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any patents except patents for mines located upon the Comstock lode, unless it is made to appear prima facie that the mine or mines have been drained, benefited, or developed by said tunnel.

Sutro Tunnel Co. v. Occidental, etc., Min. Co., 5 C. L. O. 98, p. 100.

Patents issued for the Comstock lode or those in its immediate vicinity contain a clause to the effect that the claim granted shall be subject to the conditions specified in this section, and requiring the grantee to contribute to the tunnel owners for drainage or other benefits derived from such tunnel or its branches, such charges as may be agreed upon.

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

Hearings may be permitted to determine whether any mine on the Comstock lode has been benefited or drained by the Sutro Tunnel.

Brunswick Mine Claimants, In re, 3 C. L. 0. 114.


This act permits a party injuriously affected to appear at any stage of proceedings before patent and call attention to the fact that the record shows that applicant has no right to a patent.

Tiernan v. Salt Lake Min. Co., 1 C. L. 0. 25.
See McMurdy v. Streeter, 1 C. L. O. 34.


34, P.

In construing section 3 the Comstock lode must be that which was known as and called by that name at the date of the passage of the act, and not what was thereafter known or what in the future might prove to be the Comstock lode.

Sutro Tunnel Co., In re, 3 C. L. 0. 36.
Brunswick Mine Claimants, In re, 3 C. L. 0. 114.

To determine what patents should contain the conditions prescribed by this section, it is only necessary to determine what claims had been located on the Comstock lode at the date of the passage of the act.

Sutro Tunnel Co., In re, 3 C. L. 0. 34, 35, 36.
Brunswick Mine Claimants, In re, 3 C. L. 0. 114.


Locators of lode claims affected by the Sutro Tunnel are not required to contribute the annual labor, as this act is not affected by later mining laws.

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

10. WATER IN TUNNEL-RIGHT OF APPROPRIATION. Waters flowing into the Sutro tunnel from the drainage of adjacent lands, pumping from mines into the tunnel, and that discharged after being used in the machinery in connection with mining operations, do not constitute a natural stream of water.

Cardelli v. Comstock Tunnel Co., 26 Nev. 284, pp. 290–293.

The waters flowing into and through the Sutro Tunnel are produced by the capital, labor, and enterprise of the persons or corporations operating the tunnel and developing the mine, and therefore come into the tunnel artificially and make an artificial and temporary stream, and are the property of such persons engaged in the mining enterprise.

Cardelli v. Comstock Tunnel Co., 26 Nev. 284, p. 295.

Waters flowing into and through the Sutro Tunnel are artificially produced and create an artificial and temporary stream and in which the Goverment of the United States has no interest or claim, and such waters are not subject to appropriation by third persons under the laws of the State of Nevada.

Cardelli v. Comstock Tunnel Co., 26 Nev. 284, pp. 294, 295.


Congress did not by this act intend to abolish or do away with the distinction between mineral and agricultural lands or to allow mineral to be classed and disposed of as agricultural, but simply provided that the public survey might be extended over regions that were so clearly not agricultural that they had been prior thereto treated as exclusively mineral, but such tracts as appear to be clearly agricultural may be set apart for disposition as such, while the mineral land should still be reserved for disposition under the mining laws.

Nevada v. Surveyor’s Mineral Return, 1 C. L. 0. 18.


25 STAT. 854, MARCH 2, 1889.


AN ACT To withdraw certain public lands from private entry. Be it enacted, etc., That from and after the passage of this act no public lands of the United States, except those in the State of Missouri, shall be subject to private entry.

SEC. 2. That any person who has not heretofore perfected title to a tract of land of which he has made entry under the homestead law, may make a homestead entry of not exceeding one-quarter section of public land subject to such entry, such previous filing or entry to the contrary notwithstanding; but this right shall not apply to persons who perfect title to lands under the preemption or homestead laws already initiated: Provided, That all preemption settlers upon the public lands whose claims have been initiated prior to the passage of this act may change such entries to homestead entries and proceed to perfect their titles to their respective claims under the homestead law, notwithstanding they may have heretofore had the benefit of such law, but such settlers who perfect title to such claims under the homestead law shall not thereafter be entitled to enter other lands under the preemption or homestead laws of the United States.

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SEC. 5. That any homestead settler who has heretofore entered less than one-quarter section of land may enter other and additional land lying contiguous to the original entry, which shall not, with the land first entered and occupied, exceed in the aggregate 160 acres without proof of residence upon and cultivation of the additional entry; and if final proof of settlement and cultivation has been made for the original entry, when the additional entry is made, then the patent shall issue without furhter proof: Provided, That this section shall not apply to or for the benefit of any person who at the date of making application for entry hereunder does not own and occupy the lands covered by his original entry: And provided, That if the original entry should fail for any reason, prior to patent or should appear to be illegal or fraudulent, the additional entry shall not be permitted, or if having been initiated shall be canceled.





