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_.
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__.
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---
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--
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.
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--
National Parks, Buildings, and
Reservations.
See National Monuments, 1.
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-----
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
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