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gives to this mineral provision a common sense and just operation in harmony with the system of legislation affecting allotments in severalty and with the general operation of the mining laws upon public lands.
Acme Cement & Plaster Co., In re, 31 L. D. 125, p. 128.
Valuable mineral deposits found upon land allotted in severalty to an Indian under this act are not withheld from such allottee or reserved to the United States, and they can not be acquired under the mining law, but such land may, with the approval of the Secretary, be leased by such allottee under the general statute relating to the giving of mining leases by Indian allottees.
Acme Cement & Plaster Co., In re, 31 L. D. 125, p. 128.
2. MINING LAWS EXTENDED TO ALLOTTED LANDS.
This statute opens to settlement lands allotted to the Comanche, Kiowa, and Apache Tribes of Indians, containing valuable mineral deposits.
Bay v. Oklahoma Southern Gas, etc., Min. Co., 13 Okla. 425, p. 431.
The time when the mineral deposits were to be opened for location and entry is fixed by the term “upon the passage of the act," and this is emphasized by the provision extending the mineral laws of the United States over such lands, and these words of present import indicate that the law was to operate at once upon the lands to be affected thereby, and the law was to operate upon lands allotted to the Indians or open to settlement under the act.
Acme Cement & Plaster Co., In re, 31 L. D. 125, p. 126.
By this act only the lands which are to be allotted to the Indians, or to be opened to settlement thereunder, are made subject to the mining lawsand to mineral exploration and entry, and the act does not extend the mining laws generally to the land ceded, as did the act of March 2, 1895 (28 Stat. 876,
894-899). Gypsite Placer Min. Claim, In re, 34 L. D. 54, p. 55. See Acme Cement & Plaster Co., In re, 31 L. D. 125.
Instructions, In re, 32 L. D. 95.
3. RIGHT TO PROSPECT ALLOTMENTS FOR MINERALS
The mineral provision in this act does not subject to the mining laws or the mineral exploration and entry lands which have been allotted to Indians, or lands to which a homestead entryman has acquired fixed and vested rights by reason of his compliance with the homestead laws, and the act does not contemplate that these lands were always to be subject to mining laws or to mineral exploration and entry, but only so long as they should remain free from any vested right of ownership of any individual, and when title was earned by homestead entry or otherwise the land ceased to be subject to this mineral provision.
Acme Cement & Plaster Co., In re, 31 L. D. 125, p. 128.
4. TIME FOR MAKING MINERAL LOCATIONS ON ALLOTMENTS.
Under this act and the proclamation of the President issued July 4, 1901 (32 Stat. 1975), fixing August 6, 1901, as the beginning of the 60-day period prohibiting persons from entering or settling upon lands in the Comanche, Kiowa, and Apache Reservations, and a mineral claimant could not by staking and locating a mineral claim on the 8th day of August acquire any valid rights as against a homestead entry made on November 15, 1901.
Bay v. Oklahoma Southern Gas, etc., Min. Co., 13 Okla. 425, p. 438.
5. MINERAL CHARACTER OF LAND-BURDEN OF PROOF.
Lands in Oklahoma, by virtue of the surveyor's return, are prima facie nonmineral, and this, together with the necessary nonmineral affidavit of a homestead entryman, impresses the land enbraced in his entry as nonmineral and agricultural in character and casts upon a mineral claimant the burden of proving the mineral character of the land.
Bay v. Oklahoma Southern Gas, etc., Min. Co., 13 Okla. 425, p. 426.
