Fergus County argus., 1904-07-20

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mine the mineral contestant can pre-.
vail where a showing is made that
mineral actually exists in sufficient
quantity and value 10 justify rea,
sonable and competent person in ex.
ploring and developing ii and where
the prospector is actually working the
ground and showing his confidence
money in development work
The decision was rendered January
"a by the local office. the commits
sioner's letter affirming il just being
received. The rule was established
in the contest case of the Noble Gold
Mines (Limited) company against
John f. Smith, involving two mining
claims of the company situated with,
in the limits of the homestead entry
of Smith, and which was decided in
favor of the contestant. The land and
mining claims are situated in Madison
county and evidence was taken be-
fore United States Commissioner j.
r. Comfort al Twin Bridges. The
case was decided by the Helena Office
in favor of the contestant. An appeal
was taken to the department at Wash
ington and a decision rendered af-
firming the local Office July Sth.
The original decision of Register
Miracle and Receiver Freeman In the
case was in part as follows:
I'VE are of the opinion that il is
not the intent of the department in
laying down the rule that before land
can be held to be mineral within the
meaning of the law II must be shown
that mineral can be produced there
from in paying quantities as pres
ent fact to take from the prospector
the right to explore and develop his
property. which the mineral laws re-
cognize and encourage and in fact
require, for the purpose of ascertain
ing whether il has mineral value or
not.
Many of our best paying mines at
some period Of their existence. would
not have been able TO have withstood
contest by an agricultural claimant,
undsr a strict conztruction of the
above rule.
1T has always been the policy of
the government TO encourage the
prospector, to investigate the mineral
character of the land, and develop the
mineral values contained therein, and
as shown by the non-mineral affidavit
required in all agricultural entries,
the intent is that no possible mineral
land shall be acquired by an agricul-
tural entry.
"Under these conditions We do not
believe that the above rule Is appli-
cable where a showing is made that
mineral exists in sufficient quantity,
and of sufficient value, to justify a
reasonably competent and experience
ed person to expend time and money
in exploring and developing the
same and where the prospector is
actually working the ground and
showing his confidence in the value
of the property for mining purposes
as we'll as his good faith in the mat
ter by expending his time and money
in such exploration and development
work
1T can be said to be the inyariable
rule in this section of the country
land which We believe is the same
in other mining districts) from actual
demonstrations made, that the pay
ing mines were. at the time OF their
location, and for considerable per-
iod thereafter, mere prospects, and
did not show actual demonstrated
values, but only such a value as jus
titled further exploration and develop
ment, and that such value was IN
most instances, only shown and dem
onstrated by deep exploration and de
velopment and the expenditure or q
large sum of money. And, under
these circumstances, 1t would have
followed as a natural consequence,
that they could not have been sus.
tanned as producing mineral in pay,
ing quantities as present fact at
the time of their location or for a
considerable period thereafter, II 1t
had become necessary to establish
their mineral character in conformity
with said rule as against an agricul'
tural claimant"
In affirming the decision the com
missioner of the general land Office
says:
after a careful consideration OF
the matter | am inclined to think that
the protestant has succeeded in show
ing by a preponderance of the evil
dence. the burden of proof being on
it. that indications on these mining
claims are of such a character to jus,
tify the miner in the further expendi-
ture of time and money with rea'
sonable prospect of developing a pay
ing mine. 1t is not necessary that 1t
be shown that the mine at the date
of the hearing was a paying one; for
the reasons above stated your decis-
ion is affirmed and should this action
become final the agricultural claimant
will be required to have a survey
made segregatlng the mining claims
described"