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A person can not make a valid location upon oil lands based upon mere surface indications without an actual discovery where another person is in possession of the same land actually engaged in working and developing the same in the way of drilling for oil under an attempted location of the same.

Nevada Sierra Oil Co. v. Home Oil Co., 98 Fed. 673, p. 679.
Olive Land & Dev. Co. v. Olmstead, 103 Fed. 568, p. 572.
Miller v. Chrisman, 140 Cal. 440, p. 446.

Weed v. Snook, 144 Cal. 439, p. 440.

A pretended location on oil lands under the statute relating to placer mining claims is void where no discovery of oil or other mineral had been made, and where such alleged locators did not continue in the actual possession of any part of the premises, and such occupancy did not prevent others if done peaceably from making locations under the mining laws.

Olive Land & Dev. Co. v. Olmstead, 103 Fed. 568, p. 573.

See Belk v. Meagher, 104 U. S. 279.

Cosmos Exploration Co. v. Gray Eagle Oil Co., 104 Fed. 20, pp. 40, 41.
Horswell v. Ruiz, 67 Cal. 111.
Garthe v. Hart, 73 Cal. 541.
Hopkins v. Noyes, 4 Mont. 550.
McCormick v. Varnes, 2 Utah 355.

d. ASPHALTUM LOCATED AS OIL CLAIM.

While asphaltum varying in its consistency from a liquid, when in a liquid or semiliquid state, may be located under this petroleum or mineral oil statute, yet when it assumes the form of gilsonite and is found in a vein or lode in rock in place it is not subject to location under this amendatory act.

Webb v. American Asphaltum Min. Co., 157 Fed. 203, p. 206.
See Duffield v. San Francisco Chemical Co., 198 Fed. 942.

San Francisco Chemical Co. v. Duffield, 201 Fed. 830.
Duffield v. San Francisco Chemical Co., 205 Fed. 480.

A deposit of asphaltum in a lode or vein in rock in place was locatable by means of a lode mining claim and was not subject to location by a placer claim under either the act of 1866 or the act of 1872 at the time of the adoption of this amendatory act, and in 1896 the Secretary of the Interior decided that lands valuable for petroleum could not be entered and patented under the placer mining claim section, and the passage of this amendatory act following immediately such decision indicates that Congress did not intend to thereby change the prescribed method for the entry of veins of asphaltum in rock in place, but that the only purpose of the amendatory act was to restore the rule and practice regarding petroleum and other mineral oils which were not found in veins or lodes which prevailed before the decision of the Secretary of the Interior.

Webb v. American Asphaltum Min. Co., 157 Fed. 203, p. 207.
See Rogers, In re, 4 L. D. 284.

Piru Oil Co., In re, 16 L. D. 117.
Union Oil Co., In re, 23 L. D. 222.

Nonmetalliferous deposits, such as asphaltum, found in lodes or veins in rock in place can not be entered under this act.

Harry Lode Min. Claim, In re, 41 L. D. 403, p. 408.
See Utah Onyx Dev. Co., In re, 38 L. D. 504.

e. EXISTING LOCATIONS APPROVED.

This statute recognizes, approves, and confirms the location of oil lands made prior to the time of its enactment.

Cates v. Producers & Consumers Oil Co., 96 Fed. 7, p. 8.

f. PRIORITY OF LOCATION-PROTECTION.

The locator of an oil location is protected in his possession if he diligently prosecutes the digging of wells, but he must mark the boundaries of his location and post and record his notice as required, but even then he acquires no vested right as against the United States.

McLemore v. Express Oil Co., 158 Cal. 559, p. 562.

An attempted mineral location under the placer laws of lands supposed to contain oil, but where no discovery has been made, will not be effective as against a homestead entry, as no vested right is initiated prior to the discovery of oil, and while a mining locator who is actually in possession of the land and diligently prosecuting his efforts to make a discovery of oil will be protected from any secret or fraudulent entry by another, yet such diligent prosecution of the work does not mean the mere doing of assessment work or an attempt to hold the lands by means of a cabin, or unused appliances, or the construction of a reservoir and sump hole, but it means diligent, continuous prosecuting of the work with the expenditure of whatever money may be necessary to the discovery of oil.

Hirshfeld v. Chrisman, 40 L. D. 112, p. 114.
See McLemore v. Express Oil Co., 158 Cal. 559.

g. FIRST LOCATOR NOT A DISCOVERER-KNOWLEDGE NECESSARY.

A locator of a mining claim need not necessarily be the first discoverer of a vein or lode, but if he knows at the time of making his location that there had been a discovery within the limit of his location he may base his location thereon.

McMillen v. Ferrum Min. Co., 32 Colo. 38, p. 43.

