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The fact that mining locations were made prior to the entry of a town site and within its limits is proof of the valuable mineral character of the lands thus entered, and the burden is on the party seeking to show their nonmineral character.

Townsite of Deadwood, In re, 8 C. L. 0. 153, p. 154.

5. TOWN-SITE ENTRY ON SURVEYED LANDS-FORM.

The statutory requirement as to conformity of the legal subdivisions of the public lands is clear, and the Land Department can not disregard it, and where a town-site entry is upon surveyed lands, the mandate of the statute is that in its exterior limits it shall conform to the legal subdivisions of the public lands.

Telluride Additional Townsite, In re, 33 L, D. 542, p. 543.

6. TOWN-SITE APPLICATION-EXCLUSION OF MINERALS.

A town-site claimant may exclude from his application any vein of gold, silver, cinnabar, copper, or lead, or any valid mining claim or possession held under existing law which may in fact be embraced within the town-site lots, and as to which no title would pass under the town-site patent. Telluride Additional Townsite, In re, 33 L. D. 542, p.

544. If a mineral vein or mining claim or possession be excluded from a town-site entry or patent, it must be shown to be a valid mining claim or possession held under existing law.

Telluride Additional Townsite, In re, 33 L. D. 542, p. 544.

7. TOWN-SITE OCCUPANT_RIGHT TO HEARING.

A waiver of all rights of review, rehearing, or reconsideration will not preclude a town-site occupant from afterwards questioning a decision of the department, where it appears that the purpose was not to preclude the occupants of a town site from thereafter applying to the Secretary of the Interior for the correction of any prejudicial errors or mistakes in the decision of the department.

Harkrader v. Goldstein, 31 L. D. 87, p. 92.
See Goldstein v. Juneau Townsite, 23 L. D. 417.

8. TOWN-SITE ENTRY OR PATENT_EFFECT ON MINING CLAIM.

A town-site patent which recites that no title can be acquired to any mine or to any valid mining claim or possession held under existing laws does not divest the department of jurisdiction to subsequently issue a patent for a lode claim within the lands covered by the town-site patent where the existence of such claim was known at the time.

Lalande v. Townsite of Saltese, 32 L. D. 211, p. 216.
See Pacific Slope Lode v. Butte Townsite, 25 L. D. 518.

Gregory Lode Claim, In re, 26 L. D. 144.
Brady v. Harris, 29 L. D. 89, p. 92.

Brady v. Harris, 29 L. D. 426, p. 433. The issuance of a town-site patent does not determine the rights of a mineral locator in possession, nor does it convey title to any vein of gold, silver, cinnabar, copper, or lead, or to any valid mining claim or possession held under existing law within such town-site limits, as the statute expressly excludes from the operation of such townsite patent in such existing mineral vein, mining claim, or possession, and all such rights are protected by the statute.

Hulings v. Ward Townsite, 29 L. D. 21, p. 23.
See Lalande v. Townsite of Saltese, 32 L. D. 211, p. 213.

Under section 16 no title can pass by a town-site entry or patent to any valid mining claim or possession held under existing laws, and patents may be obtained for such claims at any time notwithstanding a town-site entry, or the issuance of a town-site patent. Nome & Sinook Co. v. Townsite of Nome, 34 L. D. 276, p.

278. See Telluride Additional Townsite, In re, 33 L. D. 542.

A town-site patent, when issued, will not deprive a person of any right existing at the date of the town-site entry under any valid mining claim or possession within the patented area, as all such rights are protected; nor does the town site patent de prive the department of jurisdiction to issue patent for such mining claims as the statute expressly authorizes the issuance of such patent.

Nome & Sinook Co. v. Townsite of Nome, 34 L. D. 102, p. 103.
Hulings v. Ward Townsite, 29 L. D. 21, p. 23.
See Lalande v. Townsite of Saltese, 32 L. D. 211.

Nome & Sinook Co. v. Townsite of Nome, 34 L. D. 276 (on review). Patent issued either under section 2392 or this amendatory act is inoperative to convey title to any valid claim or possession held under the mining laws at the date of the town-site entry.

Brophy v. O'Hare, 34 L. D. 596, p. 598.
See Hulings v. Ward Townsite, 29 L. D. 21.

Lalande v. Townsite of Saltese, 32 L. D. 211. A patent for a town site can not include any valid mining claim, but such patents except all mines or valid mining claims or possessions.

Turner v. Lang, 1 C. L. 0. 51.
Placer-mining ground can not be included in a town-site patent.
Townsite of Butte, In re, 3 C, L. 0. 131.
Townsite of Deadwood, In re, 8 C. L. 0. 153.
Town-site patents may be acquired to lands in mining regions.
Townsite of Deadwood, In re, 8 C. L. 0. 153, p. 154.