33 STAT. 243, APRIL 22, 1904.
MILITARY RESERVATIONS-FORT WALLA WALLA-SALE OF MINERAL
AN ACT For the reappraisement and sale of the undisposed lands within the Fort
Walla Walla Military Reservation, in the State of Washington. Be it enacted, etc., That the lands originally embraced within the Fort Walla Walla Military Reservation, in the State of Washington, remaining undisposed of shall be reappraised, under the direction of the Secretary of the Interior, by legal subdivisions, and the appraisers, in their report, shall note the character of each legal subdivision and state whether it is chiefly valuable for stone, mineral, timber, agricultural, or grazing purposes; and if any of the legal subdivisions of said land is improved the appraiser shall appraise separately the improvements on said land and the land independently of such improvements, and they shall describe generally the character of such improvemets, and also report the names of the persons who made such improvements and the parties claiming to own the
34 STAT. 233, p. 234, JUNE 11, 1906.
FOREST RESERVATIONS-ENTRY SUBJECT TO MINING LAWS.
AN ACT To provide for the entry of agricultural lands within forest reserves. Be it enacted, etc.,
Sec. 3. That all entries under this act in the Black Hills Forest Reserve shall be subject to the quartz or lode mining laws of the United States, and the laws and regulations permitting the location, appropriation, and use of the waters within the said forest reserves for mining, irrigation, and other purposes; and no titles acquired to agricultural lands in said Black Hills Forest Reserve under this act shall vest in the patentee any riparian rights to any stream or streams of flowing water within said reserve; and that such limitation of title shall be expressed in the patents for the lands covered by such entries.
RIGHTS OF WAY.
See Railroad grants, pp. 1099, 1105, 1129.
10 STAT. 28, AUGUST 4, 1852.
AN ACT To grant the right of way to all rail and plank roads and macadamized turn
pikes passing through the public land belonging to the United States. Be it enacted, etc., That the right of way shall be, and is hereby granted to all rail and plank road, or macadamized turnpike companies that are now or that may be chartered within 10 years hereafter, over and through any of the public lands of the United States, over which any rail or plank road or macadamized turnpikes are or may be authorized by an act of the legislature of the respective States in which public lands may be situated; and the said company or companies are hereby authorized to survey and mark through the said public lands, to be held by them for the track of said road, 100 feet in width: Provided, That in case where deep, excavation or heavy embankment is required for the grade of such road, then at such places a greater width may be taken by such company, if necessary, not exceeding in the whole 200 feet.
SEC. 2. And be it further enacted, That the said company or companies shall have the right to take from the public lands, in the vicinity of said road or roads, all such materials of earth, stone, or wood, as may be necessary or convenient, from time to time, for the first construction of said road or roads, or any part thereof, through said land.
10 STAT. 683, MARCH 3, 1855. RAILROADS, PLANK ROADS, AND TURNPIKES-AMENDMENT. AN ACT Extending the provisions of the act of August 4, 1852, entitled “An act to
grant the right of way,” etc., to the public lands in the Territories of the United States.
Be it enacted, etc., That the provisions of the act entitled "An act to grant the right of way to all rail and plank roads and macadamized turnpikes passing through the public lands belonging to the United States," approved August 4, 1852 (10 Stat. 28), be and the same is hereby extended to all of the public lands of the United States in the Territories of the United States.
18 STAT. 482, MARCH 3, 1875.
RAILROADS THROUGH PUBLIC LANDS. AN ACT Granting to railroads the right of way through the public lands of the United
States. Be it enacted, etc., That the right of way through the public land of the United States is hereby granted to any railroad company
duly organized under the laws of any State or Territory, except the District of Columbia, or by the Congress of the United States, which shall have filed with the Secretary of the Interior a copy of its articles of incorporation, and due proofs of its organization under the same, to the extent of 100 feet on each side of the central line of said road; also the right to take, from the public lands adjacent to the line of said road, material, earth, stone, and timber necessary for the construction of said railroad; also ground adjacent to such right of way for station buildings, depots, machine shops, side tracks, turnouts, and water stations, not to exceed in amount 20 acres for each station, to the extent of one station for each 10 miles of its road.
A. RAILROAD GRANT.
1. APPROPRIATION AND SELECTION
MINING CLAIMS. 2. MINING CLAIMS SUBJECT TO RIGHT OF WAY.
