Custer weekly chronicle. [volume] (Custer City, S.D.) 1890-1931, 1909-05-15
orrr1on Is annDnnno.

OPINION IL RDnDERnD.
Local Land Once Dissects Case Agsins
1 Denis Hsnault.
An opinion Of great importance TO tn,
prospectors, miners and others has beer
rendered from the Rapid City land of
fee in the case of the United Statei
against Denis Hensult and in which A.
w. Layman, special agent, represented
the government, and Ed. L. aanthan
appeared for the defense. The matter
In question has caused q furore amons
mining interests because Of the fact thai
Is prospectors and locators are going to
be stopped capital will not invest in
mining enterprises except where the
property is patented, and the opinion o.
law with regard 10 the matter as render.
cd here will be received with interest.
The aame proposition 10 receiving atten.
ton In other states and IL has been not.
ed that the state of Colorado has appro-
priated $40, 900 10 fight the government
on the same matter as the decision here
rendered.
The action against Denis Henault in
wolves the determining of the character
of land involved in mineral locations.
the jurisdiction of the local Office as to
subject matter and the local Office takes
the position that the local Office is with.
out any jurisdiction to adjudicate the
subject matter Of the charges instituted
by forest officer.
The case is based upon the following
charges set up by a forest officer, in
voiving the Anna and Stella R. lode To-
cation, that no mineral has been discov-
cred upon the land; that the land is
more valuable for agricultural purposes
than for the mineral it contains.
The records Of the local Office disclose
that the official plat was fled December
Is, 1899. 1t also appears from the files
of this Office that on May IL, 1908, the
lands here in controversy were with
drawn from appropriation and use Of
all kinds, under the public land laws,
for an administrative site, within the
Black Hills National Forest, 8. d., sub
ject to proper valid adverse claims. The
defendant, February Is, 1909, filed in
this local Office his answer TO the charges
instituted against said mining locations,
praying for dismissal of the proceed
ings. The case was tried on April 20,
1909.
"The action brought is to determine
the character of the land of a mineral
location prior to the fling in the local
Office any application for title thereto
upon the part of the defendant, and is q
wide departure from the method of pro-
cedure upon the part Of the government
in mining cases, and is novel in its in
ception for the reason that after exhaus-
tive research no precedents can be as.
certained or found to sustain the prac-
tice herein involved" is a paragraph of
the opinion rendered. all the opinions
and decisions which have been examin-
ed are found to bear more specifically
upon litigations either upon the part of
individuals or the government incident
to application for patent fled in the To-
cal Office involving mineral locations On
the one hand, and an application to en-
ter specific tract by a homesteader on
the other.
The local land office failed TO fnd af-
ter an examination of any Of the acts of
congress creating forest reservations,
that the rights of prospectors and locat-
ors upon the mineral lands within the
confines of such reservation have been
in any manner abridged, but the right
is expressly reserved that such lands
are open to exploitation and purchase.
In fact, through long line of decisions,
we'll established, 1t has been held that
locators of mining claim shall have the
exclusive right of possession and enjoy.
ment of all the surface included within
the lines Of their location. The estate
of locator of a claim however, is both
limited and conditional one. He has
only right to use the land included in
the boundaries Of his claim for the pur.
pose of searching for minerals and for
purposes incidental thereto. While the
location of a mining claim withdraws
the land from the public domain, so
that no rival claimant can successfully
initiate any right thereto until such To-
cation has been avoided and the loca-
tion cancelled, it has not, however, di-
vested the United States of the legal tile
nor impair its right to protect the land
and its product by either civil or GRIM
inal proceedings, from trespass and
waste.
The controlling and far reaching ques-
ton In the case at bar Of importance ID
that of the right of jurisdiction of the
local Office to determine the subject mat.
ter raised by the charges made agains,
said locations.
Ifthe local land Office has any Gu
thority whatsoever to try the Issues
herein involved, the same is based up.
on Section 2S35, Revised Stats, which
confers upon the Register and Receiv
er in cases of contests or hearings as te
the mineral or agricultural character o
the land, the right 90 to do.
In considering the section in connec
ton with the preceding sections Of chap
ter 152 Of the Act of May Is, 1872, tn,
Office concluded that congress intended
to confer jurisdiction only upon the 10
cal Office after an application had ono,
been fled therein, whereby contest o.
hearing could be initiated in re.proceed
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