The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1892-11-29
IT is NOT IN THE GRANT.
The Railroad Cannot Claim Lands
Because They Don't Contain
Paying Mines
Any Prospect That Justifies Work
ing is Withheld From the
Company.
Interesting Opinion by the Secretary of the
Interior UNFOLDING the Local OFF,
GERS ut Helena.

GERS at Helena.
decision was received from Commits
sioner Stone, of the general land office, yes
terday, in the case of George II. Casey and
others against the Northern Pacific Hail
road company. The decision is made BY
the secretary of tho interior. and afitrm'
one of the commissioner OF she general lane
Office, which in effect affirmed one made b1
the Helena land officers. The decision OF
the local office here cancelled one OF the Sc
l~ections of the Northern Pacific company &c
far as it contiicted with the Lone Tree, An
ME Long and Sin Bad Il. mining claims
The commissioner of the general land office
and the secretary of the interior have IL
turn sustained this decision and upheld the
principle commended for by the Helena
Office, to the effect that it ia not necessary
to prove that a man has q paying mine In
order to exempt his claim from the railroad
grant; and that the fact that a claim Is
shown to have mineral in it sufficient to
Justify working it is all that is necessary.
In view of the big principle involved. the
opinion of the secretary of the interior may
be interesting.
On Jan. 10, 1891, George II. Casey for
himself and CO. claimants, Francis t. Nc
Bride and James T.. Jacobs. rendered in the
Helena land ofic CO application for patents
for the Annie Long, Lone Tree and
Sin Bad Il. lode claims. located in section
twenty-one. township three north, range
seven west. The application was rejected
for the reason that the land is in an ODD
numbered section, within the grant of the
Northern Pacific company, and was re-
tuned by the surveyor general az agricul-
tural land, and therefore prima facie sub
ject TO she opetation oft he grant, and was
partly included in the co%mpany's selection.
On January IS, 1891. the applicants filed an
affidavit and petition, duly cotroborated.
alleging that the land is mineral in char
acter, having numerous quartz leads ex-
tending through it bearing gold, silver aud
copper, and have been generally known to
exist for a long time, and the surface indi-
cations are marked and distinct, the leads
cropping in numerous places and large por-
tions being covered with float; and the
ground Ia not agricultural land. The petit
TONERS therefore prayed for a hearing, In
order that the character of the land might
be determined. The return testimony was
ordered to be taken, March IA, 1891, before
a notary public in Butte, Silver Bow
uut ~ q AhS CIV pAtS
local Office on March p, 1881. The mineral
claimants appeared with counsel and wit
nesses. The railroad company appeared by
its counsel. who offered 10 witnesses. but
cross-examined those offered by the mineral
claimants.
On April 80, 1891, the local officers de-
cided. in effect. that the tract is mineral
land within the meaning of that term, and
therefore was not included in the grant 10
the COMPANY. On appeal the commissions
affirmed their decision. An appeal was
taken by the company to the interior de-
partment. Secretary Noble, in his decision.
which is addressed to tho commissioner of
the general land Office, says:
1.-The chief contention of said company is
that it ia not proved that said lands con-
tain mineral of sufficient quantity and
promise to Justify expenditure for its ex-
traction and for their further exploration
and therefore it does not appear that they
are mora valuable for mining than for ag-
ricultural purposes. The third section of
the act of July 9, 1864, excludes all mineral
lands' from the operation of the act max
ing the grant to the said company. 1t is a
fair presumption that the above contention
by the company presents the issue as favor
ably fcr their interests as the law permits.
1t is sufficient therefore to determine the
issue as thus presented, without passing
upon the question whether or not it states
an accurate rule for determining what is
mineral land' within the true meaning and
intent of said provision. 1t is not easy to
lay down a rule that would fit all cases.
1.-The local officers stated their under
standing of the term PROMISE as used in
the company's contention, as follows:
Where the development and its results dis
play such promise that the prudent, reason
able man would be justified IN expanding
money and labor in legitimate mining OPP
eratione. untainted by an appearance of
e~oo,lotSon. orf land ,,rst ha ba1l ,,iDar,1
within the meaning of the term, as used in
the granting act. If it was held otherwise.
the mining industry, SO far as 1t pe:tained
to odd sections within the grant, would be
paralyzeG. The rule is that paying mines
are only shown to exist after years of labor
and much money are expended in their de-
velopment. Prospectors don't find riches
on the surface. Profit is not received from
the grass roots down. They must have an
opportunity given them to open the mIne as
their means will permit Applying this
understanding to the con,pany's contention,
the local officers found that the evidence
established the fact that said lands contain
mineral OF sufficient quantity and promise to
Justify expenditure for its extraction and
for their further exploration within said
contention, and were mineral lands within
the meaning of said act.
II do not see that the company was
wronged by this conjunction. either OF thei,
contention or of the meaning of said act.
The facts are fairly stated III your decision
and the following conclusion is reached
In my Judgment the evidence shows the
existence OF mineral in all of the claims oi
sufficient quantity and promise to justify
expenditure for its extraction and for theii
further exploitation, ana therefore that the
land embraced in the Lone Tree. Anna
Long and Sin Bad I mining claims is min.
erai land in the sense that the term Is used
IN the act granting land to said RAILROAD