| Show Ie decision eyson egson in in th tile united states xanna nand office As the question whether land is mineral or agricultural is ia one of great importance gelow ortance and frequently ari arl arising we give below the opinion of the register and receiver of the sacramento land ollice office in the contested case case of blakely mineral applicant vs johnson agricultural claimant the register tand land and receiver after reciting the record facts proceed as follows the evidence shows that johnson the agricultural claimant settled upon the land in contest in the year A D 1849 1819 and has lived upon it and made it his home ever since rearing upon it a family of children blakely the mineral claimant and his grantors granfors gran tors went into possession of a small part of the disputed premises in september 1867 under a contract with said johnson who was then in possession by the terms of which the possession was to revert to johnson after the expiration of four years and nine months from the day of september 1867 johnson has valuable improvements on the land is a bonafide bona oona dide fide settler and has been since 1849 and filed on the land in time it is insisted by counsel for the mineral claimant that the only question to be decided in this proceeding is whether the land in contest should be treated as mineral or agricultural we will therefore examine that question first the present case differs from most of the cases tried in this office which involves the character of the land As a general rule in that class of cases fuses the land claimed to be agricultural is the common red land of the mountain slopes of the sierra nevadas such land is very valuable for the cultivation of the vine a branch of agriculture yet in its infancy and of fruits of almost almost every vai val variety biety with wit h a little and such careful cultivation as lands in the eastern states receive it would successfully cess fully grow nearly all the grains and vegetables it is generally believed by those best acquainted with the subject that in a few years I 1 he most thrifty farmers of the state will be found on this character of land still such land could not with propriety be called exceedingly rich and fertile it could not be classed with the first quality of agricultural lands the soil is light and exhaustive hau stive crops would soon make necessary pee gee essary it is in the kind of land above des bribed that gold mines are generally found or claimed it overlies over lies gravel hills and ledges of quartz and as the general general estimate of its agricultural value has as been very low and as there is a good deal of such land the fact that it contains gold mines which will pay ordinary days wages by extensive working has been deemed sunni sufficient clent warrant for its destruction by mining processes this rule of decision has perhaps been carried too far in view of a wise consideration of the future but under the law and the decisions such land must be held mineral when it can be mined with any profit whatever the land in contest in this case however differs very materially from the class of land described that portion of it which is claimed to be mineral is rich bottom land buch euch as is seldom found in the sierra nevadas it is natural meadow land with a rich black soll soil several feet in depth such land is very valuable for agricultural purposes in that chat region of country much more valuable than it would be where such land is common it will grow in large quantities almost all kinds of agricultural products at a locality where such products command the highest price evidently therefore this land should not be considered more valuable for mineral than for agricultural purposes unless it appears affirmatively that the washing away of such valuable able abie soil by mining processes will pay a handsome profit but upon a careful examination of the evidence we fail to see that the mining already done on this land has paid the eapen expenses kes ses incurred in work vork working lilg 1119 it the mineral claimant seems to have been sluicing off this rich soil with the vain hope of some time or other making it profitable and yet he has worked out what is evidently the best part of tho the land for mining purposes there is no probability that what remains will pay better than the part already worked he has already sluiced off the centro centre or lowest part of this meadow where the richest deposit of gold would naturally be more clear profit could have been made from the agricultural products of the land annually if it had been carefully farmed than the evidence shows to have been received from mining it tho the uso ubo of it for agricultural purposes would have left the land in its ita original condition a source of continuous profit in the future all of it that has been mined is practically destroyed Atrue A true statement of the question is this thia I 1 if the land were owned in fee simple by a man of good judgment well acquainted quain ted with both mining and farms ing and knowing all at out the eg ea that is shown by the evidence would he preserve it for agriculture or destroy it by mining I 1 prom erom a careful consideration of all the testimony and we may add that the register and receiver have both seen the premises we are of the opinion that the land in contest is agricultural in character within the meaning of the law and should be so treated this view of the case makes it unnecessary to pass upon other questions raised b by counsel it may bewell be well weli enough IKo however wever to add a word as to the construction of the latter clause of section 12 of the act of july ath 1870 which provides that tha nothing in this section contained shall defeat or impair any bona fide preemption pre emption or homestead claim u upon p on a agricultural gri cultural lands or authorize the aie ale saie of the improvements of any bona fide to any purchaser under this provision in our judgment when a bona fide preemptor pre emptor or homestead claimant has settled on land and made valuable improvements long prior to the location of a mining claim thereon as in this present case the owner of the mining claim when he applies for a patent thereto should should be confined to that part of the land that is strictly mineral and held under local customs and should not be allowed to purchase any of the land upon which the settler has valuable and permanent improve ments I 1 our conclusion is that the mineral claimant should not be allowed to purchase any of the land in contest T B MCFARLAND mcfauland McF arland arnand nedis register I 1 ter HART FELLOWS I 1 receiver Rece iyer lyer sacramento union 00 |
