Arizona weekly citizen., 1882-01-22
RESERVATIONS IN MINERAL PAT
 ENTS.
Important Decision Of tho Acting At.orney-een- eral of the United states---Wheroa Looa1iohn Anterior to Townsits Clear Patent Should Issue
rRssul,r correspoudent of the CrTIzES.l


 IRegular correspondent of the CITIZEN.J
 WASHINGTON, D. C., Jan. l3, 1882.
 The following opinion of the Acting Attorney-General was made Dec. "A, but was not promulgated by the Interior Department until to-day. It IS doubly important now because of an erroneous dispatch that has been scattered broad cast throughout the land. The opinion is addressed to the President because It was to that official counsel had to ap- peal, the Secretary refusing to call for the opinion of the Attorney Genera;
 DEP'r. OF JUSTICE, Dec. 24, 1851.
 THE PRFsIDEST.-SR:-I have con sidered the application of J. H. Man de vile. Esq. made in behalf of the NlZlna Consolidated Mining Company of Ari- zOna, relative to the patentlng Of nm ing claim to that company which was on the 9th inst, by your direction referred to the Attorney-General for an opinion thereon.
 The applicant states in his communi- cation to you of that date that a patent to said company for the Vizina mining claim, has been prepared against hls protest with reservation Tn favor ot the city of Tombstone, Arizona, and now lies on the table of the Commis- sioner of the General Land Office ready for delivery He claims that the inser- ton of such reservation Is contrary to law: and he asks the President to dl- rect that another patent to said Con- pany be prepared, without the reserva- tion. In issuing patents for mining claims upon veins or lodes. 1t IS the practice of the General Land Office, where it appears that the surface ground of any such claim lies wholly or partial ly within the limits of a previously To- cated, entered, or patented tOwnsite, to insert in the patent clause excepting from the grant all tOwnsite rights in the premises. The insertion of this clause | does not rest upon any express statu- tory requirement., but IS founded upon the view that the previous location, en- | try or patent of the tOwnsite, while not conferring any right to the underlying yelns or lodes (sec 2392 R. S. gives nev- ertheless to the towusite occupants sur face rights, to which that of the subse- quent mineral claimant are necessarily subject, and that by giving the latter a patent with a reservation saving the rights of the townsite all the law con- | templates to be granted by the patent in such case Is expressed therein. Iper- ceive no legal objection to the practice of the General Land Office as above, There are instances dating as far back as 1888, of similar reservations inserted in patents issued under the pre-emption laws, where part of the lands patented was found to be subject to rights claimed under other acts of Congress, sec Bryan vs. Forsyth, l9 Howard, 334; Meehan vs | Forsyth, c4ib. 175. In the latter case the | Court remarks that the saving clause ID | the patent twas designed to exonOrate | the United States from any claim of the | patentee. in the event of his custer by | persons claiming under the acts referred | to-" This would be sufficient ground
 for the insertion of a reservation III pat
 ents for lode claims, Ill cases where pri- | or rights to the surface are found to ex- 1 ist in favor of townsites. In the case
 under consideration, townsite entry II
 favor of the city of Tombstone was pat
 ented in September, 1880, the paten
 containing prOviso, that no title shal
 be thereby acquired to any mine of gold
 silver, cinabar or copper, or to any val
 i'd mining claim or possession held un
 der existing laws (sec. 2392 R. S., etc)
 Part of the Vizina mining claim, whicl l I understand to be a vein or lode clain
 and for which patent Is now sought tt
 be obtained without a reservation, lie
 within the limits of the tOwnsite so pat
 ented. Unless it should be established
 to the satisfaction of the Land Depart
 ment that this claim existed and wa
 possessed throughout its entire exten
 prior to the townsite location, and tha
 the pOssessory right of the minera
 has since been continuously held anC
 maintained in accordance with the min
 eral land laws, the fact that patent hai
 covering a part of such claim, must b
 deemed sufficient to warrant the inser
 tion of reservation in a subsequen
 patent for the claim. The papers refer
 red to us do not show that priority O right in favor of the mineral claim, a
 against the townsite, has been estab lished, and my opinion is that they pre-
 sent no case calling for any special di rection from the President to the Ian, Department, and that the application Il | bA AAAN 4AAAAAAAes NbtAAls oAAONAANA v denied.
 Very Respectfully,
 $. F. PHILLIPS, Acting Att'y-General. The Secretary of the Interior takes tn abovet to mean that m cases wherein it established to the satisfaction of tn land office that mining claims existed and were possessed throughout their CT tire extent prior to townsite Locations and that the possessory rights of tn . mineral claimants have since been hel , and maintained in accordance with tn ; mineral land laws, it Is competent to 1T } sert in lode claim the usual reservatiO in favor of townsite claimants and occr pants, so that the only question to dC termire in their cases is that of priorit . of right by selection or location as bt , tween tOwnsite and vein or lode mir ing claimant. Under this opinion there ! fore the court of the General Land O fee is directed to make out n clean pat ent for the Vizina Consolidated Minin Company, without a reservation in fi 3 vor of the tOwnsite of Tombstone.