Show LAND commissioner CARTERS DECISION commissioner carter of the land department at washington has sent to the register of the land office in this city his opinion on the land contest dispute in regard to the entries on section 16 township I 1 south range I 1 east claiming the tracts filed on to be mineral lande landa because of clay deposits thereon the decision to is adverse to the claimants clai mante and is as follows fellows department OF THE INTERIOR GENERAL LAND OFFICE washington D C dec 17 1891 contest no united states and utah territory vs john C kennelly mineral applicant involving application for patent for the cecelia agnes and helen placer claims comprising the NJ N and set ae of section 16 township I 1 south range 1 east salt lake meridian register and receiver salt lake paty utah gentlemen on may john C kennelly offered to tile file a mineral application fur for patent f fir r the abo above ve ned named placer the same game to be val valuable liable for their de deposits of brick and potters clay on june 12 1890 your office rejected the application for the reason that the land is not mineral in character and not subject to entry under the placer mining law prom from this action the mineral claimant appealed to this office upon consideration of said appeal this office by letter of october directed that you cause a hearing to be held to determine whether each legal subdivision of the ten acres of the th claimed land contains such valuable deposits de of mineral as to bridgitt brin bring gitt ier within the lass laas of lands subject to mineral entry 02 directing at the same time that all parties including the territorial authorities the land bei being rig on a school section be notified ther therbor bof the hearing was set for april 8 1891 and continued for several days the mineral claimant being represented by bird lowe the territory by J 8 boreman superintendent of schools assisted by parks thompson before the testimony was taken the counsel for the territorial authorities author tied moved to dismiss the case on the ground and for the reason that there was no reservation or exception of min eral era lands in the section of organic net act which reserved sections 16 and 36 for school purposes in utah territory nor has haa there in any of the states of the united states with respect to the reservation of such sections to the ter per of utah been any exceptions or reservations of any mineral lands or minerals which might be contained therein in fact that this reservation ani amounts to a grant and vests title in the territory and that such being the eaf eafe case e an application to patent any por tion of said sections as mi mineral lands should be dismissed you overruled this motion whereupon exception was noted in their argument opposing the appeal of the mineral claimant the counsel for the territory request a decision by this office as to the correctness of your said ruling refusing to diar niss the ewe case it being alleged in the argument that it appears of record that other placer locations were made by other persons than the mineral elaime ant in this case concerning the as same land in dispute ani that it is a w well M known fact that nearly every school section in salt lake county as well as an in other parts of the territory are covered with so called placer locations made by land speculators in the hope of acquiring title to valuable lands to which there is no other way at present of acquiring title while it is not necessary for the purpose of reaching a decision in this case topas the question thus presented awill I 1 will nevertheless quote the following from the decision of this office in the case of coal entry no 68 58 of henry wood capos copos Co pos li L 0 vol X p which is still adhered to viz since then it appears settled that it was never the intention of congress to grant to a state or territory any mineral lands for school purposes it follow fla parti that it cannot be pres presumed tamed to haye have I 1 been its intention to reserve aay any par tion of them to be applied io in future to such purposes ur oses 11 in the same decision quoting I 1 from mm the decision in case of consolidated mining company 0 9 lu in relation to public lands to the state of california by the act of march 3 1853 for school purposes it was said that it was not intended to cover mineral lands but such lands were excluded from the grant as they were from all actions by the settled policy polac of the government see also 6 JL D p 71 thomas Eeb atean n receiver your ruling denying the motion to dismiss the case acme is therefore approved the testimony taken at the bearing is very exhaustive and touches on on the part of the mineral claimant every ten acre subdivision of the entire tract of acres it is in evidence that a shaft or excavation or several of them have been unk sunk on each of said sub bub divisions and that a substance claimed to be pottery claland cla yand valuable as such was disclosed in each it is endeavored to be shown that this material or substance subjects the land to mineral application for patent and entry and to sustain this view the mineral claimant produces benjamin and william blake and isaiah faulhner professional potters who as witnesses submit specimens of ware made by them from this clay and who state that the clay body in the bank to is worth 25 cents per load or cubic yard it Is ia claimed accordingly that at this valuation clay bed having an average width of five fire feet the land to la worth 2016 per acre for mineral purposes the clay bed is further claimed to be valuable for the production of the metal aluminum it having been shown by different analyses by chemists and assayers assa jers to contain from 20 to 28 