MINING CLAIM-SURVEY-CIRCULAR OF DECEMBER 1, 1881.

ENGINEER MINING AND DEVELOPING COMPANY.

In the survey of a claim that conflicts with a prior valid lode claim, where the ground in conflict is excluded, the applicant's right is limited to a line passing through the point where the lode intersects the exterior line of the senior location.

Secretary Noble to Commissioner Stockslager, March 19, 1889.

This is an appeal by The Engineer Mining and Developing Company from your office decision of Jany. 28, 1888, requiring to be amended the survey under which William Schultz and the Engineer Mining and Developing Company made mineral entry December 28, 1885, for the Eldorado lode claim in E Sec. 17, T. 43 N., R. 8 W., N. M. P. M., Lake City, Colorado. The Eldorado claim was located July 31, 1877. It was surveyed in July 1885 and the survey was approved on August 26, 1885, and publication began September 4th following. The said survey overlaps on its southerly end the "B. F. Requa" lode claim which had been previously (June 14, 1876) located.

By said letter dated January 28, 1888, addressed to the United States surveyor general at Denver Colorado, your office stated that said survey had not been made in accordance with the circular approved December 4, 1884. (3 L. D., 540.)

By the same letter your office directed" within that portion of the "Eldorado” survey to which the claimants rights are restricted by said circular they must have a new survey of their claim made, the end lines of which must be parallel;" and also that the amended survey be connected with a United States mineral monument within two miles, it appearing that the township survey "has been questioned by letter "E" of March 31, 1883."

Section 1 of the said circular finds that the rights granted to locators are restricted to locations on veins, lodes, or ledges situated on the public domain, and directs that when the survey conflicts with a prior valid lode claim or entry, and the ground in conflict is excluded the claimants "right to the lode claimed terminates when the lode in its onward course or strike intersects the exterior boundary of such excluded ground and passes within it." Said circular in section 2 provides further "the end line of survey should not therefore be established beyond such intersection unless it should be necessary so to do for the purpose of including ground held and claimed under a location which was made upon public land and valid at the time it was made."

The appellant contends that under section 2336, Revised Statutes, it had certain rights to the space in conflict between the survey referred to and the said prior location, and that it is beyond the power of your office to limit such rights.

Section 2336, supra, provides:

Where two or more veins intersect or cross each other, priority of title shall govern; and such prior location shall be entitled to all ore or mineral contained within

the space of intersection; but the subsequent location shall have the right of way through the space of intersection for the purposes of the convenient working of the mine. And where two or more veins unite, the oldest or prior location shall take the vein below the point of union, including all the space of intersection.

In the case at bar the survey overlaps but does not cross or intersect the prior location. It cannot therefore be held to come within the purview of section 2336, the manifest purpose of which is to provide for the working of such claims as cross and lie on both sides of a senior location or entry.

In the case of Branagan et al. v. Dulaney (13 C. L. O., 190) upon which the appellant relies, the supreme court of Colorado considered the respective rights of a junior and senior location which crossed each other.

In the present case no part of the over-lapping space is embraced in the "Eldorado" application or entry but said space is expressly excluded therefrom. From the survey as it now stands the lode appears to strike the exterior line of the B. F. Requa lode claim at a point north of the line surveyed as the southerly end line of the "Eldorado.”

The appellant's right does not extend beyond a southerly end line. (parallel with the north line) through the point where the lode intersects the exterior line of the said senior location. The surface right being simply an adjunct to the fode claim, such right could not extend beyond the same. It was therefore proper to require the end lines of the survey to be re-adjusted so as to accord with the requirements of the law and the regulations.

Your decision is affirmed.

RAILROAD GRANT-SETTLEMENT CLAIM.

NORTHERN PACIFIC R. R. Co. v. ANRYS.

A claim resting on settlement, residence and improvement, and existing at the date when the grant becomes effective, is such a claim as contemplated by Congress in the excepting phrase "occupied by homestead settlers."