Nevada Sierra Oil Co. v. Home Oil Co., 98 Fed. 673.

See Conway v. Hart, 129 Cal. 480.

Wenner v. McNulty, 7 Mont. 30.
O'Donnell v. Glenn, 8 Mont. 248.
Hayes v. Lavagnino, 17 Utah, 185.

While it is not necessary that a locator should be the first discoverer of mineral upon land in order that the prior discovery by another will inure to his benefit, yet it must have been known, adopted, and claimed by him.

Bay v. Oklahoma Southern Gas, etc., Min. Co., 13 Okla. 425, p. 437.
See Olive Land & Dev. Co., 103 Fed. 568.

h. ACREAGE-ONE DISCOVERY.

A placer claim is limited to 20 acres to each individual locator, and 160 acres is the aggregate that may be located by an association of persons, but one discovery is sufficient for the entire claim even if it consists of more than 20 acres.

Whiting v. Straup, 17 Wyo. 1, p. 20.

3. CONTEST WITH HOMESTEAD CLAIMANT.

A mineral claimant who has not made a valid location prior to a homestead entry must contest the adverse homestead entry and secure its cancellation, and until this is done he can not jointly occupy the land with the homesteader, as there can not be two valid entries on the same land at the same time, nor can there be a valid mineral location and a valid homestead entry.

Bay v. Oklahoma Southern Gas, etc., Min. Co., 13 Okla. 425, p. 435.

This act does not authorize or justify a person seeking to locate an oil claim to enter upon land held under an agricultural entry, for the purpose of exploiting such land for the purpose of testing its mineral value.

McLemore v. Express Oil Co., 158 Cal. 559, p. 566.

4. HEARING TO DETERMINE CHARACTER OF LAND.

The department may order a hearing to determine whether lands in controversy were oil lands and were known to be such at the time the proof of publication and posting of notice were completed, this being the time when the rights of the applicant vested.

Hirshfeld v. Chrisman, 40 L. D. 112, p. 116.
See Harkrader v. Goldstein, 31 L. D. 87, p. 94.

32 STAT. 825, FEBRUARY 12, 1903.

OIL-MINING CLAIMS-ASSESSMENT WORK.

AN ACT Defining what shall constitute and providing for assessments on oil-mining claims.

Be it enacted, etc., That where oil lands are located under the provisions of sections 2329-2333, Revised Statutes of the United States, as placer mining claims, the annual assessment labor upon such claims may be done upon any one of a group of claims lying contiguous and owned by the same person or corporation, not exceeding five claims in all: Provided, That said labor will tend to development or to determine the oil-bearing character of such contiguous claims.

36 STAT. 1015, MARCH 2, 1911.

OIL AND GAS LANDS-LOCATORS PROTECTED.

AN ACT To protect good faith locators of oil and gas lands.

Be it enacted, etc., That in no case shall patent be denied to or for any lands heretofore located or claimed under the mining laws of the United States containing petroleum, mineral oil, or gas solely because of any transfer or assignment thereof or of any interest or interests therein by the original locator or locators, or any of them, to any qualified persons or person, or corporation, prior to discovery of oil or gas therein, but if such claim is in all other respects valid and regular, patent therefor not exceeding 160 acres in any one claim shall issue to the holder or holders thereof, as in other cases: Provided, however, That such lands were not at the time of inception of development on or under such claim withdrawn from mineral entry.

See sec. 2329 R. S., p. 507.

A. OIL AND GAS LANDS.

1. DEFECTIVE TITLE CURED AND TRANSFERS PROTECTED.

This act was designed to cure defective titles to oil or gas land claimed where transfers had been made prior to discovery; accordingly the act can not apply where no work was being prosecuted which led to the discovery of oil and where there was no inception of development work on the claim at the date of departmental withdrawal, September 27, 1909.

Lowell, In re, 40 L. D. 303,
P. 305.

Under this act patent is not to be denied for lands located under the mining laws containing petroleum or gas because of any transfer thereof, provided such lands were not at the time of the inception of the claim withdrawn from mineral entry. Graham, In re, 40 L. D. 128, p. 129.

38 STAT. 708, AUGUST 25, 1914 (PUBLIC-NO. 187.-63D CONGRESS). OIL AND GAS LANDS-LOCATORS PROTECTED-AMENDMENT. AN ACT To amend an Act entitled "An act to protect the locators in good faith of oil and gas lands who shall have effected an actual discovery of oil or gas on the public lands of the United States, or their successors in interest," approved March 2, 1911.