Land which has been returned as coal land by the surveyor general can not be included in a town-site entry. Coal Land v. Townsite, 1 C. L. 0. 19.

26 STAT. 158, JUNE 17, 1890.

TOWN SITE OF BUFFALO, WYO. AN ACT To authorize the purchase of certain public lands by the city of Buffalo, Wyo., and for other purposes.

, Be it enacted, etc., That the city of Buffalo, Wyo., is hereby authorized to enter under the town-site laws for town site, cemetery, and park purposes, the north half of the strip of land released from the Fort McKinney Military Reservation by Executive order dated January 10, 1889, and described therein as follows, to wit: (here follows description), * containing 320 acres: Provided, however, That the 5 acres of land now used and occupied for school purposes therein by the trustees of school district numbered 2, of Johnson County, Wyo., under the license heretofore given said trustees by the Secretary of War, and described as follows: (here follows description) * included in said 320 acres, shall be taken by said city in trust for, and shall be conveyed by said city to the said trustees of said school district numbered two, of Johnson County, Wyo., for school purposes, and without cost to said school district: Provided, That if it shall be proven to the satisfaction of the Secretary of the Interior that any of the lands so authorized to be purchased by said city are valuable for coal or minerals, such portion shall be excluded from such town-site entry.

*

TUNNEL ACT.

14 STAT. 242, JULY 25, 1866.

SUTRO TUNNEL-COMSTOCK LODE.

AN ACT Granting to A. Sutro the right of way, and granting other privileges to aid in the construction of a draining and exploring tunnel to the Comstock lode, in the State of Nevada.

Be it enacted, eto., That, for the purpose of the construction of & deep draining and exploring tunnel to and beyond the “Comstock lode," so-called, in the State of Nevada, the right of way is hereby granted to A. Sutro, his heirs and assigns, to run, construct, and excavate a mining, draining, and exploring tunnel; also to sink mining, working, or air shafts along the line or course of said tunnel and connecting with the same at any point wbich may hereafter be selected by the grantee herein, his heirs or assigns. The said tunnel shall be at least 8 feet high and 8 feet wide, and shall commence at some point to be selected by the grantee herein, his heirs or assigns, at the hills near Carson River, and within the boundaries of Lyon County, and extending from said initial point in a westerly direction 7 miles, more or less, to and beyond said Comstock lode; and the same right of way shall extend northerly and southerly on the course of said lode, either within the same, or east or west of the same; and also on or along any other lode which may be discovered or developed by the said tunnel.

SEC. 2. And be it further enacted, That the right is hereby granted to the said A. Sutro, his heirs and assigns, to purchase, at $1.25 per acre, a sufficient amount of public land near the mouth of said tunnel for the use of the same, not exceeding two sections, and such land shall not be mineral land or in the bona fide possession of other persons who claim under any law of Congress at the time of the passage of this act, and all minerals existing or which shall be discovered therein are excepted from this grant; that upon filing a plat of said land the Secretary of the Interior shall withdraw the same from sale, and upon payment for the same a patent shall issue. And the said A. Sutro, his heirs and assigns, are hereby granted the right to purchase, at $5 per acre, such mineral veins and lodes within 2,000 feet on each side of said tunnel as shall be cut, discovered, or developed by running and constructing the same, through its entire extent, with all the dips, spurs, and angles of such lodes, subject, however, to the provisions of this act, and to such legislation as Congress may hereafter provide: Provided, That the Comstock lode, with its dips, spurs, and angles, is excepted from this grant, and all other lodes, with their dips, spurs, and angles, located within the said 2,000 feet, and which are or may be, at the passage of this act, in the actual' bona fide possession of other persons, are hereby excepted from such grant. And the lodes herein excepted, other than the Comstock lode, shall be withheld from sale by the United

States; and if such lodes shall be abandoned or not worked, possessed, and held in conformity to existing mining rules, or such regulations as have been or may be prescribed by the Legislature of Nevada, they shall become subject to such right of purchase by the grantee herein, his heirs or assigns.

SEC. 3. And be it further enacted, That all persons, companies, or corporations owning claims or mines on said Comstock lode or any other lode drained, benefited, or developed by said tunnel

, shall hold their claim subject to the condition (which shall be expressed in any grant they may hereafter obtain from the United States) that they shall contribute and pay to the owners of said tunnel the same rate of charges for drainage or other benefits derived from said tunnel or its branches, as have been, or may hereafter be, named in agreement between such owners and the companies representing a majority of the estimated value of said Comstock lode at the time of the passage of this act.

