Custer weekly chronicle. [volume] (Custer City, S.D.) 1890-1931, 1909-04-17

Kautz. Feb. 2, 1906, application was
made to purchase the claims. Upon
payment therefor, the registers certfi.
cate was issued. Feb. 8, 1908, notice
was issued to entryman from the CON-
missioner of the general land Office, in
forming him that certain charges had
been preferred against him by the for
est service, and that unless within 30
days he should file an answer denying
the charges and demanding a hearing,
the entry would be cancelled. The
answer was filed by the entryman
February 20. Hearing was set and
heard before United States Commits
sioner Trenam, at Weiser, June 10th,
1908.
CHARGES OF FOREST SERVICE.
The charges preferred by the Forest
Service were as follows:
l. Less than $500 worth of assess
ment work has been done on each of
the Captain Robley Evans, the Captain
Kautz and the Captain Clark lodes.
2. No ore has been mined from the
land.
8. Mineral has not been discovered
in sufficient quantities to show the land
to be more valuable for its mineral de-
posits than for any other purpose.
4. The land is more valuable for its
timber than for its known mineral de-
posits.
5. The entry has evidently been made
to secure the timber that is on the land,
and not for the purpose of actually min
ing the ground.
ANSWERS TO ALLEGATIONS.
At the opening of the case, Mr.. Gar
rett, of counsel for the contestee, moved
to dismiss, on the ground that the charges
did not raise an issue. He quoted the
five charges, and continuing said:
''Charge might be totally true and
not affect the locations, or either of
them, or the entry, as all the claims in
the entry are not named in the charge,
and all the development work might be
on the unpatented claim, and meet
every requirement of the law and regu-
lations.
"Charge might also be true and not
affect either the claims or the entry, as
there is no requirement of the law or
regulations of the department that ore
be mined from the land to legalize loca-
ton or authorize entry or patent.
"Charge might also be true and not
affect either of the locations or the en-
try as there is no requirement of the
law or regulations making it necessary,
in order to validate a location, or before
allowance of patent that mineral be dis
covered in sufficient quantity to show
the land to be more valuable therefor
than for any other purpose.
Charges Nos. and 5 may be dis
missed without serious consideration
1t makes no difference how much tim
ber may be standing on a mi ming claim.
The government does not seek to seq
regate the timber from the mineral, but
cheerfully permits the miner to appro-
pirate what may be on land located by
him"
GOVERNMENTS STAND.
In closing his decision, Register Bal
derston explains the governments posi-
ton as follows:
'It has not been the custom for the
government to appear as prosecutor in
seeking to prevent the patenting of min
ing land. Perhaps there have been such
instances, but, ifso, they have been so
rare that no general knowledge of them
exists. The practice has been to permit
men to get patents to land upon which
they have been willing to expend as
much as an average of $500 per claim in
the search of paying deposits ofmineral.
There has been safety from fraudulent
operations in patenting property, be-
cause men would not make large expen-
ditures to secure patents for mineral
land which they did not think valu-
able for mining purposes. Local condi-
tions, customs and regulations have
always been taken into consideration,
directly or indirectly in determining
whether the law has been complied with
and patents have been granted, without
applying another rule, the broad, elas-
tic rule that has been adopted by the
courts.
"The allegations of contest in this case
were in direct contravention of the prin.
ciple that is to be applied in determin-
ing whether mining claims situated as
these are, upon which such a showing
has been found and on which so much
work has been done, can be patented.
Local conditions and rules are ignored
by such charges in case like this and
their just and necessary jurisdiction chal-
lenged. The law, in our judgment, does
not sustain the charges, while they are
directly in violation of the common law
of mines
nFor these reasons we hold the allie.
cations have not been proven, and that
the contest should be dismissed. Min.
] ing Science.