per cent aluminum being equivalent to from 9 to 18 or 20 per cent of the metal aluminum it la 19 41 also testified that active work was commenced by the mineral minera claimants ott on november 1 1889 and has haa continued ever since and that the mineral claimants have improved the same by putting on it ft a lumber house stable well thirty feet deep and timbered two clay mills an iron force pump a road brick tools etc the testimony 0 on u the part of the mineral claimants does doea not show however that much has been produced for market or general use A I 1 ux the way of pottery from the claim nor that any attempt has been made to ex tract aluminum for marketable or commercial purposes nor that any of the clay has been sold at 25 cents per cubic yard jard or at any other price in opposition to the mineral claim clabin ants showing the territory put upon the stand a number of witnesses including james and benson eardley professional potters who like the blakes learned the business in berb derby shire englund england and who whoa apparently apparently possessed the same advantages for acquiring a knowledge of I 1 it and whose information on the subject must be considered equally trustworthy their testimony is to the effect that thereto there is no special value in the clays in the tract in controversy overes that the warel ware made from it is inferior in quality and practically unmarketable and that in several places in iiii the vicinity much better clay may be found of the witnesses teed ty fy that they hare fumed farmed poetto portions of the land to wit david P anderson andersen 29 acres in the n w t lorenzo S dark clark 26 acres in the n w i james briggs in the n w t J robert thompson 15 acres in the in e f t and angelo bertignoli Bert ignoll 17 acres in the n D e i 1 henry standish land in the southeast one quarter J E edwards 18 acres in the northeast one quarter charles gougeon with other parties acres in the southeast que one quarter and james watson five acres in the southeast one quarter and that they have been successful in raising lucern thereon sufficient to pay each well wel the crops averaging from aj 1 to aj 2 tons per acre selling from 7 to 8 per ton the smaller crop of I 1 i tons to the acre bel being ng produced without artificial irrigation the other with it these person course hold the lands by no other title than that of occupancy expecting however preference rights of purchase when the territory shall have become a state and the reservation a grant bertignoli Bert ignoll also testifies that on the laud land he has cultivated in the northeast quarter he has a garden in which he be grows cherries apples pears plums apricots strawberries and grapes from which he realized upwards upward of 1600 1500 during the preceding year there is no doubt in my mind whatever on the question of the comparative value of the land from the testimony adduced As mineral land jand even assuming land valuable for potter days could be considered mineral it has merely a theoretical or prospective value necessarily dependent upon two things first that it contains a superior deposit and this has not been proven le and second that it could and would be used in such quantities to justify extraction of it sufficient to make it valuable to work exclusively for pottery purposes it is 18 hardly within the bounds of reason to alai claim m that every cubic yard of clay in this acres has an ascertained practical and present value of 25 cents and loan can be disposed of at emch a price as a paying business and yet it is on just such reasoning that the mineral claimants hold that the land is worth 2016 per r acre it has been held moreover 6 L D p that a deposit posit of brick clay will not warrant the classification of land as mineral or entry thereof as a placer claim the notter otters s clay in this tract I 1 am confident does not differ very essentially from brick clay and aad therefore I 1 am Inell inclined neb to sustain the letter of my gede predecessor cessor to your office of march 12 L 1891 91 in which he expressed his opinion that lands containing a deposit of ordinary potters clay is not subject to entry under the mineral land law jaw the value of the clay for the metal aluminum ought not to be considered at all this metal exists in all forms of clay and its percentage in ordinary clays clay found everywhere is nearly if not quite equal to what is shown by the analysis made of the specimens submitted from this traut tract see richards aluminum because of its abundance generally in all lands con clay or of a clayey nature aoh such lands cannot be hold held to be subject to dispo disposal under the united states mining milling laws it would work confusion if so hold held lor it to ir estimated that jaite in its various compounds alu terms about one twell twelfth th of the crust of tae earth 11 1 1 century dictionary the true key to the controversy it is in reasonable to infer is the proximity ot of the land to the city of salt lake dare and its consequent value for building and town purposes purpose this section 16 as well as other sections in the neighborhood appear to have been surveyed and subdivided into building lots and the testimony of several real estate agents goes to show that with legal title the lands in the section would be worth from to 1000 per acre I 1 decide therefore from all the evidence that the land in controversy is non mineral in character and subject to the general reservation in the organic act of utah for the benefit of schools thus approving your decision and your action in rejecting the mineral application give due notice hereof to all parties I 1 in interest and make prompt return very respectfully THOS H CARTER Commiss commissioner ioDer |