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A. PRIVATE LAND CLAIMS.
B. BACA HEIRS.

A. PRIVATE LAND CLAIMS.

1. PURPOSE AND EXTENT OF GRANT-MINERAL LANDS.

By this act Congress confirmed various claims amounting to millions of acres, and without any reservation of mines then known, or to be thereafter discovered within their limits, though under Spanish, if not under Mexican law, all minerals were perpetually reserved from such grant.

Shaw v. Kellogg, 170 U. S. 312, p. 334.

By this statute Congress did not intend to grant any mines or mineral lands, or lands then known to contain mineral, neither did Congress intend that the grant should be rendered nugatory by any future discovery of mineral.

Shaw v. Kellogg, 170 U. S. 312, p. 332.

B. BACA HEIRS.

1. SELECTION OF NONMINERAL LANDS.
2. TIME FOR SELECTING NONMINERAL LANDS.
3. NONMINERAL CHARACTER OF LANDS SELECTED_BURDEN OF

PROOF.
4. KNOWN MINERAL LANDS EXCLUDED.
5. MINERAL CHARACTER OF LANDS ONCE DETERMINED-EFFECT.

1. SELECTION OF NONMINERAL LANDS.

The Baca heirs under this grant are entitled to select an equal quantity of vacant land nonmineral; and lands vacant and not known to contain mineral at the time of selection pass under this act, whether subsequently discovered to be mineral or not.

Kern Oil Co. v. Clarke, 30 L. D. 550, p. 564.
See Kern Oil Co. v. Clarke (on review), 31 L. D. 288.

The grant made by this section was in lieu of certain specified lands claimed by the Baca heirs, and they were authorized select in lieu thereof an equal amount of land in the vicinity of Las Vegas, but they could not select lands already occupied by others, but the lands selected must be vacant and they must not be known to contain mineral.

Shaw v. Kellogg, 170 U. S. 312, p. 332.
Cosmos Exploration Co. v. Gray Eagle Oil Co., 112 Fed. 4, p. 16.
Baca Float No.3, 29 L. D. 44, p. 52.
Kern Oil Co. v. Clarke, 30 L. D. 550.
Kern Oil Co. v. Clarke, 31 L. D. 288, p. 298.
See Gray Eagle Oil Co. v. Clarke, 31 L. D. 303.

This act permitted the Baca heirs to select lands in lieu of those claimed by the town of Las Vegas, but such selections were to be made from lands not mineral.

Baca Float No. Three, In re, 30 L. D. 497, p. 499.
See Baca Float No. Three, In re, 29 L. D. 44.

A location and selection made by a claimant of lands known to be mineral may be vacated, and the right to select other land in lieu thereof will be barred unless made within the time limited by the act.

Baca Float, In re, 5 L. D. 705, p. 707.

2. TIME FOR SELECTING NONMINERAL LANDS.

The right to select nonmineral lands under this grant is limited to three years, and if not exercised within this time the right no longer exists.

Shaw v. Kellogg, 170 U. S. 312, p. 332.
Baca Float No. 3, In re, 29 L. D. 44, p. 50.

Where lands selected and located prior to June 21, 1863, that were not mineral or not known to be mineral according to the provisions of this act, the department has no power to cancel such selection and permit a relocation of the claim.

Baca Float, In re, 5 L. D. 705, p. 707.

The time with reference to which the character of the land selected, whether vacant and nonmineral, is to be determined is the date of the selection and not the date of the approval of the survey of the claim; and the duty of investigating and determining in the first instance whether the land selected is vacant and nonmineral as of that date rests upon the surveyor general.

Baca Float No. Three, In re, 30 L. D. 497, p. 499.

3. NONMINERAL CHARACTER OF LANDS SELECTED---BURDEN OF PROOF.

The burden of proof is upon a claimant under this grant to show that the lands selected or located are nonmineral lands, as no title to mineral lands can vest under this act, and the department may at any time before title passes from the Government require the claimant to show the nonmineral character of the land, though the character of the land was not known to the claimant at the date of selection or location, and if the proof shows that the land embraced in the location is mineral, the mineral land must be segregated from the nonmineral land by survey, and the claimant will be entitled to such part of the location as is shown to be nonmineral.

Baca Float, In re, 12 L. D. 676, p. 680. Under this act the surveyor general was authorized to locate only vacant, nonmineral land, and unless the contrary appeared it would be presumed from the act of locating that the surveyor general determined that the land so located was not mineral, and the land was in fact so returned by him, but the act did not intend that if at any subsequent time mineral should be discovered the title should be unsettled.

Baca Claim, In re, 6 C. L. 0. 18.

4. KNOWN MINERAL LANDS EXCLUDED.

All lands ascertained by the surveyor general to have been occupied, or known to be mineral, at the date of the selection under this grant, must be excluded from the survey as not subject to the grant.

Baca Float No. 3, In re, 29 L. D. 44, p. 54.

5. MINERAL CHARACTER OF LANDS ONCE DETERMINED EFFECT.

The question as to the mineral or nonmineral character of the land in controversy under this act has been passed upon by competent authority and the title passed from the Government and vested in private individuals, and the Land Department has no authority to reopen the question, and the land can no longer be regarded as a part of the public domain.

Baca Claim, In re, 6 C. L. 0. 18.

12 STAT. 836, APRIL 11, 1860.

PORTERFIELD HEIRS-LOCATION OF LANDS.

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AN ACT For the relief of the legal representatives of Charles Porterfield, deceased.

