Your decision, that the land in question is mineral in character, is affirmed. As the character of the land is the only one properly before me on appeal, the case should be treated as an ex parte case in all other respects; and, if the applicant has shown full compliance with the law, patent should issue to him for the tract claimed.

The papers in the case are herewith returned.
Very respectfully,

C. SCHURZ, Secretary.

The Commissioner of the General Land Office.

No. 17. 1. Where land is located in a well-known mineral region, the burden of proof is upon the person alleging the same to be agricultural in character. *

2. As between placer and town site, claimant's testimony as to relative value inadmissible.

3. Lands included in an Indian reservation, reserved from disposal under either the agricultural or mineral laws.

4. The policy of the government is to encourage the development of the mining resources.

DEPARTMENT OF THE INTERIOR,

GENERAL LAND Office,

WASHINGTON, D. C., February 4, 1880.

Register and Receiver, Deadwood, Dakota.

GENTLEMEN: I have examined the record of testimony taken at the hearing ordered by letter from this office, dated April 10, 1879, to determine the character of the land embraced in the entry of the town site of Deadwood, made July 29, 1878, by John R. Fraser, probate judge of Lawrence county, Dakota.

Burden of proof.

At the hearing you held that the burden of proof devolved upon the mineral claimants to establish the mineral character of the land. In making this ruling you were in error. The said entry was made upon unsurveyed lands; the lands were in a well-known mineral region; several mining claims had already been entered and many more located; in short, it is well known as a matter of recent history that the mineral character of the locality was the sole incentive to the immigration which peopled the district, resulted in a release of the same from the Sioux Indian Reservation, and made

*See Land Office Circular, dated April 27, 1880, No. 3, this volume. See also circular, dated September 23, 1880, No. 4.

necessary the establishment of a United States land office in that place. No formal withdrawal of the lands in question could have added force to the presumption of their mineral character. They were upon unsurveyed land, and hence no withdrawal could have given them a description by particular designation, while the law itself reserved them, by their known character, for conditional disposal only. It also may be added that by no official act or proceeding was a presumption of their non-mineral character ever raised. The presumption was that the lands were mineral, and the burden of proof, therefore, was upon those who claimed to enter them as non-mineral lands.

By decision of this office, in case of the town site of Central City, Colorado, vs. mineral claimants, dated December 23, 1875, and affirmed by the Hon. Secretary of the Interior June 6, 1876, the mineral and town-site laws (Sec. 2386 R. S.) were construed to permit town-site entries overlying lode claims. In this the two laws aforesaid are consistent, as a surface proprietorship by the town is compatible with an adverse ownership of veins of ore beneath; and the law seemed clearly to contemplate that condition of things, as will appear by reference to said section 2386, which limited its provisions to town proprietorship of the surface over veins.

Relative value.

In placer mining land, however, no fact is better established than that the surface is essential to its development as mining ground. By decision of the Hon. Secretary of the Interior, dated March 4, 1879, in case of Kemp et al. v. Starr, in Leadville, Colorado, it was declared, the land being placer, that as it was "valuable for minerals," is was not subject to entry as a town site, and that the testimony introduced to show that the land was more valuable for town purposes than for mining was improperly received.

If, therefore, the land embraced in the town site of Deadwood is valuable for placer mines, it can not be patented to the trustee of the town to be sold by him under local laws.

The record of testimony consists of upward of eighteen hundred manuscript pages, a volume too great to be here discussed in detail. It has been carefully read, however,

and the conclusion reached that no portion of the land entered as the town site of Deadwood (which includes that of Ingleside) is proven to non-mineral-that is to say, that the presumed mineral character of the land has not been rebutted. I am further of opinion that all of the land included within said town site claimed for placer mining purposes, respecting which testimony was taken, has been conclusively shown by the testimony to be valuable for minerals, and hence must be held for disposal under the mining act, and patent can not issue therefor for townsite purposes.

I find from the testimony that several of these claims have yielded large quantities of gold. It is undisputed that from one more than fifty thousand dollars' worth of gold has been taken; from another more than forty thousand dollars, and several have yielded from four thousand dollars to twenty thousand dollars. Other claims, where the aggregate yield is not stated, have produced from three dollars to ten dollars per day to the man employed in working the same.

