out of the treasury of a
State, county, or municipality, the
National Park Service is without
authority to accept a donation of
money conditioned upon its appli-
cation to the salary of one of its
employees-‒‒‒

6. In accordance with well es-
tablished principles of statutory
construction, the act of June 5,
1920, permitting donations in aid
of national parks, and the act of
March 5, 1917, forbidding Federal
employees receiving other than
Government salary for Federal
services, should both be given op-
eration, the two acts not being un-
avoidably incompatible, and repeal
by implication not being favored
in law--

Employees; Park Police.

See Wages and Hours of Labor,
4, 5.

7. The order of the Secretary of
the Interior of August 23, 1933,
requiring that all work performed
with funds granted by the Federal
Emergency Administration of Pub-
lic Works shall be subject to the
labor policies and wage require-
ments prescribed by said organiza-
tion, embraces work performed in
national parks, whether under con-
tract or by the Government's own
forces.

8. By subsection (b) of section
3, Article II, Circular No. 1, it is
provided that, if work is located
at points remote and inaccessible,
40 hours' work in one week shall
be permitted after it is determined
by the State Engineer (P. W. A.),
prior to advertisement, that the
work is remote and inaccessible;
and this regulation vests author-
ity in the State Engineer (P. W.
A.) for determining whether 40
hours shall constitute a week's

National Parks, Buildings, and
Reservations-Continued.
Employees; Park Police-Con.
work on any designated project
with authority lodged in the Fed-
eral Emergency Administration of
Public Works to modify such regu-
lation

9. To be legally effective, a
change from or waiver of the
statutory 30-hour work week pre-
scribed by the National Industrial
Recovery Act and the Federal
Emergency Administration of Pub-
lic Works, as applied to national
parks, must be authorized by offi-
cials of the latter organization
or the State Engineer (P. W. A.),
in such persons residing the duty
of determining whether it is im-
practicable or infeasible to do the
work required on the 30-hour week
basis or to substitute therefor the
40-hour week authorized in Circu-
lar No. 1 and the rules and regu-
lations approved August 9, 1933--

10. No statutory authority exists
for the imposition of fines upon
members of the United States Park
Police who violate the park regu-
lations imposed to govern their
conduct, and no particular regu-
lations are prescribed, violation of
which shall constitute a punish-
able offense

11. The "charge and control"
of the park police authorized by
the Executive order of June 10,
1933, to give effect to the act of
March 3, 1933 (47 Stat. 1517),
includes the power of appointment,
with its incident, the power of
suspension and removal, but does
not include the power to fine, such
power not being incident to the
power of appointment---

12. The ordinary and reasonable
interpretation of the act of July
1, 1898 (30 Stat. 570), makes it
one relating to the admission of
the public to park grounds, their
conduct therein, and the extent of
supervision over such grounds in
that connection, and not to polic-
ing. It supplies no warrant for
assessing fines against the mem-
bers of the park police force for
offenses against the regulations
peculiar to them as members of
that force

Injury to Property.

See Claim for Damage, 1.
13. An employee of the United
States, in the course of employ-
ment for and on behalf of the