Secretary Noble to Commissioner Stockslager, March 19, 1889.

The land involved herein is the NE. of the NE. 4, the W. of the NE. and Lot 5, Sec. 7, T. 5 N., R. 2 E., Vancouver land district, Washington Territory.

The tract in question lay within the limits of the withdrawal for the benefit of the Northern Pacific Railroad Company, under the grant of July 2, 1864 (13 Stat., 365), on map of general route of its road filed August 13, 1870, and is in the primary limits of said grant as indicated by map of the definite location of the company's road, filed September 22, 1882.

On March 23, 1887, A. P. Anrys applied to make homestead entry for the tract, accompanying his application by affidavits, alleging, in effect,

that the land was covered by the homestead settlement claim of one Isaac Newland, prior to and on August 13, 1870, and was thereby excepted from the operation of the withdrawal on general route. On these allegations a hearing was had April 26, 1887, after notice to the company, at which Anrys appeared and submitted testimony, but the company made default.

The local officers found in favor of Anrys, and were of opinion that his application to enter the tract should be allowed.

Upon appeal by said company, your office, on November 7, 1887, affirmed the finding of the local officers, and rejected the company's claim to the land. The company now appeals to this Department.

It is shown by the testimony submitted at the hearing, that Isaac Newland settled on the land in question (then unsurveyed) on or about the first of February, 1870, with a view to acquiring title thereto under the homestead law, and erected a dwelling-house thereon; that at the date of his settlement he was a citizen of the United States, with a family consisting of his wife and five children, and otherwise qualified to make homestead entry; that he moved his family to, and took up his residence on the land about the first of March, 1870, and thereafter continued to reside thereon, with his family, making it his exclusive home, until some time in May, 1871. He cleared, enclosed and culti vated a portion of the land, raising oats, potatoes, turnips and other vegetables thereon, during the season of 1870, and built a chicken-house, milk-house and barn, which improvements, together with his dwelling house, were worth about $110.00. He also had a span of horses, two colts and nineteen head of cattle on his claim. In the meantime the land was surveyed, and Newland finding that he was on an odd section, and that his land was claimed by the said railroad company, and that the company intended to oppose his claim thereto, became discouraged, and sold his improvements and part of his stock to one John Colvin in the early spring of 1871, and moved off the land in the month of May following. Colvin immediately moved on to the land and coutinued to reside there until November, 1871, when he was succeeded by one Fritz Kettler, who was in turn succeeded by one J. C. Bronson in 1877. Bronson remained on the land, cultivating and improving the same until the month of June, 1881, when he sold his improvements to the applicant A. P. Anrys at the price of $216.00. Anrys at once moved to and took possession of the tract and has continuously resided thereon, with his family, making the same his exclusive home ever since. He has built a new barn, planted an orchard of some fifty fruit trees and otherwise added to the improvements on the claim, to the extent that such improvements are now worth about $700. Colvin and Kettler each cultivated and improved the land during the time of his residence thereon. It thus appears that the tract has been continuously occupied and claimed by settlers ever since the date of Newland's settlement, namely, February 1870, and also that Aurys had settled on the

same prior to the definite location of the company's road, and was living on and claiming the land at the date of such definite location. It also appears that the land was not surveyed until after the map of general route of the company's road had been filed.

I am clearly of the opinion, in view of the foregoing, that the claim of Newland, acquired by his settlement, residence and improvements, prior to and covering the date of the withdrawal on general route, was such a claim as served to except the land in question from the operation of such withdrawal. Northern Pacific R. R. Co. v. Bowman (7 L. D., 238); same e. Evans (id., 131).

Nor did the land pass to the company on definite location of its road, for at that date the tract was covered by the settlement claim of Aurys, the present applicant, who had settled in June, 1881, and was still living on and claiming the same. Southern Pacific R. R. Co. v. Lopez (3 L. D., 130); Central Pacific R. R. Co. v. Wolford (id., 264); Brown v. Central Pacific R. R. Co. (6 L. D., 151); Holmes v. Northern Pacific R. R. Co. (5 L. D., 333).

