The new North-west. [volume] (Deer Lodge, Mont.) 1869-1897, 1876-03-24
TowN-s1rEs.
Town-site of Central City, Colorado.
From Copp's Land. Owner. January

CACCpGtEr ClduSS VIII
inserted in patents for town-sites in miniI
regions, without mentioning by name
number any patented mining claim with
such town-sites. a eH
Progided, that no title shall be hereb
acquired to any mine of gold, silver, CHM;
bar or copper, or to any valid mining clair
or possession held under existing laws, an
prog6ded further, that the grant hereb
made, is held and declared to be subject t
all the conditions, limitations and restris
tions contained in sections two thousan
three hundred and eighty-six of the Revise
Statutes of the United States, so far as th
same are applicable hereto" 81
The town-site laws clearly contemplat
towns and cities in mining regions, and pei
NIT town-site entries on mineral lands.
Mining claims within town-sites are pat
ented with an excepting clause, as fol
lows .....st..f r..rn .-.as .ri
Excepting and excluding, however, fror
these presents, all town property right
upon the surface, and there are hereby ex
pressly excepted and excluded from tn
same, all houses, buildings, structures, lots
blocks, streets, alleys, or other municipa
improvements on the surface of the abov,
described premises, not belonging to til,
grantee herein, and all rights necessary O.
proper to the occupation, possession ant
enjoyment of the same" ..s...s
DEPARTMENT OF THE INTERIOR, !
GENERAL LAND OFFICE,
WAsHIN GToN, ID. c., Dec. Esd, 1875.
Register of Receiuer, Central City, Go: : =
GENTLEMEN Town-site entry, No. 211
of Central City, made May 27, 1874, amen
datory of entry No. 14S, made May 16, 1878
has this day been approved and patented
will issue therefor in due course, but Will
proviso in the following form : g Provided
that no title shall be hereby acquired to any
mine of gold, silver cinnabar or copper, OF
to any valid mining claim or possession
held under existing laws and pr0otded fatr
tier, that the grant hereby made is held
and declared to be subject to all, the con
ditions, limitations. and restrictions con
tanned in section two thousand three hun.
dred and eighty-six of the Revised Statutes
of the United States, SO far as the same art
applicable thereto" .....t aFa. .saflf..
Section 1886, above quoted, is the follow
ing words: Where mineral veins are
possessed, which possession is recognized
by local authority, and to the extent so pos,
sessed and recognized, the title to town lots
to be acquired, shall be subject to such rec
ognized possession, and the necessary use
thereof but nothing contained in this sec
tion shall be SO construed as to recognize
any color of title in possessors for mining
purposes, rs against the United States" 7
On behalf of certain alleged mining inter-
ests, John A. Dix, Esq, et 0I., protest
against the issue of patent to the town un-
less the following exception, or one equiv
alent thereto, is inserted therein, to wit
Provided, That no title shall be acquir-
ed under this patent to any mine of gold,
silver, cinnabar or copper, nor to any sur
face ground over any such mine or within
fifty feet on each side of the same through
out the length of the vein, which said sur
face ground shall be reserved, and shall be
sold with the mines for the special use and
working thereof, at not less than - dollars
per acre." dis .lT Et.-s 8asa.rsfa at
l am of the opinion that this form of ex-
ception is Objectionable, that it is not in
conformity with law, and that it's insertion
would tend to cloud the title of the grantees
under the town patent, without assuring or
securing to mineral claimants the particular
benefits or privileges evidently intended to
be compassed By it's terms. 1t is to be borne
in mind that this Office is not vested with a
discretionary authority in the matter of the
disposal of the public lands. 1t can neither
grant without express authority oflaw, nor
can it limit or qualify by form of convey
ance, the substance, conditions or extent
of the subject matter granted, save as the
same may be authorized to be done by ex-
press legislation. The proviso proposed by
this office to be inserted and above quoted,
embraces by recitation and reference all
that Congress has seen fit to enact by way
of qualification in the matter under consid-
Grafton, contains all of that to which appeal
can be had, should the courts be applied to
for the settlement of conflicting claims, and
must therefore be held to be the limit of ex-
ecutive authority. - as sf t baa 1ja
The town-site laws clearly contemplate
that towns will exist. in mining localities !;
by clear implication town-site entries are
to be permitted On mineral lands. This is
indicated by the clause excepting title to
mines from the title acquired by the town.
It is inevitable that where the surface is
suitable, it will, in mining vicinity, be
populated, land attain the character of a town
or city. Where any branch of business
fourishes, there capital and population will
concentrate. The various trades and cali
ings will centre there. Hotels will be a
necessity. Dwellings will be built, and per-
manent homes established; all the various
interests which constitute valuable property
rights as connected with the soil will bo
created. And this is not necessarily anita
gonistic to the miners. The protection of
municipal government is in the miners in-
terest, as it is in, the interest of any other
class of business men. %. 6 s6iit3,
In the case of Theodore III. Becker VS..
citizens of Central City Colorado, Becker
was a mineral claimant to 5000 linear feet
of the Gunnell Extension or White Lode,
under act of July 26, 1866. He claimed
compliance with law and was opposed by
certain citizens of the town who repre-
sented that said lode extended to consid-
erable distance under town lots and I'M
provements owned and occupied by them
in said city. In this case the Hon. Secre-
tary of the Interior decided, August 2, 1871.
that 6 In the present case the application
for patent includes the surface and soil as
well as the mineral. / am of the opinion
that the persons in possession of this sur
face are adverse claimants within the mean
ing of this law and are entitled to be heard
in the local courts before patent is issued.'
The exception in the mining patents, for
claims within the exterior limits of town,
having in view the legality Of the possess
sion of the surface ground by the inhabl-
tants is as fellows, to wit: Excepting
and excluding however, from these presents,
all town-property rights upon the surface
and there are hereby expressly excepted
and excluded from the same all houses,
buildings and structures, lots, blocks,
streets, alleys, or other municipal improve
ments on the surface of the above described
premises, not belonging to the grantees
herein, and all rights necessary or proper
to the occupation, possession and enjoyment
of the same.'' By this exception the sur
face in the actual possession and occupation
of the mine owner, or covered by hs inn
proyements, is as distinctly assured and
conveyed to him, as is that surface to
which town property rights have attached
or on which improvements by other parties
have been placed excepted from his patent.
/ regard these correlative exceptions, in
serted in the town-site and mineral patents,
as securing the objects contemplated in the
town-site and mineral laws. They assure
to all parties just what, under the law, they
are respectively entitled to claim. To grant
to the miner the entire surface ground,
q. AZ xx,l,ol< 1;fa nf tha fadn with m