A number of claims, shown by prospecting to contain gold, have yielded no return, and the testimony shows that no attempt has been made to work them further than required by the local laws for their "representation." It further appears that at the present time none of the claims are being worked except for the purpose of sustaining the possessory title.

I am led to believe that, with perhaps a few exceptions, none of these claims can be worked with profit until the owners can have unrestricted possession of the ground for mining purposes. Ditches must be dug, and those already constructed kept open for the passage of water; space must be had for the deposit of tailings or refuse; and the surface of the ground must be unincumbered, that it may readily be removed, washed out, and the gold extracted. All of these conditions are absolutely incompatible with the existence of streets, alleys, and buildings, and hence the argument of counsel for the town site, that patent should issue to both parties, the town site and mineral applicants, if concurred in and acted upon, would allow but one party to derive advan

tage from the grant. If used for town site purposes, it can not be mined.

Reserved land.

Prior to the twenty-eighth day of February, 1877, the entire tract in controversy was included within the limits of the Sioux Indian Reservation, and all persons other than these Indians and certain agents of the government were forbidden by law, under severe penalties, from making settlement therein for any purpose whatever. Notwithstanding this prohibition, the country was visited by prospectors, who discovered gold, and the reports of these discoveries led to a large influx of population. Placer claims were found on land now in controversy, and were worked for the gold they contained. These claims were staked off, in accordance with local rules, and recorded, by which the character of the land was given the utmost notoriety. These locations were void and unlawful, and under them the locators gained no title whatever, yet they served the purpose of giving notice to all concerned of the character of the land. While portions of the claims were being worked for the gold they contained, other portions were rapidly occupied for various purposes, and at the ratification of the agreement with the Sioux Indians, quite a populous town had become established. At this date, February 28, 1877, the land was rendered subject to general occupation, and a lawful settlement might for the first time be made.

Theretofore the occupation of the land by miner, merchant, or any other person, was alike unlawful and prohibited under penalty provided by law; thereafter, it might be occupied in accordance with law. Section 2318, Revised Statutes, reads: "In all cases, lands valuable for minerals shall be reserved from sale, except as otherwise expressly directed by law."

If the land was "valuable for minerals," as claimed, it could, under section 2318, only be lawfully claimed for mining purposes; and the fact that improvements had been made by persons acting at their peril, in direct violation of law, gave them no sort of color of right to retain possession of the same to the prejudice of others claiming in pursuance of law. If the land was not mineral, no valid mining location could have been made upon it.

The large population attracted to Deadwood by the mineral discoveries, engaged in the various occupations called for in a mining camp. A municipal government was established, streets and alleys were laid out, and many buildings, temporary and permanent, were erected.

The operations of the miners soon clashed with these town improvements. Some of the mineral claimants made application for patent and entered their claims, and others were preparing to take the same steps to procure full titles to their lands, whereupon those claiming for town site purposes petitioned the probate judge of Lawrence county to enter the land for town-site purposes, which he did.

The miners were then restrained, in many instances, from working their claims, sometimes by the road commissioner, and at others by warrants in the hands of the sheriff, and again by the citizens themselves, acting without color of authority. Ditches were filled up, sluice-boxes and drains destroyed, and the miners themselves sometimes arrested and put under bonds to refrain from further injuring the town improvements or those of private citizens. Though the miner was not actually evicted from his claim, he was only allowed the barren privilege of digging therein, but if without the power to construct ditches to bring and carry away water, such permission was without practical value. In short, Deadwood assumed the powers and privileges of a municipal government, unrestricted by United States laws, and in pursuance thereof its officers took ordinary measures and precautions to keep its thoroughfares open to public travel-proceedings proper enough where the town authorities are entitled to jurisdiction, but otherwise when they would defeat rights guaranteed by United States laws.

Policy of the government.

It is the settled policy of the government to encourage the development of mines and the production of the precious metals. The law makes every other claim to the public lands subordinate to their occupation and possession for mining purposes, and no deviation from this policy is made in favor of town sites, the mining interests being jealously protected where it permits lands overlying veins to be patented for town-site purposes.