A person who has made and relinquished a homestead entry on one tract can not make a second entry under this statute where there is an adverse by a mineral claimant. Majors v. Rinda, 24 L. D. 277, p. 279.


Where land has once been adjudged agricultural, the burden of proof thereafter is upon the party asserting its character to be mineral.

Majors v. Rinda, 24 L. D. 277, p. 279.

32 STAT. 388, JUNE 17, 1902.


AN ACT Appropriating the receipts from the sale and disposal of public lands in certain States and Territories to the construction of irrigation works for the reclamation of arid lands.

Be it enacted, etc., That all moneys received from the sale and disposal of public lands in Arizona, California, Colorado, Idaho, Kansas, Montana, Nebraska, Nevada, New Mexico, North Dakota, Oklahoma, Oregon, South Dakota, Utah, Washington, and Wyoming, beginning with the fiscal year ending June 30, 1901, including the surplus of fees and commissions in excess of allowances to registers and receivers, and excepting the 5 per centum of the proceeds of the sales of public lands in the above States set aside by law for educational and other purposes, shall be, and the same are hereby, reserved, set aside, and appropriated as a special fund in the Treasury to be known as the "reclamation fund, to be used in the examination and survey for and the construction and maintenance of irrigation works for the storage, diversion, and development of waters for the reclamation of arid and semiarid lands in the said States and Territories, and for the payment of all other expenditures provided for in this act.

SEC. 3. That the Secretary of the Interior shall, before giving the public notice provided for in section 4 of this act, withdraw from public entry the lands required for any irrigation works contemplated under the provisions of this act, and shall restore to public entry any of the lands so withdrawn when, in his judgment, such lands are not required for the purposes of this act; and the Secretary of the Interior is hereby authorized, at or immediately prior to the time of beginning the surveys for any contemplated irrigation works, to withdraw from entry, except under the homestead laws, any public lands, believed to be susceptible of irrigation from said works: Provided, That all lands entered and entries made under the homestead laws within areas so withdrawn during such withdrawal shall be subject to all the provisions, limitations, charges, terms, and conditions of this act.




The order of withdrawal made by this act is sufficient to defeat an application where the applicant had not acquired any vested right and where his final proofs had not been approved or accepted by any officer of the Land Department.

Board of Control, etc., v. Torrence, 32 L. D. 472, p. 474.

A possessory right for a mining claim may be acquired under the mining laws which is a vested right, although the acquisition of title is not contemplated, and the power of withdrawal vested in the Secretary of the Interior under this act can not defeat such a vested right.

Instructions, In re, 32 L. D. 387.
See Board of Control, etc., v. Torrence, 32 L. D. 472.

B. LANDS WITHDRAWN NOT DISPOSED OF AS COAL LANDS. Lands withdrawn from settlement, entry, or other form of disposal under the publicland laws, except homestead laws, in accordance with the provisions of this act are not subject to disposition under the coal-land laws.

Hopkins, In re, 32 L. D. 560.
See Board of Control, etc., v. Torrence, 32 L. D. 472.

36 STAT. 847, JUNE 25, 1910.

AN ACT To authorize the President of the United States to make withdrawals of

public lands in certain cases. Be it enacted, etc., That the President may, at any time, in his discretion, temporarily withdraw from settlement, location, sale, or entry any of the public lands of the United States including the District of Alaska and reserve the same for water-power sites, irrigation, classification of lands, or other public purposes to be specified in the orders of withdrawals, and such withdrawals or reservations shall remain in force until revoked by him or by an act of Congress.

SEC. 2. That all lands withdrawn under the provisions of this act shall at all times be open to exploration, discovery, occupation, and purchase, under the mining laws of the United States, so far as the same apply to minerals other than coal, oil, gas, and phosphates: Provided, That the rights of any person who, at the date of any order of withdrawal heretofore or hereafter made, is a bona fide occupant or claimant of oil or gas bearing lands, and who, at such date, is in diligent prosecution of work leading to discovery of oil or gas, shall not be affected or impaired by such order, so long as such occupant or claimant shall continue in diligent prosecution of said work: And provided further, That this act shall not be construed as a recognition, abridgment, or enlargement of any asserted rights or claims initiated upon any oil or gas bearing lands after any withdrawal of such lands made prior to the passage of this act: And provided further, That there shall be excepted from the force and effect of any withdrawal made under the provisions of this act all lands which are, on the date of such withdrawal, embraced in any lawful homestead or desert-land entry theretofore made, or upon which any valid settlement has been made and is at said date being maintained and perfected pursuant to law; but the terms of this proviso shall not continue to apply to any particular tract of land unless the entryman or settler shall continue to comply with the law under which the entry or settlement was made: And provided further, That hereafter no forest reserve shall be created, nor shall any additions be made to one heretofore created within the limits of the States of Oregon, Washington, Idaho, Montana, Colorado, or Wyoming, except by act of Congress.

Sec. 3. That the Secretary of the Interior shall report all such withdrawals to Congress at the beginning of its next regular session after the date of the withdrawals.

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