Be it enacted, etc., That the Secretary of the Interior be, and he is hereby, authorized and required to issue to

executors of the last will and testament of Robert Porterfield, deceased, a number of warrants equal to 6,133 acres of land, according to the usual subdivisions of the public survey, in quantities not less than 40 acres; to be by them located on any of the public lands which have been or may be surveyed, and which have not been otherwise appropriated at the time of such location within any of the States or Territories of the United States where the minimum price for the same shall not exceed $1.25 per acre.

A. PORTERFIELD SCRIP-LOCATION.

Porterfield Scrip can not be located on mineral lands.
Porterfield Scrip, In re, 3 C. L. 0. 83.

26 STAT. 854, p. 860, 1 SUPP. R. S, 917, p. 922, MARCH 3, 1891.

SETTLEMENT—MINES AND MINERALS EXCEPTED.

AN ACT To establish a court of private land claims, and to provide for the settlement

of private land claims in certain States and Territories. Be it enacted, etc.,

* * SEC. 13. That all the foregoing proceedings and rights shall be conducted and decided subject to the following provisions as well as to the other provisions of this act, namely:

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Third. No allowance or confirmation of any claim shall confer any right or title to any gold, silver, or quicksilver mines or minerals of the same, unless the grant claimed effected the donation or sale of such mines or minerals to the grantee, or unless such grantee has become otherwise entitled thereto in law or in equity; but all such mines and minerals shall remain the property of the United States, with the right of working the same, which fact shall be stated in all the patents issued under this act. But no such mines shall be worked on any property confirmed under this act without the consent of the owner of such property until specially avthorized thereto by an act of Congress hereafter passed.

A. PURPOSE OF ACT.

1. ALLOWANCE OF PRIVATE LAND CLAIMS.
2. MINERAL LANDS EXCEPTED-EFFECT.

1. ALLOWANCE OF PRIVATE LAND CLAIMS.

By this act Congress afforded the holders of small tracts not exceeding 160 acres an inexpensive and easy method of acquiring title by filing their claims with the surveyor general and making proof of their citizenship, and the act contains no provision whatever restricting such claims to nonmineral lands; but an allowance or confirma

tion of a claim should not confer any rights or title to any gold, silver, or quicksilver mines or minerals unless the grant claimed effected the donation or sale of such mines or mineral.

Santa Fe Pac. R. Co., In re, 39 L. D. 135, p. 137.

2. MINERAL LANDS EXCEPTED-EFFECT.

While no express exception of mineral lands is necessary to exclude them from an ordinary grant, yet where Congress undertakes to except certain minerals, the presumption is that all other minerals not named are not excepted.

Santa Fe Pac. R. Co., In re, 39 L. D. 135, p. 137.

By this act Congress provided an entirely new method of ascertaining the rights of claimants to Spanish or Mexican land grants.

Lockhart v. Wills, 9 N. Mex. 344, p. 350.

This act provides that no minerals shall pass under ordinary Mexican grants of land unless the grant effects the donation or sale of mines or minerals to the grantee, but the mines and minerals remain the property of the United States.

Lockhart v. Johnson, 181 U. S. 516, p. 524.

Section 13 makes it plain that so far as regards mineral land there was no intention after the passage of this act that they should be reserved by a mere claim in a Mexican grant of ordinary land.

Lockhart v. Johnson, 181 U. S. 516, p. 524. This act continues in force the reservation of land embraced within the Mexican or Spanish grants.

Lockhart v. Willis, 9 N. Mex. 344, p. 351.

PUBLIC AND MINERAL LANDSMISCELLANEOUS.

ORDINANCE OF 1785, MAY 20, 1785.

MINERAL LANDS_DISPOSAL.

AN ORDINANCE For ascertaining the mode of disposing of lands in the western

territory. Be it ordained by the United States in Congress assembled, That the territory ceded by individual States to the United States which has been purchased of the Indian inhabitants shall be disposed in the following manner:

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The lines shall be measured with a chain, shall be plainly marked by chaps on trees, and exactly described on a plat, whereon shall be noted by the surveyor, at their proper distances, all mines, salt springs, salt licks, and mill seats, that shall come to his knowledge; and all water courses, mountains, and other remarkable and permanent things over or near which such lines shall pass, and also the quality of the lands.

There shall be reserved the lot No. 16 of every township for the maintenance of public schools within the said township; also, onethird part of all gold, silver, lead, and copper mines, to be sold or otherwise disposed of, as Congress shall hereafter direct.

1 Laws Relating to Public Lands 11, pp. 12, 13.

A. SALE OF PUBLIC LANDS-RESERVATION OF MINERALS.

This ordinance dedicated section 16 for the maintenance of public schools and reserved from every sale of public land one-third part of all gold, silver, lead, and copper mines within the township or lot sold; but no further reservations were made of gold, silver, or copper mines until the act of March 1, 1847 (9 Stat. 146).

Cooper v. Roberts, 59 U.S. (18 How.) 173, p. 178.
Alabama, In re, 15 C. L. 0.7, p. 8.
See Shoemaker v. United States, 147 U. S. 282.

From the date of this ordinance providing for the disposal of the public lands in the western Territories and reserving the interest of the Government in the minerals therein, through all the acts of Congress in any way affecting the public domain, this interest in the mineral wealth of the public lands has been carefully guarded, and special legislation, as applicable to mineral lands, in contradistinction to all other lands, enacted for its protection and preservation; and the present mining laws clearly contemplate the disposal of such lands in small quantities to encourage and induce prospectors to make discoveries. United States v. San Pedro & Canon del Agua Co., 4 N. Mex. 225, p. 293.

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