1. APPROPRIATION AND SELECTION-MINING CLAIMS.
Under this grant a railroad company can not appropriate ground for its station covering land embraced within a prior mineral application.
Montana Central R. Co., In re, 25 L. D. 250.
2. MINING CLAIMS SUBJECT TO RIGHT OF WAY.
Under this act a railroad company acquires an easement only and subject to which a mineral patent may issue in the absence of other objection, but by virtue of which easement the railroad company may rightfully resist an application for mineral patent upon any sufficient ground.
Grand Canyon R. Co. v. Cameron, 35 L. D. 495, p. 496.
26 STAT, 371, p. 391, AUGUST 30, 1890.
CANALS AND DITCHES.
AN ACT Making appropriations for sundry civil expenses of the Government for the
fiscal year ending June 30, 1891, and for other purposes. Be it enacted, etc., No person who shall after the passage of this act enter upon any of the public lands with a view to occupation, entry, or settlement under any of the land laws shall be permitted to acquire title to more than 320 acres in the aggregate, under all of said laws, but this limitation shall not operate to curtail the right of any person who has heretofore made entry or settlement on the public lands, or whose occupation, entry, or settlement is validated by this act: Provided, That in all patents for lands bereafter taken up under any of the land laws of the United States or on entries or claims validated by this act west of the one hundredth meridian it shall be expressed that there is reserved from the lands in said patent described a right of way thereon for ditches or canals constructed by the authority of the United States.
A. RESERVOIR SITES MINERAL LANDS.
See Settlers' relief acts, 26 Stat. 1095, p. 1221.
Mineral lands are not excepted from the reservoir sites provided for by this act, but a reservoir site can not be located on a valid existing mining claim.
Gabathuler, In re, 15 L. D. 418.
26 STAT. 1095, p. 1101, MARCH 3, 1891.
CANALS AND DITCHES.
AN ACT To repeal the timber-culture laws, and for other purposes. Be it enacted, etc.,
Sec. 18. That the right of way through the public lands and reservations of the United States is hereby granted to any canal or ditch company formed for the purpose of irrigation, and duly organized under the laws of any State or Territory, which shall have filed, or may hereafter file, with the Secretary of the Interior a copy of its articles of incorporation, and due proofs of its organization under the same, to the extent of the ground occupied by the water of the reservoir and of the canal and its laterals, and 50 feet on each side of the marginal limits thereof; also the right to take, from the public lands adjacent to the line of the canal or ditch, material, earth, and stone necessary for the construction of such canal or ditch: Provided, That no such right of way shall be so located as to interfere with the proper occupation by the Government of any such reservation, and all maps
of location shall be subject to the approval of the department of the Government having jurisdiction of such reservation, and the privilege herein granted shall not be construed to interfere with the control of water for irrigation and other purposes under authority of the respective States or Territories.
28 STAT. 635, 2 SUPP. R. S. 367, JANUARY 21, 1895.
TRAMROADS, CANALS, AND RESERVOIRS. AN ACT To permit the use of the right of way through public lands for tramroads,
canals, and reservoirs, and for other purposes. Be it enacted, etc., That the Secretary of the Interior be, and hereby is, authorized and empowered, under the general regulations to be fixed by him, to permit the use of right of way through the public lands of the United States, not within the limits of any park, forest, military or Indian reservation, for tramroads, canals or reservoirs to the extent of the ground occupied by the water of the canals and reservoirs and 50 feet on each side of the marginal limits thereof; or 50 feet on each side of the center line of the tramroad, by any citizen or any association of citizens of the United States engaged in the business of mining or quarrying or of cutting timber and manufacturing lumber.
29 STAT. 40, p. 42, MARCH 2, 1896.
FORT SMITH & WESTERN COAL RAILROAD. AN ACT To grant the Fort Smith & Western Coal Railroad Co. a right of way through
the Indian Territory and for other purposes. Be it enacted, etc.,
SEC. 9. That the Fort Smith & Western Coal Railroad Co. shall accept this right of way upon the express condition, binding upon