Bisbee daily review., 1906-05-10

in the mineral application within the townsite of Bisbee, and each of them owns one or more dwelling houses on the land, and at least three of them have been residing on the land con tinuously since sometime prior to the filing of the application for mineral patent. It thus appears that the pro- testants are asserting an interest in the land involved, and have therefore the right of appeal. The motion to dismiss the appeal is denied.
 The mineral applicant contends that his mining location was valid when made; that the required annual "A. penditures have been made thereon since, and that for these reasons he is entitled to a patent for his claim as against the protestants. The ques- tion presented is not one simply of the validity of the location when made, or of possession thereof by means of an nral expenditures. The applicant is asking for patent to the land, and the protest alleges a failure by him to make any discovery of mineral there Or as required by the mining laws. This raises the question of the charac- ter of the land. To sustain the appli- cation for mineral patent, as against persons alleging the land to be non mineral, it must appear that mineral exists in the land in quantity and of value sufficient to subject 1t to dis posal under the mining laws. III other words, the land applied for must be shown to contain valuable deposits of mineral, which means moresthan a mere discovery that might be sufficient to support a location in the first i'm stance.
 It Is provided by the general town site act (Sec. 1892 R. S.) and by sec ton 16 of the act of March 16, 1891 (26 Stat. 1905,) relating to townsite entries by incorporated towns and cities on the mineral lands of the United States, amongst other excep- tions from such entries, that no title shall be acquired therelnder to any valid mining claim or possession held under existing law. In construing these provisions of the statute, the de- partment has held that a Iownsite pat ent issued under the general townsite laws, or under the provisions of said section Is of the act of March 16, 1881, is imperative to convey title to any valid mining claim or possession held under the mining laws at the date of the townsite entry. Lalande ct al. vs. Townsite Of Saltese t32 L. D., 211;) Rulings vs. Ward Townsite (29 l.. D., 21.) The provisions of the statute are cited and relied on in the brief of cour sel for the mineral applicant. The contention is that the. applicant has valid mining claim and possession within the meaning of the law, and that the same is therefore excepted from the townsite entry.
 In determining whether the claim here involved is a valid mining claim or possession, the question of the char acter of the land raised by the proceed ings Is a primary one. If the appli- cant has had ample time and oppor- tunity to show by exploitation and de velopment whether valuable mineral deposits exist on the land, and has not done so, and has not in any manner established that the location embraces mineral land under the well-settled rules of determination in cases where the character of the land is directly III issue, HIS lOCdllOu CdlluOl uS hSlu to be valid mining claim or posses sion within the meaning of the law. Purtle vs. Steffee (31 L. D., 400, 402)
 It Is in view of these principles that the evidence adduced at the hearing must be considered.
 The evidence shows that the min ing claim was located January 1, 1895, nearly ten years prior to the hearing, 3ur no systematic work for the pur- pose of developing the land as min ing claim has been done thereon. No mineral of value has ever been secur- ed from the claim, or from lands ad- joining or in the immediate vicinity. At no time since the location of the claim has there been more than very
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