A. SUTRO TUNNEL ACT.

1. RIGHTS CONFERRED. 2. "BRANCHES" - MEANING. 3. "DISCOVERED OR DEVELOPED"-MEANING. 4. MINING CLAIMS WITHIN 2,000 FEET PROHIBITED. 5. TIME FOR COMPLETION OF TUNNEL-FAILURE TO PROSECUTE. 6. MINES BENEFITED BY TUNNEL-CONDITIONS IN PATENT. 7. INTERESTED PERSONS MAY OBJECT TO PATENT. 8. COMSTOCK LODE-STATUS AND DATE OF ACT. 9. TUNNEL CLAIMS EXEMPT FROM ANNUAL ASSESSMENT. 10. WATER IN TUNNEL-RIGHT OF APPROPRIATION. 11. EFFECT ON AGRICULTURAL LANDS.

1. RIGHTS CONFERRED. See sec. 2323 R. S., p. 164.

This act conferred upon A. Sutro and his assigns the right of preemption of lands to a certain extent on each side of the tunnel.

Del Monte Min., etc., Co. v. Last Chance Min., etc., Co., 171 U. S. 55, p. 62.

This statute, granting to A. Sutro and his assigns certain privileges to aid in the construction of a tunnel, conferred upon them the right of preemption of all lodes within 2,000 feet on each side of such tunnel.

Del Monte Min., etc., Co. v. Last Chance Min., etc., Co., 171 U. S. 55, p. 62.

The right to construct a tunnel was granted along any lode discovered and developed by the main tunnel, and this right can not be restricted unless there is something in the act which in terms or by implication limits its operation, but the language of the act seems to imply that the explorations may be extended to any distance and that all mines drained, benefited, or developed thereby shall be liable to pay the royalty agreed upon, if the lode or mine was discovered by the main tunnel.

Sutro Tunnel Co. v. Occidental, etc., Min. Co., 5 C. L. O. 98, p. 99.

Land embraced by the location of this tunnel was withdrawn from sale by letter from the department dated July 29, 1870.

Sutro, In re, Copp's Min. Lands 98.

[blocks in formation]

The word “branches” indicates that more than one branch tunnel would be run, and the fact that a mine is situated more than 2,000 feet from the main tunnel will not prevent the tunnel company from collecting its royalty on proof that such mine has been drained, benefited, or developed thereby, and prima facie proof of such fact is sufficient, and there is no limitation in the act as to the distance at which mines shall be situated from the tunnel to exempt them from the liability imposed.

Sutro Tunnel Co. v. Occidental, etc., Min. Co., 5 C. L. 0. 98, p. 99.

3. “DISCOVERED OR DEVELOPED’

- MEANING.

The words “discovered or developed,” used in the first section of this act have reference to separate and distinct events, the happening of either of which was sufficient to perfect a grant of the right of way and its necessary consequences, and as many lodes had been discovered on the line of the tunnel at the time the act was passed, it is not presumed that the lawmakers by the word "discovered” had reference to such lodes, yet they might be developed by the tunnel.

Sutro Tunnel Co. v. Occidental, etc., Min. Co., 5 C. L. 0.98, p. 99.

4. MINING CLAIMS WITHIN 2,000 FEET PROHIBITED.

A mining claim can not be located within the line of the Sutro Tunnel and some 2,000 feet west of the Comstock lode, as the grant includes lands west of this lode within the 2,000-feet limits.

Sutro Tunnel Co., In re, 8 C. L. 0.54.

A mining claim which lies within the 2,000-feet limits can not be patented where it is on a lode other than the Comstock lode. Lyons, In re, Copp's Min. Dec. 179.

In a location on the Comstock lode it is incumbent upon the surveyor general in his final survey to definitely ascertain and report whether or not the claim lies within the 2,000-feet limits of the located line of the Sutro Tunnel.

Chollar Potosi Min. Co., In re, Copp's Min. Dec. 96, p. 100.

5. TIME FOR COMPLETION OF TUNNEL-FAILURE TO PROSECUTE.

There is no provision in this act limiting the grantees to any certain period of time in which to complete the work on penalty of forfeiture.

Sutro Tunnel Co., In re 8. C. L. 0. 54, p. 55.

Congress reserves the right to alter or modify the provisions of this act, but until this is done the privileges extended by the act are not affected by any failure to prosecute the work.

Sutro Tunnel Co., In re, 8 C. L. 0. 54, p. 55.

6. MINES BENEFITED BY TUNNEL-CONDITIONS IN PATENT.

P. 55.

Any mine drained, benefited, or developed by the tunnel is subject to the royalties provided, and these must be inserted in patents when issued.

Sutro Tunnel Co., In re, 8 C. L. 0. 54, While the conditions prescribed in section 3 of the act should be inserted in patents issued for mines on testimony establishing prima facie that any such mine has been drained, benefited, or developed, yet such condition should never be inserted in

56974°-Bull. 94, pt 2–15—36

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