It is not necessary that actual entry should be made by a homestead settler, in order to defeat the claim of the railroad company to land covered by such settlement. A claim resting on settlement, residence and improvement, existing at the date of withdrawal on general route is sufficient, as we have seen, to except the land covered thereby from the operation of such withdrawal, and the same principle applies to such a claim existing at the date of definite location of the company's road. Moreover, it seems to me that this is such a case as the Congress contemplated by the excepting phrase "occupied by homestead settlers," used in the third section of said grant of July 2, 1864.

For these reasons your said office decision, rejecting the company's claim to the land in question is affirmed, and the application of Anrys to enter the same will therefore be allowed.

SURVEY SPECIAL RATES-ACT OF OCTOBER 2, 1888.

Augmented rates authorized for the survey of mountainous and heavily timbered land.

Secretary Noble to Commissioner Stockslager, March 23, 1889.

I am in receipt of your communication of January 18, 1889, relative to the petition of a large number of settlers upon unsurveyed lands in townships 38, 39, 40 and 41, S., range 12, W., and township 39 S., range 13, W., Willamette Meridian Oregon.

It appears that in September, 1887, and again in April, 1888, the surveyor general for Oregon advertised for proposals for the execution of the surveys in several of said townships, but that, on account of the country being mountainous and broken, no surveyor would undertake the work at the mileage rates allowed ($9 for standard and meander

lines, $7 for township exterior lines, and $5 for subdivisional lines); and he recommended that, where the lines pass over lands that are mountainous, heavily timbered, or covered with dense under-growth, he be authorized to allow the augmented rates provided by the act of October. In this recommendation you concur.

The paragraph of said act relative to such surveys is as follows (Stats. of 1887-88 p. 525):

For surveys and re-surveys of public lands, one hundred thousand dollars, at rates not exceeding nine dollars per lineal mile for standard and meander lines, seven dollars for township lines, and five dollars for section lines; except as to mountainous lands, or lands covered with dense timber or underbrush, the rate shall not exceed thirteen dollars per mile for standard and meander lines, eleven dollars for township lines, and seven dollars for section lines, when the survey is made upon the order of the Secretary of the Interior: Provided, That in expending this appropriation, preference shall be given in favor of surveying townships occupied, in whole or in part, by actual settlers; and the surveys shall be confined to lands adapted to agriculture and lines of reservation.

On January 25, 1889, my predecessor, Secretary Vilas, in case of a similar petition and recommendation, authorized the survey of certain lands in the immediate vicinity of those herein described, at the enhanced rates allowed under the act above quoted.

In view of the facts herein set forth, you are authorized to grant the prayer of the petitioners, and to instruct the U. S. surveyor general for Oregon to invite proposals for the survey prayed for, at a compensation not exceeding the augmented rates allowed by said act of October 2,

1888.

RAILROAD GRANT-WITHDRAWAL-SETTLEMENT CLAIM.

NORTHERN PACIFIC R. R. Co. URQUHART.

A withdrawal on general route made for a branch line of this road, will not operate to reserve lands for the benefit of the main line.

The settlement and occupancy of a qualified pre-emptor, existing at the date of definite location, are sufficient to except the land covered thereby from the operation of the grant.

Secretary Noble to Commissioner Stockslager, March 23, 1889.

I have considered the case of the Northern Pacific Railroad Company v. Donald Urquhart, on appeal by the former from your office decision of November 1, 1886, holding that the E. of the NE. 4 of Sec. 13, T. 22 N., R. 30 E., North Yakima, Washington Territory land district, was excepted from the grant to said company of July 2, 1864 (13 Stat., 365).

On June 14, 1883, Donald Urquhart filed pre-emption declaratory statement for this tract and other land, alleging settlement September 30, 1877, and, on December 27, 1883, made final proof thereunder before the local officers, upon which final certificate was issued.