Be it enacted, etc., That an act entitled "An act to protect the locators in good faith of oil and gas lands who shall have effected an actual discovery of oil or gas on the public lands of the United States, or their successors in interest," approved March 2, 1911, be amended by adding thereto the following section:

"SEC. 2. That where applications for patents have been or may hereafter be offered for any oil or gas land included in an order of withdrawal upon which oil or gas has heretofore been discovered, or is being produced, or upon which drilling operations were in actual progress on October 3, 1910, and oil or gas is thereafter discovered thereon, and where there has been no final determination by the Secretary of the Interior upon such applications for patent, said Secretary, in his discretion, may enter into agreements, under such conditions as he may prescribe with such applicants for patents in possession of such land or any portions thereof, relative to the disposition of the oil or gas produced therefrom or the proceeds thereof, pending final determination of the title thereto by the Secretary of the Interior, or such other disposition of the same as may be authorized by law. Any money which may accrue to the United States under the provisions of this act from lands within the Naval petroleum reserves shall be set aside for the needs of the Navy and deposited in the Treasury to the credit of a fund to be known as the Navy petroleum fund, which fund shall be applied to the needs of the Navy as Congress may from time to time direct, by appropriation or otherwise."

37 STAT. 496, AUGUST 24, 1912.

AGRICULTURAL ENTRIES-OIL AND GAS RESERVED.

AN ACT To provide for agricultural entries on oil and gas lands.

Be it enacted, etc., That from and after the passage of this act unreserved public lands of the United States in the State of Utah, which have been withdrawn or classified as oil lands, or are valuable for oil, shall be subject to appropriate entry under the homestead laws by actual settlers only, the desert-land law, to selection by the State of Utah under grants made by Congress and under section 4 of the act approved August 18, 1894 (28 Stat. 372), known as the Carey Act, and to withdrawal under the act approved June 17, 1902 (32 Stat. 388), known as the reclamation act, and to disposition in the discretion of the Secretary of the Interior under the law providing for the sale of isolated or disconnected tracts of public lands, whenever such entry, selection, or withdrawal shall be made with a view of obtaining or passing title, with a reservation to the United States of the oil and gas in such lands and of the right to prospect for, mine, and remove the same. But no desert entry made under the provisions of this act shall contain more than 160 acres: Provided, That those who have initiated nonmineral entries, selections, or locations in good faith, prior to the passage of this act, on lands withdrawn or

56974°-Bull. 94, pt 2-15-15

classified as oil lands, may perfect the same under the provisions of the laws under which said entries were made, but shall receive the limited patent provided for in this act.

SEC. 2. That any person desiring to make entry under the homestead laws or the desert-land law, and the State of Utah desiring to make selection under section 4 of the act of August 18, 1894, known as the Carey Act, or under grants made by Congress, and the Secretary of the Interior in withdrawing under the reclamation act lands classified as oil lands, or valuable for oil, with a view of securing or passing title to the same in accordance with the provisions of said acts, shall state in the application for entry, selection, or notice of withdrawal that the same is made in accordance with and subject to the provisions and reservations of this act.

SEC. 3. That upon satisfactory proof of full compliance with the provisions of the laws under which entry is made and of this act the entryman shall be entitled to a patent to the land entered by him, which patent shall contain a reservation to the United States of all the oil and gas in the lands so patented, together with the right to prospect for, mine, and remove the same upon rendering compensation to the patentee for all damages that may be caused by prospecting for and removing such oil or gas. The reserved oil and gas deposits in such lands shall be disposed of only as shall be hereafter expressly directed by law.

37 STAT. 687, FEBRUARY 27, 1913.

OIL AND PHOSPHATE LANDS-SELECTION BY IDAHO.

AN ACT To provide for selection by the State of Idaho of phosphate and oil lands.

Be it enacted, etc., That from and after the passage of this act unreserved public lands of the United States in the State of Idaho which have been withdrawn or classified as phosphate or oil lands, or are valuable for phosphates or oil, shall, if otherwise available under existing law, be subject to selection by the State of Idaho under indemnity and other land grants made to it by Congress whenever such selections shall be made with a view of obtaining or passing title, with a reservation to the United States of the phosphates and oil in such lands, and of the right to prospect for, mine, and remove the same.

SEC. 2. That the State of Idaho, when applying to select lands classified as phosphate or oil lands, or valuable for phosphates or oil, with a view to securing or passing title to the same in accordance with the provisions of the indemnity and other granting acts, shall state in the application for selection that same is made in accordance with and subject to the provisions and reservations of this act.

SEC. 3. That upon satisfactory proof of full compliance with the provisions of the laws under which selection is made and this act, the State shall, upon approval of the selection by the Secretary of the Interior, be entitled to have the lands certified to it, with a reservation to the United States of all the phosphates and oil in the land so certified, together with the right in the United States, or persons authorized by it, to prospect for, mine, and remove the same; but before any person not acting for the United States shall be entitled to enter upon the lands certified for the purpose of prospecting for

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