The new North-west. [volume] (Deer Lodge, Mont.) 1869-1897, 1878-03-29

DEPARTMENT OF THE INTERIOR, A
GENERAL LAND OFFICE,
WASHINGTON, ID. c., Dec. 2S, 1875. J
Register and Reeeiesr, Central City, Col:
GENTLEMEN: Town-site, entry No. eli
of Central City, made May 81, 1874, amen
datory ofentry No. 14s, made May, 1e, 1878
has this day been approved and patent
will issue therefor in due course, but with
proviso in the following form: /" 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 proeided fur-
ther, that the grant hereby made is held
and declared to be subject to all the con-
ditions, limitations and restrictions con-
tanned in section 1856 of the Revised Stat
utes of the United states, so far as the same
are applicable thereto.''
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 ase
thereof bat nothing contained in this Sec
ton shall be SO construed as to recognize
any color of title in pcssessors for mining
purposes, as against the United States"
On behalf of certain alleged mining in
terests, John A. Dig, Esq, ct al, protests
against the issue OF patent to the town mn
less the following exception, or one equiv
alent thereto, is inserted therein, to-wit:
Proeided, 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
background shall be reserved, and shall he
sold with the mines for the special use and
working the. eof, at not less than dol
lars per acre."
am of the opinion that this form of ex-
ception is Objectionable, that it 1T NOT i'm
conformity with law, and that it's insertion
would tend to cloud the title IF the grantees
under the town patent, without assuring Or
securing to mineral claimants the particular
benefits or privileges evidently intended to
be compassed by its 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. It can neither
grant without express authority of law, nor
can it limit or qualify by form or convey
ance the substance, conditions or extent of
the subject matter granted, save as the same
may be authorized to be done by express
legislation. The proyIso proposed by this |
Office to be inserted and above quoted, en-
braces by recitation and reference all that |
Congress has seen fit to enact by way of
qualification in the matter under eonsidera- |
tion, 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 the limit uf ex-
ecutive authority.
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 a mining vicinity, be
populated, and attain the character of
town or city. Where any branch of bust
ness fourishes, there capital and population
will concentrate. The various trades and
callings will centre there. Hotels viii be
necessity. Dwellings, will be built and
homes established; all the vari-
ous interests which constitute valuable
property rights as connected with the soil
will be created. And this IS not necessari
ly antagonistic to the miners. The pro-
lection Of municipal government 10 In the
miners interest, as it is IN the interest OF
any other class OF BUSINESS men.
In the case of Theodore "a. Becker gs.citi-
zens Of Geatral City, Colorado, Becker was
a mineral claimant to 5000 haear fest OF
the Gunnsn Extension or White Lode.
under aet of July 26, 1856. He claimed
cemplianee with law and was ooposed by
certain eitizens of the town who represented
that said lode extended to a considerable
distance under town lets and Improvements
ownedand occupied By them In said city. In
this case the Hon. Secretary Of the Interior
decided, August I, 1871. that In the
present case the application for patent
inea,tdas the surface and soil as well as the
mineral. aan of the opinion that the
persons in possession Of this surface are
adverse claimants within the meaning OF
this law and are entitled to be heard IN the
local eeurts before . patent Is issued. /"
Tbe exception in the mining patents, fer
ciaims wiahin the exterior limits Of town,
having in view the legality of the possess
ION Of the surface ground By the inhab-
itonts, Is as follows, to-wit: 8 Excepting
ana excluding, however, from these pres