The Placer herald., 1866-01-20
Important Land Deciaion

Important Land Decision.
The following important decision from J. NJ
Edmonds, United States Land Csmmi ssioncr, has
been received by the Register and Receiver at
Marysve:
DEPARTMENT OF INTERIOR, GENERAL LAND OFFICE
WASHINGTON. November 30, 1865.
In the matter Of the application Of William
Turner to file declaratory statement on s. w. of
the s. f. /, s. E. of the S. W. /, Sec. 33, 7. l3.
Il. E., and N. E. of the N. W. /. N. W. / of
the N. E. /, Sec. 4, 7. II, N. h E., Mount Diablo
Meridian-lGO acres.
Register and Receiver, Marysville, (Cal) K Gen.
ilepen: The papers and testimony in this case
have been received and examined, from which
appear, in chronological order, the following dis
| tinctve ilcts
l. That William Turner settled upon and be-
gan improving the above described 60 acres in
the summer of 1852.
| g. That said land was surveyed in 1855 and
the survey approved in 1856.
| 3. That said land WAS reserved from sale by
the Register and Receiver at the public sale and
| Offering. February IA 1859, as mineral land.
| 4. That Townships ~ and l3. r. E includ.
ing the hand in question, were suspended from
precmption and entry by the Pacific Railroad
reservation, September IL 1862.
! Touching the reservation of this land for min.
| eral purposes. you forward abstracts Of affdavits
filed in your Office in January, 1889, made by di.
|
OF whom state any facts upon which to ground
| any actual knowledge, but confne themselves 10
what amounts to mere expression of opinion
based upon having Frequently passed over said
land and held conversations in regard to it,
Upon the strength Of these affi,lavits you with
held said lands from sale at the public offering,
February IA. 1889. Among said affidavits were
Turner, the applicant, and three OF the witnesses,
who now swear that said land is more valuable
| for agricultural than for mining purposes.
| The question: then, is: Shlll said Turner be al.
lowed to take another and necessary step towards
acquiring pre- empion right to said lAni-First
us against the United States, to whom are reserv-
ed all mineral Iirds; and second, rs against 1.-THE
Central Pacific Railroad Company" OF California!
In the consideration of this question it is pop
er to bear in mind the nature of The application
now made by said Turner. He only asks in this
case to bs allowed TO take one more additional
step toward acquiring preemplion light to th $
land.
Section 10 of the pre- emption law of Septcm.
Der T. ls4l provides that mo lands on which are
situated any known salin"s or mines shall be liz.
bic to entry under and 10y virtue Of the provis.
ions OF this Act"
In the month Of February, 1859. this tract in
question was withheld from sale on accoun: OF
The atfi'avts aforesaid alleging that said land
WAS more valuable for mnerAl than for agricu-
tural purposes.
From the testimony of three reliable with esses
Gncluding the County Surveyor himsclD. all OF
whom are intimately acquainted with this land,
1t appears that some mining done on said
tract about five years ago, but with profitable
result; that extensive prospecting has been done
thereon ut different times during the last four
years, and hat the same is, in their opinion. more
valuable for agricultural than for mining pur
poses; that said Turner has resided on this land
since 1852. and continues so to do, that he has
made LASTING and valuable improvements there
on. and now desires 10 acquire the same nnder
the pre- emption laws.
The words in said tenth section of the Act Of
lS4l are "any known salines or mines;" from
which conclude that reservation Of lands on
which mines are supposed to be situated. but
which in fact is not the case. will not defeat or
impair any pre- cmptiOn rights to such l,nds,
As the settlement Of said Turner on this Land.
prior to its supposed mineral character, gives
him pr'or equity us against subsequent parties
it follows that he reservation OF the s,me min
cral land does not defeat or impair the pre-cmp
tion lights o! Turner until it is known that said
land is mineral.
AS the Law does not prescribe any particular
mode in which this fact shall be determined. the
testimony of competest persons on this point
must be deemed authoritative and sufficient to
guide this office in deciding whether certain lands
do VI do not contain "knOwn sincs or mines;
such seems to be the character of the testimony
on this point furnished in this case.
The next question is, shall Turner lie allowed
| 10 file his lccl.rltory statement this Land as
| against ''The Pacific Railroad Company?'
Section OF the Act OF Congress approved Ju.
| ly |. 1862. entitled IAN Act to aid in the con.
struction of II railroad and telegraph line from
the Missouri river to the Pacific Ocean," etc, ex-
| crpts from the Lands granted 10 satd cOmpa ny
those to which y pre- emption or homestead claim
| have attached sat the time The line of said road
is definitely fye'; and further provides that ''a
| mineral lands shall bc excepted from the opera
| tion OF this Act"
| Section OF The Act of Congress amendatory
of the above Act, approved July 2, 1864, pro.
vdcs that amy lands granted by this Act. or the
Act to which this is IN amendment shall not de-
feat or impair any prcemption claim.
| nor include any government or mineral lands"
or the improvements of any bona fle settler"
| etc.
From these statutory prov sions, and The Gov
ernment in the disposition Of the public dom lin
to bona d'le settlers thereon, dcduce the follow
| ing conclusions;
| !. That "all mineral lands" referrad to in said
Railroad Acts of 1862 and 1864, include. in their
| Specification. lands on which are situated any
| known salipes or mnes," referred 10 in said pre-
emptioH Act of lS4l.
| 2. That neither the pre- emption nor said rail
| road laws affect the title OF the United States to
| the mineral lands.
3. That the reservation of the l.ad in question
as mineral. by your office in February. 1859. WAS
rs conclusive against the Central Pacific Rail
road Company" rs against said Turner.
4. That Il bona fide settler on this land prior
to the passage of said RAILROAD Act Of 1862, has
prior equity to the same as against said rail
road company, Of which This Office will take no.
tice
S. Thvt said bona fde settler has an attached
pre- cmpiiGI claim within the meaning of Sec.
ton 3 Of said Act of 1862 and Section 4 of the
Act OF 1854. From the Testimony furnished in
this case conclude That said Turner has an at
tached pre- emption claim. and that his improve.
merits said Land are those of u bona lide settler
within the meaning OF said Railroad Acts, which
will be recognized by this Office.
1t further appears that Turner gave due no.
tce OF his intention TO m Ike this application and
that no one appeared to contest the same.
Therefore concur With you IN the opinion that
this Land is shown to bc agricultural and not
mine. al, for the purposes Of this application
You will therefore allow Turner to lille his de.